Legislature(1997 - 1998)
05/06/1997 02:24 PM House JUD
| Audio | Topic |
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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
May 6, 1997
2:24 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 189
"An Act relating to sale of tobacco and tobacco products; and
providing for an effective date."
- RESCINDED ACTION OF 05/05/97; MOVED CSSSHB 189(JUD) OUT OF
COMMITTEE
HOUSE BILL NO. 245
"An Act relating to minimum sentences for assault in the fourth
degree that is a crime involving domestic violence; providing that
a prisoner may not contact the victim of the offense when provided
access to a telephone or otherwise immediately after an arrest; and
amending Rule 5(b), Alaska Rules of Criminal Procedure."
- MOVED CSHB 245(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 16
"An Act relating to delinquent minors, to the taking of action
based on the alleged criminal misconduct of certain minors, to the
services to be provided to the victims of criminal misconduct of
minors, and to agency records involving minors alleged to be
delinquent based on their criminal misconduct; and amending Rule 19
and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska
Delinquency Rules."
- MOVED CSHB 16(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 3(JUD)
"An Act authorizing prosecution and trial in the district court of
municipal curfew violations, and providing for punishment of minors
upon conviction for violation of a curfew ordinance."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 199
"An Act relating to the property, transactions, and obligations of
spouses; relating to the augmented estate; amending Rule 301,
Alaska Rules of Evidence; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 232
"An Act establishing the independent division of administrative
hearings in the Department of Administration in order to provide a
source of independent administrative hearing officers to preside in
contested cases; relating to administrative hearing officers;
relating to contested case proceedings; and providing for an
effective date."
- BILL HEARING CANCELLED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 189
SHORT TITLE: RESTRICT TOBACCO SALES
SPONSOR(S): REPRESENTATIVE(S) COWDERY, Austerman, Ryan
JRN-DATE JRN-PG ACTION
03/12/97 640 (H) READ THE FIRST TIME - REFERRAL(S)
03/12/97 640 (H) LABOR & COMMERCE, JUDICIARY
04/03/97 922 (H) SPONSOR SUBSTITUTE INTRODUCED-
REFERRALS
04/03/97 922 (H) L&C, JUDICIARY
04/09/97 (H) L&C AT 3:15 PM CAPITOL 17
04/09/97 (H) MINUTE(L&C)
04/10/97 (H) L&C AT 3:15 PM CAPITOL 17
04/10/97 (H) MINUTE(L&C)
04/18/97 (H) L&C AT 3:15 PM CAPITOL 17
04/18/97 (H) MINUTE(L&C)
04/21/97 1211 (H) L&C RPT CS(L&C) NT 4DP 1NR
04/21/97 1211 (H) DP: COWDERY, RYAN, HUDSON, ROKEBERG
04/21/97 1211 (H) NR: BRICE
04/21/97 1211 (H) 2 ZERO FISCAL NOTES (DPS, REV)
04/21/97 1225 (H) COSPONSOR(S): AUSTERMAN
04/28/97 (H) JUD AT 1:45 PM CAPITOL 120
04/28/97 (H) MINUTE(JUD)
04/28/97 (H) MINUTE(JUD)
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
05/05/97 (H) MINUTE(JUD)
05/05/97 (H) MINUTE(JUD)
05/05/97 (H) MINUTE(JUD)
05/05/97 (H) MINUTE(JUD)
BILL: HB 245
SHORT TITLE: DOM. VIOL. ASSAULTS;PRISONER CONTACTS
SPONSOR(S): REPRESENTATIVE(S) DYSON, Berkowitz
JRN-DATE JRN-PG ACTION
04/10/97 1061 (H) READ THE FIRST TIME - REFERRAL(S)
04/10/97 1061 (H) STA, JUDICIARY, FINANCE
04/18/97 1189 (H) BERKOWITZ CHANGED TO COSPONSOR
04/18/97 1189 (H) DYSON CHANGED TO PRIME SPONSOR
04/24/97 (H) STA AT 8:00 AM CAPITOL 102
04/24/97 (H) MINUTE(STA)
04/25/97 (H) JUD AT 1:00 PM CAPITOL 120
04/25/97 (H) MINUTE(JUD)
04/25/97 1340 (H) STA RPT 6DP
04/25/97 1340 (H) DP: JAMES, ELTON, BERKOWITZ, DYSON,
04/25/97 1340 (H) VEZEY, IVAN
04/25/97 1340 (H) 2 INDETERMINATE FNS (COR, ADM)
04/25/97 1340 (H) 2 ZERO FISCAL NOTES (LAW, DPS)
04/30/97 (H) JUD AT 1:30 PM CAPITOL 120
04/30/97 (H) MINUTE(JUD)
05/02/97 (H) JUD AT 1:00 PM CAPITOL 120
05/02/97 (H) MINUTE(JUD)
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
05/05/97 (H) MINUTE(JUD)
05/06/97 (H) JUD AT 2:15 PM CAPITOL 120
BILL: HB 16
SHORT TITLE: JUVENILE DELINQUENCY PROCEDURES
SPONSOR(S): REPRESENTATIVE(S) KELLY
JRN-DATE JRN-PG ACTION
01/13/97 31 (H) PREFILE RELEASED 1/3/97
01/13/97 31 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 31 (H) HES, JUDICIARY
02/29/97 (H) MINUTE(HES)
04/25/97 (H) HES AT 3:30 PM CAPITOL 106
04/25/97 (H) MINUTE(HES)
04/29/97 (H) JUD AT 1:00 PM CAPITOL 120
04/29/97 (H) MINUTE(JUD)
04/29/97 (H) MINUTE(JUD)
04/29/97 (H) HES AT 3:00 PM CAPITOL 106
04/29/97 (H) MINUTE(HES)
04/30/97 1395 (H) HES RPT CS(HES) NT 5DP
04/30/97 1396 (H) DP: DYSON, GREEN, BUNDE, PORTER,
VEZEY
04/30/97 1396 (H) 4 FNS (2-ADM, COURT, COR)
04/30/97 1396 (H) 3 ZERO FNS (DHSS, LAW, DPS)
05/01/97 (H) MINUTE(JUD)
05/06/97 (H) JUD AT 2:15 PM CAPITOL 120
WITNESS REGISTER
MIKE FORD, Attorney
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified on CSSSHB 189(JUD).
MARCO PIGNALBERI, Legislative Assistant
to Representative John Cowdery
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
Telephone: (907) 465-3879
POSITION STATEMENT: Testified on behalf of sponsor regarding
CSSSHB 189(JUD).
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Prime sponsor of HB 245.
BARBARA BRINK, Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 245 and HB 16.
JAN MacCLARENCE
Abused Women's Aid in Crisis
100 West 13th
Anchorage, Alaska 99501
Telephone: (907) 279-9581
POSITION STATEMENT: Testified on HB 245.
JODI OLMSTEAD
P.O. Box 56873
North Pole, Alaska 99705
Telephone: (907) 488-0334
POSITION STATEMENT: Testified on HB 245 and HB 16.
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 465-4652
POSITION STATEMENT: Provided Department of Corrections' position
and answered questions regarding HB 245;
testified regarding HB 16.
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Provided council's position on HB 245.
LAURIE HUGONIN, Executive Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward, Room 501
Juneau, Alaska 99801
Telephone: (907) 586-3650
POSITION STATEMENT: Testified in support of HB 245.
BRUCE CAMPBELL, Legislative Assistant
to Representative Pete Kelly
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99801
Telephone: (907) 465-6589
POSITION STATEMENT: Presented HB 16 on behalf of sponsor.
BRANT McGEE, Public Advocate
Office of Public Advocacy
Department of Administration
900 West 5th Avenue, Suite 525
Anchorage, Alaska 99501-2090
Telephone: (907) 269-3501
POSITION STATEMENT: Testified regarding HB 16.
ACTION NARRATIVE
TAPE 97-78, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 2:24 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, Rokeberg, Croft and
Berkowitz. Representative James arrived at 2:37 p.m.
SSHB 189 RESTRICT TOBACCO SALES
[Contains considerable discussion of SSHB 159]
CHAIRMAN GREEN announced the first item of business would be
Sponsor Substitute for House Bill No. 189, "An Act relating to sale
of tobacco and tobacco products; and providing for an effective
date."
Number 0062
REPRESENTATIVE BRIAN PORTER made a motion to rescind the
committee's action of May 5, 1997, that had moved CSSSHB 189(JUD)
out of committee.
CHAIRMAN GREEN asked whether there was an objection. There being
none, the bill was again before the committee. He asked Mike Ford
to explain the dilemma arising from the verbal amending done the
previous day.
Number 0099
MIKE FORD, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, stated, "The committee did pass out two
bills, House Bill 159 and House Bill 189. And there were some
duplicative, conflicting and overlapping provisions in the two
bills. So, what we did was attempt to differentiate between the
provisions that were conflicting and resolve that, which resulted
in a Judiciary CS for House Bill 159, which has passed out of the
committee, and a new Judiciary CS, which you have before you now.
So, I believe we have a vehicle which ... avoids the conflicts. It
contains those provisions that will capture, I believe, the intent
of the sponsor and the committee and, hopefully, be a vehicle that
will allow you to proceed on ... both fronts." He offered to go
through the new draft, version 0-LS0711\H, Ford, 5/6/97.
CHAIRMAN GREEN asked whether the sponsor has any problem with it.
MARCO PIGNALBERI, Legislative Assistant to Representative John
Cowdery, stated that Representative Cowdery likes this version.
REPRESENTATIVE ERIC CROFT asked to hear what the changes are. He
then made a motion to adopt version 0-LS0711\H, Ford, 5/6/97, as a
work draft. There being no objection, that version was before the
committee.
MR. FORD explained the changes:
"Section 1 repeals language that is applicable to the vending
machine limitation on sale and also adds a `knowing' element in
place of the `negligent' sale. So, we've raised the standard there
for committing this offense.
"Section 2 is the section where we have actually raised the
punishment to class B and class A misdemeanor, depending on whether
it's your first offense or whether you have multiple offenses.
"Section 3 is a provision that imposes a restriction on sale. ...
Except for sales by vending machine, you can't sell tobacco
products unless you meet the paragraph 1 and 2 requirements.
Paragraph 1 is simply an access limitation; you have to restrict
your ... public access to the product. Paragraph 2 is the
wholesale exception; if you're a wholesaler, then you are allowed
to sell.
Number 0341
"Section 4 is a section added to be consistent with Section 1.
It's raising the standard from `criminally negligent' to `knowing'
in order to lose your license ... as a wholesaler.
"Section 5 is a repeal section. We're repealing two sections that
deal with vending machines. And, again, this is consistent with
the changes made in House Bill 159 and is intended to avoid any
conflicts.
"Section 6 is a provision we added that is intended to allow the
Revisor to reconcile House Bill 159 and 189, assuming that both
pass, and perhaps with additional changes, which we are unaware of
at this point."
Number 0403
CHAIRMAN GREEN asked for confirmation that if HB 159 didn't pass,
Section 6 would become moot.
MR. FORD responded, "That's correct. The one thing I would point
out to the committee, however, is that if 159 does not pass, we
have taken out the vending machine restrictions in 189. So, if in
fact ... at some in this process this becomes the sole vehicle, you
would probably want to add those in here so you'd maintain your
restrictions on vending machine sales."
REPRESENTATIVE CROFT asked, "Can we add them in now, identically,
and then no matter what bill comes through, ... it's there? Can we
pull the ... 159 vending machine?"
MR. FORD replied, "You could do that. As I said, when we
approached the project, it was as a package, 159 and 189. And
assuming that both those vehicles passed, we're trying to eliminate
the conflicts between them, because they did repeal and reenact
sections. Actually, one section was amended; the other bill
repealed and reenacted the same section. So, in order to avoid the
confusion over ... `who's on first,' we drafted it this way."
Number 0510
REPRESENTATIVE CROFT responded, "Well, I guess I'd move that as a
conceptual amendment. Noting the lateness in the session, he said,
"And I'd rather make sure that it is there, rather than, when we're
trying to strengthen the law, have the unintended consequence of
possibly eliminating the vending machine restrictions."
Number 0525
REPRESENTATIVE CON BUNDE said his only question would be whether
this would delay this bill getting to the floor. He said it is a
package, and he believes there is an understanding that it will be
a package on the floor.
CHAIRMAN GREEN responded, "And I suppose if it did happen that
somehow it didn't make it here, we could revisit it on the other
side."
REPRESENTATIVE CROFT added, "I guess on the floor."
CHAIRMAN GREEN said, "Or the floor ...."
REPRESENTATIVE CROFT said he'd withdraw the motion, although it may
still be a good idea, because of the timing.
Number 0580
REPRESENTATIVE NORMAN ROKEBERG asked whether there was a further
referral to the House Finance Committee.
CHAIRMAN GREEN said, "This one I think has zero."
REPRESENTATIVE ROKEBERG asked, "And 159?"
CHAIRMAN GREEN replied, "159 is lagging because it does have a
referral ... to Finance. It has a positive fiscal note. It may be
waived, but ...."
REPRESENTATIVE ROKEBERG suggested it would be better to do the work
in committee, rather than on the House floor.
Number 0617
REPRESENTATIVE PORTER pointed out that the work they were
anticipating would only be needed if one bill failed. "I don't see
that happening," he added.
REPRESENTATIVE ROKEBERG said, "It depends how it's scheduled on the
calendar, too."
CHAIRMAN GREEN said, "Well, the worst that would happen, if this
were scheduled first and the other one fails, then we'd just
reconsider our vote on this and reopen the bill."
REPRESENTATIVE ROKEBERG asked, "We have a designated `amender'
there?"
CHAIRMAN GREEN stated, "I will follow that up, then, and appoint
myself ... to make sure that we don't pass a bill over that doesn't
have the vending machine clauses in it."
REPRESENTATIVE ROKEBERG stated his understanding that the House
Rules Committee would be "packaging" it. He suggested perhaps they
could do it there.
CHAIRMAN GREEN responded, "That would work, too. The only thing
is, we still won't know whether they both make it."
Number 0688
REPRESENTATIVE BUNDE stated for clarification, "There has never
been anyone charged under legislation like this. I don't see
anything that would probably change that."
MR. FORD responded, "Mr. Chairman, it's my understanding that that
is correct. However, [you] probably should ask that question of
the Department of Law."
REPRESENTATIVE PORTER made a motion to move version 0-LS0711\H,
Ford, 5/6/97 out of committee with individual recommendations.
There being no objection, CSSSHB 189(JUD) moved from the House
Judiciary Standing.
HB 245 - DOM. VIOL. ASSAULTS; PRISONER CONTACTS
Number 0773
CHAIRMAN GREEN announced the next item of business would be House
Bill No. 245, "An Act relating to minimum sentences for assault in
the fourth degree that is a crime involving domestic violence;
providing that a prisoner may not contact the victim of the offense
when provided access to a telephone or otherwise immediately after
an arrest; and amending Rule 5(b), Alaska Rules of Criminal
Procedure."
Number 0787
REPRESENTATIVE FRED DYSON, prime sponsor, explained that HB 245
sets some minimum standards for domestic violence sentences and
restricts the perpetrator's ability to call the victim. Much of
the work in drafting the bill was done by Representative Berkowitz,
who could answer technical questions. Representative Berkowitz had
asked that Representative Dyson, who is also interested in domestic
violence issues, be the prime sponsor.
REPRESENTATIVE DYSON explained that this takes two important steps.
It prevents defendants from using their one phone call to contact
and harass victims; victims, groups and police departments
throughout the state have recognized it as another step in
protecting victims from ongoing harassment. It also establishes a
graduated minimum sentence for domestic violence offenders. "And
I might add it leaves what we think is a prerequisite flexibility
for prosecutors and defense attorneys in dealing with this," he
stated, "And these things are progressive. And those who are
repeat offenders will feel the increasingly repressive nature of
the law if this passes."
Number 0953
REPRESENTATIVE CROFT asked, "Section 1: Has that happened? I
mean, people use their phone call to continue harassment?"
REPRESENTATIVE DYSON said yes. He stated, "In my experience,
dealing some with perpetrators but also quite a bit with victims,
people are irrational. And vengeance and creating discomfort for
their victims and terrorizing them and threatening them,
particularly when the thing gets to the point where ... these guys
have been arrested, then they know that in most domestic violence
things, there are very few witnesses, sometimes just children, that
getting to and threatening the victim is, you know, a very good way
to try to beat the thing, beat the charge."
Number 1004
REPRESENTATIVE ROKEBERG referred to Section 1, page 1, line 13,
which adds "friend" and deletes "friends". He asked whether a
prisoner has the right to refuse a visit from an alleged friend.
REPRESENTATIVE ETHAN BERKOWITZ replied, "Sure."
REPRESENTATIVE ROKEBERG asked the reason for making it singular.
REPRESENTATIVE BERKOWITZ pointed out that it is just one phone
call.
REPRESENTATIVE BUNDE commented that with a right to contact
friends, one could have quite a long series of calls one wanted to
make.
Number 1074
REPRESENTATIVE CROFT indicated that the desire to increase the
seriousness of the crime made sense to him, putting teeth into it
"without unduly hamstringing, if you will." He asked for an
explanation of how it walks that line.
Number 1106
REPRESENTATIVE BERKOWITZ explained, "What often happens with
domestic violence assaults is the prosector and defense attorney
will get together. And people who are experienced more or less
know where the sentence will wind up for a particular crime. But
it's useful to have the hammer of mandatory time in the prosector's
arsenal, and it can also be useful in the defense attorney's
arsenal to help persuade a client that it might perhaps be futile
to persist. And what ... we've tried to engineer in this bill is
a loophole that defense attorneys and prosecutors can use so they
can charge, essentially, in the alternative: either you ... take
a domestic violence assault charge, which carries mandatory minimum
... penalties, plus there would be other contempt of court charges
potentially going alongside, because ... they all occur consistent
with an order ...."
REPRESENTATIVE CROFT asked, "Inconsistent with it?"
REPRESENTATIVE BERKOWITZ said, "In order to have a domestic
violence assault, there has to be a court order at some point in
the process. But it doesn't necessarily have to be charged that
way."
Number 1197
REPRESENTATIVE PORTER stated, "We've heard mentioned several times
the phenomenon of unintended consequences. ... One of the
prosecutors in the municipality called and had a concern about
Section 3, as it relates to establishing specific `A' levels for
subsequent offenses, which could negate the ability to impose a
suspended sentence from the first occurrence. Quite often,
especially in serious-injury-type domestic violence cases, a very
substantial suspended sentence is imposed at the first conviction.
And if someone had 120 days or 180 days or something hanging over
their head, then faced with this, I think that you would cut that
in half, and it would lose the ability to persuade pleas and those
kinds of things. So, I think the suggestion was to try to word
this so that that wouldn't occur, and ... after our grand success
yesterday, I'm not suggesting that we craft this at the table. But
it was a concern expressed by a prosecutor who handles quite a few
of these cases."
Number 1265
REPRESENTATIVE CROFT responded, "Well, we had some of that concern
in another bill. But were you suggesting an `at least'? It does
say, `sentence to a minimum term of'. So, it wouldn't seem to me
to require 60 days; it would require at least 60 days. And ... if
the prior suspended, or whatever the fact situation, increased
that, ... that it could still happen, minimum term, but it doesn't
state any sort of ceiling, just floor."
REPRESENTATIVE DYSON concurred with Representative Porter that one
of the best tools a judge has is a suspended imposition of sentence
to mandate anger management or "male awareness" and fairly strict
supervision. He stated, "And I don't think we are precluding that
tool here."
Number 1330
REPRESENTATIVE PORTER responded, "I believe the concern was when
you set these kinds of things out, somehow they become a standard.
And there was concern that that not be the case. I think that's
correct, that this is minimum. Maybe we could underline `minimum'
or something." (There was laughter.)
Number 1357
REPRESENTATIVE ROKEBERG referred to page 2, line 20. He said, "It
seems as if no imposition of sentence or a partial sentence would
be allowed under this subsection. So, if the case is where there
is ... perhaps 60 days of ... incarceration and 120 days of ....
CHAIRMAN GREEN asked, "Community service or whatever?"
REPRESENTATIVE ROKEBERG responded, "No, it's still suspended, but
it could be imposed if there's a repeat offense. ... I mean, is
that a problem here, with that language?"
REPRESENTATIVE BERKOWITZ explained, "There's a section of Title 12
which has to do with sentencing, which permits courts to suspend
the imposition of sentence. Basically, you behave, you don't have
to go to jail, it gets wiped off your record, to some extent. ...
And usually, suspended imposition of sentence only applies for the
first offense. There might be rare instances where a defendant
might get a second or even, incredibly rarely, a third bite at the
apple. ... This is something the drafter wanted put in. It's, in
all practicality, something that's never going to occur for a
repeat offender, that they're going to get a suspended sentence.
So, this is something just to ensure that the suspended sentence
doesn't occur. And the court of appeals has said that it's not a
good idea; they want to make sure that people have to pay the price
for breaking a law more than once and pay a significant price. And
most judges would, that I've seen, do sentencing (indisc.--
coughing) suspended imposition of sentence, particularly not for a
second assault."
Number 1455
REPRESENTATIVE ROKEBERG requested clarification about what assault
in the fourth degree is, stating his understanding that assault can
occur without touching another person, whereas battery occurs when
the person is touched.
CHAIRMAN GREEN noted that Superior Court Judge Michael Wolverton
was in the audience.
REPRESENTATIVE BERKOWITZ said that assault is when a person either
causes a physical injury or puts someone in fear of physical
injury. There is no `battery' in the criminal code.
REPRESENTATIVE ROKEBERG and REPRESENTATIVE CROFT said, "In Alaska."
REPRESENTATIVE BERKOWITZ added, "Assault sweeps in both."
REPRESENTATIVE ROKEBERG suggested that in Alaska, normally the
crime is committed if there is actual physical injury.
REPRESENTATIVE BERKOWITZ replied, "You can have a fear as well.
But it has to be imminent, imminent physical injury."
Number 1550
REPRESENTATIVE DYSON said, "Domestic violence cases are not a `slam
dunk' when they go before the judge. And the difficulty is always
in proof. And oftentimes, there are no witnesses. And so, unless
there's physical evidence and it has been substantiated, the case
has to be proved. And it's not going to be just on the word of the
victim. Police officers who respond will say, `Yeah, there's blood
dripping out of the corner of her mouth and a hand print on the
side of her face and the furniture was upset ... and so on. Just
the yelling -- and unless there's a witness that not only hears it
but sees ... that a reasonable person would have been intimidated
and terrified, probably not going to get a conviction. A repeat
offender, lots of these sorts of things, and the court will take
that into account."
Number 1610
REPRESENTATIVE BERKOWITZ said there are some techniques, which he
believes have come primarily out of San Diego, for prosecuting
cases. It is quite common for victims to recant the accusation of
domestic violence. He stated, "And we're getting more and more
success in being able to prosecute just on the say-so of the
victim, even if it's done initially and ... there's not much
physical evidence to go along with (indisc.--coughing) because the
techniques for the prosecutor's side are becoming so well-
developed."
Number 1635
REPRESENTATIVE PORTER added, "I guess to further allay the
Representative's concern, one of the few exceptions to the laws of
arrest as relates to misdemeanors is involved in domestic violence,
where a probable-cause arrest can be made by a police officer
seeing the kind of scene that Representative Dyson just described,
whereas previously, unless they actually saw the assault occur,
they were required to rely on a private person's arrest from the
victim, which oftentimes was not forthcoming because of the fear of
the whole situation. But now the officer can make that arrest on
probable cause. And as a matter of fact, a bill just passed that
will now allow previous acts to be used as evidence in the trial."
Number 1697
BARBARA BRINK, Director, Public Defender Agency, Department of
Administration, testified via teleconference from Anchorage. She
thanked Representative Porter especially for mentioning unintended
consequences. She stated, "Normally, a judge always takes into
account whether or not a person has a prior conviction for a crime
similar to the one ... before them and will ratchet up the penalty,
as this bill is intended to do. The problem with making mandatory
minimum sentences: that you remove the judge's ability to fashion
an appropriate punishment, given a whole range of different things
the judge is supposed to think about. The judge thinks about the
seriousness of the harm, the rehabilitation potential of the
defendant, and the deterrent value and reaffirmation of societal
norms. When you remove that power from the judge, you get
sentences that you will find aren't appropriate, given those
particular circumstances."
MS. BRINK continued, "Essentially, those mandatory minimums create
anomalies in the overall sentencing schemes. Normally in assault
cases, we take into account not just the character of the crime but
what the person's intention was, whether a weapon was involved or
not, whether there was actual touching or injury, and the
seriousness of that injury. If you take a small class of domestic
violence assaults and impose mandatory penalties on just those,
they are anomalous in the overall scheme of things. Those
mandatory minimums create an arbitrary nature to the crime, such
that a person is much less likely to admit they're at fault or to
complicity in that crime."
MS. BRINK continued, "For example, a person who is charged with a
domestic violence assault, misdemeanors here, for having
threatening words with someone, will be required to serve more time
in jail than a person who may have been charged with a serious
felony offense. Such severe sentences are going to discourage
people from admitting their own conduct, because the consequences
appear overly-harsh and somewhat arbitrary. When fewer people
admit their guilt, more of these cases are going to proceed to jury
trial, and I'm here to tell you that those are a far more costly
proposition than how most cases are handled today.
Number 1798
MS. BRINK continued, "Last year, the state prosecuted over 1,200
domestic assaults. The Municipality of Anchorage alone prosecuted
an additional 1,500. The estimates I've gotten from the
prosecutors are that a good 30 to 50 percent of those assaults
might involve repeat offenders. If an even-small percentage of
those go to trial, there are going to be enormous financial
repercussions, not only on the public defender but on the
prosecutor and the court resources. The financial burden is going
to be enormous. We are not able to predict, obviously, how many of
these cases are going to go to trial, but as I am trying to be more
clear about, in bills that come before you, we will come back and
let you know about those unanticipated costs in our supplemental
requests."
Number 1847
MS. BRINK pointed out one additional unintended consequence. She
said she is worried that many people will be discouraged from
reporting things to the police. She stated, "Oftentimes, a person
in the heat of a situation who's got a little training about
domestic violence, who knows how to protect themselves, will call
the police, even if all they want is the other person removed from
the scene. And the police are very good about doing that. But
once the word gets out that this person is then going to be placed
in a mandatory jail situation, they are going to go away for 30
days or 60 days, I'm worried that victims will be discouraged from
calling the police because they know about these hard
consequences."
MS. BRINK continued, "At the last hearing, Representative Ivan
noted lots of cases in his own district where after the dust had
settled, the person will go back to the judge and ask for that
person to be released because they have no ability to get wood,
they have no ability to get water; the basic needs of that entire
family are dependent on this person who, yes, may have committed a
crime. But jumping to the next conclusion that mandatory jail time
is appropriate can actually cause detriment to the victim as well
as the perpetrator."
Number 1893
REPRESENTATIVE JEANNETTE JAMES said she understood that to be
correct. The whole idea of domestic violence is frustrating to
her. Until the victims are strong and can stand up, it will never
be solved. Being easy on perpetrators isn't necessarily the way to
go. "And we really do need to help these people to be strong and
find out there's other alternatives besides getting that person out
of jail," she concluded.
Number 1924
REPRESENTATIVE ROKEBERG acknowledged that there is no dollar amount
for the fiscal note because of the difficulty in making an
estimate. He said that doesn't seem to deter the Administration
from making estimates in other bills. He asked why there is a
basically neutral fiscal note if there will be a significant
burden.
MS. BRINK replied, "What we tried to do is to base our fiscal note
on actual numbers. We often get those numbers from the Department
of Public Safety and the Department of Law, where they can tell by
the nature of just the charge. Most often, when we include dollar
figures in our fiscal notes, it's because they can give us concrete
numbers of that type of case, which will increase. While ... this
type of bill won't increase the number of cases, it will simply
increase how those cases are resolved. And so, when the
uncertainty is ... how many cases will go to trial, we prefer to
put -- we prefer to put in a fiscal note that is very certain.
And if we can't be that certain, we would prefer to do an (indisc.)
fiscal note and just let you know we'll keep track of those
consequences, and we may be back before you next year, letting you
know what the consequences of that bill were."
Number 1988
REPRESENTATIVE ROKEBERG responded, "Just based on the fact that it
seems that if the Administration kind of likes a bill, they'll
accommodate the bill with a neutral or a fiscal note that generates
a supplemental appropriation in the following year's budget, and if
they perhaps don't like the bill, ... they'll seem to make those
estimates without any compunction about doing it at that time. ...
So, I think that's a real problem."
REPRESENTATIVE CROFT asked, "Barb, do you like this bill?"
Number 2008
MS. BRINK replied, "Through the chair, no, I do not."
Number 2013
REPRESENTATIVE PORTER said, "Barbara, recognizing that, let me ask
you one question: Would it be a fair statement to say that at
least some of your clients that you have dealt with over the years,
that found themself in your office after being charged for the
first time with a domestic violence charge, that was subsequently
found guilty, might be impressed or deterred if he knew that there
was an absolute 30-day minimum sentence facing him if there was a
repeat?"
MS. BRINK answered, "I don't think so. The problem is that
domestic violence often is in a very emotionally charged situation.
Most of the clients I've encountered charged with this type of
crime aren't exercising good judgment or rational thought like that
in the heat of the moment. On the other hand, I do think that -
the point that you brought out earlier - that on a first offender,
giving a significant amount of time to them, that they've actually
been in front of the judge on and they know that they have `x' days
hanging over their head, that's more real to them than some
eventuality if a further crime were to happen. So, I think it is
very effective to give a large amount of suspended time to a first
offender. I find that's a pretty good motivator, and not only to
not commit further crimes but to engage in domestic violence
counseling, `male awareness' and those types of programs that
actually seek to modify behavior rather than just scare somebody."
Number 2078
REPRESENTATIVE PORTER replied, "Just a comment that I believe
that's what we're doing. The language in the second- and third-
offense minimum sentences, what we're saying is you have the
ability to provide a suspended sentence of great proportion if it's
appropriate - and in most cases, it is - but with the additional
deterrent, if that is effective, I would think that the additional
deterrent of - and by the way, you can't talk yourself out of
anything less than 30 days for the second offense - would be just
that much more additional deterrent. I agree these things don't
happen with ... a lot of conscious thought. But one would think
that the balance of treatment and the axe over the head ... for a
deterrent would be a combination that would serve the best
purpose."
Number 2123
JAN MacCLARENCE, Abused Women's Aid in Crisis (AWAIC), testified
via teleconference from Anchorage. She thanked the committee for
concern about domestic violence, which has caused untold pain and
hardship in all Alaskan communities. She said she really supports
the restriction on calls that a person can make from jail, because
they have had a lot of experience at the AWAIC shelter of
perpetrators calling and harassing their victims "from their prison
cell, so to speak." Anything to try to eliminate that is very much
appreciated.
MS. MacCLARENCE explained that what they've found is most
successful in addressing the behavior of domestic violence
perpetrators is forcing them to go to jail for a short time, with
the balance of the sentence suspended pending completion of the
"male awareness" program, of "batterers intervention." That
program has an 85 percent success rate for those who complete it.
She said those men who have had a jail sentence and still have a
few days of that remaining, who know they'll have to complete it if
they don't complete a batterers intervention program, really make
some significant changes in their lives. She stated, "They're
really motivated. But I wasn't sure whether or not this bill would
allow for that alternatives, and I'm concerned about that."
CO-CHAIRMAN HUDSON asked whether either sponsor wished to answer
that.
REPRESENTATIVE DYSON responded, "Absolutely. It still allows for
the judge to sentence all kinds of remedial action and supervision,
and so on and so forth, and suspend sentence, but he cannot suspend
these minimums. And so, the flexibility is still there on the up-
side. It limits the flexibility on the down-side. And my
experience with people going to the `male awareness'/anger
management, they don't want to be there. And if they finally don't
get the lesson that there's something for them to learn, you know,
it's not going to do them much good. They've got to be an active
participant in the program."
REPRESENTATIVE DYSON noted that few people enjoy being in jail. He
said, "And spending 30 days there is going to make most people say,
`I don't want to do this no more.' And then, if there is an
addition to that, there's the remedial action with a suspended
action, the judge has got a hammer-lock on them. And these
irreducible minimums on second offense, ... they're designed to get
the person's attention."
Number 2251
REPRESENTATIVE BERKOWITZ added that although there is no
residential batterers program in Alaska, one day there might be.
An unfortunate number of these instances are drug-related or
alcohol-related. "And a lot of the residential drug and alcohol
programs, I believe the minimum period is 28 days," he said. "And
you can get jail-time credit for service in a residential program.
Part of the reason we came up with the numbers we did is to
accommodate sentences that required residential alcohol treatment.
And, hopefully, if we ever develop residential batterers programs,
it would be residential batterers programs as well. ... We're not
doing this solely to put people in jail. We're doing this in an
effort to give people, batterers in particular, the skills or the
restraint or the discipline, or whatever you want to call it, to
abstain from committing these acts of violence in the future,
because it's a question of breaking a cycle. And this is just one
way we have of breaking the cycle."
Number 2300
REPRESENTATIVE DYSON pointed out that this takes into account the
type of offense, with several grades. They were talking about
assault in the fourth degree. He stated, "And it takes into
account whether it was life-threatening, weapons were involved, and
so on and so forth. It's going to be helpful to a victim to know
that the person's going to be away for a time. Gets busted, gets
convicted and ... only does seven days, ... that's minimum help to
a victim, particularly a victim that wants to relocate ... and get
their life together, and so on and so forth. It's going to be
helpful to know that they're going to be away for a specific length
of time. ... Barbara mentioned that people will be reluctant to
call the cops, they're just looking for intervention because of the
mandatory sentence. I didn't understand the logic trail there. It
takes more than calling a cop. You have to file charges ... and
appear, as I understand it, ... before you're going to
automatically trigger ... the long-term sentence."
REPRESENTATIVE DYSON said he rejects the argument that victims
should volunteer to get perpetrators out of jail to haul wood.
Other options can be provided by neighbors, family and community
leaders. And if a perpetrator must haul wood, he doesn't have to
live there. He stated, "I do not think people are going to freeze
to death in Alaska because we left a wood chopper in the slammer
for 30 days."
Number 2391
JODI OLMSTEAD testified via teleconference from Anchorage, saying
she is from North Pole. She stated, "First of all, we have to add
`shes' in there, too. We have a lot of women in jail for domestic
violence, and it's not necessarily that they should be there. I
think that we have a problem on some of the domestic violence
issues. I know there's a lot of massive funding out there for it.
It's like the buzzword in social agencies. But it's also something
that's not new. It's happened. It's run rampant for years and
years and years, and people didn't talk about it; like child abuse
and everything else, it's been there."
MS. OLMSTEAD continued, "Many people, many women, many men, I think
that have gotten into different crimes, it's the direct result of
domestic violence. And I don't think that the (indisc.) in the
court rooms go back and reflect that. I know a lot of people who
have, in Fairbanks, suffered domestic violence, whether it was
physical abuse or mental abuse. And now their lives are destroyed
because there's never been anywhere for them to go. I've called
the shelters; there was ... no one to go help them in jail. I want
to know what this money for domestic violence is going for. I
would like to see it go all the way back to the cause and effect
that anybody's life that domestic violence is a part of, why they
are the way they are. We need to help them. And if domestic
violence funding is there, we need to help them with that funding.
I feel like a lot of the things you talk about, tools that a judge
has, we don't have that in Fairbanks. The anger management that we
have, there's almost a package deal for child abusers or domestic
violence that's handed out, many times not even reaching what the
challenges are that the person has or ...." [Ends mid-speech
because of tape change.]
TAPE 97-78, SIDE B
Number 0001
MS. OLMSTEAD said she had a record for domestic violence because
she slapped her daughter "on the butt with a hair gel." She
stated, "I was pushed to do that by FYS in Fairbanks in order to
shake their finger and say, `Now, little girl, you do as your mom
says,'and it ended up getting me a domestic violence order because
my daughter, her dad and her dad's girlfriend all went to the WICCA
[Women in Crisis-Counseling and Assistance] shelter, and they
taught them and showed them and walked them through how to make a
domestic violence attack against me with paperwork and everything
and did it. And a court proceeding happened, and I didn't know it
until a year later. Now, I have ... a domestic assault on my
record; so, I probably can't carry a gun because I'm pretty
dangerous. But my daughter also has one. And I don't like that,
a fourth-degree assault." She asked Representative James to
address that, indicating it is a "deep, deep, deep issue that has
been ignored by a lot of our legislators."
Number 0056
REPRESENTATIVE ROKEBERG asked what the consequence was of Ms.
Olmstead's conviction and whether her sentence included jail time.
MS. OLMSTEAD replied, "No. I played a `Harper Valley PTA' on the
DFYS and got the social worker fired. But the domestic violence is
on my record." She said she had a nasty record because she just
wanted some accountability. She advised caution with "moving ahead
in these bills."
Number 0106
REPRESENTATIVE BUNDE referred to previous discussion and said, "I
think when we look at the incredible sudden escalation of domestic
violence, people who are dead don't need any wood carried for
them." He said the argument that these people should be allowed
out and back in the home to provide a basic service holds no water.
Number 0128
REPRESENTATIVE CROFT pointed out that the provision says 30 days if
the defendant has been previously convicted of a crime against a
person.
Number 0151
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, advised members she was there to represent the
Department of Corrections on this bill if there were questions.
Number 0161
REPRESENTATIVE ROKEBERG expressed concern about the fiscal note,
acknowledging the referral to the House Finance Committee and the
difficulty of doing an estimate. He said he'd done some rough
numbers and explained his methods. He stated, "Presumably,
Anchorage is no different than the rest of the state. So, you use
the 30 percent figure; that's 840 times 30 days times $100; there's
$2.5 million. Now, obviously, many of these people are already in
the system and have been convicted and are serving some time;
there's no question about that. So, these are just the worst-case
numbers here ... and they're overstated grossly, the ones I just
added. But, I mean, this is a concern I have that there's got to
be a significant fiscal impact from this legislation. And I'd just
like to have your comments."
Number 0219
MS. KNUTH responded, "The explanation is that the fiscal note
reflects an increase in costs associated with the bill. And as far
as we're able to determine, these people are already getting
sentences for these offenses that approximate the mandatory minimum
imposed by the bill. And there is some guesswork involved. We
don't have perfect record-keeping, especially when it comes to
domestic violence, because it's listed within the assault IV
category. We don't have a separate crime that we can track
domestic violence assault. But as far as we're able to determine,
these people are already serving approximately the same sentence;
and so, we're not able to put in a fiscal note for all of the time
that's already being served by these people."
REPRESENTATIVE ROKEBERG said he understood that and appreciated the
difficulty of coming up with a figure right now. He commented, "I
mean, even by your own note, you know, assuming ... only the 834,
you've got a $87,000-a-day cost."
MS. KNUTH responded, "They're doing that amount of time for the new
offense already. ... Suppose that on a second or a third domestic
violence, they were getting 10 or 15 days, and this was increasing
it to 30, to 60. Then, for the difference between the 10 and the
30, we could submit a note. But if for the second offense, the
judge is already giving them 30 and that's what they're going to
get under this bill, there's no impact by the bill that we're able
to ascertain. ... We'd love to put a fiscal note in ...."
REPRESENTATIVE ROKEBERG said it appears they know there is a fiscal
impact but can't put a finger on it. He suggested some estimates
may be appropriate, so that people can understand that it is not a
no-cost situation. He clarified that he fully supports "the
concept of very hard enforcement of our domestic violence statute"
and that in no way was his questioning meant to undermine that
commitment.
Number 0324
REPRESENTATIVE JAMES referred to Ms. Knuth's comment about not
being able to sort out domestic violence from other charges. She
noted that the technology is available. She asked whether anything
is brewing that would provide a better handle on the various kinds
of cases.
MS. KNUTH said she did not know. She suggested Ms. Carpeneti of
the Department of Law's Criminal Division, who was present, may
know.
Number 0354
REPRESENTATIVE PORTER stated, "I can answer that question. The
uniform reporting system of the law enforcement agencies has been
capturing that information for the last several years. As soon as
the automated system is complete that ties one subject all the way
through the system, all of that information in terms of charges and
dispositions and sentencing will be available."
REPRESENTATIVE CROFT noted that there is a slightly different
minimum of 20 days for fourth degree assault in violation of an
order. He said, "Now, this ups it some and clarifies it some, but
we already had some semblance of 20 days before going to the point
of Representative Rokeberg's fiscal note. ... We already had a form
of minimum before; this strengthens it and increases it somewhat.
But if they were already getting that sentence, it is a true,
legitimate, defensible estimate of zero, if they're getting that
basically now."
Number 0404
REPRESENTATIVE PORTER said he appreciated the recognition that
there is no definite way to establish this; it may be nothing, and
it may be something. "But I've had fiscal notes in the past that
presumed the worst, and ... I think this is a nice, neutral one
that is appropriate," he added.
CHAIRMAN GREEN commented that the Administration must like it.
REPRESENTATIVE ROKEBERG stated, "... If there is an existing 20-day
requirement, it seems to be very verifiable. If that's the case,
then to add another 10 days on there is going to add some
significant bucks. And I would point out that the corrections
subcommittee has financed a major computerized system for the
Department of Corrections within the last year or so, and I would
hope that they get it working right so they can do this stuff
easily."
Number 0440
REPRESENTATIVE BERKOWITZ pointed out that the existing 20-day
mandatory minimum applies only to offenses where there is a
domestic violence restraining order in place.
CHAIRMAN GREEN suggested that exacerbates the concern that had been
brought up.
REPRESENTATIVE ROKEBERG made a remark about other legislation and
the possible use of soft beds.
MS. KNUTH advised members that domestic violence is precisely one
of the areas where they will not use soft beds. Those offenders
are the most likely to leave the facility and commit another
assault. "And sex offenders and domestic violence offenders are
two of the ... least-reputable candidates for soft beds," she
added.
MS. KNUTH stated, "There was a suggestion that a victim must press
charges for the case to continue. And ... I think some of the
members of the committee are aware that the district attorney's
office does not allow victims to dismiss the charges, if you will,
because that puts tremendous pressure on them. The perpetrator
says, you know, `You've got to get the charges dismissed.' And so,
that's a prosecutorial call. And very, very rarely is a victim
listened to on that, just to take that out of their (indisc.--
coughing)."
Number 0528
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, came forward to
testify, saying the council strongly supports the two concepts
presented that day. She thanked the sponsors for bringing this
forward. She said the state has been working hard, for a long
period of time, to make the criminal and civil justice systems more
responsive to issues relating to domestic violence and sexual
assault. "We're working very hard to increase the safety of
victims while holding offenders accountable," she stated. "And we
see that this bill does go a long way in helping to sustain that."
MS. ANDREEN said the first issue came as a bit of a surprise, the
one that would prohibit an alleged offender from contacting the
victim with his one phone call. She stated, "I received a phone
call from a police officer about three months ago who said, `Hey,
we've got a problem here. In the last few weeks, we've had two
domestic violence perpetrators, as soon as we've gotten them to the
jailhouse, they have demanded their phone call and tried to call
the victim.'" In those cases, the system set up is that the
officer actually dials the phone. Ms. Andreen stated, "So, they
were able to take care of it at that point, and they said, `Well,
okay, let's take a look at this.'" She said it is a problem, and
she mentioned earlier testimony by Ms. MacClarence. "So, I think
it is important that we intervene, that the state intervenes, at
the beginning of that, that part of the intimidation process that
batterers are perpetuating," she added.
Number 0610
MS. ANDREEN referred to the second part, increased jail-time
sentences for repeat offenders. She stated, "And there's a couple
of points that I'd like to make in terms of this, that I know not
so much from a legal or statistical standpoint as I do from an
anecdotal standpoint of working in this field for so many years.
Most domestic violence ends up being charged at a fourth degree
misdemeanant assault level. Most of it ends up being a conviction,
if there is a conviction, at an even lower level than that. So,
when we in the field are talking about a fourth degree assault
conviction, we're talking about something that is like the high end
of what actually happens."
MS. ANDREEN continued, "We also know that by the time a ... fourth
degree assault conviction ... is obtained, that usually the
batterer has an extensive history of controlling behaviors, of
violence, of abuse, of this cycle that goes on and on, before they
even actually get in touch with the criminal justice system. We
have seen, for a number of years, that domestic violence seems to
be treated differently from other crimes. And for ... some
reasons, it should be. But what we are concerned about is in the
past, there has been a tendency to look at it as a family problem,
as something that occurs in the heat of passion, that it's an
emotional outburst and not the criminal action that it actually is.
Therefore, the council does strongly support the increased
sentence, imprisonment time for second- and third-time offenders
who are convicted of fourth degree assault. Also, as has been
said, we agree and feel that it's important to acknowledge that
additional jail time should not, cannot, circumvent the other types
of sanctions that are available to the court systems, and (indisc.)
that that would continue."
Number 0687
CHAIRMAN GREEN said he could understand a reaction one time;
however, the second and third times would certainly indicate lack
of control and a pattern. He asked whether judges ever take that
into consideration, and he suggested that statistically, it is
probably borne out.
MS. ANDREEN replied, "Mr. Chairman, I think that how judges respond
to that really varies from judge to judge and from community to
community. I have heard of a number of judges who do look at it
and take it very seriously. I have also heard of, I think, too
many stories where there continue to have been in the past SISs,
suspended imposition of sentences, even for second- and third-time
(indisc.)."
Number 0730
REPRESENTATIVE JAMES expressed her opinion that with driving while
under the influence (DWI) cases and domestic violence charges, by
the time there is a charge, that is not the first time the person
has offended. She believes there usually is a prior history. She
asked whether Ms. Andreen knew of any case where there has been a
domestic violence charge but no previous history or evidence of it.
Number 0755
MS. ANDREEN said she needed to pause and think back.
CHAIRMAN GREEN suggested it must be pretty rare.
MS. ANDREEN responded that it is very rare.
REPRESENTATIVE JAMES stated her understanding that it is very rare
that there would be a situation serious enough to result in a call
for help which would be the first occasion that had happened in
that family.
MS. ANDREEN replied that she was starting to think of a few
instances where that did happen. They've found, and research
indicates, that the level of violence, abuse and coercive behavior
generally escalates over a period of time. Many times, the victim
ends the relationship. The perpetrator then gets into a new
relationship, but rather than having the violence and abuse start
at the bottom of the continuum and escalate again, it will "jump
over." Ms. Andreen said she was thinking of cases where she'd
talked to victims or heard of them saying that this behavior seemed
to come out of the clear blue. In those cases, victim advocate
staff have asked whether the victim knows of the perpetrator's
prior relationships; that way, they've been able to track that it
isn't out of the clear blue.
REPRESENTATIVE JAMES said she understood, but it still confirmed
her own belief.
Number 0831
LAURIE HUGONIN, Executive Director, Alaska Network on Violence and
Sexual Assault, came forward to testify, saying the network is
supportive of the bill. She expressed appreciation for the level
of discussion that afternoon, which indicated they are taking the
problem very seriously.
MS. HUGONIN agreed with the speakers who talked about not using the
excuse of "I need this financial support or I need this wood" as a
way to not have people serve time. She explained, "The network
strongly believes that we're moving toward a community response to
domestic violence. And it's other people in the community who need
to step forward and say, `I'll get that for you,' and take some
responsibility to help the victim and the family be able to
navigate toward a peaceful existence without the perpetrator, that
perpetrators do need to be held accountable for their actions and
pay the consequences to those."
MS. HUGONIN also commented on the concern that maybe this is a
crime in the heat of passion. Several studies done throughout the
years, particularly in the early 1990s, show that batterers choose
to practice "targeted hitting." Studies show that even when drunk,
perpetrators chose where to hit on the body, consciously making
that effort so that their marks wouldn't be seen the next day or be
visible. "There's also calculated isolation that goes on," she
stated, "It's a progressive kind of criminal activity. And so, ...
it is often methodical and thought-out, and not just something that
happens on the spur of the moment."
MS. HUGONIN noted that it is a strong public policy statement to
say offenders will be held accountable. Throughout the years, the
legislature has been responsive to the needs of domestic violence
and sexual assault victims, "in trying to craft legislation that
will ensure the best protection possible." She concluded, "And we
believe this piece of legislation fits in to that category and
would urge your support."
Number 1007
CHAIRMAN GREEN noted that everyone who had signed up to testify had
done so. He asked whether any of the three superior court judges
in the audience would care to comment. He noted that there were
three amendments. He advised members they needed to adopt version
0-LS0450\K, Luckhaupt, 4/28/97, as a work draft.
REPRESENTATIVE JAMES said, "So moved."
CHAIRMAN GREEN asked whether there was any objection. There being
none, that version was before the committee.
REPRESENTATIVE BERKOWITZ offered Amendment 1, which read [original
punctuation retained]:
Page 2, line 4;
Following "18.66.180",
insert "or AS 12.30.025 - 12.30.027"
REPRESENTATIVE BERKOWITZ said Amendment 1 clarifies that a domestic
violence fourth degree assault is not solely in response to the
victim's going out and getting a court order. It can also be for
a spontaneous court order, particularly after a condition of bail.
"And what this adds is a court-ordered no-contact at bail," he
explained. "So, a defendant gets arrested on, for example, a first
assault charge. `Do not contact the victim' is a condition of
bail. If the defendant contacts the -- or assaults the victim
under those circumstances, with this provision, it is designed
...."
CHAIRMAN GREEN said, "That would then move it into a second ...."
REPRESENTATIVE BERKOWITZ responded, "That would make it -- that
second -- well, make that particular assault subject to assault in
the -- the first assault under that provision, because it's
contemporaneous, prior to sentencing."
CHAIRMAN GREEN asked whether there were questions or any objection.
There being no objection, Amendment 1 was adopted.
REPRESENTATIVE BERKOWITZ offered Amendment 2, which read [original
capitalization and punctuation retained]:
Page 2, line 1;
Following line 1 insert,
"Sec. 2. AS 12.25.150 is amended by adding a new
subsection to read:
(e) A person is guilty of a class B misdemeanor if the
person is a prisoner who, in exercising a right granted
under (b) of this section, communicates or attempts to
communicate with the alleged victim of the crime that was
the basis of the prisoner's arrest."
renumber following sections accordingly
REPRESENTATIVE BERKOWITZ explained that Amendment 2 is in response
to an oversight. They'd prohibited the telephone call but hadn't
stated the consequence. Therefore, this says the consequence of
making that prohibited telephone call is a B misdemeanor, the
lowest level of crime available to which jail time attaches.
CHAIRMAN GREEN asked whether there was an objection to Amendment 2.
There being none, Amendment 2 was adopted.
REPRESENTATIVE BERKOWITZ offered Amendment 3, which read [original
punctuation provided]:
Page 3, line 25;
Preceding "or",
delete "10", insert "5"
REPRESENTATIVE BERKOWITZ explained, "It's another mop-up. I
believe the involved departments felt that ten years is too long a
period of time, and they suggested revising it down to five years.
If someone's been clean for five years, that would work."
REPRESENTATIVE ROKEBERG objected for the purpose of discussion.
REPRESENTATIVE BERKOWITZ explained, "If you're counting the priors,
they don't want to go back ten years; they just want to go back
five years."
Number 1173
REPRESENTATIVE ROKEBERG removed his objection.
CHAIRMAN GREEN asked whether there was any further objection.
There being none, Amendment 3 was adopted.
Number 1197
REPRESENTATIVE DYSON said he is convinced from his experience that
virtually everyone can find the self-control needed to deal with
emotions if the stakes are high enough. He stated, "Two years ago,
I buried my uncle at the age of 84. He had, by the time he was 25,
whipped every man within a 35- or 40-mile radius. When he was 79
years old, he was still terrorizing people and terrorized his son-
in-law and my cousin, and his ... son-in-law was in a truck, but he
took off running. When my aunt was 18, she graduated from high
school, working on a threshing crew, invalid father that was
depending on her for support. And she thought, `Life doesn't look
very good.' She scanned the horizon, saw my uncle that was heir-
apparent to a lot of land and a lot of cattle, went after it.
People said, `Louella (ph), you're going to do this, be careful,
because he's got a terrible temper and he'll hurt you. And she
married him. And people told her, ... `Whatever you do, don't ever
talk back to him 'cause he'll hurt you.'"
REPRESENTATIVE DYSON continued, "They'd been married two weeks.
She said something and he decked her. She sat up and said, `Ralph,
if you ever touch me again, you're going to jail and I'll have the
farm.' And they lived together for another 65 years and he never
touched her. He still whipped everybody else in the county that he
could. And we're hoping that we can finally get to the point where
people will say, `Wait a minute. The penalties here, for not
exercising the self-control that I believe everybody has if they
want it, will get their attention."
Number 1294
REPRESENTATIVE JAMES mentioned the need to teach small children to
have assertive behavior, saying that is one thing they can do to
help most with this problem. She made a motion to move HB 245 (0-
LS0450\K, Luckhaupt, 4/28/97), as amended, from committee with
individual recommendations and attached zero fiscal note.
CHAIRMAN GREEN asked whether there was any objection.
REPRESENTATIVE BUNDE commented that he would support the bill only
because no one would allow him to use the permanent solution from
the recent movie, "Sling Blade."
CHAIRMAN GREEN, noting that there was no objection, announced that
CSHB 245(JUD) was moved from the House Judiciary Standing
Committee.
HB 16 - JUVENILE DELINQUENCY PROCEDURES
CHAIRMAN GREEN announced the next item of business would be House
Bill No. 16, "An Act relating to delinquent minors, to the taking
of action based on the alleged criminal misconduct of certain
minors, to the services to be provided to the victims of criminal
misconduct of minors, and to agency records involving minors
alleged to be delinquent based on their criminal misconduct; and
amending Rule 19 and repealing Rules 6, 7, 11(a), 12(a), and 21(f),
Alaska Delinquency Rules."
Number 1384
BRUCE CAMPBELL, Legislative Assistant to Representative Pete Kelly,
presented the bill on behalf of the sponsor. He specified that he
was addressing version 0-LS0121\Q, a proposed committee substitute
containing a few small changes from CSHB 16(HES).
MR. CAMPBELL said HB 16 has a number of tools resulting largely
from recommendations of the Governor's conference on juvenile
crime. It brings a number of issues to the statutes that authorize
municipalities to bring minors before civil court. He stated, "It
brings in additional assistance for a witness, ... additional
assistance for victims. Its largest single provision is dual
sentencing of serious juvenile offenders. As we bring in and get
communities more involved in the entire juvenile justice process,
we clean up and offer the courts some additional community service
opportunities. We increase and improve communication between the
Health and Social Services and law enforcement. We clarify some of
the roles between the Department of Health and Social Services and
law enforcement agencies, and we increase communication between the
Department of Health and Social Services and public officials."
MR. CAMPBELL said probably the single most complex part of the bill
is the dual sentencing provision. Dual sentencing allows the
district attorney to go first before a grand jury; if he obtains a
grand jury indictment, he goes before a judge and may ask for a
two-part sentence: a juvenile sentence and an adult sentence. The
latter must include some unsuspended jail time. It then behooves
the minor to comply with the juvenile sentence, going through
juvenile treatment programs. And if the minor fails in that
regard, particularly if he or she reoffends, the adult sentence
kicks in and the minor is remanded to adult corrections. The
advantage is that much of the onus is on the minor.
REPRESENTATIVE CROFT asked, "Did you say `unsuspended,' or can the
adult sentence be completely suspended as an enforcement tool for
the juvenile part? That is, do you have to send them to adult
corrections as part of it?"
Number 1554
MR. CAMPBELL referred to page 12, lines 10 through 12. He said in
order for this to work, the adult sentence "must include some
period of imprisonment that is not suspended by the court."
REPRESENTATIVE CROFT said he understood the "hammer," the threat of
this and why it would be a good idea. However, he wanted to know
why it is a good idea to send a minor who they hope will be
rehabilitated to adult corrections.
REPRESENTATIVE PORTER said there has to be a portion of the adult
sentence that is not instituted and that has jail time. "He or she
is sentenced under the juvenile sentence with this whole adult
sentence over his head, which includes some mandatory minimum jail
time," he stated.
REPRESENTATIVE CROFT said, "So, there must be some suspended
portion of the adult, not unsuspended."
MR. CAMPBELL responded, "Yes, ... I think there's merely confusion
on how we're getting to the same conclusion. The entire adult
sentence is ... held in abeyance, and none of that sentence goes
into effect unless the minor triggers it with further behavior."
REPRESENTATIVE BUNDE commented that there has to be a portion that
is unsuspended; there still has to be some jail time in the adult
sentence. He then made a motion to adopt as a work draft version
0-LS0121\Q, Chenoweth, 5/1/97.
CHAIRMAN GREEN asked whether there was an objection. There being
none, that version was before the committee.
MR. CAMPBELL advised members that he had a chart explaining dual
sentencing. The district attorney goes before the grand jury. If
the grand jury reads out a true bill, it goes to court. The court
orders juvenile treatment, and it orders the adult jail time. But
the adult jail time does not kick in unless the minor has a new
offense, for which specific offenses apply, or unless the minor
fails to comply with specific terms of that juvenile treatment, "at
which time they go back to court with another petition, and the
court then can order the ... adult jail time."
REPRESENTATIVE CROFT asked, "Can or must?"
MARGOT KNUTH replied, "It's a `can.'"
Number 1783
BARBARA BRINK, Director, Public Defender Agency, Department of
Administration, testified again via teleconference from Anchorage.
She pointed out that this bill is complicated. She stated, "To
address the first question that's come up, I agree with I believe
it was Representative Croft that was concerned that if a child is
referred to the adult system, they then must serve jail time. That
is correct. As I read page 12, line 12, the sentence pronounced in
the adult court, whether or not initially imposed, must include
some period of imprisonment that's not suspended by the court.
This is illustrative of a lot of the problems I'm concerned about
with this bill, is that you are going to be treating 13-, 14- and
15-year-olds much more harshly than you are treating adults. An
adult who is referred to adult jail or court on ... some of those
types of felonies may not, in fact, have to do jail time. So, I'm
very concerned about page 12, line 12, and think that we should
reword that to leave the ultimate discretion to the judge."
MS. BRINK indicated her general concern about this bill is the
assumption that treating children as adults is a more effective
system. She stated, "There are (indisc.--coughing) today that
exist, that show that treating kids more like adults is effective.
Other states have been trying this dual jurisdiction, but nobody
has been doing it long enough so that we have any information that
it's any more successful. In fact, many studies have shown that
McLaughlin [Youth Center] has a higher success rate than many other
states in dealing with (indisc.) juvenile offenders."
MS. BRINK said she had just read a bulletin by the Department of
Justice, which concludes that juvenile arrests for violent crimes
declined in 1995 for the first time in nearly a decade. The
bulletin goes on to say, most encouraging, that this decline was
greatest among younger juveniles. This promising turnabout should
temper recent forecasts of an epidemic of violent juvenile crime.
Ms. Brink stated, "So, my concern has to do with treating 13-, 14,-
and 15-year olds like grownups when they don't have the ability or
adjustment to function like grownups."
MS. BRINK said there are other problems with the bill. It "expands
the elimination of juvenile confidentiality." It also expands the
reasons for which a police officer can arrest a juvenile, so that
they can be arrested for things for which adults can't be arrested.
She stated, "And there are innumerable other issues within the
juvenile jurisdiction, including the broad language on how
juveniles can get to adult court. And I would really like to see
some work done on this bill to tighten that up, to make it not so
easy to send a kid to `the big house.' Thank you."
CHAIRMAN GREEN requested that Ms. Brink submit her comments in
writing, to which she agreed.
Number 1988
JODY OLMSTEAD testified again via teleconference from Anchorage.
She said this bill brings to mind a juvenile from Fairbanks who is
currently in the system; the juvenile was a foster-care child who
was involved in a robbery involving a gun. The people who had been
with him, who had enticed him to do this, had robbed a gun from
their own family, and they were adults. The boy sat in jail at the
Fairbanks youth facility for almost three years without being
sentenced or rehabilitation. He then was sent over to the "FCC."
They realized they had "not quite made the confidentiality of
juvenile records right for him to be over there; so, they broke
confidentiality and had to ship him back over to FYF."
MS. OLMSTEAD said they then let this juvenile out of jail, never
having sentenced him, "never having done anything." Ms. Olmstead
said he'd worked with Hospice for community service and was doing
a wonderful job with an elderly person. In addition, he was
working at Denny's, where they gave him high recommendations. At
that point, "they contacted him, took him to court and gave him
three years, after he had done all of these different things and
was really happy on the outside."
MS. OLMSTEAD said they then decided to take him to a facility by
Seward, perhaps Willow Wood (ph). "And on the way there, they
dropped him at Spring Creek, which is not a place for juveniles,"
she said. "And there he sits today." She said she hopes he
doesn't have any problems with prison rape, and she indicated the
person discussed in the Fairbanks newspaper is this particular
child. She indicated he's angry, he's in with hard-core criminals,
and his life is ruined. She stated, "Yes, he made a choice, and
he's all for doing his time. But you're putting some kids in some
pretty stiff situations, and as the former speaker said, you're
doing more to juveniles than you are to the adults. And we want
our kids ... not to be criminals. But for God's sakes, they can be
accountable with community service and different things that can
work. Thanks."
CHAIRMAN GREEN said that is a pretty gruesome picture.
Number 2200
REPRESENTATIVE JAMES said she appreciated having that story brought
to their attention. She suggested considering it as a failed
system, not necessarily the failed law but the operation of the
law. Certainly, a lot of errors were made that need to be
rectified.
Number 2231
BRANT McGEE, Public Advocate, Office of Public Advocacy (OPA),
Department of Administration, testified via teleconference from
Anchorage, specifying that he is the director for the OPA. He
stated, "Barb Brink has informed me that their concerns regarding
this bill are encapsulated in the fiscal note that should have been
submitted to it, which should be available to the committee at this
time. My own fiscal note is attached, as well, and contains a
summary of some of the concerns. To pick up on Ms. Brink's
testimony, I would note that on page 13, in the middle of the page,
starting at line 14, it lists ... that conduct by juveniles, who
could be as young as 13 years old, I would remind the committee,
... which would automatically trigger the imposition of an adult
jail sentence. That includes failing to pay restitution or failure
to engage in or complete their rehab program ... required ... by a
facility or a juvenile probation officer. In other words, you can
send a 13-year-old to jail because he doesn't comply with the
demand of a juvenile probation officer, instead of, as it is in
adult court, instead of complying with a court order."
Number 2342
MR. McGEE said he was, frankly, stunned that they were discussing
a bill under which an adult jail term could be imposed upon a 13-
year-old; he believes there is no question that would happen under
this bill. He said part of his problem from the fiscal standpoint
is that he has been unable to locate in the bill any encouragement
whatsoever for a kid in this situation, who is charged with a
serious offense that would trigger dual sentencing, to plead
guilty, to own up, and to take personal responsibility for a crime
for which he could ultimately be sent to an adult institution. For
that reason, Mr. McGee believes there will be a significant cost in
the mere processing of these cases.
TAPE 97-79, SIDE A
Number 0006
MR. CAMPBELL said [begins mid-speech], "... option into a juvenile
justice system. Currently, we waive kids right straight to adult
... court, right straight to adult jail. This gives a system where
we are able to give the prosecutor the option of attaining a
juvenile treatment sentence for those more serious crimes. ... As
I understand it, they do not actually have to go to the full
waiver-into-adult-court process. ... So, we may be having fewer
kids in adult corrections with this bill."
Number 0051
REPRESENTATIVE PORTER explained that there are two kinds of
waivers. First is the automatic waiver of juveniles committing
very serious crimes; those juveniles are 16 and 17 years old.
"Then there is the ability, enhanced by that same bill, to waive
other juveniles into adult court if they present the right facts to
the court and that court agrees that they may be so-waived," he
stated. "This provides an alternative to that. In the cases where
the case is serious enough but the minor is not quite old enough or
the offense is not quite `categorizable' into the unclassified or
class A - against a person - category, that instead of going
through the petition process of seeking a waiver, they can seek
this dual function and, in some cases, save money, as opposed to --
and, I think, provide one heck of a deterrent (indisc.)."
Number 0146
REPRESENTATIVE BUNDE reminded members they weren't talking about
some 13-year-old paper boy but a 13-year-old who had been charged
with a serious crime. The first time someone's charged isn't the
first time they've committed a crime. Just because it's the first
time they've been caught and they are 13 years old, it doesn't make
them sacred to him. He stated, "Kids aren't stupid. They see the
hammer coming, and juvenile crime is going down because people are
getting tougher. And I see no reason to back off at this time. We
want to encourage the decrease in juvenile crime, not say, `King's
X.' So, with that, I would like to move the bill."
CHAIRMAN GREEN noted that Margot Knuth was signed up to testify.
Number 0218
MARGOT KNUTH from the Department of Law came forward to testify
again. She noted that when it comes to 13-, 14- and 15-year-olds,
they are only talking about unclassified felonies and class A
felonies. She commented, "I mean, this is even above the label of
`serious crimes.' These are the very most serious. And it is
discretionary with the prosecutor whether to file for dual
sentencing at the outset or not. For 15- and 16-year-olds, they
could qualify for dual sentencing if they are on repeat felony
offenses. Both of these populations, by their conduct, are saying
they are at risk of becoming chronic serious offenders and we want
to, if you will, be in their face more than under our traditional
system."
MS. KNUTH continued, "If, however, they comply with the conditions
that are imposed, they have the opportunity of staying in the
juvenile system, getting their record sealed, and coming back to
the fold. But even if they do fail to comply, ... the adult
sentence can only be imposed if a petition is filed seeking that.
And you will always have prosecutorial discretion on whether to
file a petition. There is no automatic imposition of the adult
sentence. So, first, somebody has to believe it's serious enough
to warrant filing the petition. And then next, ... it's within the
court's discretion unless ... what brings the kid back is a
subsequent felony offense that's a crime against a person or arson.
Only in that very narrow circumstance is it mandatory, once a
petition's filed and a finding's made that the new offense was
committed, that the adult sentence would be imposed. Otherwise,
the court has the discretion whether to keep going down the
juvenile track." Ms. Knuth emphasized that the whole point is to
try to put the responsibility on the juveniles' shoulders and to
provide a deterrent. That is one part of the bill.
MS. KNUTH advised members that the other part of the bill is
enabling communities to step forward and respond to low-level
offenders. "And there are civil penalties provisions, and there
are provisions for Health and Social Services to work with
nonprofit corporations and municipalities, and a variety of tools,
short of creating a criminal record for the juvenile or putting
them in detention," she stated. "Just about anything else under
the sun is available: community work service, fine, restitution,
letters of apology. And both of those extremes, one, the very
small group of people that we need to really be on them and the
much larger group of people that we need to help make sure there
are some consequences for the low-level offenses -- so, that's what
this bill does."
Number 0408
CHAIRMAN GREEN said, "It sounds like actually both ends of that are
probably pretty effective."
Number 0432
REPRESENTATIVE ROKEBERG referred to the fiscal note, which says
that based on the entry of just three juveniles per annum, it
"creates about $115,000."
MS. KNUTH said that sounds correct.
REPRESENTATIVE ROKEBERG asked whether Ms. Knuth was involved in
development of that fiscal note.
MS. KNUTH indicated she'd been involved with the Department of
Health and Social Services and the district attorneys' offices in
figuring out "how many kids we actually expect ... to go through."
REPRESENTATIVE ROKEBERG commented, "I suspect that this note has
some statistics, because you have been tracking this, as I know,
for the Governor's office and (indisc.)."
MS. KNUTH affirmed that.
REPRESENTATIVE ROKEBERG said, "So that, if you're looking at five
years from now, we've got almost $600,000 a year because of what
would be approximately 18 people entering the corrections system as
a result, on the estimate, on three a year. Is that ....?"
Number 0501
MS. KNUTH replied, "I hope that not all of those 18 are still going
to be in the system five years from now. I hope that the ones that
are going in this year are coming out before that five years
elapses."
REPRESENTATIVE ROKEBERG asked whether that was how she'd arrived at
that number.
MS. KNUTH said yes.
Number 0525
REPRESENTATIVE BERKOWITZ stated, "I'd just point out that for these
people, that amount would be offset by reduction to a contribution
to the foundation formula."
MS. KNUTH said, "Not to mention Johnson Service Center."
REPRESENTATIVE CROFT referred to page 12, lines 11 through 12, and
noted that there was concern about that and that it confused him.
Number 0620
MS. KNUTH explained, "What's going on in (2) is simply the
pronouncement of the sentence. It's not the imposition of a
sentence. The concern was when you're pronouncing the sentence,
that when it does come time to impose it, ... you will not be able
to impose anything more than what you pronounced. So, if at the
outset you pronounced an entirely suspended sentence, if you ever
got to the circumstance where you wanted to impose the adult
sentence, you wouldn't be able to do anything because you had
suspended it all up-front, ... until you got to a petition-to-
revoke-probation point. And so, this is to create the situation
where [an] adult sentence could include jail time when it is
imposed."
Number 0680
REPRESENTATIVE JAMES made a motion to move HB 16, version 0-
LS0121\Q, from committee with attached fiscal notes and individual
recommendations.
CHAIRMAN GREEN asked whether there was an objection. Hearing none,
he announced that CSHB 16(JUD) was moved from the House Judiciary
Standing Committee.
ADJOURNMENT
CHAIRMAN GREEN then adjourned the House Judiciary Standing
Committee meeting.
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