Legislature(1997 - 1998)
05/06/1998 03:28 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
May 6, 1998
3:28 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
CS FOR SENATE BILL NO. 216(JUD)
"An Act providing for the civil commitment of sexually violent
predators."
- MOVED HCS CSSB 216(JUD) OUT OF COMMITTEE
CS FOR SENATE BILL NO. 219(FIN) am
"An Act relating to establishing an office of victims' rights;
relating to compensation of victims of violent crimes; relating to
eligibility for a permanent fund dividend for persons convicted of
and incarcerated for certain offenses; and amending Rule 16, Alaska
Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and
Rule 501, Alaska Rules of Evidence."
- FAILED TO MOVE CSSB 219(FIN) AM OUT OF COMMITTEE
CS FOR SENATE BILL NO. 305(L&C)
"An Act establishing a standard for determining when an injured
worker is eligible for reemployment benefits and establishing a
procedure for adopting a new, revised, or replacement standard for
determining when an injured worker is eligible for reemployment
benefits."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 216
SHORT TITLE: CIVIL COMMITMENT OF SEXUAL PREDATORS
SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Wilken,
Leman, Duncan, Lincoln, Ward, Mackie
Jrn-Date Jrn-Page Action
1/12/98 2166 (S) PREFILE RELEASED - 1/9/98
1/12/98 2166 (S) READ THE FIRST TIME - REFERRAL(S)
1/12/98 2167 (S) JUD, FIN
4/03/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
4/03/98 (S) MINUTE(JUD)
4/20/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
4/22/98 3432 (S) JUD RPT CS 2DP 2NR SAME TITLE
4/22/98 3432 (S) DP: TAYLOR, MILLER; NR: ELLIS, PEARCE
4/22/98 3432 (S) FNS TO SB & CS (ADM-2, COR, LAW,
4/22/98 3432 (S) DHSS, COURT)
4/23/98 3455 (S) CORRECTED FNS (#2/ADM; #4/LAW)
4/27/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
4/27/98 3514 (S) FIN RPT 2DP 3NR (JUD)CS
4/27/98 3514 (S) DP: PARNELL, PHILLIPS; NR: PEARCE,
4/27/98 3514 (S) SHARP, TORGERSON
4/27/98 3514 (S) PREVIOUS FNS (ADM-2, COR, LAW,
4/27/98 3514 (S) DHSS, COURT)
4/28/98 (S) RLS AT 11:30 AM FAHRENKAMP RM 203
4/29/98 3596 (S) RULES TO CALENDAR 4/29/98
4/29/98 3599 (S) READ THE SECOND TIME
4/29/98 3599 (S) JUD CS ADOPTED UNAN CONSENT
4/29/98 3599 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/29/98 3600 (S) READ THE THIRD TIME CSSB 216(JUD)
4/29/98 3600 (S) COSPONSOR(S): DUNCAN, LINCOLN, WARD,
4/29/98 3600 (S) MACKIE
4/29/98 3600 (S) PASSED Y20 N-
4/29/98 3608 (S) TRANSMITTED TO (H)
4/30/98 3354 (H) READ THE FIRST TIME - REFERRAL(S)
4/30/98 3354 (H) JUDICIARY, FINANCE
5/06/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 219
SHORT TITLE: OFFICE OF VICTIMS' ADVOCACY
SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Leman,
Wilken, Parnell, Miller
Jrn-Date Jrn-Page Action
1/12/98 2167 (S) PREFILE RELEASED 1/9/98
1/12/98 2167 (S) READ THE FIRST TIME - REFERRAL(S)
1/12/98 2167 (S) JUD, FIN
1/21/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
1/21/98 (S) MINUTE(JUD)
1/28/98 (S) JUD AT 2:00 PM BELTZ ROOM 211
1/28/98 (S) MINUTE(JUD)
1/30/98 2357 (S) JUD RPT CS 2DP 1NR NEW TITLE
1/30/98 2357 (S) DP: MILLER, TAYLOR
1/30/98 2357 (S) NR: PEARCE
1/30/98 2357 (S) FISCAL NOTE TO SB (LAA)
1/30/98 2357 (S) INDETERMINATE FN TO SB (LAW)
1/30/98 2357 (S) ZERO FISCAL NOTE TO SB (DPS)
2/04/98 2391 (S) FN TO CS (LAA)
2/05/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
2/25/98 (S) MINUTE(JUD)
4/22/98 (S) FIN AT 9:00 AM SENATE FINANCE 532
4/22/98 (S) FIN AT 4:30 PM SENATE FINANCE 532
4/23/98 3455 (S) FIN RPT CS 5DP 2NR NEW TITLE
4/23/98 3455 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL,
4/23/98 3455 (S) DONLEY; NR: ADAMS, TORGERSON
4/23/98 3455 (S) FN TO CS (LAA)
4/24/98 3481 (S) ZERO FN TO CS (REV)
4/23/98 3455 (S) PREVIOUS INDETERMINATE FN APPLIES
(LAW)
4/23/98 3455 (S) PREVIOUS ZERO FN APPLIES (DPS)
4/27/98 (S) RLS AT 12:10 PM FAHRENKAMP RM 203
5/01/98 3651 (S) FN TO CS (COR)
5/01/98 3651 (S) RULES TO CALENDAR 5/1/98
5/01/98 3681 (S) READ THE SECOND TIME
5/01/98 3681 (S) FIN CS ADOPTED UNAN CONSENT
5/01/98 3682 (S) AM NO 1 ADOPTED UNAN CONSENT
5/01/98 3683 (S) ADVANCED TO THIRD READING UNAN
CONSENT
5/01/98 3683 (S) READ THE THIRD TIME CSSB 219(FIN) AM
5/01/98 3683 (S) COSPONSOR(S): WILKEN, PARNELL, MILLER
5/01/98 3684 (S) PASSED Y19 N1
5/01/98 3684 (S) COURT RULE(S) SAME AS PASSAGE
5/01/98 3698 (S) TRANSMITTED TO (H)
5/02/98 3457 (H) READ THE FIRST TIME - REFERRAL(S)
5/02/98 3457 (H) JUDICIARY, FINANCE
5/06/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
BILL STOLTZE, Legislative Administrative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Presented sponsor statement on SB 216.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section - Juneau
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided testimony on SB 216.
KARL BRIMNER, Northern Regional Mental Health Services Coordinator
Northern Regional Office
Division of Mental Health and Developmental Disabilities
Department of Health and Social Services
751 Old Richardson Highway, Suite 350
Fairbanks, Alaska 99701
Telephone: (907) 452-1673
POSITION STATEMENT: Provided testimony on SB 216.
ELMER LINDSTROM, Special Assistant
Office of the Commissioner
Department of Health and Social Services
P.O. Box 110601
Juneau, Alaska 99811-0601
Telephone: (907) 465-3030
POSITION STATEMENT: Provided testimony on SB 216.
BRUCE RICHARDS, Program Coordinator
Office of the Commissioner
Department of Corrections
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 465-3307
POSITION STATEMENT: Provided testimony on SB 216.
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 testimony on SB 216.
WALTER MAJOROS, Executive Director
Alaska Mental Health Board
431 North Franklin Street
Juneau, Alaska 99801
Telephone: (907) 465-3072
POSITION STATEMENT: Provided testimony on SB 216.
BLAIR McCUNE, Deputy Director
Central Office
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Provided testimony on SB 216.
BRETT HUBER, Legislative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Provided sponsor statement for SB 219.
NANCI JONES, Director
Permanent Fund Dividend Division
Department of Revenue
P.O. Box 110460
Juneau, Alaska 99811-0460
Telephone: (907) 465-2323
POSITION STATEMENT: Provided testimony on SB 219.
CHRIS CHRISTENSEN, Staff Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
Telephone: (907) 264-8228
POSITION STATEMENT: Provided testimony on SB 219.
ACTION NARRATIVE
TAPE 98-85, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 3:28 p.m. Members present at the call to order
were Representatives Green, Bunde, Rokeberg, James and Berkowitz.
Representatives Croft and Porter arrived at 3:40 p.m. and 4:13
p.m., respectively.
CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS
CHAIRMAN GREEN announced the first item of business would be CS for
SB No. 216(JUD), "An Act providing for the civil commitment of
sexually violent predators."
CHAIRMAN GREEN called on the spokesperson from the sponsor of the
bill's office.
Number 0080
BILL STOLTZE, Legislative Administrative Assistant to Senator Rick
Halford, Alaska State Legislature, stated SB 216 allows for the
confinement of sexual predators, a certain class of the most
heinous offenders. The confinement is allowed after they have
served their sentence. The recent ruling from the Supreme Court of
the United States (Kansas v. Hendricks) indicated that if the
states meets certain test, it is an allowable non-(indisc.)
procedure. The concerns were ex post-facto, double jeopardy, and
due process. The court ruled that the Kansas statute met the
requirements through (indisc.). The legal department crafted a
statute (indisc.) the Kansas statute which has met the test in the
highest court. Cynthia Cooper from the Department of Law prepared
a chart which outlines the screening phases.
Number 0252
CHAIRMAN GREEN noted that this has a significant fiscal impact,
according to the fiscal notes. He asked Mr. Stoltze whether he or
the Senator has anything to say about that impact.
Number 0279
MR. STOLTZE replied it is an expensive tool. It would not be used
in every case. Initial conversations with the Department of Law
indicated a more modest fiscal note. It is an expensive tool and
would be used as much as could be afforded.
Number 0329
CHAIRMAN GREEN stated it is not uncommon that when the
Administration submits a high fiscal note it is not in tune with
that particular piece of legislation. He asked Mr. Stoltze whether
the committee will hear from the Administration.
Number 0357
MR. STOLTZE replied the Administration is prepared to defend the
fiscal notes.
Number 0376
REPRESENTATIVE CON BUNDE stated it is his understanding that
pedophiles will be pedophiles their entire life. They are born
with it. It is beyond exercising self-control. They are not
"curable." He asked Mr. Stoltze whether that is correct.
Number 0414
MR. STOLTZE replied he is not an expert on that. Personally, he
believes that it is not cured by hand-holding encounter groups.
There is a very high percentage level of repeat offenses. Senator
Halford is trying to stress that the individuals who continue to
perpetrate these crimes will be confined at some point. Therefore,
he wants to slow down the stream of victims and suffering that
follows.
Number 0468
CHAIRMAN GREEN stated that this would apply to people who have
served their sentence and then incarcerated additionally on a
supposition - the punishment before the crime. He asked Mr.
Stoltze whether he recalls how that was addressed in the Supreme
Court of the United States.
Number 0500
MR. STOLTZE replied "incarceration" is the wrong term. The correct
term is "confinement." Justice Clarence Thomas specified that it
was not double jeopardy or ex post-facto punishment. Justice
Thomas indicated, "The state may take measures to restrict the
freedom of the dangerously mentally ill. This Kansas statute is a
legitimate non-punitive governmental objective and has been
historically so regarded....The mere fact that a person is detained
does not inexorably lead to the conclusion that the government has
imposed punishment or that the state has disenvowed any punitive
intent, limited confinement to a small segment of particularly
dangerous individuals, provided strict procedural safeguards,
directed that confined person be segregated from the general prison
population and afforded the same status as others who have been
civilly committed recommended treatment if such is possible, and
permitted immediate release upon a showing that the individual is
no longer dangerous or mentally impaired, we cannot say that it
acted with punitive intent."
Number 0594
REPRESENTATIVE ETHAN BERKOWITZ stated he has heard concern that the
current civil commitment language in Title 47 might be inadequate
to respond to this problem.
Number 0613
MR. STOLTZE replied this is a whole other type of civil commitment
than a commitment int Title 47. He would rather have Anne
Carpeneti from the Department of Law elaborate on that later.
Number 0639
REPRESENTATIVE BERKOWITZ asked Mr. Stoltze whether he knows if
there have been any instances where Title 47 has been used in
Alaska to hold a sexual predator or anyone who is likely to commit
a crime against another individual.
Number 0653
MR. STOLTZE deferred to Anne Carpeneti from the Department of Law
to answer the question.
Number 0664
REPRESENTATIVE JEANNETTE JAMES asked Mr. Stoltze whether he would
liken this confinement to the type of confinement that the state
used to have with mental institutions for the criminally insane.
Number 0695
MR. STOLTZE replied there is a different type of statute that
covers the guilty but mentally ill criminals. Some are confined to
the Alaska Psychiatric Hospital. It isn't actually a warehouse.
It is a small number of people.
Number 0728
REPRESENTATIVE NORMAN ROKEBERG asked Mr. Stoltze what the sponsor's
opinion is of the fiscal note and objection to the $12 million to
house these people.
MR. STOLTZE replied Senator Halford's reaction is that it is an
expensive tool. Prosecutors would use it only as often as they
could afford to use it. Senator Halford didn't say so directly,
but by inference they were excessive. They reflected a broader
application than the intent of the legislation.
Number 0774
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether the testimony has
indicated any relationship between actual cases and instances in
the state where this would have been beneficial to have, or is it
based on perspective only.
Number 0793
MR. STOLTZE replied, he believes, as written the procedure starts
for those people who are currently incarcerated. Through the news
media he has seen a few good candidates for it.
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there has been
any evidence that the situation should have been in hand before.
Number 0838
MR. STOLTZE replied not in proceedings, but talking with
individuals he has heard of cases anecdotally. He cited Mr.
Rodriguez (ph) as an example.
Number 0890
REPRESENTATIVE BERKOWITZ stated the bill applies to sexually
violent predators and someone who suffers from a mental illness.
According to AS 47.30.705, anyone who is suffering from a mental
illness and is likely to cause serious harm to himself or others,
can be taken into custody. It seems to sweep up the concern that
this bill addresses.
Number 0988
REPRESENTATIVE ERIC CROFT stated if it can be done now and do all
the things that the front part of the bill talks about...
Number 1010
MR. STOLTZE stated Representative Croft is right on the point. The
statute does not meet the guidelines that Justice Thomas laid out
in his majority opinion without the safeguards in place and the due
process procedures outlined in the bill.
Number 1029
REPRESENTATIVE BERKOWITZ stated there is a whole section in the
statute about commitment proceeding rights, notification, court
orders, and additional commitments. They seem fairly extensive.
Number 1049
REPRESENTATIVE BUNDE stated violent serial rapists are judged
insane. They are judged criminal. It seems that psycho predators
or the insane are one of the criteria.
REPRESENTATIVE BERKOWITZ noted that it says "and."
REPRESENTATIVE JAMES stated in trying to associate what is in
statute with what the bill is trying to accomplish, she noted that
this happens while they are under control as opposed to finding
them on the street when considering them dangerous to themselves or
others, such as a mental person in statute. She believes that the
bill tends to address the people who are called "sexually violent
predators" who are currently incarcerated for their crime and
whether or not they should be let go as opposed to whether or not
they should be brought in.
Number 1147
CHAIRMAN GREEN stated the testimony is getting into the nuances.
He suggested hearing from a legal expert.
Number 1188
ANNE CARPENETI, Assistant Attorney General, Legal Services Section
- Juneau, Civil Division, Department of Law, noted that the person
who should describe civil commitments is Karl Brimner who works for
the Division of Mental Health and Developmental Disabilities. He
knows about the mental health commitments in Title 47. The
findings in the bill set out clearly that it is dealing with a
different sort of mental illness than what Title 47 is dealing
with. It uses a different definition of mental illness from the
statute. It uses a definition in Title 12 rather than in Title 47.
The bill is aimed at people who suffer from mental illnesses
dealing with sexual deviation who are not treatable compared to
people who suffer from mental illnesses in other contexts. In
other contexts, the approach is for treatment in a short time.
Treatment for sexually violent predators takes a long time.
Number 1285
KARL BRIMNER, Northern Regional Mental Health Services Coordinator,
Northern Regional Office, Division of Mental Health and
Developmental Disabilities, Department of Health and Social
Services, stated Title 47's involuntary commitment law is primarily
used for purposes of individuals who are mentally ill and
psychotic, and who are dangerous to themselves or others at that
immediate time. That is how the judges rule on it. It is used for
a short period of time for stabilization to get the individual back
into the community to receive services. The individuals being
discussed in the bill usually require treatment for long periods of
time, and they don't respond to treatment well.
Number 1344
CHAIRMAN GREEN stated that pedophiles appear normal. He wondered
whether pedophiles go through cycles so that they test alright at
one particular time then when back out do something bad. He asked
whether the state would incur any liability by having something
like this in statute and letting somebody out who comites a
reoffense.
Number 1390
MS. CARPENETI replied there is an immunity section in the bill. If
a decision to release somebody is made in good faith, the state,
agencies of the state, employees of agencies of the state, and
officials cannot be sued.
Number 1404
CHAIRMAN GREEN stated the decision could be in good faith, but
according to the testimony they are almost incurable. The chance
of them going back into society is almost nil, but according to the
tests they should be let go.
MS. CARPENETI replied Mr. Brimner can answer the testing provision.
When looking at and evaluating people who qualify as sexually
violent predators, a test includes their past and history of abuse
also. The state would be able to introduce evidence of their past
in a trial as well.
Number 1455
CHAIRMAN GREEN asked Ms. Carpeneti whether that would mean there is
no light at the end of a tunnel for a sexually violent predator
because his past is pretty jaded.
MS. CARPENETI replied, "I don't think so." The state has to offer
treatment in good faith under the bill to withstand constitutional
muster. There are methods of treating sexually violent predators.
It takes a long time and focuses on not necessarily changing their
predilections, but curbing their actions.
Number 1491
REPRESENTATIVE BUNDE stated the commitment under Title 47 often
involves medication as well as psychological treatment. He asked
Mr. Brimner whether there is medical treatment for sexual
predators, other than castration.
MR. BRIMNER replied there is some medication used. It is not a
full-proof method, however. He has seen success with individuals
who are not as dangerous as the individuals that the bill talks
about. Sometimes medication can be helpful when there is a good
prognosis, when there isn't resistance, and when there is a
willingness to change.
Number 1552
CHAIRMAN GREEN wondered whether the bill would cover female
offenders as well.
MS. CARPENETI replied, "Yes."
CHAIRMAN GREEN asked whether the tests and procedures would be the
same for female offenders.
MR. BRIMNER replied the assessment tools would be for either sex.
The psychological dynamic is usually a personality disorder which
can be either male or female.
Number 1602
REPRESENTATIVE ROKEBERG asked whether there have been any findings
or rulings by the federal courts that castration or other types of
methods like that are cruel and unusual punishment.
MS. CARPENETI replied she doesn't know whether that procedure is
allowed in the country. She would be happy to find out.
REPRESENTATIVE ROKEBERG wondered whether chemical or other methods
available would be cheaper than going the route of hard-bed
facilities to accommodate the populations.
Number 1668
MR. BRIMNER stated chemical castration to eliminate the sexual urge
does not necessarily take care of the problem. It is often an
issue of power, not sex. It is the desire of an individual to have
power over someone else and to hurt that person which is often
sexually, as well as physically. There are isolated cases where it
can be helpful though.
Number 1712
REPRESENTATIVE BUNDE noted that there has been cases where inmates
have requested chemical castration in an attempt to control
themselves. They are usually pedophiles. It is often said that
rape is not a sexual crime, but a crime of violence. Chemical
castration may not be the answer.
CHAIRMAN GREEN asked, if there is another part of the testosterone,
would that mean there is a different manifestation of the anger.
MR. BRIMNER replied, "Certainly." An individual may lash out in a
much more violent manner.
CHAIRMAN GREEN stated these are the things that somebody would have
to look at before a predator could pass muster, if the bill is
enacted.
MS. CARPENETI noted after there is a finding that a person is a
sexually violent predator, the court must decide if that person can
be safely placed in a noncustodial setting. She is sure that
chemical castration would be one of the things looked at to keep
that person safe from other people. The finding would have to be
made before that person could be sent to an institution.
Number 1800
MS. CARPENETI stated there are two other issues that the department
would like to consider as conceptual amendments today. The bill
was modeled after the Kansas statute that was just upheld by the
Supreme Court of the United States. It is based on the
Constitution of the United States. However, she does not know
whether the state courts would uphold it based on the state
constitution. At any rate, the bill has some provisions dealing
with the representation of the person who the state is seeking to
commit and how that person obtains experts to examine them and to
testify on their own behalf. The department thinks it would be a
lot cleaner to make it clear that the person would be represented
by counsel, which is constitutionally required, or represented by
a public defender who can then make the determination if an expert
should be retained. She referred to page 4, line 11; page 6, line
14; and page 7, lines 20-21.
CHAIRMAN GREEN asked Ms. Carpeneti whether it would abrogate the
court's authority.
MS. CARPENETI replied in other civil commitment and criminal cases
the person's lawyer makes the decision to obtain an expert witness,
not the judge. It would put the judge in an awkward position to
decide what expert to appoint to assist a person.
CHAIRMAN GREEN asked Ms. Carpeneti whether there would be a problem
with a conflict of interest for an attorney to bring in witnesses
on his clients behalf rather than on an impartial basis.
MS. CARPENETI replied civil commitment proceedings are adversarial
proceedings in general.
Number 2057
REPRESENTATIVE BUNDE made a motion to adopt Amendment 1 and
conceptually the same amendment to page 6, line 14; and page 7,
line 20. Amendment 1 reads as follows:
TO: CSSB 216(JUD)
Page 4, line 11:
Delete "to assist"
Insert "under AS 18.85 to represent"
Page 4, lines 15 - 20:
Delete "If the person is indigent, the court,
upon the person's request, shall determine if
the services are necessary and the
compensation for those services is reasonable.
If the court determines that the services are
necessary and the compensation for the
services is reasonable, the court and the
person's counsel shall assist the person in
obtaining an expert or professional to perform
an examination or participate in the trial on
the person's behalf."
CHAIRMAN GREEN objected for discussion purposes.
REPRESENTATIVE BUNDE asked Ms. Carpeneti to explain AS 18.85.
MS. CARPENETI replied it addresses the powers and authorities of
the public defenders.
Number 2102
CHAIRMAN GREEN asked Ms. Carpeneti whether the court would still
exercises the authority.
MS. CARPENETI replied the court would appoint an attorney for
representation.
CHAIRMAN GREEN asked Ms. Carpeneti whether the court would help
find an expert.
MS. CARPENETI replied the court would probably not be in a position
to help in a particular case. It would probably be the attorney
who determines the best expert.
CHAIRMAN GREEN noted that the amendment says, "the court and the
person's counsel shall assist the person in obtaining an expert or
professional..."
MS. CARPENETI noted that language is to be deleted.
CHAIRMAN GREEN removed his objection.
CHAIRMAN GREEN asked whether there is any further objection to the
motion to adopt Amendment 1. There being no objection, the motion
was so adopted.
Number 2170
MS. CARPENETI referred to page 5, subsection (c) and explained the
Kansas and Washington statutes that were approved by the Supreme
Court provide for two separate hearings - one to determine whether
the act was committed, and one to determine whether the person
should be committed. Kansas has already moved to amend its
procedure to allow the factual finding to be determined in
conjunction with the commitment hearing to eliminate two separate
proceedings. An amendment to address this issue has not been
drafted. It would be a conceptual amendment.
REPRESENTATIVE JAMES noted that is a true conceptual amendment.
CHAIRMAN GREEN announced he has some problems with that.
MS. CARPENETI explained the person cannot be tried for the acts
because he is not in a mental state to be subject to a criminal
trial. On the other hand, he may be in a position to be released
in order to proceed under a civil commitment.
CHAIRMAN GREEN stated he is concerned about the tremendous fiscal
impact.
Number 2261
REPRESENTATIVE BUNDE suggested waiting for an actual amendment
since the votes are not here to pass the bill out of the committee
anyway.
CHAIRMAN GREEN asked Ms. Carpeneti whether she could provide the
amendment in writing.
MS. CARPENETI replied, "Yes." In terms of the fiscal note, the
amendment would probably streamline the procedure. She noted that
this situation comes up rarely. It is not found very often that a
person is found to be incompetent to be tried for a criminal
charge. In the circumstances where that person is found to be
incompetent, it would streamline the procedure to avoid two
separate hearings.
CHAIRMAN GREEN noted, in theory, it should reduce the fiscal note.
MS. CARPENETI replied she doesn't want to give any false hopes
because it doesn't happen very often.
Number 2313
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,
Department of Health and Social Services, referred to the flowchart
illustrating the three phases - screening, court proceedings, and
appeal and annual review. This is truly a different population of
persons who are not being served or treated by the department as
mental health clients. These persons would not be criminals. They
would be civilly committed. This is creating a brand new system to
deal with a brand new type of thing. The department feels strongly
that, if this is the road the state wants to walk down, it would be
very expenses. The fiscal notes are not inflated or exaggerated.
They represent the cost of creating a brand new system to deal with
a new population.
Number 2418
REPRESENTATIVE JAMES asked whether there is any provision in law
that would allow for the confinement of this type of person.
MS. CARPENETI replied, "I don't believe so." This type of person
would not qualify under the civil commitment statute as imminently
dangerous to himself or others.
REPRESENTATIVE JAMES asked Ms. Carpeneti whether the difference is
tomorrow, three weeks, two months, or a year.
MS. CARPENETI replied, "I believe so." In reference to the fiscal
note, the number was chosen based on conversations with the state
of Washington, which has a similar statutory procedure...
TAPE 98-85, SIDE B
Number 0000
MS. CARPENETI continued. The state of Washington has not lost a
single one that has been filed. The statute was adopted it 1990.
It is not being used frivolously. It turns out to be about 2
percent of the sexual offenders released from the prisons.
Number 0024
REPRESENTATIVE JAMES asked Ms. Carpeneti what would be 2 percent in
numbers for Alaska.
MS. CARPENETI replied 160 sex offenders are expected to be released
this calendar year. Two percent is about three and a half to four.
Number 0043
MR. LINDSTROM stated it has been suggested that this is just a tool
in a toolbox, and that there is discretion associated with it.
This is true to a point, but if the Department of Corrections
refers someone to the Department of Health and Social Services
believing that the provisions in the bill are appropriate and the
Department of Law believes that there is evidence to go to court
and make it stick, what basis would the state have not to proceed.
"I don't think the public or you or anyone else would accept the
fact that we only had money to do this for three people and the
fourth person coming down the pipe who meets all of these criteria
and we all believe is a threat that we are simply going to say
we're out of money this year and I'm afraid we're not gonna go
forward. I don't think you would stand for that. I don't think
the public would stand for it, and I don't think the professionals
in this system could stand for it."
Number 0103
CHAIRMAN GREEN asked Mr. Lindstrom whether there is a plateau
associated with the fiscal notes.
MR. LINDSTROM replied the Department of Health and Social Services'
fiscal note is based on the assumption of five persons actually
going to trial and the state prevailing in four of the five cases.
This is very long treatment and the department expects the
population to grow by another four each year. The evidence so far
in other states is that people do not graduate from the program
readily.
CHAIRMAN GREEN asked Mr. Lindstrom what he sees as the alternative
to something like this at the risk of putting these people out into
society.
MR. LINDSTROM replied, in the absence of this type of system, the
odds are that these types of people would probably be put back into
corrections.
Number 0181
MR. STOLTZE stated, according to the sponsor, the alternative is to
wait for a new stream of victims and trials with criminal
proceedings. "We don't find that a real palatable alternative," he
declared.
Number 0189
REPRESENTATIVE JAMES stated when more cases come up they are not
tried because there isn't any money. A supplemental is requested,
for example. She believes that someplace down the line there would
be this money spent and other money not spent. It might not be
this year or next year, but over a long period of time it appears
that this approach would have a cost savings.
Number 0234
REPRESENTATIVE BERKOWITZ stated, if these people are without a
reasonable doubt going to recommit a crime later own, it becomes a
question of pay now or pay later.
Number 0248
MR. LINDSTROM stated he does not know how to make that type of
comparison. The department is assuming that these individuals
would be sent out of state for treatment. The one place that would
be willing to accept these folks costs $400 a day - about one-half
the cost of acute care treatment in a psychiatric hospital setting.
Obviously, if the bill passes, there would have to be discussions
in the future on whether to continue to contract or provide instate
facilities.
Number 0300
REPRESENTATIVE CROFT asked what is the recidivism rate for sex
offenders.
Number 0310
BRUCE RICHARDS, Program Coordinator, Office of the Commissioner,
Department of Corrections, stated he believes the last recidivism
study was based on how long people were in treatment. He doesn't
have the information in front of him, however. He could get some
information on the sex offender treatment program, which shows
those who do not participate in treatment versus those who
participate in treatment in prison. There is a significant
difference in time between the next reoffense.
Number 0349
REPRESENTATIVE CROFT asked Mr. Richards the magnitude of the
difference. Is it between 1 and 5 percent, or 33 and 50 percent?
MR. RICHARDS replied he wouldn't even venture to guess.
CHAIRMAN GREEN asked Mr. Richards whether he could provide that
information.
MR. RICHARD replied in the affirmative.
REPRESENTATIVE CROFT asked whether there was a deduction based on
recidivism estimates incorporated into the fiscal notes.
MS. CARPENETI stated she would find that out for the Department of
Law.
Number 0395
MR. STOLTZE stated, as an editorial, that this is part of the
Administration that is chided as a group for not passing
intervention programs.
Number 0404
REPRESENTATIVE BRIAN PORTER suggested to the departments to
consider the recidivism rates. The small percentage of folks that
would return has to be based on the expectation of committing
another crime. There has got to be an offset, otherwise this whole
theory doesn't work.
Number 0431
MS. CARPENETI noted that the treatment under this scheme would be
a lot less expensive than psychiatric care, but it still is a lot
more expensive than time in jail.
Number 0444
REPRESENTATIVE PORTER stated, "I'm assuming that we would have the
good track record that we have and convict 99 percent of these guys
again, and they would be back anyway. So all of that should be
part of the fiscal analysis."
Number 0453
REPRESENTATIVE CROFT stated there would be the cost of a trial, but
there would be a lower cost of incarceration because they would be
placed in a facility as ordinary criminals at $100 a day. It wound
not come to anything near to a wash, but it is appropriate to have
some sort of an offset.
CHAIRMAN GREEN noted that it is a policy call.
Number 0485
REPRESENTATIVE ROKEBERG stated there is a University of Alaska
Anchorage (UAA) study and wondered whether there is another study
on the efficacy of the sex offender in terms of the education
program. Are they two separate studies? he asked.
MR. RICHARDS replied that was the study done by the university.
REPRESENTATIVE ROKEBERG stated they are one in the same.
REPRESENTATIVE ROKEBERG asked Mr. Richards whether the study tried
to categorize prisoners as violent.
MR. RICHARDS replied, "Yes."
Number 0536
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti what would be the size
of the jury, 6 or 12.
MS. CARPENETI replied she is assuming that the size of the jury
would be 12.
Number 0549
REPRESENTATIVE ROKEBERG said, if there is a correlation between the
success rate of people who offend violently and the program, it
would be interesting to see. It would be interesting to see if
they would be categorized as a violent sexual offender under the
criteria used in the study and whether or not they would offend
less by going through the program.
Number 0587
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, pointed out that
sexual offenders are all violent offenders. Sexual assault by its
very nature is a violent offense. Sex is merely the tool used to
perpetuate the violence. Sex offenders cannot be rehabilitated.
At the very best, they can learn to control their offenses. The
council wants to acknowledge that since a very small percentage of
sex offenders have a high predatory level that extensive
incarceration or commitment is in the best interest of the public's
safety, while acknowledging that there is a very high potential for
all sex offenders to reoffend. The council supports the bill.
Ideally, the council would like to see all sex offenders have long
enough terms so that they cannot be a threat to the public at any
point in the future. However, the council realizes that is not
going to happen. This bill is one avenue to help raise the safety
level for the general public. In addition, it is important to
segregate these offenders from the general mental health
populations because they would move from a criminal to a civil
process. Mental health patients are even more vulnerable to sexual
assault than the general public. There needs to be clear
separation between the two.
Number 0671
REPRESENTATIVE BERKOWITZ asked Ms. Andreen whether there was any
attempt to make a sexual assault predator an aggravator with a
mandatory addition of probation or parole time, if not jail time.
MS. ANDREEN replied the council was not actively involved in the
negotiations.
REPRESENTATIVE BERKOWITZ stated the reason that he asked is because
consolidating everything at the initial fact-finding stage speeds
everything up and spares the expense of subsequent proceedings.
Number 0745
MR. STOLTZE stated the Department of Law has testified that the
people were sentenced for shorter periods of time until the
philosophical change of the legislature towards more stringent
laws. He understands Representative Berkowitz's point, but there
isn't an avenue to address it under the title.
Number 0776
CHAIRMAN GREEN noted that a pedophile, a threat to society, would
go from a $100 bed to a $400 bed at the end of his incarceration.
He wondered whether that is strange.
MR. STOLTZE replied the alternative is letting him out.
CHAIRMAN GREEN asked why is the next phase a $400 or $800 a day
bed. Why not keep him in a cheaper facility?
MR. STOLTZE replied the procedure kicks in towards the end of his
sentence. It is about the time that he is ready to be spewed out
into society. According to the Supreme Court decision, there has
to be some treatment and hope for rehabilitation.
CHAIRMAN GREEN stated on the one hand he is incorrigible. On the
other hand there has to be some reasonable assurance for hope of
rehabilitation.
MR. STOLTZE stated the desire of the sponsor is limited by what
would be allowed by the court. This is the only mechanism to...
CHAIRMAN GREEN interjected to keep him off the street.
Number 0875
REPRESENTATIVE JAMES stated she doesn't know how long the original
term is, but it seems backwards. Why is a person in the
correctional system without getting any treatment? Why don't we go
right into it? she asked. It does not seem sensible to keep a
person then put him into treatment when he is about to get out.
Number 0915
MR. STOLTZE noted that Hendricks refused treatment for his
confinement.
CHAIRMAN GREEN asked Mr. Stoltze, if the bill passes, would those
who refuse treatment stay in the slammer.
MR. STOLTZE replied it is an involuntary commitment. He
understands the queasiness, but it is the only path to walk on.
REPRESENTATIVE BERKOWITZ stated it is not the only path. The bill
loads the program at the back end instead of the front end. The
proceedings could be initiated at the point of incarceration. Why
not put a person through these proceeding at the get-go and see if
he is a sexually violent predator? If he washes out, he is gone
forever. If he passes out, then the state doesn't have to keep him
in for perpetuity. There is no reason to wait for a person to
serve his period of incarceration then make a determination of
civil commitment.
REPRESENTATIVE JAMES noted that is her point also.
Number 1041
MS. CARPENETI stated the problem is we don't know how a person
would do at that point in jail by participating in a sex offender
treatment program.
REPRESENTATIVE BERKOWITZ stated if these are sexually violent
predators, according to the definition, they are going to be
diagnosable when convicted. Certainly, if after going through
their period of incarceration as sexually violent predators, they
must have started out as sexually violent predators. Why not start
them out at the beginning of the sentence, instead of the end of
the sentence? he asked.
MS. CARPENETI replied, "You might not come to that conclusion that
they are mentally ill under this definition and suffer from--that
they are mentally ill and sexually violent predators, until they
have served their sentence in jail and gone through the treatment
programs available in the jail." If there is a proceeding at the
same time of conviction, there may be a lot of time and resources
wasted.
Number 1074
MS. ANDREEN stated the best would be to have both options
available. There are times when corrections would not know until
it has had someone for a while. The standard presumptive sentence
for first degree sexual abuse is eight years, which means six and
one-third years with good behavior. Sometimes it takes that amount
of time to really understand. Sex offenders are incredibly
manipulative. She cited a story of a sex offender in Homer.
Number 1183
CHAIRMAN GREEN stated on one hand these types of criminals are
incurrable, and asked why does the state need to wait six and one-
half years before determining that they are this type of criminal.
They were arrested for being that type of criminal. Are there
those who do this type of crime just once or do they do it for
life? he asked.
MS. ANDREEN replied according to studies the average number of
victims is around 40 before being convicted. It is a pattern. It
is something that would be repeated.
CHAIRMAN GREEN stated he is really confused why the state needs six
and one-half years to determine that this type of person would
spend the rest of his life incarcerated.
MS. CARPENETI noted that the person is serving a criminal sentence.
CHAIRMAN GREEN stated if the state knows someone is an "A" type and
convicts him to an "A" facility, and asked why the state doesn't
help him up front instead of waiting six and one-half years.
MS. CARPENETI asked what would be the advantage of doing it at the
beginning of a sentence.
CHAIRMAN GREEN stated, if the state has him for six and one-half
years in the slammer and knows he would not be corrected, why not
keep him in the slammer instead of sending him to an "A" type
facility that costs four to eight times as much. Representative
James and Berkowitz suggested treating the person earlier while in
jail, instead of waiting for his sentence to end.
MS. CARPENETI replied a lot of people respond to giving this type
of person a longer criminal sentence because it would be less
expensive and more practical. The state is now getting longer
sentences for people who commit these types of crimes, especially
for their second and third times, compared to a decade ago. It is
a prospective procedure, however.
MS. CARPENETI further replied that there are treatment programs
available in the prisons for sex offenders. She suggested hearing
from Bruce Richards. He is able to give statistics on how well the
state is doing and what is available.
Number 1420
CHAIRMAN GREEN said, "We have heard that this person when it does
finally come time to either he is on the street or in treatment,
that he no longer is under the corrections department. He now is
in a different department."
MS. CARPENETI noted that he would be in the custody of the
Department of Health and Social Services.
CHAIRMAN GREEN stated, "And, that's the only way we can pass the
Kansas type extension is so go to that method rather than to say
okay he's a danger then we'll leave him in the slammer."
MS. CARPENETI replied that is correct.
MR. STOLTZE noted that it would be using a selective tool very
unselectively. If it is applied universally, it is trying to
determine a very broad class.
Number 1470
REPRESENTATIVE BUNDE noted that there are treatment programs within
the correctional facilities. They are voluntary while some folks
are treatable and some are not. "We ought not to lose site of what
the purpose is at the end for the civil commitment." It isn't to
treat them; they are beyond treatment. It is to keep them off of
the street. What is the price of keeping children safe? he asked.
The treatment is just eyewash. It is just to keep them locked up.
CHAIRMAN GREEN stated it seems that there ought to be a reasonable
degree of assurance.
MS. CARPENETI stated it is true that these people are very
difficult to treat, but it is not true that they are hopeless.
Number 1579
REPRESENTATIVE BERKOWITZ referred to page 3, line 10, and called it
the most important part of the section. It may determine whether
a person is a sexually violent predator prior to conviction or
during the period of incarceration. Waiting to the end of a
person's conviction is postponing a decision that should have been
made earlier. He said, let's attack the problem when it is
discovered. Let's not wait until it has festered.
MS. CARPENETI asked Representative Berkowitz whether he is
envisioning a separate hearing after a conviction on whether or not
the person is a sexually violent predator.
REPRESENTATIVE BERKOWITZ stated this is a civil commitment. Why
does the fact of incarceration matter? he asked.
MS. CARPENETI replied it matters to the extent that the person has
committed a crime and is serving a sentence for another reason
apart from his treatment.
REPRESENTATIVE BERKOWITZ replied a civil commitment is a
prospective, not a punitive measure. "We're not saying we're
civilly committing you because you have done something bad. We're
saying we're civilly committing you because we think you're going
to do something bad." Once the state determines that it is going
to commit someone, the current factor of his conviction for a crime
is irrelevant. "If you see someone walking down the street who you
believe is a sexually violent predator and they're not convicted,
what are we doing about them? Nothing. So, who are we really
protecting?"
MS. CARPENETI replied she would like to deal with a sexually
violent predator walking down the street too. She is dealing more
with realities. There is a person and the state knows his history,
how he has done in jail, and how he has responded to treatment.
Then, there is the concern about letting him out. She would want
to know more information whether the individual walking down the
street unincarcerated and uncharged is a sexually violent predator.
REPRESENTATIVE BERKOWITZ replied, "But, here when say they've gone
through a treatment program while they're in, and the treatment
program, say it's a first offense, is usually five and two-thirds.
And, so you know, at three years to say we're not doing it or we've
walked out of the program twice or whatever has happened. Why are
we waiting to the end of the five and two-thirds? Why aren't we
just grabbing them after three and saying ok this a sexually
violent predator. Let's pop him now."
MS. CARPENETI replied we are requiring him to serve his sentence as
part of a criminal conviction. He violated the law and victimized
a person. He ought to go to jail for it and serve his sentence.
If he hasn't taken advantage or been able to be rehabilitated in
jail, then he should be looked at again.
MR. STOLTZE stated the concern is not of the individual, but
society. Society is concerned when a person is about to be
released.
REPRESENTATIVE BERKOWITZ asked why is the state wasting resources
to try to rehabilitate them while incarcerated, if they are
incorrigible. Why not put those scarce resources where they can do
some good?
MR. STOLTZE replied he is not sure what side of the issue
Representative Berkowitz is on.
REPRESENTATIVE BERKOWITZ replied he is taking his argument and
using it in response. "First, as Representative James says either
these folks are treatable, in which case let's go get them off the
get-go. And then you say that they're not treatable. And, I'm
saying that if they aren't treatable let's find out so we don't
waste the resources in prison and give--put those resources to
someone else. But, let's find out as soon as possible. That's the
most efficient use of our resources."
MR. STOLTZE replied it is impossible to prove whether or not that
they are untreatable. We have to go on substantial likelihood. He
doesn't think that resources are being wasted because they serve as
a public purpose. It is keeping them off of the streets - the
higher threshold of a public purpose.
Number 1950
REPRESENTATIVE BERKOWITZ replied he is not saying let these guys
out. He is saying when they are incarcerated a determination
should be made quickly. Would they be amenable to treatment? If
the answer is yes, let's give them treatment. If they wash out of
the treatment, then let's run them through the sexually violent
predator petition. If they run out in the middle of their
sentence, let's do it then. Let's not wait until the end of their
sentence. Let's not try to put them through a program again. On
the other hand, if a sexually violent petition is given at the
beginning of a sentence, and it is determined that they are not
amenable to rehabilitation, let's not waste resources trying to
rehabilitate them. Let's put them towards an individual who
deserves to be or can be rehabilitated.
Number 2006
MR. STOLTZE stated that might be interpreted to be (indisc.) by the
courts.
REPRESENTATIVE JAMES stated it seems that in order to meet the
criteria established in the court case the money has to be spent
for the expensive program whether it works or not.
CHAIRMAN GREEN stated, "If you're gonna keep them off the streets."
REPRESENTATIVE JAMES stated it seems that in order to meet the
requirement we have to send them away for this expensive treatment.
CHAIRMAN GREEN asked whether we can continue to have them
incarcerated, not necessarily in the slammer, even though there are
treatments offered there, but something less than the $400 or $800
type of confinement, which we know isn't going to work anyway.
MS. CARPENETI stated it might be hard when a person is convicted to
make a determination as to whether or not he is treatable. The
bill requires the court, after a person is found to be a sexually
violent predator, to determine whether a less restrictive
alternative would be safe for the public.
CHAIRMAN GREEN asked whether the state of Kansas keeps them in a
prison type of environment with medical treatment, or does it
actually change departments and keep them strictly as medical
patients.
MS. CARPENETI replied they cannot be housed with other prisoners.
This bill requires that they be housed in a secure facility apart
from other people who are serving criminal sentences and apart from
people who are being treated for a mental illness.
MR. STOLTZE stated, for example, it could actually be within a
walled parameter of a correctional facility, but administered by
corrections. We offered to contract out because we don't know what
type of facility would be needed. We figured it would be better to
judge how many people we are going to have then determine what type
of facility to build. It could be within Spring Creek or Lemon
Creek, for example. It would have to be administered to meet the
restrictions provided by in the Supreme Court decision. It could
not be administered by the Department of Corrections as spelled out
in statute. But, we are not that far along. We don't want to get
into legislation for building facilities.
Number 2375
WALTER MAJOROS, Executive Director, Alaska Mental Health Board. He
is also a prior director of a sex offender treatment program in
Juneau, and a prior division director for the Department of
Corrections. The board is concerned about the impact of the bill
on persons with mental illnesses within the mental health system.
It commends the sponsor and the legislature for their concern of
protecting the public from sexually violent predators. It is a
very serious issue that deserves debate and consideration. The
first point from the board's perspective...
TAPE 98-86, SIDE A
Number 0000
MR. MAJOROS continued. Sexually violent predators have antisocial
behavioral disorders or personality disorders that require a very
different type of treatment. The criminal justice system is set up
for long-term confinement of individuals who are likely to commit
violent crimes. The civil system is set up for short-duration
treatment needs for people with mental illnesses. There are
several mechanisms within the criminal and public safety system
now, including sentencing laws, good-time provisions, victim
notifications, rigorous prosecutions, sex offender registrations,
paroles, probation conditions and intensive supervision - all
appropriate mechanisms to address sexually violent predators. The
board encourages the committee members to consider and enhance
those options to protect the public's safety. The board is also
concerned about safeguards for persons with mental illnesses within
the public mental health system. One area is to narrowly define
the population so that the law only applies to the most dangerous
and violent offender. The board is also concerned that the
facilities and treatment programs are separate from those for the
mentally ill. The board is also concerned about ensuring that the
integrity of the mission of the public mental health system is not
jeopardized. Lastly, the board is concerned about the treatment
approaches. It is important to recognize the significant
philosophical difference between criminal offenders and the
treatable mentally ill. The board is concerned that resources are
not diverted away from treating people with mental illnesses to
treating people who are sex offenders. The board asks that the
funding be separate and not come from the existing funding for the
public mental health system. He has submitted a proposed amendment
to achieve a safeguard. It would disallow the treatment of
sexually violent predators at Alaska Psychiatric Hospital. The
fiscal notes prepared by the Administration already assume that the
people would not receive treatment at the Alaska Psychiatric
Hospital, and contract it out, but there is nothing to prohibit
that treatment from happening at the Alaska Psychiatric Hospital.
The board is concerned about taking treatments away from the
mentally ill patients. The Alaska Psychiatric Hospital is being
downsized within the next couple of years from 79 to 54 beds.
Every bed would become precious. He has discussed the issue with
Senator Halford, and the mental health industry feels very strongly
about it. He has also discussed it with the commissioner of the
Department of Health and Social Services.
Number 0394
CHAIRMAN GREEN made a motion to adopt Amendment 2. There being no
objection, it was so adopted. [AMENDMENT 2 WAS NOT PROVIDED]
Number 0440
BLAIR McCUNE, Deputy Director, Central Office, Public Defender
Agency, Department of Administration, testified via teleconference
in Anchorage. The agency has submitted a fiscal note that includes
the history of this type of law. It is important to point out that
this would be the first time in Alaska where people would be
confined based on a prediction that they might commit criminal
offenses in the future. That type of determination is a real
slippery slope and not favored in the law because it potentially
violates the right to liberty and due process. He also noted that
a task force report from the American Psychiatric Association
indicated that these types of determinations should not be made
because it distorts the traditional civil commitment process. In
addition, the pressure to have commitments of more than five a year
might be strong. The definition of mentally ill in the bill is
very broad. It means any mental conditions that increases the
propensity of (indisc.) to be dangerous to the public's safety.
Historically, in 1982 the legislature really changed the not guilty
by reasons of insanity laws to make it difficult for that type of
defense. The statute referred to in the bill talks about mental
illness for people who get out of a commitment. And, the mental
health commitment to the Alaska Psychiatric Hospital in Title 47
means an organic or mental disturbance. There are three different
definitions of mental illness in statute. The one chosen is the
broadest one available. He mentioned that it would be very hard to
qualify an attempt to have sexual contact with another person as a
sexually violent crime given the types mentioned in statute. In
addition, according to the UAA study, over 90 percent of the people
who went through treatment did not pass or complete it. There have
only been a handful of people who have successfully completed a
program over the years. It is not something that is offered
routinely in jail. He suggested that the legislature look at
funding for that, given the comments made by Representatives James
and Berkowitz. It is a very expensive program according to other
public defenders in other states because it is a civil trial rather
than a criminal trial and experts need to be hired. The agency
agrees with the amendment offered by Ms. Carpeneti. The expense of
the experts was taken into account in the fiscal note. He lastly
noted that it would be in the superior court so the jury size would
be 12.
Number 0995
CHAIRMAN GREEN stated a 2-percent review would put about three or
four people into this category each year. He asked Mr. McCune
whether 2 percent is reasonable when dealing with sexual predators.
Could it be 50 percent?
MR. McCUNE replied that is the agency's fear. The agency used the
Department of Law's figure of 2 percent. It is a slippery slope
for psychologists and psychiatrists to guarantee someone's safety.
Number 1070
REPRESENTATIVE ROKEBERG asked Mr. McCune whether he would use
Article I, Section 12, of the state constitution to attack this
type of law.
MR. McCUNE replied it is a civil law, therefore, it would not
apply. In Kansas v. Hendricks due process, ex post-facto, and
double jeopardy were attacked. The state would have to argue the
purpose of the law. It is likely to lose if it is found to be a
law that is to just lock people up.
Number 1205
CHAIRMAN GREEN stated, in reference to the jury size, that parties
could stipulate to a jury size of less than 12. There could be a
smaller jury.
MR. McCUNE replied a person faced with a potential lifetime
commitment would want a big jury.
CHAIRMAN GREEN announced that there are only two members left of
the committee. The bill will be put aside at this time.
CSSB 219(FIN) AM - OFFICE OF VICTIMS' ADVOCACY
CHAIRMAN GREEN announced the next item of business would be CS for
SB No. 219(FIN) am, "An Act relating to establishing an office of
victims' rights; relating to compensation of victims of violent
crimes; relating to eligibility for a permanent fund dividend for
persons convicted of and incarcerated for certain offenses; and
amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9,
Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence."
CHAIRMAN GREEN called on Brett Huber, staff to Senator Rick
Halford, sponsor of the bill.
Number 1319
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska
State Legislature, noted that $30 million annually is spent either
prosecuting or defending criminals. On November 8, 1994, 86
percent of the ballots ratified the victims' rights amendment to
the state constitution providing victims with constitutional
rights. Senate Bill 219 establishes an office of victims' rights.
The legislature tasked the victims' advocate with assisting crime
victims and obtaining their rights guaranteed under the
constitution and laws of the state with regards to their contacts
with state justice agencies. The Senate Judiciary Committee heard
heartfelt testimony showing that crime victims are all too often
left to deal with the justice system that's heavily weighted to the
benefit of the criminal, that's full of legalese and
technicalities, and virtually impossible for anyone - other than an
attorney - to understand. The passage of SB 219 would provide
victims of crime with an advocate that understands and is
experienced in criminal law under the justice process. The bill
does not preclude the responsibility of the prosecutor's office to
fulfill its statutory obligations. The bill does not preclude
organizations such as Victims for Justice. Their effectiveness
would be boosted by the office of victims' rights. Mr. Huber
announced that there is an amendment addressing the concerns of the
Department of Law.
Number 1426
CHAIRMAN GREEN stated he would gladly introduce the amendment, but
there isn't a quorum. He asked Mr. Huber to explain the sections
of the bill.
MR. HUBER explained that Section 1 of the bill provides a short
title.
MR. HUBER explained that Section 2 of the bill amends AS
12.55.023(b) allowing the advocates to make statements at the time
of sentencing in lieu of the victim.
MR. HUBER explained that Section 3 of the bill brings the victims'
advocate under the ethics of the legislature. The office was built
on the model of the ombudsman.
MR. HUBER explained that Section 4 of the bill creates the actual
Office of Victims' Rights. It creates a new chapter - AS 24. He
mentioned the sections within the new chapter.
MR. HUBER explained that Section 5 of the bill provides the option
of adopting longevity pay provisions to the advocate.
MR. HUBER explained that Section 6 of the bill extends the period
for permanent fund dividend ineligibility from one to two years.
MR. HUBER explained that Section 7 of the bill provides that the
proceeds of the permanent fund dividend may be used to fund the
office of victims' rights, subject to legislative appropriation.
MR. HUBER explained that Section 8 of the bill exempts regulations
promulgated by the office from gubernatorial review.
MR. HUBER explained that Section 9 of the bill exempts an advocate
from some of the record keeping requirements.
MR. HUBER explained that Section 10 of the bill provides a sunset
review of agencies to include interaction with the office of
victims' rights.
MR. HUBER explained that Section 11 names the office as a state
agency for the purposes of state publications.
MR. HUBER explained that Sections 12 and 13 of the bill provide a
notice of the court rule changes.
Number 1609
REPRESENTATIVE ROKEBERG asked Mr. Huber whether the office has been
funded in the budget or is there a fiscal note.
MR. HUBER replied it would take the next legislature to appoint the
victims' advocate and establish the office. Although the fiscal
notes shows a fiscal year (FY) 1999 cost, there is no actual
anticipated cost in 1999. A fiscal note was prepared thinking that
there was enough time to pass the bill and appoint the advocate
this legislative session. The Senate Finance Committee, although
all members were supportive of the bill, was concerned that it is
a new general fund draw, which is why there is a tie to the
permanent fund dividend forfeiture. If the bill passes, the fiscal
note would be subject to the Conference Committee. The office
cannot be put together without an advocate appointed. He
reiterated, he anticipates no cost for FY 99.
Number 1679
CHAIRMAN GREEN asked Mr. Huber, for clarification, whether the
permanent fund dividend is the other funding source.
MR. HUBER replied, "Correct."
CHAIRMAN GREEN asked Mr. Huber whether the permanent fund dividend
would amount to almost $500,000.
MR. HUBER replied testimony from the Permanent Fund Dividend
Division indicated that in the second year of eligibility the
revenue stream is estimated at up to $4 million. The funding
mechanism more than exceeds the requirements of the bill.
Number 1709
REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would work
procedurally.
MR. HUBER replied procedurally anybody has the opportunity to use
the office who feels that his rights as a victim have been denied,
providing that it is a felony offense or certain misdemeanor
offenses. The bill also provides that the office can establish a
priority. The office would have to be able to address those that
it can given staff and budget constraints. The office has the
power to advocate on behalf of a victim, investigate, consult,
publish a report, and make recommendations after a case, similar to
the ombudsman.
Number 1811
REPRESENTATIVE BERKOWITZ stated prioritization usually raises equal
protection and due process problems. He asked Mr. Huber whether
there was testimony on that in any of the other committees.
MR. HUBER replied the testimony in the other committees has been
limited to the fact that the case load is high, especially after
some misdemeanor cases were added in an amendment in the Senate
Judiciary Committee. It is not the idea that the advocate becomes
someone's civil attorney.
REPRESENTATIVE BERKOWITZ stated he does not mean that. He is
concerned about denying services to a citizen.
MR. HUBER replied it is the same for the Office of the Ombudsman.
Services would not be denied. The office would be operating inside
of staff and budget constraints.
REPRESENTATIVE BERKOWITZ stated the office is being predicated on
a constitutional basis. The Office of the Ombudsman doesn't have
a constitutional basis.
MR. HUBER replied the constitutional rights would be the same. As
with all other constitutional provisions, there are statutory
provisions. The statutory provisions to implement the office allow
for prioritizing the cases. It does not diminish a person's
constitutional rights.
REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would
proceed when there are two crimes and one victim wants the service
and the other victim doesn't.
MR. HUBER replied there is discretion with the court to determine
who is a named victim. Alaska Statute 12.55.185 defines a victim
as follows:
"(16) "victim" means
(A) a person against whom an offense has been
perpetrated;
(B) one of the following, not the perpetrator, if
the person specified in (A) of this paragraph is a
minor, incompetent, or incapacitated:
(i) an individual living in a
spousal relationship with the person
specified in (A) of this paragraph;
or
(ii) a parent, adult child, guardian, or
custodian of the person;
(C) one of the following, not the perpetrator, if
the person specified in (A) of this paragraph is
dead:
(i) a person living in a spousal
relationship with the deceased before the
deceased died;
(ii) an adult child, parent, brother,
sister, grandparent, or grandchild of the
deceased; or
(iii) any other interested person,
as may be designated by a person
having authority in law to do so."
MR. HUBER stated, according to the statutory definition, it boils
down to "a" victim. The office would proceed at the discretion of
the person who comes forward and asks for assistance.
Number 2005
REPRESENTATIVE BERKOWITZ referred to page 8, lines 4 - 7, and asked
Mr. Huber whether a law clerk or in-court clerk would be able to be
subpoenaed.
MR. HUBER replied this section was adopted by the Senate Judiciary
Committee at the request of the court system. The court system was
concerned about actual judicial decisions coming under question.
It did not have a problem with procedures coming under question.
Therefore, the language "concerning a judicial action or nonaction"
was included.
REPRESENTATIVE BERKOWITZ noted that often times a law clerk is
intertwined with what the judge is doing. In a way it would
backdoor a judge's insulation from the process.
MR. HUBER replied the court system offered the amendment and is
comfortable with the language. A law clerk could not be questioned
about decisions, only procedures.
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean
the office would have the ability to subpoena members of the
prosecution.
MR. HUBER replied that's correct.
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean
the office would have the ability to subpoena law enforcement.
MR. HUBER replied that's correct.
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the proceeding
would be done publicly.
MR. HUBER replied the subpoena is for investigating a decision. It
would not be subject to a public hearing. The office is barred
from releasing confidential information or prereleasible reports
before taking the preliminary report to the agency affected,
getting their recommendations, and at a later date publishing the
final report and recommendations.
REPRESENTATIVE BERKOWITZ referred to page 7, line 1, and asked Mr.
Huber what procedural safeguards would an individual have, such as
an attorney or taking the Fifth Amendment.
MR. HUBER replied there is nothing in the bill that would change
anybody's constitutional rights to due process. Certainly, one
would be able to take the Fifth Amendment, for example.
REPRESENTATIVE BERKOWITZ disagreed. This is a huge change in
criminal processes. Historically, it has been an adversarial
process with an arbitrator. Now, a new agency is being
interjected. It could be a good policy call, but needs to be done
very carefully. There are a lot of possibilities for unintended
consequences.
MR. HUBER agreed with Representative Berkowitz. The sponsor has
spent a considerable amount of time talking to prosecutors, defense
attorneys, the Department of Law, the court system, and agencies
tasked to assist victims. The bill has been through the Senate
Judiciary Committee and the Senate Finance Committee.
Number 2231
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the bill is
modeled after something in other jurisdictions.
MR. HUBER replied the office is modeled after the Office of the
Ombudsman. He doesn't know of another agency like this in another
state. Again, there is the unique constitutional provision adopted
in 1984 that promised the voters their rights. Senator Halford
believes that it is time to put forth a practical mechanism to help
make sure that those rights are implemented.
REPRESENTATIVE BERKOWITZ stated, he believes, that there are other
states that have victims' rights.
Number 2256
REPRESENTATIVE ROKEBERG stated he appreciates the fact that there
are constitutional rights for a victim. He is concerned about who
in fact would deny these rights. The judge can't be subpoenaed who
oversees the rights of the victim as they relate to the process
now.
MR. HUBER replied the Department of Law and the prosecutors are
specifically tasked with some of the provisions that provide the
mechanism for making constitutional rights available. He cited, to
consult with a prosector, to be involved with the prosecution and
investigation of the case, and to be able to make a statement at
the time of sentencing as examples. There are statutes that
specifically task the prosecutor's office with certain
responsibilities under the constitutional amendment. The
legislation does not do anything for somebody when the judge or
jury made a bad decision. That is what the appellate courts and
civil proceedings are for. According to the court system, the
majority of the complaints are of the process, and mainly of the
prosecutorial side. The bill does not attempt to influence or
review specific judicial action.
REPRESENTATIVE ROKEBERG referred to a constituent who complained
about a prosecutor misdirecting her case and asked Mr. Huber
whether this could be used to harass the prosecutor. What's to
protect those folks?
MR. HUBER replied prosecutorial discretion rests in the
prosecutor's office. The Office of the Prosecutor makes
determinations all of the time: what level to bring a charge to,
what plea bargain is reasonable, how to proceed with an
investigation, and how to proceed with a court proceeding, for
example. If a person feels that his rights have been abridged, the
Office of Victims' Rights is tasked to look at the facts of the
case and make a preliminary report to the effected agency. The
agency responds to the report and then the advocate produces a
final report and recommendation(s).
REPRESENTATIVE ROKEBERG asked Mr. Huber whether he is suggesting
that a victim can second guess a prosecutor.
MR. HUBER replied there are victims now who second guess a
prosecutor's decision. Prosecutorial discretion still lies with
the prosecutor. There are victims now, however, who are thrown
into a system full of legalities that may or may not understand
what has been done correctly....
TAPE 98-86, SIDE B
Number 0000
MR. HUBER continued. ... the opportunity to have somebody who is
familiar with the process, has a criminal law background, and has
dealt with these issues before in order to take a reasoned look at
the complaint. It may only result in an initial consultation at
which time it is determined that no right has been abrogated.
Victims now feel that there are certain shortcomings in the
judicial system. The most powerful statement in the Senate
Judiciary Committee was that the criminal has on his side all of
the constitutional protections of somebody who is accused. On the
prosecutor's side it is the full force and weight of the state that
is bringing the case. The victim, therefore, is left in the shadow
of justice. The office allows for an advocate to help a victim
through the process, understand the process, and ensure that his or
her constitutional rights are protected as the process goes on.
Number 0057
REPRESENTATIVE ROKEBERG asked Mr. Huber what is the penalty
involved here.
MR. HUBER replied the penalty provisions are only for somebody who
is obstructing the victims' office from doing its job. It is not
set up to punish the prosecutors or courts. It is set up to give
the public a better understanding of what happens in the process.
REPRESENTATIVE ROKEBERG asked Mr. Huber whether nagging or
jawboning is being institutionalized.
MR. HUBER replied he believes that many of the issues that the
legislature chooses to deal with are ones that are brought forward
by constituents that have been put into a situation that they don't
want to be put back into.
Number 0101
REPRESENTATIVE ROKEBERG asked Mr. Huber what is the remedy. What
would happen if there is a finding?
MR. HUBER replied ideally the information in the report comes
forward and the justice agencies have been told the
recommendations. If someone feels that his constitutional rights
have been aggrieved, of course, he can bring suit with or without
the office. If he feels that the decision was in error, of course,
he can appeal it or try to bring civil litigation.
Number 0128
REPRESENTATIVE BERKOWITZ asked Mr. Huber to whom would he appeal.
MR. HUBER replied appeal was the wrong choice of words. The appeal
would be on the side of who is convicted, but certainly civil
remedies are something that could be sought.
Number 0149
REPRESENTATIVE BERKOWITZ asked Mr. Huber, if the office writes a
scathing report about a prosecutor and the prosecutor comes out
with contrary evidence, who would he take it to.
MR. HUBER replied the prosecutor would take the evidence to his
superiors inside the Department of Law. There is no specific
penalty for the prosecutor in that position.
REPRESENTATIVE BERKOWITZ stated the prosecutor has been publicly
sanctioned, but he doesn't have a public avenue to gain his good
name back.
MR. HUBER stated, before a report is issued in final, the agency is
consulted and has the opportunity to answer to the report.
Number 0188
REPRESENTATIVE BERKOWITZ stated there used to be something known as
the victim witness coordinator in most prosecutors' offices.
Usually, they are under funded, but it is their job to explain to
victims how the process works and the consequences. He asked Mr.
Huber whether he is saying that they don't need to be funded
anymore.
MR. HUBER replied he is not saying that at all. There are
designated victim coordinators in all of the offices of public law
with the exception of some satellite offices. The bill does not
ask to divert those funds. The bill does not relieve them of any
of their statutory responsibilities. It merely provides an entity
for a victim to consult with somebody who is versed in the system.
Number 0246
REPRESENTATIVE BERKOWITZ stated this is an interesting separation
of powers issue. The office would be a legislative entity doing
oversight of both the executive and judicial branches. It raises
some real questions. If someone was to come to the legislature to
determine whether it did a good job putting a bill together, for
example, he would feel resentful of someone from the executive or
judicial branch looking over his shoulder. He asked Mr. Huber
whether the legislature is guilty of the same sin.
MR. HUBER replied he doesn't view it that way. He suggested
looking at the Office of the Ombudsman, a legislative branch
function tasked to do exactly what Representative Berkowitz
described with the executive branch. It was not brought forward as
a punitive measure. Legislators represent the branch of government
that is tasked with representing the people - the branch that
brought the House Joint Resolution forward to provide the
opportunity to vote on the constitutional amendment. It is the
branch whose phone rings first when a constituent is having a
problem with a state agency.
Number 0322
REPRESENTATIVE ROKEBERG stated he is still not satisfied that there
is a remedy. The only remedy that he can think of is a public
opinion editorial in the Anchorage Daily News.
Number 0354
REPRESENTATIVE JAMES stated it seems that the bill serves the
purpose for victims to understand their opportunities. Victims
have indicated that they don't have a source, they don't know the
legalities, they don't know when to complain, and they don't have
anywhere to go unless they hire an attorney. Many victims don't
have enough money to hire an attorney. The purpose of the office
is for information. It seems simply like an advocacy for those who
are vulnerable or disenfranchised and cannot represent themselves
just like all the other advocacies in the state. The only time
that there would be any punitive kinds of treatment is when there
is a case. She sees a real advantage to having the office, but she
doesn't know who would pay for it.
Number 0467
MR. HUBER replied that is the intent of this legislation.
According to the fiscal note, there is a projected $500,000 cost.
There is a potential funding source included in the bill with the
increased revocation of the permanent fund dividend for convicted
felons or multi-misdemeanants. It would appear as an item in the
legislative budget and be subject to appropriation.
Number 0492
CHAIRMAN GREEN stated there has been indication that this would be
a money maker rather than an expense.
MR. HUBER stated the folks from the Permanent Fund Dividend
Division have indicated that there is the potential for a $4
million revenue stream.
REPRESENTATIVE JAMES stated the office is also trying to eliminate
people becoming victims and a constitutional amendment has been
passed. She thinks it is a good idea.
Number 0540
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether he knows
quantitatively how often victims' rights are violated.
MR. HUBER replied no he does not have any quantitative data. He
can give some anecdotal data, however.
REPRESENTATIVE BERKOWITZ stated most anecdotal data would not get
by an attorney's evaluation. Currently, there are the Victims for
Justice and Court Watch in Anchorage that do a very good job of
keeping their eyes on things and explaining to victims how the
process works. He asked Mr. Huber whether the government is
supplanting something that is being done in the private sector.
MR. HUBER replied the sponsor has long supported the work of
Victims for Justice, which is on record for supporting the bill as
a priority in this legislative session. At its level, it believes
that having an agency like this would help it with its task, not
hinder it.
Number 0614
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1. It
reads as follows:
TO: CSSB 219(FIN) am
Page 6, line 13, following "Jurisdiction.":
Insert "(a)"
Page 6, following line 21:
Insert a new subsection to read:
"(b) The victims' advocate shall exercise
(1) the jurisdiction granted under this
section in a manner that does not
interfere with a criminal investigation
or with a criminal prosecution;
(2) reasonable care to prevent crime
victims and employees of the office of
victims' rights from making extrajudicial
statements that the victims' advocate is
prohibited from making under the Alaska
Rules of Professional Conduct."
Page 6, lin 26:
Delete "Notwithstanding another provision of law,
the"
Insert "The"
Page 6, line 27, following "state":
Insert "under art. I, sec. 24, Constitution of the
State of Alaska, and AS 12.55.023,"
Page 7, following line 1:
Insert a new subsection to read:
"(d) Records obtained by the victims'
advocate shall remain in the exclusive
custody of the victims' advocate. The
victims' advocate may not disclose
confidential information to any person."
MR. HUBER noted that the amendment was suggested by the Department
of Law to meet some of its concerns. The sponsor concurs with the
amendment.
CHAIRMAN GREEN asked whether there is any objection to Amendment 1.
There being no objection, it was so adopted.
Number 0636
REPRESENTATIVE ROKEBERG asked Mr. Huber whether there is a House
Finance Committee referral.
MR. HUBER replied, "Yes."
REPRESENTATIVE BERKOWITZ asked Mr. Huber how a victims' advocate
would determine whether the exercise of its jurisdiction interferes
with a criminal investigation. There are a lot of times when
proceedings are cloaked in some degree of secrecy to prevent
information from getting out. A non-answer from a prosecutor could
jeopardize an ongoing investigation or prosecution.
MR. HUBER replied the amendment speaks to the confidentiality of
the information gleamed in the investigation and advocacy process.
REPRESENTATIVE BERKOWITZ stated he is particularly concerned about
cases of domestic violence. The perpetrator often leans on the
victim. He is concerned about exacerbating the problem.
MR. HUBER replied Representative Berkowitz has a valid concern.
The sponsor has addressed it through the process of qualification
and appointment of the victims' advocate.
REPRESENTATIVE BERKOWITZ replied he is not worried about the Office
of Victims' Rights. He is worried about a perpetrator sending a
victim into the office demanding not to testify, for example. The
office would then go to the prosecutor on behalf of the client and
the prosecutor would say, "Tough luck." The office then tells the
victim that he has to testify. As a victim's voice, it could be a
conduit for further violence to the victim.
MR. HUBER replied he understands the point, but he is not certain
whether that same eventuality is out there with or without the
Office of Victims' Rights. As a victim, to come forward and ask
for help is an incredible big step, especially in cases of domestic
violence. There are other agencies that deal with these
situations, such as non-profit domestic violence shelters.
Number 0841
NANCI JONES, Director, Permanent Fund Dividend Division, Department
of Revenue, stated she would like to correct the amount estimated.
There are no statistics at all to determine how much money would be
earned by holding another years dividend. This year the felon
ceiling amount that was given to the Office of Management and
Budget was $3.9 million. That is funding for the Department of
Public Safety, Department of Corrections, Council on Domestic
Violence and Sexual Assault, crime victim compensation, and gate
fees. In 1995, there was a provision added to include
misdemeanants. The division has not been able to collect that data
yet because of the reporting period. This bill and SB 274 add an
additional pot of dividends. The division is concerned based on
the felon program was it first started in 1988. It was challenged
and taken all the way to the supreme court. The court ruled that
it was a legitimate purpose to withhold the dividend. It was for
incarcerated people and the cost of their keep. The division's
concern of SB 274 is the parole fee. If they don't pay it we levy
it. The provision in SB 219, just like the second part of SB 274,
says one is ineligible for the permanent fund dividend if
incarcerated in any of two years. One year the division would get
it anyway because the person is in jail. Now, the division would
get the dividend the second year when the person is out of jail as
well. The bill also says that there is a cost for these people
being on parole - $3. The dividend is constantly increasing. She
wondered who would get the difference. The provisions of the bill
say because a person was in jail two years ago, the division has to
estimate a dividend for him when normally he would not apply for
one. It starts to get into other people's pockets. The division
is paying people who otherwise would not be eligible. These people
would not otherwise apply for a dividend. The number given to OMB
was based on the number of people incarcerated in 1996 and how many
of those people did not return to jail in 1997. The Department of
Corrections came up with 1,100. The division would have to run the
number through an eligibility test then calculate how many would
have gotten a dividend had they not been in prison. She is afraid
it won't stand up in court. She doesn't think that there is a
legitimate purpose for holding dividends from people who are no
longer in jail, even if they are on probation. She is also
concerned that since they are not in jail and perhaps eligible for
a dividend they would not be able to pass it on to pay debts, such
as child support. Every year there is about a 3 percent increase
in the amount of claims that the Child Support Enforcement Division
(CSED) gives to the Permanent Fund Dividend Division. That money
would no longer be available to CSED.
Number 1183
REPRESENTATIVE BERKOWITZ asked Ms. Jones whether this would also
jump ahead of restitution, fines, and civil debts.
MS. JONES replied it definitely jumps ahead of everything. These
people are now ineligible for a dividend. The division takes the
money that they would have gotten and gives it to state government.
REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund
state government before it would pay victims.
MS. JONES replied, "Exactly."
REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund
state government before it would pay civil creditors.
MS. JONES replied everyone.
Number 1231
REPRESENTATIVE JAMES asked Ms. Jones whether the money would be set
aside whether there is an application filed or not.
MS. JONES replied, "Right." The extra provision in the bill means
the year that the person is out of jail when the division would not
normally have gotten the dividend. This bill would make the person
ineligible and instead the division would give the money to state
government.
REPRESENTATIVE JAMES asked Ms. Jones whether they would have to
make an application for the dividend.
MS. JONES replied, "No."
REPRESENTATIVE JAMES asked Ms. Jones, "Even the year that they're
in?"
MS. JONES replied, even the year that they are incarcerated, they
do not make an application. The Department of Corrections gives
the division a list of those who are incarcerated during the
qualifying year. The division runs them through the eligibility
criteria to determine who would be eligible for a dividend if they
were out on the street. That becomes the ceiling from which the
Office of Management and Budget (OMB) can budget from. There is a
provision that says OMB cannot budget anymore than the ceiling that
was budgeted from the previous year, otherwise every use of every
dollar given would have to be listed.
REPRESENTATIVE JAMES agreed that there are some problems.
Number 1390
CHRIS CHRISTENSEN, Staff Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, stated the
supreme court takes no position on the legislation. In reference
to the question regarding law clerks asked earlier, he had
originally drafted an amendment to take care of that problem. Law
clerks act as the agent of the judicial officer at the officer's
direction. If a law clerk is subpoenaed, it is in essence the same
as subpoenaing a judge. It is access to the judge's thought
processes.
Number 1457
REPRESENTATIVE BERKOWITZ asked Mr. Christensen whether the
committee could amend it to fulfill his concern.
MR. CHRISTENSEN replied he would appreciate it.
Number 1464
REPRESENTATIVE BERKOWITZ made a motion to conceptually incorporate
law clerks and in-courts.
MR. CHRISTENSEN stated the language that he had originally given
was a judicial officer or person working under the direction of a
judicial officer. Remember, this is limited to judicial acts, not
administrative acts.
MR. CHRISTENSEN suggested on page 8, line 4, following "magistrate"
add "or a person acting under the direction of a justice, judge, or
magistrate". He also suggest on page 8, line 5, following "by"
add "or under the direction thereof".
Number 1570
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2
suggested by Mr. Christensen. There being no objection, it was so
adopted.
Number 1605
MR. CHRISTENSEN further stated that the bill is a further
implementation of the victims' rights amendment to the state
constitution. It does a number of significant things that would
probably make the system better for victims. The court system is
not concerned about the creation of the Office of Victims' Rights,
the authority of an advocate to appear in court in lieu of a
victim, the ability of the advocate to obtain court records
relating to an offense, the ability of the advocate to investigate
the administrative matters. He offers no comment on the sections
of the bill that relate to the executive branch. He is concerned
about allowing the advocate to issue a report critical of a jury's
decision. For example, the constitution requires that a victim be
treated with dignity and respect. A jury decides who to believe -
a decision that does not involve treating the victim with dignity
and respect. The courts have always protected and shielded jurors.
The court system is concerned about people being taken to task by
a government official for a decision that they have rendered in
good faith as part of a jury.
MR. CHRISTENSEN further stated that the bill would allow the
advocate to issue a decision that in effect says the judge, the
court of appeals, or supreme court is wrong. This system of
government places final decisions on justice matters in the hands
of judicial officers. It is not that way everywhere. There are
countries where it is the parliament that acts as a supreme court.
This system isn't perfect. A system run by people is not going to
be perfect, but it seems to work fairly well. The bill has the
effect of turning the system on its head. It says that a mid-level
bureaucrat in another branch actually gets the final say on whether
or not justice was done in a particular case. He might not have
the authority to actually overturn a decision, but he gets to tell
the public that the court of appeals is flat out wrong, for
example. He does not accept the premise that a single bureaucrat
has some greater degree of insight of what the law means than the
three members of the court of appeals or the five members of the
supreme court. It would have the effect of decreasing the public's
confidence in the justice system, not increasing it - the thrust of
the bill.
Number 1856
REPRESENTATIVE BERKOWITZ asked Mr. Christensen what are the
relative abilities of the court as opposed to the victim advocate
to go public with the reasons and substance of the decision.
MR. CHRISTENSEN replied the Cannons of Judicial Conduct prohibits
a judicial officer from commenting publicly on a decision. A
decision has to speak for itself. In essence, a judge would be
prohibited from defending a decision, other than in the decision
itself.
REPRESENTATIVE BERKOWITZ stated the judge would be a sitting duck.
Number 1907
REPRESENTATIVE JAMES stated it seems that the complaints can only
be on the procedures, not the decisions.
MR. CHRISTENSEN replied it has been his experience that if there is
waffle language in a bill the bureaucrats would fill it. The
testimony in the Senate Judiciary Committee from the public
indicated that they would like to have somebody else to say the
decision was wrong and justice was not done. For better or worse,
the judicial branch is suppose to have the final say in whether or
not justice was done in a case. People may exercise their First
Amendment rights to comment on it, but there shouldn't be a
government office charged by statute with interjecting his or her
judgement into the basic question of whether or not justice was
done. This is a small piece of what the advocate would do, but a
significant piece. He thinks that about 95 percent of what the
advocate would do would be things like oversight of the rights
guaranteed by statute or helping the person in court, not second
guessing the decision. Last year, there was somewhere between
3,000 and 3,500 felonies filed in the state and 20,000
misdemeanors, of which, about 85 percent end up pleading guilty,
and less than 10 percent go to trial. He expects at least half of
those that go to trial to be convicted. It is a fairly size of
folks who are unhappy with their results. He expects that if there
is an avenue to address their unhappiness they would take it.
Number 2059
CHAIRMAN GREEN stated the bureaucrat's decision would be an
opinion, not a law.
MR. CHRISTENSEN stated it would be an opinion. He could not
overturn a decision, but he would be charged by statute with saying
that the court is wrong when under the constitution it is the court
who is the final arbiter of the statute.
CHAIRMAN GREEN asked Mr. Christensen whether it would be any
different than an attorney filing an appeal. An appeal is also
saying that the court is incorrect.
MR. CHRISTENSEN replied that is the method that the system
provides. This is a government official given a charge very
similar to the court's charge. In essence, he would supersede the
courts because he would get the final say on whether or not justice
was really done.
Number 2146
REPRESENTATIVE JAMES asked Mr. Christensen where it says that.
MR. CHRISTENSEN replied there is not a specific section. If the
bill is read in its whole, it would be within an advocate's
jurisdiction. He had submitted an amendment to the Senate
Judiciary Committee and would provide a copy of it to the House
Judiciary Committee as well. It reads as follows:
TO: CSSB 219(FIN) am
Page 6, line 19, insert following "state.":
"The victims' advocate may not investigate a
complaint regarding a judicial act taken or
decision rendered by a judicial officer of a
jury."
REPRESENTATIVE ROKEBERG noted page 8, line 29.
Number 2205
MR. HUBER stated he does not know of any place in this bill that
the advocate could supplant a judicial decision of a judge. This
report is only if the victim's rights in the opinion of the court
with the response of the justice agency says a constitutional right
has been denied. It is not the intent of the legislation to say
that it is the advocate's decision instead of the judge's.
Number 2276
MR. CHRISTENSEN replied he appreciates the intent of the bill.
Judges make evidentiary rulings all the time. Some of them may go
to matters in the constitution - the right to be treated with
fairness and dignity. A jury's decision may turn on one particular
evidence of ruling made by a judge. An advocate's judgement would
supplant that ruling with his judgement as to whether that
evidentiary language on which the case hinged was done correctly or
not.
Number 2324
REPRESENTATIVE BERKOWITZ stated the opportunity for consultation
seems hollow as far as the judiciary is concerned. He does not
know of an avenue for a judge to reply back to a victim's
complaint.
Number 2386
REPRESENTATIVE ROKEBERG asked Mr. Christensen whether the presiding
judge in the judicial district can make some comments to the
public.
MR. CHRISTENSEN replied judges are prohibited from commenting on
any matters that have been or coming before the court. A decision
has to speak for itself. It is something that happens in contested
judicial elections, which is why they have caused a lot of
problems.
Number 2444
REPRESENTATIVE ROKEBERG commented that he would like to see what
was rejected in the Senate.
Number 2450
REPRESENTATIVE JAMES noted she would like to see what was rejected
in the Senate too. It seems that there might be some language to
ensure what Mr. Christensen is talking about doesn't happen. She
doesn't see the problem, but if there is one it should be looked
at...
TAPE 98-87, SIDE A
Number 0004
REPRESENTATIVE BERKOWITZ stated it is not going to carry the weight
of a judicial opinion, but it would carry some weight. Anytime
there is a published opinion by a state agency or attorney it is
low in the precedential value, but it carries some weight.
Number 0036
REPRESENTATIVE JAMES stated it seems that the purpose of the bill
is advocacy for victims. If a report is due, it is due to the
victim. She doesn't understand making a report on screw ups by the
process. Certainly, there are screw ups on the decision when it
has violated a right in some way.
Number 0115
CHAIRMAN GREEN asked Mr. Huber whether the language would alter the
concept of the sponsor of what the office would do.
MR. HUBER replied the amendment was discussed in the Senate
Judiciary Committee and the sponsor did not support it. He stated
he is confused by Mr. Christensen's testimony because the judge
makes the decision. He agrees that the decision should stand on
its own face, but the court just like the legislature serves the
public. He is not certain of the fear of the public taking a look
at how the court system works. Aren't all branches of the
government subject to scrutiny by the public? he asked.
Number 0204
CHAIRMAN GREEN stated the issue is not the public. The issue is
the bureaucracy. An individual complaint would not have the same
weight as a bureaucracy.
MR. HUBER stated the reports are an opportunity to review the
problems. It would be valuable information to the legislature to
determine whether they are reoccurring problems that need a
statutory fix, for example.
Number 0277
REPRESENTATIVE ROKEBERG stated the sponsor is representing the
denial of constitutional rights. It does not speak to decisions.
There is no denial of constitutional rights as to decisions. He is
troubled by the very broad term "judicial act" in the bill and
asked Mr. Christensen to respond to his concern.
Number 0326
MR. CHRISTENSEN replied the term "judicial act" has been defined
extensively in both federal and state case law. It is used to
distinguish it from administrative acts. There is a formula used
to determine when a judge is acting judicially versus
administratively. The formula has been set by the Supreme Court of
the United States and the Alaska Supreme Court. He cited moving a
court room without telling so that court dates are missed. That is
an administrative decision, not a judicial act.
REPRESENTATIVE ROKEBERG asked Mr. Christensen whether a
constitutional denial could be a judicial act.
MR. CHRISTENSEN replied judicial acts are repealable. The bill
says that the final decision on the constitutionality of the law
rests in the hands of the advocate. He might not be able to act on
it, but he can make a public statement.
Number 0474
REPRESENTATIVE BERKOWITZ noted that an intentional interference of
a constitutional right is a misdemeanor. If a victim feels that a
judge has intentionally abrogated his or her rights, the victim can
bring a criminal complaint forward under the normal process of a
criminal charge. That protection is already there for victims.
Number 0517
REPRESENTATIVE JAMES asked whether a victim would have to create a
case to repeal an action to challenge a decision.
MR. CHRISTENSEN replied the prosecution would repeal a case.
Number 0560
REPRESENTATIVE ROKEBERG stated after hearing the arguments, he is
still not convinced about the term "judicial act." He thinks it is
too broad. Unless there is another term, he would amend it out.
Number 0597
MR. HUBER stated the concern of the term "judicial act" was also
brought up in the Senate Judiciary Committee. Another term is "or
decision rendered" or "may not investigate." It is not talking
about investigating a decision, but how broad it "may not
investigate" if a decision has been rendered. Does that mean if a
decision has been rendered that all investigatory authority is
precluded?
MR. CHRISTENSEN replied that is not the intent.
Number 0640
REPRESENTATIVE JAMES stated an advocate can't make a report if the
advocate can't investigate a complaint first. Yet there is another
avenue for a victim - the appeals process. She wondered whether an
advocate would need to investigate a complaint in order to get to
that decision or just make a complaint.
Number 0721
MR. HUBER noted that the sponsor's office would be more than happy
to work with Mr. Christensen further on this issue. The bill has
another committee of referral. If the amendment had been brought
to the sponsor yesterday rather than this committee he would have
been willing to run it by the bill drafters and discuss the issue
with Mr. Christensen.
CHAIRMAN GREEN asked Mr. Christensen whether the concern is about
the investigation or making it public.
MR. CHRISTENSEN replied once a report is released there is no way
to guarantee that it would not be made public.
CHAIRMAN GREEN asked Mr. Christensen whether there could be some
type of confidentiality between the advocate and victim like an
attorney-client relationship.
MR. CHRISTENSEN replied while there is a way to keep the advocate
from releasing things there is no way to keep the victim from
publicly releasing things. He would fully expect, however, the
victim to say publicly, "this is what the advocate says."
CHAIRMAN GREEN said, "Well no. I think that you--maybe the public
that way, but it certainly--if you prohibit the investigation
that's a lot different than saying you're not going to make it
public. Now, I understand your problem with the victim making it
public, but to prohibit the advocate from even investigating these
things it seems like it--it--it in effect makes (indisc.)."
REPRESENTATIVE BERKOWITZ stated there is an interesting ethical
dilemma for the advocate who is an attorney. As an attorney
representing the victim, he has a certain set of ethical
responsibilities. He cited a report as an example. The victim
asks for a report, the courts give it to the victim, but it can't
be divulged. The victim says he wants to divulge it. What does
the lawyer do? he asked.
REPRESENTATIVE ROKEBERG stated a dentist should be hired instead to
solve the problem.
REPRESENTATIVE BERKOWITZ stated according to the bill a lawyer has
to be hired.
REPRESENTATIVE ROKEBERG replied that's the problem.
Number 0958
REPRESENTATIVE JAMES suggested changing the language of the
amendment to read as follows:
"The victims' advocate may not investigate or challenge
a decision rendered by a judicial officer or a jury."
REPRESENTATIVE JAMES noted it would delete the complaint regarding
a judicial action. There is another avenue to pursue when a
constitutional right has been violated. She is concerned about the
resulting reports. They seem to be reports on procedures, not
decisions. The decision rendered by a judicial officer should not
be investigated or challenged.
CHAIRMAN GREEN wondered whether it would give rise to a problem
with the concept of the bill. If it can't be challenged.
Number 1036
MR. HUBER stated certainly the intent is for a victim or somebody
involved in the proceeding to go out and say whatever he or she
wants to about a decision. The concern, therefore, is about the
bureaucracy, the power of the office questioning the judicial
authority or a final decision. He suggested allowing the advocate
to investigate a complaint, but disallow publishing the specifics
that deal with the decision rendered by the judicial officer or
jury in the report. Thus, a state agency would not publicly
challenge a decision that has to stand on its face. It would leave
the court free to make a decision without an agency's challenge,
and a victim free to complain.
Number 1108
REPRESENTATIVE ROKEBERG suggested adopting the amendment and moving
the bill to the House Finance Committee given the time of day. If
there isn't satisfaction, it can be killed there. The committee
needs to move along and take up other bills.
Number 1155
REPRESENTATIVE JAMES stated she would like to include this
amendment before moving it forward and take the word of Mr. Huber
who said the sponsor would work with Mr. Christensen. This is a
judicial issue and needs to be fixed in the House Judiciary
Committee.
CHAIRMAN GREEN noted that there are three versions of the
amendment.
Number 1185
REPRESENTATIVE BERKOWITZ noted that he likes the first version.
REPRESENTATIVE JAMES agreed to use the first one.
Number 1194
CHAIRMAN GREEN called it repugnant for a finance group to deal with
a judiciary issue.
Number 1207
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3. It
reads as follows:
Page 6, line 19, insert following "state.":
"The victims' advocate may not
investigate or challenge a decision
rendered by a judicial officer or a
jury."
Number 1240
MR. CHRISTENSEN stated the decision portion of this amendment is
significantly more important than the judicial act. The decision
is the ultimate finding on the case.
Number 1256
CHAIRMAN GREEN asked whether there is any objection to Amendment 3.
There being no objection, it was so adopted.
Number 1280
REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as
amended, from the committee with individual recommendations.
CHAIRMAN GREEN noted there is still one more amendment. There has
been a request to change "five" years to "three" years on page 4,
lines 1 and 4 (Amendment 4).
Number 1324
MR. HUBER stated five years comes from the qualifications for being
a judge.
REPRESENTATIVE ROKEBERG noted that the bill does not hire a judge.
REPRESENTATIVE BERKOWITZ stated there is no objection.
CHAIRMAN GREEN asked whether there is any objection to adopting
Amendment 4. There being none, it was so adopted.
Number 1360
REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as
amended, from the committee with individual recommendations and the
attached generous fiscal note.
UNIDENTIFIED SPEAKER objected. A roll call vote was taken.
Representatives Berkowitz voted against the motion.
Representatives Rokeberg, James and Green voted in favor of the
motion. Representatives Bunde and Porter were absent. The motion
failed.
CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS
Number 1427
CHAIRMAN GREEN announced the committee would take up SB 216 again
in order to consider an amendment suggested earlier by the
Department of Law.
CHAIRMAN GREEN announced Amendment 3 is before the committee. It
reads as follows:
"(c) If the state files a petition under AS 47.30.816 -
47.30.824 to commit a person who has been charged with a
sexually violent offense and been found incompetent to be
tried for the offense, the trier of fact, in conjunction
with the commitment proceeding, will make a determination
beyond a reasonable doubt, whether the person committed
the offense charged. The finding that the person
committed the offense may not be used for any other
purpose than for consideration of commitment. If the
trier of fact finds that the person committed the
offense, the trier of fact may proceed to determine
whether the person is a sexually violent predator under
this section."
Number 1463
MR. STOLTZE stated the amendment is the language proposed by the
Department of Law. It deletes the current subsection (c) and
replaces it with a new subsection on page 5, lines 6 - 24.
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there is a House
Finance Committee referral.
MR. STOLTZE replied, "Yes."
Number 1562
REPRESENTATIVE JAMES made a motion to adopt Amendment 3. There
being no objection, it was so adopted.
Number 1634
REPRESENTATIVE ROKEBERG referred to the study provided to the
committee members from the Department of Corrections and asked what
it means in terms of Title 47 and the bill. Would it lower the
numbers?
Number 1706
MR. RICHARDS replied the study was conducted anticipating a
proposed bill during the interim by Representative Joe Ryan. It
was a broader bill.
Number 1725
REPRESENTATIVE ROKEBERG asked Mr. Richards whether the numbers
would be fewer than what is in the study.
MR. RICHARDS replied, "Correct."
REPRESENTATIVE ROKEBERG asked Mr. Richards whether he has provided
the study to the sponsor of the bill.
MR. RICHARDS replied he has testified on it at the various
committee hearings on the numbers. He is not sure whether it has
been provided to the sponsor.
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether he has ever seen
the study before.
MR. STOLTZE replied that he has heard the references, but he has
not seen the document.
Number 1747
REPRESENTATIVE ROKEBERG asked Mr. Richards to provide a nutshell
analysis of the study.
Number 1754
MR. RICHARDS replied the study was done to evaluate the sex
offender treatment program at the Highland Mountain Correctional
Center to find out its effectiveness. He is not an expert on the
analysis of the study, but in a nutshell it says the treatment is
effective for those who participate in the program. The longer one
stays in the program there is a longer period of time before a
reoffense.
Number 1796
REPRESENTATIVE ROKEBERG stated this exposes the potential for a
higher fiscal note. He also mentioned his concerns of the timing
of bringing a civil commitment into a criminal type of activity.
Nevertheless, he would vote to move the bill out of the committee.
Number 1823
CHAIRMAN GREEN stated that he shares the same concern regarding the
fiscal note.
REPRESENTATIVE ROKEBERG stated it is a problem for the House
Finance Committee.
CHAIRMAN GREEN agreed.
Number 1830
REPRESENTATIVE JAMES stated that she was surprised and encouraged
about the findings in the study. Those who were in treatment
longer tended to last longer in the community without reoffense.
Those who completed all stages of treatment to the advanced stage
had a zero reoffense rate for sexual offenses, including rapists.
The study supports the concern of waiting for a person's term to be
just about up before determining whether the person is a sexually
violent predator. It seems that chances of not being committed as
a predator would be better by going through treatment up to the
advanced stages.
Number 1881
REPRESENTATIVE BUNDE made a motion to move CSSB 216(JUD), as
amended, from the committee with individual recommendations.
REPRESENTATIVE BUNDE noted that the committee had asked for
information on the recidivism rate. It got some information from
the study, but no information on the recidivism rate. It would be
very difficult to fund the bill given the fact that the sponsor of
the bill is putting a limit on how much money could be spent from
the constitutional budget reserve. It might be difficult to have
it both ways. He noted he would support to move the bill out of
the committee.
CHAIRMAN GREEN stated the bill sounds great if the state can afford
it. But, the state can not afford it either. It is something that
would have to be reviewed in the next committee of referral.
CHAIRMAN GREEN asked whether there is any objection to the motion
to move the bill out of the committee. There being no objection,
HCS CSSB 216(JUD) was so moved from the House Judiciary Standing
Committee.
ADJOURNMENT
Number 1998
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 7:20 p.m.
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