Legislature(1995 - 1996)
04/12/1995 01:17 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 12, 1995
1:17 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Al Vezey
Representative Bettye Davis
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
* HB 255: "An Act creating the crime of negligent vehicular
homicide."
HEARD AND HELD
HJR 30: Relating to an amendment to the Constitution of the
United States prohibiting federal courts from ordering
a state or a political subdivision of a state to
increase or impose taxes."
PASSED OUT OF COMMITTEE
HB 2: "An Act allowing courts to require certain offenders as
a special condition of probation to complete a boot camp
program provided by the Department of Corrections;
making prisoners who complete the boot camp program
eligible for discretionary parole; providing for
incarceration of certain nonviolent offenders in boot
camps operated by the Department of Corrections;
allowing the Department of Corrections to contract with
a person for an alternative boot camp program; creating
the Boot Camp Advisory Board in the Department of
Corrections; and providing for an effective date."
PASSED OUT OF COMMITTEE
HB 274: "An Act relating to the state's tuberculosis control
program; and providing for an effective date."
PASSED OUT OF COMMITTEE
(* First public hearing)
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
State Capitol Building, Room 208
Juneau, AK 99801-1182
Telephone: (907) 465-2689
POSITION STATEMENT: Sponsor HB 255
MARK CAMPBELL
P.O. Box 3075
Palmer, AK 99645
Telephone: (907) 745-2256
POSITION STATEMENT: Testified in support of HB 255
SCOTT RICHARDSON
P.O. Box 2025
Palmer, AK 99645
Telephone: (907) 745-2256
POSITION STATEMENT: Testified in support of HB 255
VALERIE LEMON
P.O. Box 870441
Wasilla, AK 99687
Telephone: (907) 373-1441
POSITION STATEMENT: Testified in support of HB 255
FLO LEMON
P.O. Box 870441
Wasilla, AK 99687
Telephone: (907) 373-1441
POSITION STATEMENT: Testified in support of HB 255
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified against HB 255
REPRESENTATIVE ED WILLIS
Alaska State Legislature
State Capitol Building, Room 400
Juneau, AK 99801-1182
Telephone: (907) 465-2199
POSITION STATEMENT: Bill Sponsor HB 2
JERRY SHRINER, Special Assistant
to the Commissioner
Department of Corrections
240 Main Street, Suite 700
Juneau, AK 99801
Telephone: (907) 465-4640
POSITION STATEMENT: Spoke in favor of HB 2
DR. PETER NAKAMURA, Director
Division of Public Health
Department of Health and Social Services
P.O. Box 110610
Juneau, AK 99811-0610
Telephone: (907) 465-3090
POSITION STATEMENT: Spoke in favor of House Bill 274
KRISTEN BOMENGEN, Assistant Attorney General
Attorney General's Office
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Spoke in favor of House Bill 274
PREVIOUS ACTION
BILL: HB 255
SHORT TITLE: NEGLIGENT HOMICIDE BY AUTOMOBILE
SPONSOR(S): REPRESENTATIVE(S) OGAN,Kohring,Bunde
JRN-DATE JRN-PG ACTION
03/15/95 742 (H) READ THE FIRST TIME - REFERRAL(S)
03/15/95 742 (H) JUDICIARY, FINANCE
04/05/95 1039 (H) COSPONSOR(S): KOHRING, BUNDE
04/12/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HJR 30
SHORT TITLE: AMEND US CONSTIT. TO LIMIT FED. COURTS
SPONSOR(S): REPRESENTATIVE(S) VEZEY,Toohey
JRN-DATE JRN-PG ACTION
02/08/95 271 (H) READ THE FIRST TIME - REFERRAL(S)
02/08/95 271 (H) WTR, JUD
03/21/95 (H) WTR AT 05:00 PM CAPITOL 203
03/21/95 (H) MINUTE(WTR)
03/22/95 848 (H) WTR RPT 3DP 1NR
03/22/95 848 (H) DP: MULDER, PHILLIPS, BARNES
03/22/95 848 (H) NR: KUBINA
03/22/95 848 (H) ZERO FISCAL NOTE (H WTR)
04/12/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 2
SHORT TITLE: BOOT CAMP FOR NONVIOLENT OFFENDERS
SPONSOR(S): REPRESENTATIVE(S) WILLIS,Rokeberg
JRN-DATE JRN-PG ACTION
01/06/95 20 (H) PREFILE RELEASED
01/16/95 21 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 21 (H) STA, JUD, FIN
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
03/14/95 (H) MINUTE(STA)
03/21/95 (H) STA AT 08:00 AM CAPITOL 102
03/21/95 (H) MINUTE(STA)
03/23/95 (H) STA AT 08:00 AM CAPITOL 102
03/23/95 (H) MINUTE(STA)
03/24/95 886 (H) STA RPT CS(STA) NEW TITLE 2DP 5NR
03/24/95 887 (H) DP: ROBINSON, WILLIS
03/24/95 887 (H) NR: JAMES,PORTER,GREEN,IVAN,OGAN
03/24/95 887 (H) FISCAL NOTE (CORR)
03/24/95 887 (H) 4 ZERO FNS (LAW,ADM,COURT,DPS)
04/12/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 274
SHORT TITLE: TUBERCULOSIS CONTROL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/22/95 852 (H) READ THE FIRST TIME - REFERRAL(S)
03/22/95 853 (H) HES, JUDICIARY
03/22/95 853 (H) 4 ZERO FNS (2-ADM, LAW, DHSS)
3/22/95
03/22/95 853 (H) GOVERNOR'S TRANSMITTAL LETTER
03/28/95 (H) HES AT 02:00 PM CAPITOL 106
03/28/95 (H) MINUTE(HES)
03/29/95 977 (H) HES RPT 3DP 1NR 2AM
03/29/95 977 (H) DP: G.DAVIS, TOOHEY, VEZEY
03/29/95 977 (H) NR: BRICE
03/29/95 977 (H) AM: ROKEBERG, ROBINSON
03/29/95 977 (H) 4 ZERO FNS (2-ADM, LAW, DHSS)
3/22/95
04/12/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-45, SIDE A
Number 000
CHAIRMAN BRIAN PORTER called the House Judiciary Standing Committee
to order at 1:17 p.m. on Wednesday, April 12, 1995. Members
present were Representative Con Bunde, Representative Al Vezey and
Chairman Brian Porter. The remaining committee members, Vice Chair
Joe Green, Representative Cynthia Toohey, Representative David
Finkelstein, and Representative Bettye Davis arrived to provide a
quorum. Chairman Porter stated there were four bills for
consideration on this date. He asked Representative Ogan to
introduce his bill, HB 255.
HB 255 - NEGLIGENT HOMICIDE BY AUTOMOBILE
REPRESENTATIVE SCOTT OGAN, sponsor of HB 255, stated this bill is
an act that creates a crime of negligent vehicular homicide. The
bill is designed to fill an existing gap in Alaska's criminal code.
Representative Ogan said, "Unfortunately, it has taken the several
lives to illustrate the need for this legislation."
REPRESENTATIVE OGAN said that under current Alaska law a person who
commits a traffic infraction, such as passing in a no-passing zone,
or running a red light, and is not under the influence of some
drug, alcohol, or isn't acting in an extremely negligent way like
running red lights at a high rate of speed...at this point, if they
run a red light and kill someone, they get a traffic ticket.
Representative Ogan said he didn't feel this was appropriate. He
said his dad told him, when he was growing up, that when he got
behind the wheel of a car it was a 2-ton missile. He stated that
a car is a potential deadly weapon and when there is a disregard
for traffic laws, and when it results in a death, he feels that
something more than a $50 fine, or a minimal slap on the wrist, is
more appropriate. Representative Ogan asked for any questions the
committee might have.
CHAIRMAN PORTER stated there were two people on teleconference and
three people in the audience to testify. He asked if there were
any questions of the sponsor.
REPRESENTATIVE CON BUNDE noted he did not find a fiscal note and
asked if that was an oversight.
Number 085
REPRESENTATIVE OGAN answered that there was an assumption it came
from another committee, but a fiscal note was requested and he
anticipates receiving it shortly.
CHAIRMAN PORTER asked if there was someone from the Department of
Law who could shed some light on that.
CHAIRMAN PORTER asked for Mr. Mark Campbell, on teleconference in
Mat-Su, to testify.
MARK CAMPBELL via teleconference in Mat-Su, testified in support of
this bill and asked committee members to support it as well. He
stated his reason for supporting HB 255 is through personal
experience of recently losing his 19-year-old son through a
negligent driver. Mr. Campbell said his son's friend and four
other teens were injured. He stated that it was his experience
that just a simple traffic violation, a maximum of a $300 fine, and
ten minutes in traffic court sends an entirely wrong message to the
community and to other teens. Mr. Campbell said, "In this case the
offender was an 18-year-old driver." He said he and his wife
regret there is not more in state law that can be done.
MR. CAMPBELL said in working with the District Attorney (DA) and
the troopers, he and his wife were surprised there is nothing
beyond just traffic court. He related he and his wife are not
suing the young man. They don't desire that his life should be
ruined. It was negligence on his part and they wish that he had
acted more responsibly, but that was not the case. Mr. Campbell
just regretted there was not at least an opportunity for his
license to be taken. He said he saw the same young man just a
month later as the young man sped through an intersection, which
caught he and his wife's attention. He was surprised to see the
same young man and he got a hold of him and spoke to him about it,
and spoke to his parents about it. He said he would just like to
see that there is more (indisc.) or a law which gives more
incentive in a situation such as this. Mr. Campbell said the
person who had caused the accident was just graduating and he
thinks it sends an entirely wrong message to all high school kids
that there are no real consequences for that type of negligence.
Mr. Campbell stated, "In our case, it was basically a $300 fine and
ten minutes in traffic court, and that's for two deaths and four
injuries." He went on to say he would like to see new legislation
that would do more and offer more in this case.
Number 200
REPRESENTATIVE AL VEZEY asked Mr. Campbell why he thinks the state
should take action when he declined to sue this individual in
court. He said it seems a little contradictory there.
MR. CAMPBELL replied he simply thought there should be a loss of
license for a period of time, perhaps just to put it in a more
serious situation, to face up to the responsibility of what can be
done. He said, "I understand there is civil action you can take.
The reality of that is simply that you would spend your time and
energies in a situation where, when you lose your 19-year-old son,
or, in our case, I'm not limiting it to that. I'm sure the pain is
the same for anybody who has lost a loved one due to an accident
like this. Their pain would be the same." Mr. Campbell went on to
say, "Pursuing a civil matter, you don't have the opportunity to
put it to rest, to lay it aside." He stated he and his wife did
not want to live their lives hounding and pursuing maybe a civil
judgment. He pointed out you would have to track this young man
for the rest of his life, and they chose not to do that. He said
they did not want their lives to become embittered or unresolved in
this matter. They did not want his life to be that way as well;
however, he thinks there is still too little that can be done.
Number 245
REPRESENTATIVE VEZEY said he believes Mr. Campbell's testimony was
that he thought it was be appropriate in cases of this nature, if
an individual were to lose their license. He asked if Mr. Campbell
had not testified to that effect.
MR. CAMPBELL answered, "I certainly think there should be something
that, when you cause a death, and it is negligence on your part, I
think that should be an absolute first thing that happens." He
said in their situation, they certainly saw the message being sent
to so many other teenagers there is no action being taken.
REPRESENTATIVE VEZEY said the reason he asked that question is
there is not a provision in this bill for revocation of license.
There is no change in that regard. He pointed out this bill
provides for making negligent vehicle homicide a misdemeanor, which
carries jail time, but does not carry the revocation of driving
license privileges.
MR. CAMPBELL replied, "Again, if the judge had a little bit more
leeway to do something, and if the judge chose to, instead of
imposing jail term, it could be moderated with a driver's license
revocation. In fact, a jail term might be needed in some
situations." He believes it gives greater recourse than a simple
traffic violation would. Mr. Campbell related they had to track
down the action that was being taken, and finally found it was in
traffic court. He said he and Mrs. Campbell requested to speak at
the time because nothing was being done at all. He said he was
able to talk to the judge and request at least the $300 fine, or
perhaps community service in some area that would bring it home.
He stated he suggested ambulance service or that type of thing.
The judge gave that, but it was the maximum he was able to do. But
that was only traffic court.
CHAIRMAN PORTER said they were checking right now to see whether
this bill would give the court the option of suspending. He saw
the Department of Law people shaking their heads and said the
committee might want to make an addition to this bill. Chairman
Porter asked for Scott Richardson to testify via teleconference.
Number 300
SCOTT RICHARDSON, testifying via teleconference from Mat-Su, stated
his son was also killed in the same accident as Mr. Campbell's son.
The boys were good friends. He said when they found out the
maximum penalty for reckless or negligent driving which resulted in
a death was a traffic ticket and a $300 fine, he and his wife were
dismayed. Mr. Richardson related that in talking to the DA, and
eventually, the traffic court judge, they said in most states,
there is a misdemeanor charge for this kind of thing. He said
there are three levels: A traffic ticket; a misdemeanor; and a
felony. In Alaska there is only a traffic ticket and a felony, no
middle ground. He went on to say, "It's extremely difficult to
have a felony charge, or vehicular homicide situation. You have to
have the person be drunk, or on drugs, or some extreme kind of
thing which, from the DA's example he shared with them, there were
a number of situations where the DA felt it should be convicted as
a felony, but there just wasn't enough evidence." Mr. Richardson
said it was very difficult to get that felony, and he believes
there should be a medium punishment because the punishment should
fit the crime. He said, "It was a dangerous and snowy day and his
recklessness resulted in the death of our son. What does that say
to society? We just give him a traffic ticket and a $300 fine.
We're just sending the wrong message." Mr. Richardson said the
judge and the DA both agreed. The judge said a misdemeanor or
felony charge would give a little more room to decide what he
thought was appropriate in these situations. Mr. Richardson feels
there is a gap in Alaska law that needs to be filled.
Number 370
REPRESENTATIVE BUNDE thanked both gentlemen for testifying, knowing
it was very difficult for them, and hopefully, some progress in
this area of legislation will add to the healing process.
Number 375
CHAIRMAN PORTER added that he had a requirement in his life to deal
with these kinds of situations on a professional level, and for
what it's worth, the approach expressed by Mr. Campbell, in terms
of trying to bring the matter to closure, is the best attitude to
take and he commends Mr. Campbell for having the ability to take
it. Chairman Porter then asked Valerie Lemon to speak.
Number 390
VALERIE LEMON, P.O. Box 870441, Wasilla, Alaska, testified in
Juneau. She stated she was involved in a car accident in November
1991 and her sister, Lori, was killed and Valerie was badly injured
and they didn't know if she would live. She said, "My brother was
driving the car and he got a skull fracture. The lady who ran the
red light hit Lori in the side of the car where she was sitting,
and I was in the back." She related she used to be an excellent
figure skater when she was 8-years-old, and now she can't do it
because of the car accident and she is upset that all the lady got
was a $50 ticket. Miss Lemon said, "This is Lorian the teacher of
this, the day that she died, called `I remember Lorian.' Her long
hair. Her beautiful smile. Her wonderful laugh. Her (indisc.).
Her graceful skating. Her ability to make me feel as good as a
person and a teacher. I will never forget my last memory of Lorian
picking up all the flowers her father sent for her birthday, that
shy smile as she opened up her card, not knowing who they were
from, and then the widest, most beautiful smile when she knew.
It's the one memory I will always cherish." Miss Lemon showed a
picture of Lorian that her dad had taken.
CHAIRMAN PORTER thanked Miss Lemon and complimented her on her
testimony. He then called on Valerie's mother, Mrs. Lemon.
Number 500
FLO LEMON, P.O. Box 870441, Wasilla, Alaska, testified in Juneau.
Ms. Lemon stated, "Almost three and one-half years ago, at the
intersection of Muldoon and Northern Lights, three of my four
children were involved in an automobile accident. Lorian, who had
just turned 11 the day before, was killed instantly. Valerie was
injured very critically, and my 17-year-old son, who was driving,
was also injured." Ms. Lemon went on to say that the lady who had
run the red light and hit her children's car was not drunk, not on
drugs; just in a hurry to get to work. She said the woman was not
paying attention and didn't see the light turn red. Ms. Lemon said
there is something wrong with a system that allows a $50 fine for
killing someone while breaking a traffic law such as running a red
light. She related that Valerie, in her testimony, had hardly
touched the surface of what she's been through and has yet to go
through.
MS. LEMON stated: "I want the laws to change." She feels that
people need to be responsible for their own actions. She pointed
out that no matter what the size of a car it can be a dangerous
weapon if you are negligent. She asked the committee to please
help pass this bill to protect others from going through what her
family and friends have gone through. She related: "If you've ever
had a telephone call at work, it's a parent's nightmare." Ms.
Lemon said when she got the phone call she only knew her son was
involved and had no idea her two girls were involved in this
accident. Ms. Lemon said, "It is the worst thing when you see, at
a hospital, all these blue uniforms coming to you, and I hope to
God that not any one of you will have this happen to you." She
continued, "I hope this law gets passed because I think it was
something that was needless. It was a very violent death and it
was not necessary."
CHAIRMAN PORTER asked if anyone else would like to give testimony
on HB 255.
MARGOT KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, said she "very much feels for the losses heard
about in the committee meeting. If there were a way that our laws
could make people whole in these situations, truly, we would want
that to happen." She stated that her points today are fairly
technical legal points and wouldn't expect any of the people heard,
who have suffered, to really be able to appreciate this perspective
and so she apologized to them. She said she "by no means wants to
belittle the circumstances they have gone through."
MS. KNUTH related the problem from a legal perspective, there is
the crime already called "criminally negligent homicide," which is
virtually identical to the crime being proposed. It is a Class C
felony and if negligent vehicular homicide became a crime, it would
become a lesser included offense of criminally negligent homicide.
A lesser included offense means that in every case that went to
trial, the jury would have a right to hear about this other lesser
offense, and juries frequently take advantage of lesser included
offenses. It's a way of sort of "splitting the baby" and pleasing
both the prosecution and the defense. She said, they know if there
was an offense such as this, they would lose virtually every
criminally negligent homicide case that they got. The jury would
reduce it to negligent vehicular homicide and it would be a
misdemeanor offense.
MS. KNUTH stated the difference between the two is two words. She
asked the committee to look at the bill on page 1, line 13: For
criminally negligent homicide it is, instead of "perceiving an
unjustifiable risk," it's "perceiving a substantial and
unjustifiable risk." And on line 14, instead of "constituting a
deviation from the standard of care," criminally negligent homicide
"constitutes a gross deviation from the standard of care." She
said it is very unlikely that a jury would be able to tell the
difference between an unjustifiable risk and what is a substantial
and unjustifiable risk, and what is a deviation from the standard
of care, and what is a gross deviation from the standard of care?
She added that these are concepts that are difficult enough to
explain to a jury.
MS. KNUTH noted two things: "If you were seeking to revoke a
person's driving license with this new offense, you would need to
also amend AS 28.15.181." She then listed the types of convictions
that are grounds for the revocation of driver's licenses:
Manslaughter or negligence resulting from driving a motor vehicle.
She stated the committee would need to add "negligent vehicular
homicide" to that list. There is a Class A misdemeanor driving
offense right now of reckless driving, that is 28.35.040. She said
there is something for criminally negligent homicide and negligent
driving. There are only certain circumstances when it applies and
it apparently was not applicable in the running the red light
situations described here today.
MS. KNUTH said traditionally, criminal law has stopped with
criminal conduct and that is what criminally negligent homicide is,
the lowest form of criminal behavior the law is taking action
against. Anything less than that is civil negligence. She stated
to make criminal negligence a crime is entering an area not entered
before. Ms. Knuth said society's answer is civil liability for
civil negligence. She agreed all of the problems described by Mr.
Campbell are very real and they do prolong the entire experience
and it may not be economically, or in any way rewarding to do it,
but that is the remedy that Alaska law specifies for civil
negligence.
MS. KNUTH also noted if a conviction is obtained in a criminal
case, that creates almost a per se judgment in a civil case. There
is no need to go through and reprove the civil case. She said it
could be anticipated there would be a number of people who want
these civil negligence cases prosecuted because if there is a
conviction they could use it for their liability cases. Ms. Knuth
stated the way the traffic system is set up, licenses can be
revoked if a person accrues more than a certain number of points in
a limited period of time. She said the types of driving violations
described in the hearing don't involve enough points to lose a
license on just the one incident, but other bad driving resulting
in point offenses, that would result in license revocation. She
asked if she could answer any questions.
Number 620
REPRESENTATIVE DAVID FINKELSTEIN commented that this is a
complicated area. He asked Ms. Knuth to tell him a little more
about the reckless driving, and what it takes to get into that
category, and the reference numbers.
Number 630
MS. KNUTH responded it's 28.35.040, and it says "A person who
drives a motor vehicle in a manner that creates a substantial and
unjustifiable risk of harm to a person or to property is guilty of
reckless driving. A substantial and unjustifiable risk is a risk
of such a nature and degree that the conscious disregard of it, or
failure to perceive it, constitutes a gross deviation from the
standard of conduct that a reasonable person would observe in this
situation."
REPRESENTATIVE FINKELSTEIN said it didn't sound much different than
the standard for the Class C felony of criminally negligent
homicide. It still has `gross deviation.'
MS. KNUTH agreed and said to a certain extent, the criminally
negligent homicide is reckless driving that results in death.
REPRESENTATIVE FINKELSTEIN brought up the fact that once the things
get on the books, they get subsumed under another category when the
jury is given its choices. He asked what the terminology was.
MS. KNUTH said, "the lesser included offense."
REPRESENTATIVE FINKELSTEIN asked why, since it doesn't require a
death, why wouldn't that be a lesser degree when someone is up for
charges on negligent homicide?
MS. KNUTH answered that in that situation, the lesser included
offense would require the jury to find that nobody died as a result
of the accident. If that was the finding, the reckless driving
would be a lesser included offense.
Number 650
REPRESENTATIVE BUNDE said he, too, was appalled that these things
happen and just end up in traffic court. He asked Ms. Knuth to
speculate why they'd end up with a $50 traffic ticket instead of
these other tools that could have been used.
Number 675
MS. KNUTH replied that sometimes accidents happen and sometimes
they are fatal. And it wasn't a crime. It was certainly tragic
and nothing anyone would desire, but in these circumstances it was
related the driver wasn't intoxicated or on drugs. It was simply
a failure to pay sufficient attention, or inability to stop in
time. She stated that culpability is measured more by the person's
conduct than what happens as a result of that conduct. Ms. Knuth
agrees the results in these cases were awful, but in terms of how
culpable was the driver, there are times when these situations
happen and it doesn't go beyond the level of negligence.
REPRESENTATIVE BUNDE said from his point of view, part of the laws
should also involve some societal condemnation, and when there is
a death involved that need seems to elevate for him.
Representative Bunde asked Ms. Knuth about her testimony on
revocation of licenses. When there is an accident where it
involves a loss of life, would she see a problem with increasing to
points to this type of accident?
Number 690
MS. KNUTH responded she thinks the point schedule is developed
through the Department of Motor Vehicles and regulations, and that
is something they could probably look at. She assumed there are
points given for negligent driving and may have been charged in
these cases.
REPRESENTATIVE VEZEY said his recollection that reckless driving
carried a variable penalty of 6 to 12 points, at the discretion of
the judge, but he could be wrong.
MS. KNUTH said she thought that was accurate. She saw that
reckless driving is basis for license revocation, but does not see
negligent driving on that list. She said it may be it is not there
and the reason the action might not have been taken.
CHAIRMAN PORTER stated that at some point he thought they dropped
"negligent" for "careless." They have just gone from reckless to
careless.
Number 715
REPRESENTATIVE CYNTHIA TOOHEY asked Ms. Knuth if the rules on the
book now are the maximum? She asked, "If you had your druthers,
would you take this piece of legislation and superimpose it onto
the one we have now?"
Number 720
MS. KNUTH answered she would not because she feels there is a need
for a felony vehicular homicide law, and there are people who need
to be on probation who have caused loss of life. She stated her
concern is if this misdemeanor offense is created that all of those
felony people are going to get advantage from that. She said as a
matter of philosophy, she thinks criminal law should be restricted
to criminal conduct. If it is just a civil negligence in the
conduct then it should be restricted to civil penalties, except for
the traffic matter, which is sort of a parallel matter that is
going on.
Number 735
REPRESENTATIVE VEZEY said he thinks there is some real problem with
the law, and there have been a lot of "gyrations" the last six or
eight years over mandatory insurance and he believes the standard
right now is minimum insurance requirement liability insurance is
$100,000? He asked, "That is maximum per occurrence isn't it?"
MS. KNUTH said she would have to look it up.
REPRESENTATIVE VEZEY stated he does believe that is a serious
weakness in the law. He felt that figure is too low.
Representative Vezey feels this area of minimum insurance
requirements should be addressed. He stated if this requirement is
raised there would be some people who will be assessed an insurance
premium that will be prohibitive to them economically; therefore,
they will not be able to satisfy the Department of Motor Vehicles
requirements to get a license. This would amount to economic
revocation of their driver's license. Representative Vezey said he
saw nothing wrong with denying them a license if they can't afford
the risk. This is an approach he would like to see the committee
pursue. He pointed out you would not be using either civil, or
traffic, or criminal courts to pursue a remedy. This would allow
the statute to work through the marketplace.
Number 771
REPRESENTATIVE FINKELSTEIN said he was trying to assess this
category. He asked if Ms. Knuth would try to help him understand
the kinds of crimes, under the criminally negligent homicide
category, cases that end up in here? He asked if they were mostly
drunk driving?
MS. KNUTH answered that was correct.
REPRESENTATIVE FINKELSTEIN asked if there were others that make up
a significant portion of those?
Number 773
MS. KNUTH said she didn't know, as she is not familiar enough with
the prosecution of these cases.
REPRESENTATIVE FINKELSTEIN brought up two more things that might
deserve investigation. They are to try to figure something that at
least gets into the issue of driver license revocation, perhaps
through the point system.
Number 780
REPRESENTATIVE JOE GREEN asked Ms. Knuth if a person were to use a
gun negligently with no criminal intent, and it discharges and
kills someone, are there laws on the books to cover that, or is
that also just a minor problem?
Number 785
MS. KNUTH answered it is not a minor problem, but not necessarily
a criminal matter. She related there are circumstances where kids
are involved in shooting accidents and it is negligence. There is
no prosecution if it is just negligence. She stated the people
involved in these circumstances pay a much greater toll for what
they have done, just from having to live with themselves, than
anything that could be done to them through the criminal system.
Ms. Knuth said she has never seen anyone who accidentally caused
the death of someone else who was blase' about it. She said that
what could be done through the criminal system pales compared to
what they do to themselves.
Number 805
REPRESENTATIVE GREEN said he could appreciate what Ms. Knuth was
saying, but after the fact, is there some way this can be
addressed, if it is not criminal, that there could be something
done to the civil laws then that would bring this awareness before
the fact. He pointed out that getting a driver's license is a
simple thing and we get so blase' about driving a car without
realizing it's a killing machine. Representative Green asked where
something could be done in the civil side that would be a
deterrent.
MS. KNUTH said that traditionally, extending the civil court and
just the fear of being bankrupted through civil judgment would be
a deterrent.
Number 820
REPRESENTATIVE VEZEY said he has always been confused on this area
of the law, but if the matter was covered by insurance he said he
believes you fundamentally have a choice to either go after the
plaintiff's assets or the insurance.
MS. KNUTH answered, "You go for all of it." She said usually
people settle for the insurance because those are the easy dollars.
She gave the following example: "You have a $2 million judgment
and the insurance is good for $500,000; you can put a lien on the
home, good for another $200,000; then you hit their permanent fund
dividends for the next however many years."
REPRESENTATIVE VEZEY stated he was sure she was right, but the
fiduciary guideline is to carry enough insurance to cover your
assets, not your assets plus 100 percent. He pointed out you don't
sue the insurance company. You sue the party who has insurance.
Representative Vezey recognized that if the insurance didn't pay,
your other assets would be exposed.
MS. KNUTH said that's right, if you had them.
Number 845
REPRESENTATIVE TOOHEY wanted everyone to understand why this bill
would not work. She said she thinks this is not going to help, or
alleviate the problems in the future. She asked if someone doesn't
think this is true, to please come forward.
Number 850
CHAIRMAN PORTER asked if anyone else would like to provide
testimony on HB 255. Hearing none, the public hearing was
concluded. He pointed out there were several approaches the
committee could take considering this bill and its options, or
anything else any of the members might come up with to help with
that.
Number 865
REPRESENTATIVE OGAN wanted to make a couple of comments. He stated
that this was a case where there is a hole in the law. He is not
sure if this bill is the proper vehicle, but this problem needs to
be addressed. Representative Ogan referred to a comment made by
Ms. Knuth regarding the criminal versus the civil argument. He
said he believes when you break a traffic law, and it results in a
death of a person, it should be a crime, a criminal action.
TAPE 95-45, SIDE B
Number 000
REPRESENTATIVE OGAN recalled the testimony of Valerie Lemon and Ms.
Lemon regarding the accident Valerie and her siblings were in. He
said he thinks when someone is as negligent as this, there should
be some sort of ramifications for it other than a traffic ticket.
He asked the committee to come up with an alternate, or help him
with this problem. Representative Ogan said he truly believes
these people need to suffer a little more ramifications for
breaking the law and killing somebody.
REPRESENTATIVE OGAN asked if anybody had more questions or
comments.
REPRESENTATIVE BUNDE commented he didn't think civil redress is
appropriate in this case where people are using vehicles to cause
the death of other people. He feels the societal combination of
`you've broken a criminal law as well as a civil law.'
Representative Bunde is sharing the frustration. He would like to
see that gap filled, and he would like to see automatic revocation
of driver's license in this case. He stated he refers to the legal
experts to get there, but it definitely needs to get there in his
opinion.
REPRESENTATIVE OGAN commented that sometimes the legal experts have
real good legal reasons why we can't do it, but it doesn't
necessarily make sense. And it sometimes offends people's sense of
right and wrong. He stated he clearly believes these cases have
offended his and other people's senses of right and wrong.
Representative Ogan said he knows there is a fair amount of outrage
with people who can break traffic laws and walk away with impunity
basically.
Number 085
REPRESENTATIVE TOOHEY asked what are the penalties for felonious
killing?
CHAIRMAN PORTER responded that it would be a Class B felony.
REPRESENTATIVE TOOHEY asked, which means what?
MS. KNUTH stated Class B felony is five years in prison, more than
a $50,000 fine.
CHAIRMAN PORTER said the first thing to address is, he got the
impression the idea of making this behavior, i.e., what is
tantamount to a single traffic violation a misdemeanor crime, if
there is a death resulting, is problematical.
REPRESENTATIVE FINKELSTEIN agrees it is problematical in the
setting of the law. He said it sounds like it is also a reasonable
goal, we just haven't been able to do it in the context of the law.
CHAIRMAN PORTER said that is the first hurdle he is asking the
committee to consider. He stated if the committee wanted to stay
with the notion of making this a misdemeanor crime, then perhaps
the ability to suspend or revoke the driver's license can be added,
and vote this thing through.
Number 135
REPRESENTATIVE VEZEY said he is opposed to making homicide at any
level a misdemeanor as he thinks that is going backwards. He said
he knows that the prosecution and incarceration of individuals
charged with negligent homicide with a vehicle is currently
successful. He stated he is not aware of any of those cases that
don't involve alcohol or drugs, but as soon as vehicular homicide
is made a misdemeanor the ability to put these people under
incarceration for ten plus years goes away -- not technically, but
from a practical viewpoint it does. Representative Vezey pointed
out if you give the jury or defense attorney these kinds of
options, this reduces homicide with a vehicle from a possible
felony, if it is indeed found by a jury to be criminal negligence,
nor intent either because people who are drunk don't intend to kill
people, then there would be no more felony convictions.
REPRESENTATIVE VEZEY said it's not safe for society to be out in
the streets, and because of some of the existing laws we have for
getting some of those people are off the streets.
Number 165
REPRESENTATIVE FINKELSTEIN asked Ms. Knuth what the effect would be
if the committee made it for serious bodily harm, not for death, so
it would be an option for the jury if they concluded a person did
die, it would then be an alternative to the reckless driving. So
it would be a lower standard to meet it, but you would have to have
serious bodily harm. Reckless driving is a higher standard, but no
proof of serious bodily harm.
MS. KNUTH answered she was not quite certain what the implications
with that might be. She did not know if the law is so warped that
a defendant could argue if the victim died, they certainly suffered
serious physical injury. She said she would need to research that.
REPRESENTATIVE FINKELSTEIN said just for argument sake, the
committee said, serious bodily harm short of death, so it couldn't
be a lesser included offense. He felt there should be room out
there for the category being discussed here.
MS. KNUTH said actually, that would not address the category that
has been discussed here today, where the accidents were fatal.
REPRESENTATIVE FINKELSTEIN said his first question would still
remain, if one made this dependent on serious bodily harm.
MS. KNUTH noted assault statutes are used, which relate to serious
physical injury in some driving cases. So the law is not limited
to things specifically for motor vehicle accidents. A car counts
as a dangerous instrument.
REPRESENTATIVE FINKELSTEIN asked if all those assault statutes were
felonies?
MS. KNUTH agreed they are.
REPRESENTATIVE FINKELSTEIN said he didn't know if the goal was
achievable or not, but the goal is a lower standard, a lower
penalty.
REPRESENTATIVE BUNDE said in his mind, he thought the committee
should continue to explore a criminal penalty for the behaviors
being talked about and try to get it out of the civil arena. He
pointed out that to address the concern about lesser and included
offense, if they have used alcohol then they are guilty of reckless
or negligent homicide?
MS. KNUTH replied they were able to prosecute them.
REPRESENTATIVE BUNDE asked if it would be possible to put some
proviso in this or similar legislation of not having used drugs or
alcohol, "I have not driven in impaired state." They would only be
charged for this offense and not in the other offense so that when
you have this lesser and included, somebody who has used chemicals
could be charged by the other offense, then the jury can't plead
down.
MS. KNUTH said this would warrant some pretty close scrutiny by
more people than just herself, but she knows the defendants would
argue: We weren't intoxicated. We didn't prove it, and therefore,
it should be a lesser included offense. She stated the question is
how much evidence do they need to get that to the jury, and the
jury is then able to do what it wants with the case. She didn't
know at what point they could say, "I was a refusal. I didn't even
take the intoximeter, and you don't have any evidence of
intoxication." Ms. Knuth said she could see that they would want
to look at that very closely.
CHAIRMAN PORTER asked if you would have a presumption?
MS. KNUTH responded, that's correct.
Number 275
REPRESENTATIVE TOOHEY said she asked the sponsor if there were any
other states that had this law, and he stated that Michigan does
have a law on the books. Representative Toohey gave a copy of the
law to Ms. Knuth for review.
Number 285
REPRESENTATIVE GREEN referred to the lesser included offense and
asked if that was a procedure, a law? What triggers that?
Number 290
MS. KNUTH answered she didn't know if it was constitutionally
required. She thought it was, and the defendant has a
constitutional right to ask the court for any and all lesser
included offenses, and depending on the charge, i.e., assault in
the third degree can be a lesser included offense of assault in the
second degree, which is a lesser included of assault in the first
degree, and so you get to present all of these to the jury. She
went on to say as long as the lesser included offense doesn't have
any new elements that aren't found in the bigger offense, you get
the instruction.
REPRESENTATIVE GREEN said she had hit the key word. There is no
sense in trying to attack that portion if there is a constitutional
process. He thought maybe there could be one way the committee
could attack a court rule or something.
MS. KNUTH said no.
REPRESENTATIVE BETTYE DAVIS suggested a subcommittee to further
pursue HB 255.
CHAIRMAN PORTER agreed and said the committee had the will but not
the way yet and so what he would like to do is appoint a
subcommittee. He asked if there was anyone who would like to serve
on the subcommittee?
REPRESENTATIVE DAVIS said she would like to serve, and she would
like the legal department to be there.
CHAIRMAN PORTER appointed a subcommittee with himself as Chair,
with Representatives Green, Davis and anyone else. He felt they
ought to try to come up with something and he apologized to those
testifying that it cannot be brought to a close at that time
because they want to try to do something that's meaningful, not
something that will result in a tragedy. Chairman Porter said, as
everyone knows by statistics they keep hearing, the majority of
vehicular homicide cases are as a result of reckless and
intoxicated drivers, and the committee would not want to mitigate
the responsibility that those individuals have incurred by good
intentions here. Consequently, the committee will go to "plan B"
which has not been formulated, but the committee would endeavor to
come up with something that works. The committee held HB 255 for
that purpose.
HJR 30 - AMEND U.S. CONST. TO LIMIT FED. COURTS
CHAIRMAN PORTER introduced HJR 30 for consideration, amending the
U.S. Constitution to limit federal court's actions.
Number 360
REPRESENTATIVE VEZEY, sponsor of HJR 30, stated HJR 30 is in
response to a move going through various state legislatures,
advocated primarily by the Missouri State Legislature where it was
initiated. He feels all are aware of legislative-type action
coming out of the Judiciary Branch of government which has gotten
to the point where they are actually levying taxes. This
resolution merely requests that the Congress of the United States
prepare an amendment to the Constitution of the United States
prohibiting the federal court from ordering a legal subdivision of
a state or the state itself from imposing taxes. Representative
Vezey then asked if there were questions.
Number 380
REPRESENTATIVE FINKELSTEIN commented that he was not familiar with
this action and asked for examples of where this is occurring.
REPRESENTATIVE VEZEY said there are numerous examples, but the most
notable case he was aware of was in St. Louis, Missouri where a
property tax was levied on the citizens of that county to support
a court ordered school improvement program, which had to do with
some of the communities being racially imbalanced, and rather than
busing, they were going to a "magnet-type" school system. The
court set this plan up and ordered the taxes to be assessed to pay
for it.
CHAIRMAN PORTER called for further testimony on HJR 30.
REPRESENTATIVE FINKELSTEIN commented the country has changed a bit
over time, but it isn't hard to recall some of the past activities
where the courts have had to go in and try to involve themselves in
desegregation efforts. Of equal importance is the general concept
of equal treatment of our citizens which has not always occurred.
He feels when there is a certain locale deciding to go a different
direction, there may be an extreme circumstance that requires a
court imposed solution. Representative Finkelstein thinks there
will be times when these kinds of actions are necessitated to
pursue equal treatment the American people expect under the
Constitution. He stated for that reason, he would be inclined to
oppose the resolution.
Number 440
REPRESENTATIVE DAVIS also had some concern with the resolution
based on the example given by the sponsor, because if that is the
primary reason, she has seen that the "magnet-type" schools did
work in areas where they were implemented and so, she cannot
support HJR 30.
REPRESENTATIVE BUNDE said it is not whether the magnet schools work
or not. He believes the magnet schools in St. Louis did not work,
but in any case, it is whether the court should be able to impose
taxes or not. He said he thinks that is the germane issue.
REPRESENTATIVE VEZEY appreciated Representative Davis' remarks and
said he used that example because that was the case that went to
the Supreme Court. That is where the Supreme Court clearly came
down and said the courts can impose taxes.
CHAIRMAN PORTER commented he was going to support this resolution
and he does not look at it as reducing the court's ability to deal
with discrimination cases at all. The court can still order that
community do what they wanted them to do. He thinks it is
inappropriate, and an improper application of the separation of
power to say how you will do it by instituting taxes. Chairman
Porter said it is up to the community as to how they want to abide
by that ruling. They will have to abide by it, but they may want
to opt to amend some other targets to provide the funds to what the
court has ordered. So, it isn't a matter of diminishing the
court's ability to support civil rights. He went on to say he
feels it is a clear separation of powers issue, as the power or
appropriation is the legislature's and the power of constitutional
interpretation of the court's.
REPRESENTATIVE DAVIS asked what if the court says, "You will take
it from this pool of money"?
CHAIRMAN PORTER responded the St. Louis case was upheld by the
Supreme Court that they will do this by increasing the property
tax.
REPRESENTATIVE FINKELSTEIN said it is hard for him to argue the
particular circumstances, but he would suspect the way it works is,
it is true there have been numerous cases where some local
subdivision or state has been in violation that in most cases where
the court orders, yes, you are going to come into compliance and do
it by allocating resources to address this concern. He suspects
most of them do it. Representative Finkelstein continued to say
that some still refuse and this is a historic fact. He agrees that
doesn't affect most, only some of them. Then the court orders an
action to uphold our Constitution which would become completely
ineffective if they have no remedy left in which to impose a
solution because most states realize the court has no power to go
beyond what is really advice, so what effect does it have?
CHAIRMAN PORTER replied usually those kinds of orders have the
effect of substantial federal funding behind them and if you don't
abide by the wishes of the feds, you lose your funding. He said
his response to that is if there was such a community so
recalcitrant as to disobey the order of the court, he doubts they
would tax themselves anyway. So the court would still have to use
other sanctions to enforce their orders. It is just the issue of
appropriation he is dealing with here.
REPRESENTATIVE VEZEY said he thinks Representative Finkelstein
missed the point because the courts deal with the recalcitrant
public officials on a daily basis, and the court has often found
those individuals to be in contempt of court and provided them
housing in the local correctional institution. He stated there are
many avenues available for enforcement, but when the ability of the
court to actually assess taxes was upheld by the U.S. Supreme
Court, there was a tremendous shift in the separation of powers
issue. Representative Vezey said it was a tremendous usurpation of
power by the Judicial Branch of government and that is what he
believes the committee is addressing...that we do have a system of
separation of powers.
REPRESENTATIVE FINKELSTEIN has no doubt that is the case, but he
doesn't see where there has been a high level of this occurring.
The question is, "Should the court system have the ability to do
this in the most extreme cases." He didn't think there was a
pattern to show it has been abused.
CHAIRMAN PORTER asked if there was further discussion on HJR 30.
REPRESENTATIVE GREEN said there was a specific amendment and
staying wide of a constitutional convention, but asked if there was
any concern of the sponsor that by doing this, or attempts to amend
or insist the federal government stick with what is already there,
that this will add fuel to opening the whole Constitution at the
constitutional convention.
REPRESENTATIVE VEZEY replied the Constitution of the United States
is explicitly clear in how a constitutional convention is called.
This does not come any closer to calling a constitutional
convention than does the dropping of a gavel of the chairman of
this committee. A state cannot initiate a constitutional
amendment; only petition the Congress to initiate a constitutional
amendment. Only the Congress can initiate an amendment, which has
to be ratified by three-fourths of the states.
Number 600
REPRESENTATIVE GREEN said he had not intended to get into a debate
and he is familiar with the constitutional law process. His point
was in agreement with Representative Vezey's "gavel dropping"
comparison and he disagrees with the fact it is only heard in this
room. He said it was heard in all 50 states. His point was, will
this cause anything, because it now goes to all 50 states
requesting that there be a constitutional amendment, add any fuel
to the fire to what some perceive as a ground swell toward that
end? Representative Green champions the idea, and he thinks this
is really necessary, but is concerned about, "How far does this
runaway horse go?"
REPRESENTATIVE VEZEY answered this resolution is addressed to the
Congress of the United States, the President, the Vice President,
the Senate, and the House. It would be passed on to the presiding
officers of the legislatures of our sister states, which he assumes
would be all 50 states. It's just an indication we would like our
Congressional delegation to support an amendment to this effect.
CHAIRMAN PORTER commented he understands that Representative Vezey
doesn't think it will cause any difference, not to debate but to
find out.
REPRESENTATIVE VEZEY responded he was trying to understand the
question, and cannot see the connection to precipitating a
constitutional convention. He sees it as asking the Congress to
initiate an amendment to the Constitution, a process that has been
done approximately 35 times. It is not asking Congress to call a
constitutional convention.
REPRESENTATIVE GREEN said he understood that. He pointed out a
significant change in the makeup of the Congress and there is a
ground swell for several such activities. He stated he is against
this resolution.
Number 620
REPRESENTATIVE TOOHEY informed the committee that amendments do not
cause constitutional conventions, and she feels the committee needs
some background. She spoke to Representative Finkelstein stating
she doesn't think this is minor and that frightens her.
CHAIRMAN PORTER asked if there was further discussion.
Number 630
REPRESENTATIVE FINKELSTEIN said he didn't want to use the word
"minor," but there is a long history in this country and he didn't
know how many other cases had occurred, but if it has happened even
more than once, it's still a rare occurrence with all of the
activities of the Supreme Court trying to enforce our Constitution.
CHAIRMAN PORTER asked for the wishes of the committee.
REPRESENTATIVE BUNDE made a motion to move HJR 30 from the House
Judiciary Committee with individual recommendations.
CHAIRMAN PORTER added with attached fiscal notes. He said there is
a motion to move as described, and called for further discussion or
objections. There was an objection. Chairman Porter called for a
roll call vote.
A role call vote was taken. Representatives Vezey, Bunde, Toohey,
Green, and Porter voted to move the resolution. Representatives
Davis and Finkelstein voted against moving the resolution. HJR 30
was passed out of committee.
HB 2 - BOOT CAMP FOR NONVIOLENT OFFENDERS
Number 650
CHAIRMAN PORTER asked the sponsor of HB 2, Representative Willis to
speak on his bill.
REPRESENTATIVE ED WILLIS, Sponsor of HB 2, said in 1994 he
introduced legislation relating to boot camps for nonviolent first-
time adult offenders. He stated the bill before the committee is
an updated and final version of that bill. It includes the ideas
of those interested in the boot camp concept, and addresses the
need of the Department of Corrections with regard to this proposed
program.
REPRESENTATIVE WILLIS said he feels that placing nonviolent first-
time felony and misdemeanor offenders in a prison setting is not
the best way to accomplish rehabilitation for that offender. He
said providing an alternative to prison time and an opportunity to
learn discipline and acceptable behavior will offer these offenders
a chance to avoid further encounters with the law.
REPRESENTATIVE WILLIS said, "The bill before you would offer the
boot camp as an alternative program for first-time convicted felons
or misdemeanants under the age of 26. Individuals convicted of
crimes, such as homicide, assault, kidnapping, sexual offenses and
offenses involving the use of a deadly weapon would not be eligible
for this option." He went on to say, "The emphasis here is on
nonviolent first-time offenders. At least 24 states operate boot
camp programs. As can be expected, each state offers the program
to different groups. For example, in 1993, Virginia's program was
limited to nonviolent new felony offenders 24 years of age or
under, and did not allow felons convicted of murder, manslaughter,
kidnapping, sexual assault, and so on to participate in the
program. Massachusetts' program, in 1993, was for male offenders
under the age of 40."
REPRESENTATIVE WILLIS stated he had submitted to the committee
various articles and studies concerning boot camp programs. He
said he believed a boot camp program could help to address many
problems from prison overcrowding to recidivism rates. He went on
to say a boot camp program has the potential of providing many long
term benefits and he would urge positive consideration of this
bill. Representative Willis said he had submitted to the committee
a draft amendment to this bill, which was requested by the
Department of Corrections. The amendment would give the department
another tool it needs to make the program successful. He
continued, under the current proposal, individuals who successfully
complete the boot camp program might have to be placed back into
the general population to await parole hearing. Representative
Willis said this amendment would allow a pre-release furlough while
awaiting the hearing. In his opinion, placing a person who has
successfully completed the boot camp program back into the general
prison population would not be beneficial to the person involved in
the program.
REPRESENTATIVE WILLIS related that since he appeared before the
State Affairs Committee, he also submitted a newer version of the
fiscal plan and Mr. Jerry Shriner of the Department of Corrections,
is here to speak to the new fiscal note. Also, since this bill was
before the State Affairs Committee, Mr. Shriner has been to
Washington and conferred at some meetings on this particular issue.
Representative Willis said he hesitated bringing this back to the
committee until Mr. Shriner returned to Alaska so this committee
would have the benefit of his knowledge.
REPRESENTATIVE WILLIS said if it is the desire of the committee, he
would relinquish his seat to Mr. Shriner.
Number 725
REPRESENTATIVE BUNDE told Representative Willis that he did support
his legislation, as he did last time, although the idea of boot
camps to him, would involve younger offenders, and yet you are
including people up to the age of 26. He asked if that was to
allow a young person to be sentenced and serve out a sentence, or
would Representative Willis envision a 26-year-old person being
assigned to boot camp.
Number 730
REPRESENTATIVE WILLIS answered as he understood it, any person
convicted of a felony or misdemeanor, 26 years of age or younger,
that is in the hands of the Department of Corrections, could be
eligible for this program, but it would be under the age of 26.
Number 745
REPRESENTATIVE BUNDE asked if, when they reach 26 they are not
removed from the program? There's not an upper age limit.
REPRESENTATIVE WILLIS replied you mean if they happened to be 26
when they went into the program and they had a birthday after?
REPRESENTATIVE BUNDE said if they were 20 when they went in and
they had a seven year sentence.
REPRESENTATIVE WILLIS responded that boot camp is only 150 days.
REPRESENTATIVE BUNDE said, okay. If they were 26 and had a
birthday the day after sentencing.
REPRESENTATIVE WILLIS answered he would assume they would complete
the 150-day program.
REPRESENTATIVE VEZEY asked for clarification on the fact the
prisoners are only eligible if they are under 26.
REPRESENTATIVE WILLIS answered yes.
REPRESENTATIVE VEZEY said he thought he heard him say 40.
REPRESENTATIVE WILLIS stated they changed that back to 26. He said
some states do allow an upper age limit.
REPRESENTATIVE VEZEY understood they have to be 25 years of age to
enter the program.
CHAIRMAN PORTER said they can't be more than 25.
REPRESENTATIVE WILLIS corrected this, saying they can't be more
than 26 years old.
CHAIRMAN PORTER said for the information of the committee he thinks
the age 25 is the youthful offender (indisc.) the federal programs.
CHAIRMAN PORTER welcomed Mr. Shriner back from Washington.
JERRY SHRINER, SPECIAL ASSISTANT TO THE COMMISSIONER, DEPARTMENT OF
CORRECTIONS, gave a little background for the committee. He began,
"Boot camp programs have been around in various states for a number
of years, since the mid- to early 80s. Several programs have
developed and there were problems with some of the earlier
programs. The primary problems had to do with the abuse of
inmates, either a direct or indirect result of the emphasis on the
discipline and physical training that goes into these programs.
Much of that has been taken care of through proper staff training
supervision, study of the programs and the way they operate,
careful hiring practices." Mr. Shriner said he is convinced, after
talking to many of the people from the 26 states that have
programs, that they can be operated humanely, safely, and
effectively. He stated that was his biggest concern so he was glad
to gain that part of the information.
MR. SHRINER related he felt he should address why the fiscal note
was changed. Again, it has to do with people who have operated
these programs. It was pretty clear that all of these programs
operate as minimum security facilities. In the original fiscal
note, it was said the program would be designed with facility
issues, and you have program by facility, aimed to meet the needs
of minimum custody prisoners. He continued saying all of the
programs he really would take a look at are minimum custody
facilities, and staff report essentially every case of discipline
problems, escapes, violence between inmates or by inmates against
staff are practically unheard of.
MR. SHRINER said that his philosophy and the experience in the
normal prison facilities, the combination of hard work, the
discipline that is imposed from the time they are there, all of
these programs carefully select inmates. They have that option.
The average prison does not have to pick and chose which ones you
want to work with. He said all of those things combined make these
relatively low risk groups of individuals with whom the Department
of Corrections works. He stated the point of the program is that
in terms of designing a facility, you can design one with lower
security ratings. You don't need as much fence. You don't need as
many electronic gauges. There's a lot of things you don't have to
put into these kinds of programs that you would have to put into a
medium security facility, for example.
MR. SHRINER related respective to the amendment that was proposed
having to do with furloughs, the original legislation would allow
an early parole for those folks who had successfully completed the
program. He said one of the things that again virtually every
state that has these programs has found, is that a big part of it
is because the program moves rapidly. It's 150 to 180 days in most
states, and a lot happens in that period of time. To make this
thing happen requires a fair amount of reinforcement. Mr. Shriner
continued much of the effects of 150 or 180 day programs would be
lost if the person then had to go back to a regular prison
population and wait what would be a typical 120 days from the time
they successfully complete the program until the time they can get
a hearing before the parole board to be granted parole.
MR. SHRINER said what the department suggested to the sponsor was
to allow the Commissioner of Corrections the option of granting
furloughs to those individuals who successfully complete the
program because that is something that could be done the last week,
or the last two weeks, when it was obvious the person was going to
successfully complete, they could be granted a furlough in a
somewhat less structured environment, but still under 24-hour
supervision, and they could stay there during that time the parole
hearing was being processed. Mr. Shriner stated the Department of
Corrections supports that and believes it is an important part of
making the program function effectively.
MR. SHRINER stated he supposed he had to talk about money since it
is related to the fiscal note, but the crime legislation that was
passed in 1994, federal crime legislation, set aside $24.5 million,
which, at this point, is only being dispensed for two things. He
said they are making small $50,000 grants to states to do criminal
justice planning, and grants of up to $2 million to states that are
either renovating facilities or building new facilities out of
which they intend to operate boot camps. Mr. Shriner went on to
say that in legislation that is through the House, and will be
before the Senate later on in May, there will be somewhere between
$6 billion and $10 billion over the next five years dispensed in
all probability in block grants to states, and much of that money
will be aimed at what is known as "violent offender incarceration."
Mr. Shriner said the point of it is to, in some way, assist states
in making sure there is room in their prisons to incarcerate
violent offenders.
MR. SHRINER said we are somewhat fortunate in this state in that
despite the fact that the prisons are overcrowded, he doesn't think
there have been any violent offenders put out on the streets for
lack of space for them to be incarcerated. This is not true of
other states. Georgia is an extreme example where a violent
offender may get ten years and end up serving five or six days. He
said they simply did not have room for people at the inn. Mr.
Shriner said the point of the legislation and the reason that they
will be not only providing capital money as they are now, but will
in all probability be providing operating money for boot camps and
other kinds of alternative sanction programs, is for precisely that
reason. He stated it is not that Congress has suddenly taken a
turn to intermediate sanctions. Congress has said we want violent
offenders incarcerated and in order to do that we are willing to do
some things we might not otherwise advance. For example, boot
camps, community work service programs, and all kinds of
intermediate sanctions.
MR. SHRINER said the reason he was telling the committee this is to
say that the fiscal note shows a capital reduction in what was
originally projected as a $5 million capital investment. The
Department of Corrections is now saying it's $3 million, in large
part because we believe we can build a facility with less security,
and, in fact, may be able to build it in connection, not physically
connected to, on the grounds of some other facility such as the
minimum security facility at Palmer, at Wildwood, or some other
place like that where there is some space and possibly some other
resources to apply to reduce the costs.
MR. SHRINER stated in terms of operating costs, the only difference
on the new fiscal note is the department applied more recent data
with regard to the cost to operate a prison bed in this state than
he had at the time he followed the original fiscal note, so that
reduced the costs somewhat. He said at the same time, he applied
5 percent inflation factor that the...
TAPE 95-46, SIDE A
Number 000
MR. SHRINER said he thought that explained the difference in the
fiscal note and the department's need for the furloughs.
Number 070
CHAIRMAN PORTER stated Chairman Kott will kill him if he's late
again to one of his meetings, so he asked the Vice Chair to take
over. He did have two questions first. Are there enough prisoners
left in our system to make this a viable program? He pointed out
they were cutting out violent offenders and it seemed to him most
of the activity done is already cut out.
MR. SHRINER answered that it is a close call, frankly. He said the
department was concerned about two things in the bill. The
Department of Corrections would just as soon the age went to 30
years, for example, rather than 25. The first offender also limits
that pool considerably. You could easily have a second offender,
a second burglar for example, the person could be 21- 22-years-old,
have a second burglary, maybe has three or four years to serve. He
may be a good candidate for this program, but would be excluded.
Mr. Shriner said that would increase the pool of people that are
available. The short answer to Chairman Porter's question is, the
last time I looked there were some 233 individuals who are in
minimum custody that are 25 years and under. He said he has not
sorted out which ones of those are violent offenders. He said he
suspects there are perhaps 100 of those who would really qualify
for this program and what they are looking at is probably a 50-bed
facility. So, the short answer is yes, I believe there is.
CHAIRMAN PORTER said he didn't see this the last time through, that
being the successful completion of this would put someone in the
position of the discretionary parole. He asked if this would put
them in the position regardless of a determined sentence that they
had?
MR. SHRINER responded that it was his understanding that it would,
but he is not an attorney so he will pass on that, as he is not
sure.
CHAIRMAN PORTER took his leave and turned the meeting over to Vice
Chairman Joe Green.
VICE CHAIRMAN GREEN asked if there were any other questions of Mr.
Shriner. He stated that Mr. Shriner had made a tremendous change
on the fiscal note, and he wondered if, given another two weeks,
Mr. Shriner could get that to where they would pay us?
REPRESENTATIVE VEZEY asked if it would be fair to say that the
Department of Corrections is estimating about $20,000 per prison
bed, that would be $40,000 per year per prison bed, but about
$20,000 per prisoner because they would be eligible for parole
after they completed this? You're talking about $2 million and 100
bed years.
MR. SHRINER replied, 120 people. He stated the current rate is
$107 a day average across the system. If they are in there 150
days, yes, the cost for one of those individuals for the 150-day
program is going to be about $15,000.
REPRESENTATIVE VEZEY remarked that it was going to be the same cost
as the existing programs.
MR. SHRINER answered that, in fact, the cost per day is more in
existing programs. In other words, in low level security the
average cost may be $107. The people in this program may otherwise
be in a facility that operated at a lower cost where security is
lower. He said on the other hand, they are only in this program
for half as long perhaps. The other end of that is virtually
everyone who operates these programs will tell you that it is not
enough to simply put someone through 150 or 180 days in a boot camp
program. Mr. Shriner stated you have to provide a variety of other
services such as counseling, education, and intensive supervision
along with it and after it. He said the cost of probation and
parole is higher for this group of people than for somebody getting
out of prison after two years. Mr. Shriner related these states
have found when you tie the whole project together, you're probably
spending less on the boot camp people than on a normal imprisonment
simply because you've shortened up the prison time so much. He
said the net effect is a smaller cost, but if you only look at the
daily cost it looks more expensive.
VICE CHAIRMAN GREEN asked if there were any more questions.
REPRESENTATIVE TOOHEY inquired about the recidivism rate for these
people.
MR. SHRINER stated the recidivism rate in well-run programs is
better although it's not like half. It's like 2 or 3 percent and
some of the programs have dropped 5 or 6 percent. It can be fairly
significant, but the services have to be provided that go along
with it and do a good job of it. He said it's not a guarantee by
any means.
VICE CHAIRMAN GREEN asked if there were any other questions of Mr.
Shriner or the sponsor.
REPRESENTATIVE BUNDE remarked that he didn't think 5 percent
recidivism rate was a good rate.
REPRESENTATIVE VEZEY said he thought the recidivism rate differed
by 5 percent.
MR. SHRINER said that was correct.
REPRESENTATIVE BUNDE stated if the recidivism rate was 5 percent,
there would be no prison population.
MR. SHRINER agreed with Representative Bunde, but stated most
states run 20 to 30 percent recidivism rate.
VICE CHAIRMAN GREEN asked what the wish of the committee was, if
there were no further questions.
Number 200
REPRESENTATIVE BUNDE made a motion to move amendment one, which
states: page 1, line 3, following "eligible for", insert
"furloughs and; page 2, following line 2, insert a new bill section
to read: "*Sec. 3. AS 33.30.111 is amended by adding a new
subsection to read: (g) A prisoner who has successfully completed
the boot camp program under AS 33.30.182 is eligible for a
prerelease furlough under this section under regulations adopted by
the commissioner under AS 33.30.101 regardless of whether the
prisoner has served the portion of the term required under (d) of
this section."; renumber the following bill sections accordingly.
VICE CHAIRMAN GREEN asked if that was the one dated 3/27/95?
REPRESENTATIVE BUNDE affirmed the date of 3/27/95, page 1, line 3.
VICE CHAIRMAN GREEN asked Representative Willis if he would like to
speak to the amendment.
REPRESENTATIVE BUNDE replied that the amendment had been spoken to,
but not passed yet.
REPRESENTATIVE WILLIS stated that would give the Department of
Corrections the tool it needs to make the program successful. It
would allow a prerelease furlough while awaiting the hearing. He
said that is the thrust of that particular amendment.
VICE CHAIRMAN GREEN asked if there was any discussion or objection
to the amendment. Hearing none, the amendment passed. (Indisc. --
static on tape).
REPRESENTATIVE FINKELSTEIN asked where does it say (indisc. --
static) anyone who is on their second prison term wouldn't qualify?
MR. SHRINER said page 3, line 23.
REPRESENTATIVE FINKELSTEIN said he must have misunderstood the
testimony because he thought only first offenders would be able to
qualify.
MR. SHRINER replied that he may have misspoken himself as this
issue was discussed and what it actually said was "cannot actually
have participated in a boot camp program" and then the other
conditions for eligibility.
REPRESENTATIVE BUNDE made a motion to move CSHB 2(JUD).
VICE CHAIRMAN GREEN (indisc. - static) asked if there was any
objections. Hearing none, CSHB 2(JUD) was moved out of committee.
HB 274 - TUBERCULOSIS CONTROL
Number 220
CHAIRMAN PORTER asked the sponsor, Representative Cynthia Toohey,
to speak on House Bill 274.
REPRESENTATIVE TOOHEY stated this was an amendment submitted by the
Department of Health, Education and Social Services (HESS). She
invited Dr. Peter Nakamura to speak on the bill.
DR. PETER NAKAMURA, DIRECTOR, DIVISION OF PUBLIC HEALTH, DEPARTMENT
OF HEALTH AND SOCIAL SERVICES, spoke on this issue which he feels
is extremely important to the ability to address the problems of
tuberculosis (TB). He stated there has been a resurgence of the
problem this year and found one situation where the individual was
not able to conform to the requirements for treatment and the
department had to impose detention or quarantine. Dr. Nakamura
said in doing that, the department found the statutes were out of
date and did not provide for individual due process as identified
in our Constitution.
DR. NAKAMURA related the department readdressed the issue and in
readdressing it, they covered a number of revisions in HB 274. One
issue covered was to bring the practice of monitoring of TB more up
to current standards in terms of reporting; assuring that if an
individual is identified as having TB, it is reported to the State
Health Department, and that if an individual is under treatment for
TB, the State Health Department be notified if the treatment is
stopped at any time before conclusion. The concern is if the
treatment is stopped before completed, there is the chance of
developing a drug resistant strain of TB. He said once that
happens, it is extremely difficult and each time the organism
develops another resistance, there is always a possibility to
develop an organism that is totally unresponsive to any medication.
He went on to say to avoid that, there is in this amendment, a
requirement that any person on TB treatment stay on TB treatment
until completed.
DR. NAKAMURA pointed out some wording changes such as "TB
sanitorium," which we no longer have; a label for those having TB
as "tubercular," a term that is no longer appropriate; a
recognition of physicians practicing in Alaska who may not be
licensed in Alaska, but have the approval to practice medicine in
Alaska. This would be those federal physicians who were assigned
to some of the programs where a license is not required in the
state, but they can practice. The revisions would allow that to
continue in the way it presently does. Dr. Nakamura continued
saying it allows access by the state medical officers to health
records of any individual with TB in the instance where they are
reported as not conforming to the appropriate treatment.
DR. NAKAMURA stated that the main issue in the bill is to assure
there is due process so that when an individual is detained or
quarantined, the department does not have to face the charge of
constitutionality of their act so they can treat the person, if
necessary. Dr. Nakamura cited two situations in Anchorage where
two individuals terminated their treatment after approximately four
weeks of therapy. The only way to get them back into treatment
would have been under criminal penalties. He said the rewrite of
this statute does include some reference to penalties, to a
misdemeanor, and further review of the number of amendments he
hopes can be introduced to remove that stigma. The department
feels it is inappropriate to take an individual who is ill and make
it a criminal offense in any way.
DR. NAKAMURA feels there are some individuals who cannot conform to
the proper treatment and as long as the department has the ability
to detain them and assure they are on therapy, it should not be a
criminal offense. Dr. Nakamura went on to say if it is made a
criminal offense, it will make it much more difficult for the
health providers to address these issues with other people.
Number 375
REPRESENTATIVE TOOHEY asked if the imposed detention mentioned was
through a quarantine court order.
DR. NAKAMURA answered yes, under the due process a hearing is
required and that the hearing take place in a prompt manner so the
person is not detained over a period of time without an appropriate
hearing. He also brought up the privacy issue, which is not
included in this bill, to assure the individual's right to a
hearing in privacy if they so choose. Dr. Nakamura stated that the
department's concern is there could be a breach of privacy in that
individual's medical records.
CHAIRMAN PORTER asked if there were any questions of Dr. Nakamura.
REPRESENTATIVE BUNDE moved the following amendment, dated
4/11/95/8.1.: Page 1, lines 1-2, delete ", including provisions
for certain penalties"; page 7, line 3, delete "and"; page 7, line
6, after "provided", insert "; and (5) advice to the person being
detained that the person has the right to elect whether a
proceeding providing court review is open or closed to the public";
page 8, after line 15, insert a new subsection to read "(d) A
person who is the subject of a court proceeding initiated under AS
18.15.136 or 18.15.137 may elect to have the hearing open or closed
to the public."; and on page 9, lines 15-16, delete all material.
CHAIRMAN PORTER asked if there was an objection to amendment one
Hearing none, the amendment was adopted. Chairman Porter called
Kristen Bomengen of the Attorney General's Office to testify.
KRISTEN BOMENGEN, ASSISTANT ATTORNEY GENERAL, HUMAN SERVICES
SECTION, ATTORNEY GENERAL'S OFFICE, DEPARTMENT OF LAW, said she was
primarily at the meeting to answer any legal questions that may
come up regarding the bill. She commented that to prevent the
legal dilemma at the present time, the department's medical
officers have options under the current statute to issue
examination orders and quarantine orders. Ms. Bomengen said if the
person doesn't understand the seriousness of their illness, and for
some reason doesn't wish to or doesn't comply with those orders,
then the department, under the current statutes, is required to
file a criminal charge and charge them with a misdemeanor offense.
MS. BOMENGEN said they did encounter that circumstance in the late
part of 1994, and the department found the court responded rather
awkwardly to finding that an individual in a medical office issued
an order and then the court was presented with a criminal offense
for not complying with that order. She stated the court order is
designed to address the steps that people may reasonably expect
between the initial issue for the medical order and the eventual
requirement they remain in quarantine. She also supported the
inclusion of the amendment because as the additional steps were
added into the bill, it was found the criminal penalties didn't
serve any purpose as all of the same aims could be achieved by the
means already there.
Number 450
REPRESENTATIVE GREEN brought up Dr. Nakamura's statement regarding
the patient's completing treatment so they don't end up creating a
bacteria that is untreatable. He asked if that was sufficient
grounds that, in effect, the person is placed in quarantine and
prevented his freedom. He asked, "is there any possibility of a
problem with invasion of his rights?"
MS. BOMENGEN replied that under the steps outlined under the
proposed statute, the department should be able to address those
circumstances. Then, when there was a case where the person had
lapsed in the drug regimen and continued to show signs of the
disease in samples that were taken, the court had an understanding
of what that public health problem became. She said that with this
bill, the steps were available now to outline the problems to the
court.
REPRESENTATIVE GREEN expressed his concern that the courts might
again overrule this.
MS. BOMENGEN answered certainly, every case is determined by its
facts and how they fit with the law. She said in designing this
law, they looked to other states. There is one other state case
that has upheld a continued extended quarantine in a case where an
individual continually failed to maintain the medical regimen. Ms.
Bomengen said certainly they would invoke the case under a similar
law constructed to support the enforcement for public safety
reasons.
Number 490
REPRESENTATIVE GREEN asked if this would also circumvent the
possibility of leaving the state if person A is under quarantine
and decides that he wants to go to Oregon, for instance.
MS. BOMENGEN said she does not believe there is anything in this
bill that would carry that explicit function, but if the department
knew of the plans being made, the department does have the option
of seeking an emergency detention in very short order so that
without contacting the party, there would be an order from the
judge to have the person picked up and detained. She said it will
go far enough so when there is sufficient information available for
the department to respond, it will allow them to do so. Ms.
Bomengen stated that is something not available in the present law.
Number 500
REPRESENTATIVE TOOHEY inquired about the transportation with the
airlines, that they can also refuse service to someone with a
communicable disease.
MS. BOMENGEN said it is her understanding that if airlines are
aware there is a public health risk, they can refuse passage to a
passenger.
CHAIRMAN PORTER asked if there were other questions, or statements.
Hearing none, public testimony was closed. The Chairman asked the
wish of the committee.
REPRESENTATIVE VEZEY moved to pass CSHB 274(JUD) out of the House
Judiciary Committee.
CHAIRMAN PORTER asked if there were any objections. Hearing none,
CSHB 274(JUD) was passed out of the House Judiciary Committee.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 3:25 p.m.
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