03/30/2004 01:05 PM House JUD
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 30, 2004
1:05 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 30(JUD) am
"An Act relating to information and services available to
pregnant women and other persons; and ensuring informed consent
before an abortion may be performed, except in cases of medical
emergency."
- MOVED HCS CSSB 30(JUD) OUT OF COMMITTEE; ADOPTED A HOUSE
CONCURRENT RESOLUTION ALLOWING THE TITLE CHANGE
HOUSE BILL NO. 353
"An Act relating to jury duty; and amending Rule 15(k), Alaska
Rules of Administration."
- MOVED CSHB 353(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 244
"An Act relating to the Code of Criminal Procedure; relating to
defenses, affirmative defenses, and justifications to certain
criminal acts; relating to rights of prisoners after arrest;
relating to discovery, immunity from prosecution, notice of
defenses, admissibility of certain evidence, and right to
representation in criminal proceedings; relating to sentencing,
probation, and discretionary parole; amending Rule 16, Alaska
Rules of Criminal Procedure, and Rules 404, 412, 609, and 803,
Alaska Rules of Evidence; and providing for an effective date."
- HEARD AND HELD
SENATE BILL NO. 344
"An Act relating to the Uniform Probate Code and trusts,
including pleadings, orders, nonprobate assets, estates of
decedents, minors, protected persons, incapacitated persons,
guardians, conservators, trustees, foreign trusts, principal and
income, and transfer restrictions; relating to corporate voting
trusts; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 439
"An Act relating to the authority to take oaths, affirmations,
and acknowledgments in the state; relating to notaries public;
relating to fees for issuing certificates with the seal of the
state affixed; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 484
"An Act imposing a correctional facility surcharge on persons
convicted of a crime under state law, and on persons whose
probation is revoked; relating to fees and expenses for
interstate transfer of probation or parole; and providing for an
effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 474
"An Act relating to civil liability associated with aircraft
runways, airfields, and landing areas."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 339
"An Act relating to negative option plans for sales, to charges
for goods or services after a trial period, and to acts that are
unlawful as unfair trade practices."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 30
SHORT TITLE: ABORTION: INFORMED CONSENT; INFORMATION
SPONSOR(S): SENATOR(S) DYSON
01/21/03 (S) READ THE FIRST TIME - REFERRALS
01/21/03 (S) HES, JUD, FIN
03/17/03 (S) HES AT 1:30 PM BUTROVICH 205
03/17/03 (S) Heard & Held
03/17/03 (S) MINUTE(HES)
03/26/03 (S) HES AT 1:30 PM BUTROVICH 205
03/26/03 (S) Heard & Held
03/26/03 (S) MINUTE(HES)
04/03/03 (S) HES AT 5:00 PM BELTZ 211
04/03/03 (S) Heard & Held
04/03/03 (S) MINUTE(HES)
04/09/03 (S) HES AT 1:30 PM BUTROVICH 205
04/09/03 (S) Heard & Held
04/09/03 (S) MINUTE(HES)
04/14/03 (S) HES AT 1:30 PM BUTROVICH 205
04/14/03 (S) Moved CSSB 30(HES) Out of Committee
04/14/03 (S) MINUTE(HES)
04/15/03 (S) HES RPT CS 2DP 1DNP 1NR SAME TITLE
04/15/03 (S) DP: DYSON, GREEN;
04/15/03 (S) DNP: DAVIS; NR: WILKEN
05/02/03 (S) JUD AT 1:00 PM BELTZ 211
05/02/03 (S) Heard & Held
05/02/03 (S) MINUTE(JUD)
05/03/03 (S) JUD AT 9:00 AM BELTZ 211
05/03/03 (S) Moved CSSB 30(JUD) Out of Committee
05/03/03 (S) MINUTE(JUD)
05/06/03 (S) JUD RPT CS 3DP SAME TITLE
05/06/03 (S) DP: SEEKINS, THERRIAULT, OGAN
05/12/03 (S) FIN AT 9:00 AM SENATE FINANCE 532
05/12/03 (S) Moved Out of Committee
05/12/03 (S) MINUTE(FIN)
05/12/03 (S) FIN RPT CS(JUD) 3DP 3NR 1AM
05/12/03 (S) DP: GREEN, TAYLOR, STEVENS B;
05/12/03 (S) NR: WILKEN, HOFFMAN, BUNDE; AM: OLSON
05/16/03 (S) TRANSMITTED TO (H)
05/16/03 (S) VERSION: CSSB 30(JUD) AM
05/16/03 (H) READ THE FIRST TIME - REFERRALS
05/16/03 (H) HES, JUD, FIN
05/17/03 (H) HES AT 1:00 PM CAPITOL 106
05/17/03 (H) Moved HCS CSSB 30(HES) Out of Committee
05/17/03 (H) MINUTE(HES)
05/17/03 (H) HES RPT HCS(HES) 4DP 1NR
05/17/03 (H) DP: SEATON, COGHILL, WOLF, WILSON;
05/17/03 (H) NR: CISSNA
02/18/04 (H) JUD AT 1:00 PM CAPITOL 120
02/18/04 (H) Heard & Held
02/18/04 (H) MINUTE(JUD)
03/18/04 (H) JUD AT 1:00 PM CAPITOL 120
03/18/04 (H) Heard & Held
03/18/04 (H) MINUTE(JUD)
03/26/04 (H) JUD AT 1:00 PM CAPITOL 120
03/26/04 (H) Scheduled But Not Heard
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 353
SHORT TITLE: JURY DUTY EXEMPTION FOR CERTAIN TEACHERS
SPONSOR(S): REPRESENTATIVE(S) KAPSNER
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) EDU, HES, JUD
02/17/04 (H) EDU AT 11:00 AM CAPITOL 124
02/17/04 (H) Moved Out of Committee
02/17/04 (H) MINUTE(EDU)
02/18/04 (H) EDU RPT 3DP 2NR 2AM
02/18/04 (H) DP: GARA, KAPSNER, GATTO;
02/18/04 (H) NR: OGG, WOLF; AM: SEATON, WILSON
03/04/04 (H) HES AT 3:00 PM CAPITOL 106
03/04/04 (H) Scheduled But Not Heard
03/18/04 (H) HES AT 3:00 PM CAPITOL 106
03/18/04 (H) Moved CSHB 353(HES) Out of Committee
03/18/04 (H) MINUTE(HES)
03/22/04 (H) HES RPT CS(HES) 4DP 2NR
03/22/04 (H) DP: KAPSNER, GATTO, CISSNA, WILSON;
03/22/04 (H) NR: COGHILL, WOLF
03/29/04 (H) JUD AT 1:00 PM CAPITOL 120
03/29/04 (H) Bill Postponed To 3/30/04
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 244
SHORT TITLE: CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
04/04/03 (H) READ THE FIRST TIME - REFERRALS
04/04/03 (H) JUD, FIN
04/14/03 (H) JUD AT 1:00 PM CAPITOL 120
04/14/03 (H) Heard & Held
04/14/03 (H) MINUTE(JUD)
04/25/03 (H) JUD AT 1:00 PM CAPITOL 120
04/25/03 (H) -- Meeting Postponed to April 29 --
05/07/03 (H) JUD AT 1:00 PM CAPITOL 120
05/07/03 (H) Scheduled But Not Heard
05/08/03 (H) JUD AT 3:30 PM CAPITOL 120
05/08/03 (H) Heard & Held
05/08/03 (H) MINUTE(JUD)
05/09/03 (H) JUD AT 1:00 PM CAPITOL 120
05/09/03 (H) Moved CSHB 244(JUD) Out of Committee
05/09/03 (H) MINUTE(JUD)
05/12/03 (H) JUD RPT CS(JUD) NT 1DP 1DNP 4NR
05/12/03 (H) DP: SAMUELS; DNP: GARA; NR: HOLM,
05/12/03 (H) OGG, GRUENBERG, MCGUIRE
05/13/03 (H) FIN AT 1:30 PM HOUSE FINANCE 519
05/13/03 (H) -- Meeting Canceled --
05/14/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/14/03 (H) Heard & Held
05/14/03 (H) MINUTE(FIN)
05/15/03 (H) FIN AT 8:30 AM HOUSE FINANCE 519
05/15/03 (H) Moved CSHB 244(JUD) Out of Committee
05/15/03 (H) MINUTE(FIN)
05/15/03 (H) FIN RPT CS(JUD) NT 2DNP 4NR 4AM
05/15/03 (H) DNP: KERTTULA, FOSTER; NR: MOSES,
05/15/03 (H) CHENAULT, HARRIS, WILLIAMS; AM: HAWKER,
05/15/03 (H) STOLTZE, BERKOWITZ, WHITAKER
05/15/03 (H) RETURNED TO JUD COMMITTEE
05/15/03 (H) IN JUDICIARY
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(JUD)
03/24/04 (H) JUD AT 1:00 PM CAPITOL 120
03/24/04 (H) Heard & Held
03/24/04 (H) MINUTE(JUD)
03/30/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 30, explained the
changes in the proposed committee substitute (CS), Version O,
and responded to questions.
SENATOR FRED DYSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 30.
JASON HOOLEY, Staff
to Senator Fred Dyson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided a comment during discussion about
a proposed amendment to SB 30.
REPRESENTATIVE MARY KAPSNER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 353.
LINDA SAITO
Kotzebue, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 353.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
proposed amendments to HB 353; responded to questions during
discussion of the proposed CS for HB 244.
BARBARA BRINK, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: During discussion of the proposed CS for HB
244, relayed the PDA's concerns and responded to questions.
SUSAN A. PARKES, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: On behalf of the administration, responded
to questions during discussion of the proposed CS for HB 244.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
the proposed CS for HB 244.
PATTY WARE, Director
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions regarding Section 27 of the proposed CS for HB 244.
ACTION NARRATIVE
TAPE 04-51, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting, which had been recessed on March 29, 2004,
back to order at 1:05 p.m. Representatives McGuire, Holm, Ogg,
and Samuels were present at the call back to order.
Representatives Anderson, Gara, and Gruenberg arrived as the
meeting was in progress.
SB 30 - ABORTION: INFORMED CONSENT; INFORMATION
[Contains discussion of an amendment that would conform a
provision of SB 30 to a provision of HB 472; contains adoption
of what would become known as HCR 36 for the purpose of changing
the title of SB 30.]
Number 0022
CHAIR McGUIRE announced that the first order of business would
be CS FOR SENATE BILL NO. 30(JUD) am, "An Act relating to
information and services available to pregnant women and other
persons; and ensuring informed consent before an abortion may be
performed, except in cases of medical emergency." [Before the
committee was HCS CSSB 30(HES).]
CHAIR McGUIRE indicated that members' packets now include a
proposed House committee substitute (HCS) for SB 30, Version 23-
LS0193\O, Mischel, 3/22/04, and a legal analysis by the attorney
general dated March 30, 2004, regarding that proposed HCS.
Number 0100
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, offered
to explain the changes made by the proposed HCS.
Number 0167
REPRESENTATIVE HOLM moved to adopt the proposed HCS for SB 30,
Version 23-LS0193\O, Mischel, 3/22/04, as the work draft. There
being no objection, Version O was before the committee.
MS. TONDINI relayed that Version O was created in response to
the attorney general's March 18 legal analysis outlining
numerous areas in a prior iteration of SB 30 that needed to be
addressed. One issue that was of concern was that the bill
should contain language requiring that the information in the
pamphlet be "unbiased information that is reviewed and approved
for medical accuracy and appropriateness by recognized
obstetrics and gynecological specialists." Section 1,
paragraphs (4)-(5), and Section 2, subsection (a), paragraphs
(6)-(9), of Version O now contain that language. Additionally,
Version O now stipulates that the aforementioned review will be
performed by the State Medical Board.
MS. TONDINI relayed that another issue of concern was that
should the aforementioned change be made to Section 2, although
changes made regarding information on gestational development
and other information will be more legally defensible, it will
not eliminate the possibility of a challenge, on privacy and
equal protection grounds, that the material is intended to shock
rather than inform. Also of concern was that the definitions in
Section 2 should be medically accurate, and the most recent
legal analysis still offers this as a concern. The definition
section of Version O is on page 4, lines 9-16, Section 2,
subsection (c)(1)-(4), and provides definitions for:
"abortion", "fertilization", "gestational age", and "unborn
child". She mentioned that she is providing members with copies
of what she said she believes to be medically accurate
definitions of the aforementioned terms that she gathered from
several medical web sites and medical dictionaries.
MS. TONDINI noted that another issue of concern was that the
bill should contain language specifying that there will be a
disclaimer on the web site regarding the graphic and/or
sensitive nature of the information contained on the web site.
She said that such language is now included in subsection
(a)(10) of Section 2, on page 10, lines 5-6. Still another
issue of concern was that the bill should stipulate that the
pamphlet will only include those providers who consent to being
included; that language can be found on page 2, line 30, of
Version O. Additionally of concern was that the findings
section of a prior iteration the bill referred to immunity, but
the text in Section 4 of that prior iteration did not use the
term immunity and instead simply provided for affirmative
defenses. This inconsistency has been addressed in Version O by
removing "immunity" from the findings section, Section 1, and
keeping the provisions in Section 4 regarding affirmative
defenses.
Number 0481
MS. TONDINI relayed that another issue of concern was that
requiring a 24-hour waiting period could raise constitutional
issues; therefore, that requirement has been eliminated from
Version O, specifically from Section 5, subsection (c). A final
issue of concern expressed in the attorney general's March 18
legal analysis is that under this legislation, abortion will be
the only medical procedure that has its own informed consent
requirements set out in statute; Version O does not change this,
so equal protection issues may still exist.
MS. TONDINI noted that the attorney general's March 18 legal
analysis also raised some technical points. One, that there
should be a medically accurate definition of abortion; Version O
- page 4, line 10 - says that the term "abortion" has the
meaning given in AS 18.16.090. Two, that the inclusion of
[child care] in Section 2, subsection (a)(3), is misleading;
Version O deletes that reference. Three, that although
inclusion of exceptions for rape and incest are necessary,
neither rape nor incest is legally defined in statute; Version O
now contains reference - in Section 5, subsection (d) - to the
statutes pertaining to those crimes.
MS. TONDINI continued. Four, that the language requiring that
information on alcohol use and drug use during pregnancy be
provided did not specify whether the information should pertain
to legal drugs or illegal drugs; Version O now specifies - in
Section 2, subsection (a)(9) - that the information required
should pertain to use of illegal drugs. She mentioned that the
issue of whether to also require that information on tobacco use
during pregnancy be included might be discussed later. Five,
that there is no need, if there is a signed and dated
certificate showing informed consent, for the certificate to be
stamped as well; Version O does not contain language pertaining
to certificates. Six, that the department should be granted
regulatory authority to create the pamphlet required by SB 30;
Version O provides that authority in Section 2, subsection (b),
on page 4, lines 7-8.
MS. TONDINI offered her belief that the attorney general's March
30 legal analysis agrees that almost all of the aforementioned
concerns have been addressed in Version O. The only other issue
that the committee may still wish to address, she offered,
pertains to the language on page 4, lines 30-31, which
stipulates that a woman must be domiciled or physically present
in the state for 30 days before the abortion. This language is
part of current law, she relayed, but offered her understanding
that there is a distinction between being domiciled, which she
surmised meant being physically present with the intent to
remain, and residency, which she surmised meant being physically
present in the state for 30 days. She suggested that if such a
requirement is kept in statute, it should be clarified with
regard to the legislature's intent.
Number 0784
SENATOR FRED DYSON, Alaska State Legislature, sponsor, shared
his appreciation for the committee's patience and all the work
that's been done on SB 30.
Number 0803
REPRESENTATIVE OGG made a motion to adopt Conceptual Amendment
1, to say, on page 4, line 3, that the information pertain to
alcohol, tobacco, legal drugs, and illegal drugs. There being
no objection, Conceptual Amendment 1 was adopted.
Number 0881
REPRESENTATIVE GARA made a motion to adopt Amendment 2, which
read [original punctuation provided]:
Page 4, lines 30-31:
Delete all material
Number 0889
CHAIR McGUIRE objected [for the purpose of discussion].
REPRESENTATIVE GARA said that the language which would be
deleted by Amendment 2 precludes a woman from getting an
abortion if she hasn't lived in the state for 30 days. He
opined that such a restriction is probably unconstitutional,
pointed out that no other medical procedure has such a
restriction, and surmised that it would require a woman who is
right at the end of her first trimester of pregnancy, for
example, and who's just moved to the state, to wait until her
second trimester before getting an abortion.
REPRESENTATIVE SAMUELS asked what other states do with regard to
this issue, and asked for confirmation that the language which
would be deleted via Amendment 2 is part of current law.
REPRESENTATIVE GARA replied: "It is part of the current law. I
think ... it might have been added as part of the informed
consent law that was passed a couple of years ago that is up in
the supreme court now, but I'm not so sure when it was [adopted]
...."
SENATOR DYSON mentioned that he did not know that either.
REPRESENTATIVE GARA said he cannot see a reason why they should
tell a woman who picks one procedure that she has to live in
Alaska for 30 days, particularly given that the ramifications of
waiting 30 days are that it might become too late or too
dangerous to have an abortion, and also because anybody else,
for any other procedure, doesn't have to live in Alaska for 30
days.
REPRESENTATIVE OGG suggested that the reason such language is in
statute is to stop "form shopping."
REPRESENTATIVE GARA said he didn't think that people come to
Alaska just to get abortions, and suggested that it is probably
easier and cheaper to get an abortion in another state.
SENATOR DYSON remarked that preventing someone from form
shopping is a persuasive argument for keeping the current
language as is, because if the parental consent provision is
ultimately struck down, then minors may come to Alaska in order
to get around the parental consent requirements of other states.
Number 1212
REPRESENTATIVE GRUENBERG remarked:
I believe that the note [to that statute] says that
the Department of law does not currently enforce that
section, and I believe the implication is that it's of
doubtful constitutionality. The case that comes to
mind, a case out of Washington DC from the U.S.
Supreme Court a number of years ago, Shapiro v.
Thompson (ph), said that in dealing with case
involving fundamental rights, it is unconstitutional
to impinge on the person's right to travel; in that
case, it involved welfare. And recent cases have
expanded that to include the privileges and immunities
clause as a basis for striking down provisions like
this.
I do not think that this would survive a
constitutional challenge under either the ... [U.S.]
Constitution or, frankly, under the Alaska [State]
Constitution's right to privacy, and I think that this
would be struck down without question. And ... I
think the attorney general's very correct in its
determination not to enforce it, because it would be a
needless waste of state resources. It's on the books
... [though] it's not being enforced by any
administration and it's unconstitutional, so I support
the amendment. I'd like to see us pass things that
are constitutional.
REPRESENTATIVE GARA said that ultimately, there's a
philosophical rift among many legislators on an issue where
there are really good arguments on both sides, but as long as
the legislature is going to recognize that a woman has the right
to choose an abortion, the language that Amendment 2 proposes to
delete is an impediment to a legal right, an impediment that
doesn't exist for anybody else for any other medical procedure.
He said he believes that [the current language] is an
inappropriate impediment to a constitutional right.
Number 1372
CHAIR McGUIRE asked whether the language that Amendment 2
proposes to delete would apply to victims of incest or rape.
SENATOR DYSON said he did not intend for it to apply in those
situations.
CHAIR McGUIRE asked Senator Dyson whether he would be willing to
accept a friendly amendment to that effect.
SENATOR DYSON said yes.
REPRESENTATIVE GARA said he would not accept a friendly
amendment to Amendment 2, adding, "I just think ... it's a
constitutional right ...."
REPRESENTATIVE HOLM mentioned that he isn't sure whether an
abortion would even be preformed within the first 30 days [of a
woman's pregnancy].
CHAIR McGUIRE noted that the provisions pertaining to rape and
incest are on page 6, under proposed AS 18.16.060(d).
REPRESENTATIVE OGG remarked that such is a tough issue to deal
with.
Number 1519
A roll call vote was taken. Representatives Gara, Gruenberg,
and Samuels voted in favor of Amendment 2. Representatives Ogg,
Holm, and McGuire voted against it. Therefore, Amendment 2
failed by a vote of 3-3.
Number 1535
REPRESENTATIVE GARA made a motion to adopt Amendment 3, which
read [original punctuation provided]:
Page Two, Lines 11-12:
Delete all material
Number 1543
CHAIR McGUIRE objected for the purpose of discussion.
REPRESENTATIVE GARA said that although he would not ordinarily
propose an amendment to a legislative finding, because its
language says that the legislature has received considerable
testimony indicating that women have, on occasion, received
abortions in the state without considering sufficient
information, but he has not heard such testimony in any of the
committees that he has sat on, he is reluctant to include such
language because it isn't supported by the evidence with which
he is familiar.
CHAIR McGUIRE asked Senator Dyson whether, when creating this
language, he was referring to testimony that he'd heard in the
committees that he'd sat on.
SENATOR DYSON said yes, adding, "I understood that ... if the
attorney general is ever having to defend this, it helps to
establish the case of why, why ... did the legislature take this
action to try to ensure that people got the information they
needed."
REPRESENTATIVE HOLM asked whether the testimony that the
findings section refers to is on record.
SENATOR DYSON said yes.
REPRESENTATIVE GARA remarked:
I ... think I misread this sentence; I guess it says
considerable testimony has been received, not that
this has happened on considerable occasions. So I
guess I took this [paragraph] (6) to mean that we were
finding that many women have had abortions without
thinking about them first but, really, it doesn't say
that. It just says there was a lot of testimony, and
it doesn't say that this is happening a lot.
Number 1660
REPRESENTATIVE GARA withdrew Amendment 3.
Number 1700
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 4,
which read [original punctuation provided]:
Page 4, line 19: Delete "or surgeon."
Number 1709
CHAIR McGUIRE objected [for the purpose of discussion].
REPRESENTATIVE GRUENBERG said it is his understanding that all
surgeons are physicians.
CHAIR McGUIRE remarked that she knows of no surgeons that are
not physicians.
Number 1725
JASON HOOLEY, Staff to Senator Fred Dyson, Alaska State
Legislature, sponsor, noted that the language Amendment 4
proposes to delete is part of current law.
CHAIR McGUIRE, after withdrawing her objection to Amendment 4,
announced that Amendment 4 was adopted.
Number 1784
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 5,
which read [original punctuation provided]:
Page 2, lines 17-20: Amend paragraph (1) as follows
(1) contains geographically indexed material
designed to inform a person of public and private
agencies, [AND] services, clinics and facilities that
are available to assist a woman with the woman's
reproductive choices; the department shall include
information about at least the following types of
agencies, [AND] services, clinics and facilities:
Page 2, line 29: Amend paragraph (2) as follows:
(2) includes a comprehensive regional directory
of the agencies, services [AND] clinics, and
facilities identified by the department under (1) of
this subsection, a description of the services they
offer, and the manner in which the agencies, services
[AND] clinics, and facilities may be contacted,
including telephone numbers;
Number 1801
CHAIR McGUIRE objected [for the purpose of discussion].
REPRESENTATIVE GRUENBERG indicated that Amendment 5 merely
conforms the language in paragraphs (1) and (2) to the language
in paragraph (1)'s subparagraphs.
SENATOR DYSON said he did not have a problem with Amendment 5.
Number 1859
CHAIR McGUIRE withdrew her objection and asked whether there
were any further objections to Amendment 5. There being none,
Amendment 5 was adopted.
Number 1867
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6,
which read [original punctuation provided]:
Page 4, line 5: Insert new paragraph (10) and renumber
existing paragraph (10) as paragraph (11):
(10) contains objective, unbiased, and
comprehensive information that is reviewed and
approved for medical accuracy and appropriateness by
recognized obstetrics and gynecological specialists
designated by the State Medical Board on different
types of available contraceptive choices and the
medical risk and possible complications commonly
associated with each method as well as the possible
psychological effects that have been associated with
using contraceptives;
REPRESENTATIVE GRUENBERG mentioned that the language in
Amendment 6 is from HCS CSSB 30(HES).
SENATOR DYSON relayed that he has in his possession a slightly
different amendment on the same topic - contraceptive
information - that uses the phrase "including abstinence and
natural family planning". He indicated that adding such a
phrase to Amendment 6 would alleviate most of his objections to
including a provision regarding contraceptive information. He
offered his belief, though, that neither Amendment 6 nor the
amendment he has contains a disclaimer about the graphic nature
of such information.
REPRESENTATIVE GRUENBERG pointed out that that disclaimer is
already in the bill.
MS. TONDINI concurred, adding that it is in a separate
subsection.
REPRESENTATIVE GRUENBERG said he would have no problem with
conceptually amending Amendment 6 to add the phrase "including
abstinence and natural family planning".
CHAIR McGUIRE suggested that Amendment 6 also be amended to
include, wherever appropriate, the department's recommendation
regarding graphic and sensitive material.
Number 2031
REPRESENTATIVE GRUENBERG [made a motion to] conceptually amend
Amendment 6 to "put the [attorney general's recommendation] ...
[with] Senator [Dyson's] ... language and my thing together in
one provision." There being no objection, Amendment 6 was
amended.
Number 2044
CHAIR McGUIRE asked whether there were any objections to
Amendment 6, as amended. There being no objection, Amendment 6,
as amended, was adopted.
Number 2073
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 7,
which read [original punctuation provided]:
Page 5, lines 10-18: Amend subsection (i) as follows:
(i) It is a defense to any action for medical
malpractice based upon an alleged failure to obtain
informed consent of a person under (h) of this section
that
(1) the risk not disclosed is too commonly
known or is too remote to require disclosure; or
(2) the person who is the subject of the
alleged failure to obtain the informed consent stated
to the physician or other health care provider that
the patient would or would not undergo the abortion
procedure regardless of the risk involved or that the
person did not want to be informed of the matters to
which the person would be entitled to be informed; or
(3) under the circumstances, consent by or
on behalf of the patient was not possible; or
(4) the physician or health care provider,
after considering all of the attendant facts and
circumstances, used reasonable discretion as to the
manner and extent that the alternatives or risks were
disclosed to the patient because the health care
provider reasonably believed that a full disclosure
would have a substantially adverse effect on the
patient's condition.
Number 2089
CHAIR McGUIRE objected [for the purpose of discussion].
REPRESENTATIVE GRUENBERG relayed that Amendment 7 contains, in
part, language from [AS 09.55.556 as it is proposed to be
amended by] HB 472.
CHAIR McGUIRE added that Amendment 7 would conform SB 30 to HB
472, which pertains to medical malpractice.
REPRESENTATIVE GARA objected. He said:
It would be inconsistent for me to narrow the rights
of a woman who's a victim of ... malpractice because
she's pregnant, when I don't believe that the rights
of other victims of malpractice should be limited. ...
So, right now, we're getting rid of the reasonable-
patient standard for pregnant women - that's the
reasonable-patient standard for informed consent.
Current law is that a doctor has a duty to give a
patient all of the information that they need and all
of the information that a reasonable patient would
want. There is an effort afoot, in the medical
malpractice bill, to say that [that] shouldn't be the
standard for informed consent, [rather that] the
standard for informed consent should be what a
reasonable doctor in the community provides for
information - it's a ... smaller amount of information
probably. ...
Number 2201
REPRESENTATIVE GRUENBERG suggested bifurcating Amendment 7. He
directed attention to proposed [paragraph] (3) of Amendment 7,
and posited that there shouldn't be any objection to the
addition of that language because it should be a defense if it
is impossible to get someone's consent for some reason.
SENATOR DYSON asked how it would be impossible to get consent by
or on behalf of the patient.
REPRESENTATIVE GRUENBERG suggested that such could happen if a
woman is in a coma and an abortion needs to be performed to save
her life.
SENATOR DYSON pointed out, however, that language on page 6 [of
the bill], lines 27-28, says that informed consent is not
required in cases of medical emergency; he suggested, therefore,
that proposed paragraph (3) of Amendment 7 is not necessary.
CHAIR McGUIRE agreed.
REPRESENTATIVE GRUENBERG argued that the aforementioned
hypothetical situation might not constitute an emergency and,
thus, would not be covered under the language on page 6, lines
27-28.
SENATOR DYSON opined, though, that if it is not an emergency,
then there will be time to obtain consent from the person
designated or appointed to act on the woman's behalf.
TAPE 04-51, SIDE B
Number 2364
REPRESENTATIVE GRUENBERG said:
The context this will arise [in] is in a medical
malpractice case, and I don't want to see the [doctor]
sued in this situation when they're reasonably trying
to give the information that's necessary. This is
trying to allow a reasonable physician to practice
reasonably ... without fear of some lawsuit coming out
of left field, ... and it's doing the same thing we
did in the general malpractice bill ....
SENATOR DYSON said he did not feel a need to include proposed
paragraph (3). With regard to proposed paragraph (4) of
Amendment 7, he said that it comes across as insulting to women
to say that full disclosure will have an adverse effect on their
condition. He said he could envision a scenario wherein a
doctor decides to perform an abortion on a woman having surgery
without getting informed consent because of the possibility that
informing her about the pregnancy/abortion will have an adverse
effect on her condition. He opined that women are tough enough
to handle the information that they are pregnant and what would
be involved in an abortion, and that they would want that
information.
REPRESENTATIVE SAMUELS remarked that he wouldn't want to have
doctors exposed to potential lawsuits regarding this issue. He,
too, suggested bifurcating Amendment 7.
REPRESENTATIVE GARA said he cannot understand why they would
want to give a pregnant woman fewer rights than any other
patient. People have a right to fair information and a fair
level of competence from their physicians, and he did not feel
like compromising those rights, he remarked, adding, "I've never
heard of any sort of explosion of frivolous lawsuits in the area
abortions, and don't know why we have to limit people's rights
just to prevent frivolous lawsuits ... that don't exist." He
mentioned that he agrees with Senator Dyson regarding Amendment
7.
SENATOR DYSON asked whether the provisions contained in HB 472
would cover abortions if it is adopted into law. He questioned
whether, if such is the case, Amendment 7 is even necessary.
CHAIR McGUIRE remarked that in statutes, a general provision
applies unless there is a specific provision.
Number 2011
REPRESENTATIVE GRUENBERG offered that since SB 30 already
contains paragraphs (1) and (2) of Amendment 7 - which contains,
in part, language from [AS 09.55.556 as it is proposed to be
amended by] HB 472 - it would be congruent to also add
paragraphs (3) and (4). Not including paragraphs (3) and (4) in
SB 30 would provide less immunity for abortion procedures than
for all other procedures, he added. Conversely, he queried, if
that immunity should not apply to abortion procedures, why,
then, should it apply to all other procedures.
SENATOR DYSON said he still has a strong objection to including
proposed paragraphs (3) and (4) in SB 30, and reiterated his
arguments for leaving them out.
REPRESENTATIVE GARA asked what kind of circumstances proposed
paragraph (4) would apply in.
REPRESENTATIVE GRUENBERG said that he didn't know of any
specific circumstances; rather, he was just thinking that if the
language is in HB 472, then it ought to also be in SB 30. He
surmised that all of Senator Dyson's arguments against including
this language in SB 30 are also applicable to HB 472.
Number 1917
REPRESENTATIVE SAMUELS made a motion to amend Amendment 7, to
eliminate paragraph (3).
REPRESENTATIVE GRUENBERG said he just wants HB 472 and SB 30 to
be consistent.
CHAIR McGUIRE opined that abortion is different than other
procedures, and said she could envision someone using paragraph
(3) to get around having to obtain informed consent.
REPRESENTATIVE GRUENBERG said he would not object to the
amendment to Amendment 7, but noted that his concern is simply
that the two bills be consistent.
Number 1853
CHAIR McGUIRE, after ascertaining that there were no objections,
announced that Amendment 7 was amended.
REPRESENTATIVE GARA said he objected to the adoption of
Amendment 7, as amended, for the reasons he stated earlier.
REPRESENTATIVE OGG offered his understanding that the bill that
passes last takes precedence: if HB 472 passes first, SB 30
will provide an exception to it and visa versa.
REPRESENTATIVE GRUENBERG said he disagrees. He elaborated:
This covers the defenses for medical malpractice based
upon an alleged failure to obtain informed consent of
a person under subsection (h), and the specific
controls over the general where they're inconsistent,
and so if there's any inconsistency, this would apply.
And I think it is inconsistent now in at least the
sense that a defense in [HB 472] ... that would be,
quote, "under the circumstances, consent [by or on]
behalf of the patient was not possible", unquote,
would not be an allowable defense in this kind of
malpractice (indisc.).
Number 1757
CHAIR McGUIRE asked Representative Gruenberg whether he would
accept a second amendment to Amendment 7, as amended, to put a
period after "patient" in proposed paragraph (4).
REPRESENTATIVE GRUENBERG said he would accept that change.
Number 1719
REPRESENTATIVE GARA said he objects to such a change. He
elaborated:
I can't imagine a circumstance where a woman who
doesn't want to have an abortion should have her will
overruled. If a woman doesn't want to have an
abortion, that ... decision should be respected. And
if we are implying here that a physician might know
better than the woman and decide, 'under the facts and
circumstances", to withhold information because the
physician thinks it's better for the woman to have an
abortion, I think that's ... not good policy. ... We
have a right in this state ... under current law that
says a physician has the duty to disclose all known
risks and all known dangers and all known reasonable
alternatives to a patient.
I think that's fair; that's ... a right that patients
should have, and I'm going to object [to] the changes
in that law in [HB 472] ... vociferously on the House
floor. But the implication here that a doctor should,
because they believe it's reasonable, be able to lull
somebody into having an abortion when they don't want
to have an abortion I think is dangerous."
CHAIR McGUIRE offered her belief that such is not Representative
Gruenberg's intent or the intent of Amendment 7, as amended.
She opined that the language in Amendment 7, as amended, is
meant to allow for a reasonable-physician standard, so that
there will not be a proliferation of lawsuits. It is not meant
to provide a method by which a doctor can bypass a patient's
will.
REPRESENTATIVE GRUENBERG pointed out that he offered Amendment 7
with the goal of making the two bills congruent. Now, however,
Amendment 7 has been amended and a further amendment to it has
been suggested, and so it substantially increases the discretion
[of the physician] and the scope of the defense.
Number 1512
REPRESENTATIVE GRUENBERG withdrew Amendment 7, as amended.
The committee took an at-ease from 2:20 p.m. to 2:21 p.m.
Number 1493
REPRESENTATIVE GARA made a motion to adopt Amendment 8, which
read [original punctuation provided]:
Page 1, lines 1-2: Delete "and other persons"
Page 3, section 6 and Page 4, sections 3 and 4: Delete
"unborn child" wherever it appears and replace with
"fetus"
Number 1474
CHAIR McGUIRE objected [for the purpose of discussion].
REPRESENTATIVE GARA, referring to the second portion of
Amendment 8, noted that the bill currently uses the term "unborn
child" in places where historically the term "fetus" has been
used. He said he does not want to decrease the chances that a
woman's right to choose to have an abortion will be upheld by
future courts, and suggested that not using the term "fetus"
increases the chances that a woman will lose her right to
choose. He said he would prefer that the bill use the term
"fetus" because it is the medical term and has been used
historically.
REPRESENTATIVE GRUENBERG said he would like to cosponsor
Amendment 8.
SENATOR DYSON, referring to the first portion of Amendment 8,
explained that he'd included the phrase "and other persons" in
the title because he's anticipating that parental consent
language will survive constitutional challenge, and that "and
other persons" refers to parents and guardians.
Number 1304
REPRESENTATIVE GARA made a motion to amend Amendment 8, to
delete the first portion of Amendment 8.
Number 1290
REPRESENTATIVE HOLM objected and then removed his objection.
Number 1287
CHAIR McGUIRE announced that Amendment 8 has been amended.
SENATOR DYSON opined that Amendment 8, as amended, gets right to
the heart of the whole debate. He elaborated:
Fetus is just Latin for unborn child. You can put the
whole bill in Latin if you want. ... What I really
worry about here, and it gets back to the heart of the
argument, is an attempt to justify the fact that in
this country, some people do not have protections, and
that is: if you're an unborn child, you're not worthy
of ... protection under the law. And if ... that's
your goal, then you really do want to, everywhere you
can, substitute a synonym, in whatever language, for a
human being. And that has been ... the classic
pattern of oppressors down through 6,000 years of
recorded history .... [If] there's a group that you
don't want to have rights, then you come up for
another term for them. And I'm very wary of ...
continuing that pattern. ...
The U.S. Congress has just passed the unborn child
protection Act recognizing at least, if the child
happens to be wanted, [that in] doing damage to that
child, something, in fact and in law, of value was
lost. ... [Amendment 8, as amended] is not going to
change the content of the bill; it changes the flavor.
And for those of you that want to preserve, quote,
"the right to choose" - and I think the more proper
(indisc.) is, "the right to solve the unwanted
pregnancy by terminating the life of a developing
child" - ... and if you want to obscure the fact that
we're dealing with a human life, then obscuring
language, even if it happens to be that it [is]
sometimes used in medical circles, but I can tell you
when a doctor's ... dealing with a woman [regarding]
prenatal care, they don't ever talk about the fetus,
they're talking about a baby -- and so I object ....
Number 1068
REPRESENTATIVE GARA said he did not introduce Amendment 8, as
amended, to denigrate the value of a woman or a woman who's
carrying a child. He elaborated:
I've introduced [Amendment 8, as amended] because the
first thing that those lawyers on the pro-life side of
the issue are going to do if this bill passes as
written is say, "Look, the state of Alaska recognizes
that a pregnant woman is carrying a child even before
the child is born, at day one, at day two, at month
one, at month two, at month three, at month four."
They're going to make that argument and they're going
to say to the courts that the state of Alaska has now
elevated the protection it wants to give to unborn
children, it has now lowered the interest that a woman
has, in having an abortion. And it will argue that
the calculus the court has to enter into in deciding
whether a woman still has a right to abortion has
changed, because in order to take away a fundamental
right, the court has to consider what the state's
interests are. And I think by changing the language
we are now creating an argument for the pro-life side
of the battle, that we have elevated the interest in
not having abortions in this state.
So I am not particularly offended, in the parlance.
I've ... patted pregnant friends of mine and talked
about the baby inside the pregnant friend of mine; I
consider it a baby at that point, personally, in
parlance. I just know that this language is going to
be used in legal battles to try and undermine a
woman's right to have an abortion, and I don't want to
undermine that right. We are so philosophically
opposed on this one, we'll never agree, and so, if I
have a ... motive ..., it's that I want to protect a
woman's right to choose and I don't want to give away
an argument in court in the future. And frankly,
that's why the lawyers on both sides and the lobbyists
on both sides of these issues fight over these words
all the time. And so in a conversation I'll have no
problem using either term, but in court it's a
different [story].
Number 0979
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 8, as amended. Representatives Ogg,
Samuels, Holm, Anderson, and McGuire voted against it.
Therefore, Amendment 8, as amended, failed by a vote of 2-5.
Number 0945
REPRESENTATIVE HOLM moved to report the proposed House committee
substitute (HCS) for SB 30, Version 23-LS0193\O, Mischel,
3/22/04, as amended, out of committee with individual
recommendations, the accompanying fiscal notes, and the legal
analysis by the attorney general dated March 30, 2004. There
being no objection, HCS CSSB 30(JUD) was reported from the House
Judiciary Standing Committee.
Number 0908
CHAIR McGUIRE made a motion to [adopt and] report a House
Concurrent Resolution, for the purpose of making conforming
changes to the title of SB 30, out of committee with individual
recommendations. There being no objection, a House Concurrent
Resolution [which later became HCR 36] was reported from the
House Judiciary Standing Committee.
[HCS CSSB 30(JUD) was reported from committee.]
HB 353 - JURY DUTY EXEMPTION FOR CERTAIN TEACHERS
Number 0850
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 353, "An Act relating to jury duty; and amending
Rule 15(k), Alaska Rules of Administration." [Before the
committee was CSHB 353(HES).]
Number 0829
REPRESENTATIVE MARY KAPSNER, Alaska State Legislature, sponsor,
said that HB 353 will exempt from jury duty teachers who teach
in schools that are not meeting adequate yearly progress (AYP)
under state and federal law. In the last six to eight years,
the state has implemented benchmark testing and the high school
qualifying exit exam, and, at the federal level, there has been
implementation of the No Child Left Behind Act of 2001 (NCLB
Act), which requires that every school have highly qualified
teachers in each subject area. For many small schools these
changes have posed a challenge when teachers are asked to leave
the classroom for the purpose of serving jury duty, because, in
a lot of locations around the state, it is very difficult to
find substitute teachers that are certified in the area of
expertise that the regular teacher is certified in.
REPRESENTATIVE KAPSNER noted that in Bethel, for example, the
court system seeks jurors from a pool of 11 surrounding villages
and Bethel. If a teacher in Kasigluk, for example, is called
out of the classroom for jury duty, or if there is even the
possibility that this will occur, it creates a lot of stress on
the whole school, on both students and other teachers, because
in most villages it's hard to find a substitute teacher that has
a high school diploma. The Lower Kuskokwim School District,
between September and December, lost 107 teaching days to jury
duty. Now that districts are facing AYP, benchmark tests, and
high school exit exams, loss of teaching days is really
ratcheting up the pressure on schools, students, and parents.
REPRESENTATIVE KAPSNER said that HB 353 provides an exemption
for teachers from jury duty so that while a school is not
meeting AYP, they can stay in the classroom as much as possible.
She relayed her hope that this exemption won't last forever,
that when all schools meet AYP, the exemption will no longer be
needed and all teachers can be part of a jury pool; hopefully,
HB 353 will just be a temporary fix to a temporary problem.
Number 0604
REPRESENTATIVE KAPSNER pointed out two areas of concern
regarding CSHB 353(HES): page 1, line 5, contains "may" instead
of "shall"; and page 1, line 6, contains "school year" instead
of "school term". She indicated that the bill should be changed
to say "school term" because that refers to whatever period of
time in a given year the school district decides students will
be required to attend. In response to a question, she indicated
that the "may" that she is suggesting should be changed to a
"shall" is the second "may" on line 5. She said that although
there was discussion in a prior committee that judges could
simply decide whether a person should be exempted from jury
duty, it is not customary for judges to make such a decision,
and so to require it of them would create an additional burden
on the court system.
CHAIR McGUIRE noted that some students from Representative
Joule's district were present to observe the hearing on HB 353.
[The students introduced themselves and stated the school they
were from.]
Number 0432
LINDA SAITO relayed that she is the music teacher at Kotzebue
Middle/High School and was called for jury duty starting January
4 [2004] through the end of April [2004]. Noting that her
school has not yet met AYP, she said that [getting picked for
jury duty] was a concern because she had to be prepared every
day, for four months, to call in a substitute so she could go
serve. She added that it is very difficult, particularly in
villages, to get substitute teachers that can come in and give
quality lessons.
REPRESENTATIVE KAPSNER, in response to questions from
Representative Anderson, said that there are between 400 and 500
residents in the village of Kwigillingok, that the Alaska Court
System picks jurors from the list of people that have applied
for a permanent fund dividend, and that a jury made up of
teachers [from rural schools] is not necessarily going to be a
jury of one's peers because many of those teachers are newly
arrived from the Lower 48 and won't know the culture or the
language.
REPRESENTATIVE ANDERSON mentioned that he supports HB 353.
TAPE 04-52, SIDE A
Number 0001
REPRESENTATIVE GARA remarked that a jury is supposed to be made
up of people who live in one's community, and this notion
militates in favor of the bill. He also remarked that the
turnover rate in small schools is phenomenal, that this is
terrible for the students, and asked whether there is a similar
problem in larger communities such as Kotzebue.
MS. SAITO said that this year her school is losing 10 out of 28
teachers, and that two years ago about half of the staff left.
In response to a question she relayed that this turnover is not
related to teachers retiring.
REPRESENTATIVE GARA said he agrees with the bill, adding that it
makes sense. He mentioned that he would like to also exempt
teachers from schools that are not on the road system, since
those teachers can't easily be replaced by a substitute and
their presence is very important to the students; he predicted,
however, that such a change might hurt the bill's chances of
passing.
REPRESENTATIVE SAMUELS indicated that he would support such a
change if an amendment were offered to that effect on the House
floor.
CHAIR McGUIRE suggested making the bill apply to those schools
that have only one to five teachers.
REPRESENTATIVE OGG offered his belief that teachers are part of
the community, and opined that the legislature should not be
saying that teachers who've been encouraged to come to the state
to teach in small communities are not part of those communities.
He said he thinks that HB 353 is a good bill that recognizes
some paucity in the ability to draw jurors in small areas.
Number 0363
REPRESENTATIVE GRUENBERG said he would like to offer an
amendment to "tighten the title", and that he would like to know
from the Alaska Court System what the impact will be of changing
the second "may" on page 1, line 5, to "shall". He noted that
as currently written, the bill applies to a school in Anchorage,
and predicted that it could apply to more Anchorage schools next
year. He said it sounds to him as though the problem doesn't
have anything to do with the NCLB Act, rather that the problem
stems from a lack of substitute teachers in rural areas, but HB
353 doesn't appear to get at that specific issue. Under the
bill, a school in Anchorage is covered even though getting a
substitute teacher is not a problem, whereas a rural school that
is meeting AYP would not be covered even though it could be
quite difficult to get a substitute teacher.
[Chair McGuire turned the gavel over to Representative Samuels.]
REPRESENTATIVE KAPSNER responded:
I had the pleasure and distinction of serving as a
substitute teacher for one year, in Bethel. And one
of the things that I was very surprised to find out is
how many students' lives are extremely disrupted when
the teacher is out of the classroom. Typically these
are the students [for whom] their teacher is the only
thing that stays constant in their life on a daily
basis ... in one year - maybe that teacher changes
every year. But what I noticed is, in almost every
class that I taught, there was one student that was
extremely, emotionally disturbed, and that was really
brought out when their teacher was gone. And I think
that this is especially true in schools that are not
meeting adequate yearly progress; there's something
else going on that's not just the fault of the school,
but I think that something else is missing in their
home life and in their community. So I think that any
school that is not meeting adequate yearly progress
probably has some element of the teacher really
needing to be there everyday.
REPRESENTATIVE GARA mentioned that it might be difficult to
define which schools should have their teachers be exempted from
jury duty. He said he agrees that teachers are part of the
community and did not mean to suggest that they aren't.
Number 0763
REPRESENTATIVE SAMUELS said he would like to offer an amendment
"to change the second 'may' on line 5 to 'shall', and the word
'year' to 'term' on line 6, page 1," as suggested by
Representative Kapsner.
Number 0769
REPRESENTATIVE OGG made a motion to adopt the foregoing as
Amendment 1.
REPRESENTATIVE GRUENBERG asked that the representative from the
Alaska Court System be allowed to comment on Amendment 1.
Number 0770
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said he did not see a particular problem for the ACS
regarding changing the second "may" to "shall",. In fact, he
added, it is easier administratively if there is a blanket
exemption rather than a judicial determination. In larger
communities, he relayed, jury clerks handle this type of issue,
but in smaller communities, judges do it.
REPRESENTATIVE GRUENBERG said he removes his objection.
Number 0836
REPRESENTATIVE SAMUELS asked whether there were any further
objections to Amendment 1. There being none, Amendment 1 was
adopted.
Number 0853
REPRESENTATIVE GRUENBERG made a motion to adopt CSHB 353(HES) as
the work draft. There being no objection, it was so ordered.
Number 0862
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
[Amendment 2], to tighten the title so that it is confined to
the specific subject of the bill.
REPRESENTATIVE SAMUELS asked whether there were any objections
to Conceptual Amendment 2.
REPRESENTATIVE KAPSNER indicated that adoption of Conceptual
Amendment 2 would be fine with her.
REPRESENTATIVE SAMUELS, after ascertaining that there were no
objections, announced that Conceptual Amendment 2 was adopted.
[Representative Samuels returned the gavel to Chair McGuire.]
REPRESENTATIVE HOLM asked whether HB 353 would be limiting one's
right to serve on a jury, and whether a blanket exemption for
any group of people would be constitutional.
[Chair McGuire turned the gavel over to Representative Samuels.]
REPRESENTATIVE HOLM, characterizing HB 353 as a law of
exclusion, said he questions whether they, as American citizens,
should be promoting such. "Are we saying that we have polarized
groups within ... the United States that cannot be peers?" he
asked, and, "Is it good state policy for us to have different
rules for people that live in Aniak or people that live in
Fairbanks or in Juneau when it comes to justice?"
REPRESENTATIVE KAPSNER explained that she did not intend for
this to become a regional issue, and reminded members that HB
353 was created in response to the NCLB Act and AYP.
[Representative Samuels returned the gavel to Chair McGuire.]
Number 1101
REPRESENTATIVE KAPSNER went on to say:
What we're saying is that under the conditions that
teachers are teaching in now, under the conditions
that students are learning in, in schools with
exorbitant overhead, with few classroom tools, with a
lot of testing going on, [with] a lot of people ill-
prepared for tests, [and with] a myriad of other
challenges that schools ... [face], I think this would
be a good ... policy ... that we can give the schools,
saying, "This didn't cost us anything, this is going
to provide more classroom hours for you, less of a
burden for you to be paying teachers for doing a lot
of work in preparation time and serving on ... juries
and away from the classroom, the travel expenses,
[and] the expense of getting other people lined up in
their communities to serve as substitute teachers if
that need should arise."
Number 1261
And this could happen in Fairbanks. I'm not sure if
you know how many schools in your community are not
meeting adequate yearly progress, but I'm sure that
when and if this bill is passed, Representative Holm,
many teachers in your community will say, "Thank you
for helping me do my job under these very trying
times." And as I said at the outset, this is a
temporary solution to a temporary problem, hopefully.
Hopefully we get to the point where 100 percent of our
schools are meeting adequate yearly progress. The
conversation of jury of peers was merely as an aside
and that is not the heart of the bill, and I am
nervous about going down that path.
REPRESENTATIVE KAPSNER concluded:
And we could spend many hours talking about [a] jury
of peers, and I could tell you [about] specific cases
where trials have been won because all the jurors
understood that every person in a village has a
different smell depending on what family they come
from - depending on the kind of meat they eat or
greens that they pick - that perhaps somebody not from
that area ... wouldn't understand. ... But I don't
want to go down that path. I want to talk about
adequate yearly progress, highly qualified teachers,
and helping schools meet those needs.
Number 1206
REPRESENTATIVE HOLM reiterated his concern about taking away
someone's right to serve on a jury.
REPRESENTATIVE KAPSNER pointed out that a teacher covered under
this bill is not required to claim exemption.
CHAIR McGUIRE concurred, adding that a teacher is not compelled
to claim exemption because the bill says, "A person may claim
exemption".
MR. WOOLIVER agreed that the first "may" on line 5 gives the
teacher the discretion of whether to claim exemption; if the
teacher does choose to claim exemption, then he/she shall be
excused. In response to a question, he noted that currently
there are no other exemptions from jury duty.
REPRESENTATIVE KAPSNER mentioned that there was [one] more
housekeeping measure she'd like the committee to address.
CHAIR McGUIRE suggested that members focus on the policy
question of whether it is appropriate to create an exemption
from jury duty for a teacher from a school that has failed to
meet AYP.
REPRESENTATIVE GARA offered his belief that it is constitutional
to provide exemption from jury duty to certain people, and noted
that such is done in the federal courts. He said it makes sense
to him to provide the exemption proposed by HB 353, and that he
is supportive of the bill.
REPRESENTATIVE GRUENBERG offered his belief that there is case
law that says the legislature does have the authority to create
exemptions from jury duty and establish qualifying criteria for
serving on a jury.
REPRESENTATIVE KAPSNER turned attention to page 1, line 7, and
indicated that the language, "has failed" should be changed to
read, "is designated as failing".
Number 1631
CHAIR McGUIRE made a motion to adopt Amendment 3, to replace, on
page 1, line 7, "has failed" with "is designated as failing".
There being no objection, Amendment 3 was adopted.
CHAIR McGUIRE, in response to comments regarding Amendment 1,
clarified that Amendment 1 changed the second "may" on line 5 to
"shall", and changed "school year" on line 6 to "school term".
Number 1687
REPRESENTATIVE GRUENBERG moved to report CSHB 353(HES), as
amended, out of committee with individual recommendations and
the accompanying [zero] fiscal notes. There being no objection,
CSHB 353(JUD) was reported from the House Judiciary Standing
Committee.
The committee took an at-ease from 3:20 p.m. to 3:40 p.m.
HB 244 - CRIMINAL LAW/SENTENCING/PROBATION/PAROLE
Number 1733
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 244, "An Act relating to the Code of Criminal
Procedure; relating to defenses, affirmative defenses, and
justifications to certain criminal acts; relating to rights of
prisoners after arrest; relating to discovery, immunity from
prosecution, notice of defenses, admissibility of certain
evidence, and right to representation in criminal proceedings;
relating to sentencing, probation, and discretionary parole;
amending Rule 16, Alaska Rules of Criminal Procedure, and Rules
404, 412, 609, and 803, Alaska Rules of Evidence; and providing
for an effective date."
[Before the committee, adopted as a work draft on 3/19/04, was a
proposed committee substitute (CS) labeled 04-0033, 1/16/2004.]
Number 1769
BARBARA BRINK, Director, Central Office, Public Defender Agency
(PDA), Department of Administration (DOA), noting that she has
been a public defender for more than 21 years, specified that
the information she'd present wouldn't be in the order of her
priorities. She referred to Section 5, paragraph (3), which
read:
(3) the violation occurs within the boundaries of
a municipality or the perimeter of an established
village that has adopted a local option under
AS 04.11.490.
MS. BRINK pointed out that this makes it a [class C] felony for
a person to provide alcohol to a minor within the boundaries of
a local option area. Although it's a policy call within the
legislature's purview, she cautioned about the racially
disparate impact on Alaska Natives, who are the people that live
in areas that have established these local options. A 21-year-
old may share a beer with a nephew who is 20 years old, for
example; that suddenly would become a felony, and that person
would be punished with a felony conviction and all the possible
ways such a conviction can hurt somebody.
MS. BRINK, in response to questions from Representative
Gruenberg, specified that AS 04.16.051 has to do with furnishing
or delivering alcohol to a person under the age of 21.
Section 5 makes that a felony if it happens within a
municipality or the perimeter of an established village that has
adopted a local option.
CHAIR McGUIRE clarified, "Meaning they're dry - or damp." She
opined that if a village has made that public policy decision,
it's more egregious for somebody to provide alcohol to someone
under the age of 21.
MS. BRINK said she understands, but asked whether it is so
egregious that the desire is to make it a felony for someone in
that village. She reiterated that those felony convictions will
disparately impact Alaska Natives in the local option areas.
Number 1943
MS. BRINK turned attention to Section 6, the forfeiture
provisions. Referring to discussion at the last hearing about
how forfeiture works, she affirmed that the police seize
property or money first and ask questions later. She explained:
Frankly, they seize everything on a person. So if my
client is arrested and charged with sharing a beer,
they will take all the money in his possession at the
time he is cited or arrested and put that into the
state's evidence locker. And it will be difficult for
that person to get that money back.
Not only can the state then forfeit it, but, frankly,
a lot of times the prosecutor's office makes it a
requirement -- if you want to work out a plea
agreement or a settlement of the case without going to
trial, the state will often require forfeiture of that
property without a forfeiture proceeding, in order to
give you any concessions on a charge (indisc.).
MS. BRINK, in response to Representative Gruenberg on another
topic, agreed to talk with him later and added that public
defenders or advocates aren't the best experts on forfeiture
because most of their clients don't have assets that are seized
in forfeiture proceedings.
Number 2014
MS. BRINK addressed Section 8, which amends the statutes on
murder in the second degree [by removing "other than one of the
participants" in two locations]. It makes a person guilty of
murder in the second degree even if a participant in the felony
crime was killed during that act. She offered her view that the
policy, by not including the participant previously, has been
that someone who engages in felonious conduct somehow assumes
the risk that things could go wrong and therefore that person's
life has been "valued less seriously." Ms. Brink said, "This
section, which I don't have a whole lot of disagreement with,
just makes it so a participant's getting killed during a felony
[crime] ... can also result in felony murder charges." She
noted that she'd bring up Section 8 later when discussing
Section 13 because they seem a little inconsistent.
MS. BRINK paraphrased new language in Section 9 [relating to
committing the crime of assault in the third degree], which
read:
(4) with criminal negligence causes serious
physical injury to another person by means of a
dangerous instrument.
MS. BRINK clarified that this is being moved from assault in the
fourth degree, a class A misdemeanor, to assault in the third
degree, a class C felony. She said she appreciates the desire
to bring harsher consequences to those who are "drinking but are
not under the influence of alcohol, but somehow are related in
automobile accidents"; however, she suggested if that is the
purpose, this bill is drafted far too broadly because nothing in
this statute requires any alcohol to have been consumed.
MS. BRINK predicted there'd be "unintended people falling under
the rubric of this crime." She explained that the following
examples could be felony-level conduct if there were an
accident: failure to see a stop sign, not seeing black ice on a
road and thus traveling too fast for conditions, or getting
distracted by the behavior of kids in the back seat and swerving
over the line. She added that she doesn't think [paragraph (4)]
is necessary, that she believes the current state of the law is
that recklessly-caused serious physical injury by means [of a
dangerous instrument] will result in a felony, and that she
cannot imagine that a jury in Alaska wouldn't find reckless
behavior if someone had been drinking and caused a car accident.
MS. BRINK, in response to a question from Chair McGuire,
clarified that her suggestion is to omit paragraph (4) in its
entirety. Saying it's already a felony to cause serious
physical injury to another person by means of a dangerous
instrument, she added that she believes it's actually assault in
the second degree. She said recklessly causing serious physical
injury by means of a dangerous [instrument] is a felony and
carries a mandatory presumptive [sentence]. [Teleconference
cutting out.] She went on to say, "We should think twice about
making felons out of people who make careless but still innocent
mistakes." She added that if the goal is to get at people who
have consumed alcohol, then "we should at the very least include
that requirement in that section."
Number 2170
CHAIR McGUIRE asked how many times a person has been charged
with assault or criminal negligence from turning around to deal
with kids in the back seat or other examples such as Ms. Brink
had mentioned. She also asked about times when it has been
alleged.
MS. BRINK replied that the case management system doesn't allow
breaking down the categories with that kind of detail. She did
report that when she handled misdemeanors in the early 1980s,
people were charged with assault in the fourth degree without
having consumed any alcohol. She suggested that the
representative from the Office of Public Advocacy (OPA) might
have examples of cases he has seen.
MS. BRINK turned attention to Section 12, which makes it a crime
if a third-party custodian fails to provide immediate
notification of a violation. She explained that the idea of
third-party custodians originated to help poor people get out of
jail when they had absolutely no money for bail. A third-party
custodian is like a substitute jailer and must come to court,
most often promise the judge to watch the person 24 hours a day,
insist that every condition ordered by the judge be followed,
and promise to immediately turn in the person if there is a
violation of those conditions.
MS. BRINK said the problem is that the system has evolved into a
requirement in practically every case, "not only as a substitute
for money bail, but ... in addition to money bail." Saying that
now people are being held in jail for even low-level
misdemeanors because they have no friends or relatives who can
take off work and watch them 24 hours a day, she explained:
My biggest fear with this section is that now even
fewer people will be able to be third-party custodians
because these people are not well versed in the law.
To be a third-party custodian, you pretty much have to
have no criminal record and not much experience. And
so when they come to court and hear that they are now
subject to being charged with a crime, I can tell you
that that information isn't going to be clear enough
to them that ... this is really only a serious problem
if you're not going to do your duties. I think it's
just going to dissuade more and more people from
acting as third-party custodians. ...
Number 2249
And, frankly, that's already happening. The Alaska
Judicial Council just prepared a report on Alaska
felony processes, looking at 1999, and I'm pretty
certain that they sent copies of this report to
everyone in the legislature. But it already confirmed
that public-defender clients - poor clients -
(indisc.) incarcerated pretrial than other clients.
And it also confirmed that third-party custodians were
a huge reason why people spent more time incarcerated.
It's going to have a huge chilling effect on people's
willingness to come forward and be [third-party
custodians]. And ... it's going to result in more and
more people spending more and more time in custody
before they're ever convicted.
MS. BRINK emphasized that these are "pretrial people" sitting in
jail because they cannot come up with a third-party custodian.
Number 2300
CHAIR McGUIRE asked why that trend of increasingly requiring a
third-party custodian is occurring.
MS. BRINK replied that she'd asked judges to explain it but
still didn't know why. She said people already are somewhat
reluctant to be third-party [custodians] because they're advised
they could be subject to contempt of court if they don't follow
all the conditions to the letter. Saying she disagrees with
testimony that the contempt process is a cumbersome process, she
added:
You file a one-page order to show cause why this
person should not be held in contempt, and I've seen
it done in bail cases. I think that the prosecutors'
office, rightly so, limits their prosecutions of these
people to ... cases where they think there really was
a deliberate failure. ... Since they already can be
prosecuted, and since it's already so difficult to
find [third-party custodians], I just don't think we
need to criminalize yet another act in the state of
Alaska.
CHAIR McGUIRE remarked that she'd be more inclined to say "that
you should have this" and that third-party custodians should
take it very seriously, since they are jailers by extension.
She expressed curiosity about discovering why third-party
custodians are increasingly being required in addition to bail,
even in misdemeanor cases, and suggested that should be the
problem that is focused on.
TAPE 04-52, SIDE B
Number 2389
CHAIR McGUIRE suggested third-party custodians should believe
"to the bottom of their soul" that what they're doing is very
serious. She said she is concerned about "the logic process"
here and doesn't think the answer is to not implement stronger
measures for third-party custodians simply because judges
perhaps inappropriately require such custodians in some
situations. If the original intent was to help poor people who
cannot come up with bail money, she asked, why would it be
required in misdemeanor cases in addition to bail. She said she
didn't know the answer.
MS. BRINK replied that she didn't know either. She shared her
experience that it's difficult to find a third-party custodian,
and pointed out that the person is informed of the rules and
then has to sign a document which states that he/she could be
charged with contempt. Ms. Brink said there is a strong effort
to convince third-party custodians of the importance of this
obligation, that it's critical to the process, and that they
will be prosecuted with contempt if they violate the terms. She
expressed concern that because it is so hard to find a third-
party custodian, this will just make it harder.
REPRESENTATIVE GARA agreed that third-party custodians are
overused. He asked, if it's already a crime for third-party
custodians to violate their duties, why it makes things worse to
"just come up with a different misdemeanor" to charge instead of
criminal contempt. He also asked how that deters third-party
custodians if they're already being told a violation may
constitute a crime.
MS. BRINK replied that contempt can be punished by up to six
months in jail and a fine of up to $300. This provision raises
it to a class A misdemeanor, which carries a potential
punishment of up to a year in jail and up to a $10,000 fine.
Number 2247
REPRESENTATIVE GARA suggested someone who is willing to commit a
crime probably doesn't think about the full extent of the
penalties. He questioned whether the change in penalty would
affect people's behavior.
MS. BRINK pointed out that [third-party custodians] are making a
huge sacrifice in their lives and thus already are somewhat
reluctant to undertake this, even for someone they love and
support; that they aren't people who commit crimes, but will
think about consequences and will listen carefully when the
judge advises them of what the mandatory or maximum penalties
might be; and that they aren't well versed in criminal law. She
expressed concern that this will increase their level of
reluctance to get involved.
REPRESENTATIVE GARA remarked that he'd prefer that fewer third-
party custodians were used, but still wasn't so convinced about
the difference between criminal contempt and a misdemeanor. He
shared his belief that third-party custodians are imposed only
when the prosecution asks for them, but said he has found that
some - especially younger prosecutors - ask for them almost
routinely. He suggested attorneys may overuse their authority
in this regard. For example, an attorney may say to a judge
that someone "might possibly, conceivably be dangerous while out
on bail," which might apply to any defendant; thus the judge
will agree to a third-party custodian just to be safe.
REPRESENTATIVE GARA asked other attorneys present, "Is there a
tweak to the statute that governs third-party custodians and
when they may be offered that we might consider that would be a
reasonable tweak - not a ... radical tweak but a minor tweak -
that might result in limiting the use of third-party custodians
to really the more necessary cases?" Saying it's a rhetorical
question, he added that if such a tweak exists, however, it
might be considered as an addition to the bill. He suggested if
the result is less frequent use of third-party custodians, then
everybody would be better off in the long run, even if this is
changed to a misdemeanor from criminal contempt.
Number 2130
MS. BRINK observed that many times the requirement for a third-
party custodian is set by an arraigning magistrate before a
prosecutor is involved in a case; this happens when the person
is taken to the magistrate right from the scene of arrest for
arraignment. Even though the state constitution and the rules
require reasonable bail to be set within 24 hours, in actuality
reasonable bail hasn't been set because the person cannot get
out; to get out, the person must request a bail hearing and
either propose removal of the third-party custodian - which the
next judge down the line is loath to do - or bring in a third-
party custodian who'll be approved. Thus there always must be a
bail hearing, which greatly increases the workload of
prosecutors, defense lawyers, and judges. This initial setting
of bail is sort of meaningless, she remarked.
MS. BRINK added that bail setting seems almost in inverse
proportion to the seriousness of cases the judges usually see.
Magistrates, whose day-to-day business other than these
arraignments is handling the lowest level of serious offenses
such as traffic offenses, seem to set third-party requirements
all the time. District court judges, who handle misdemeanor
clients and cases, often set much harsher bail conditions. And
superior court judges seem to be the best at setting reasonable
bail, she said, because they see the whole gamut.
REPRESENTATIVE GARA clarified that he'd meant to suggest perhaps
there should be some standard that a magistrate must meet before
imposing the third-party custodian requirement, a higher
standard than currently exists.
MS. BRINK replied, "The statute actually has a presumption of
'OR' [own recognizance] release, but it seems to mean nothing."
CHAIR McGUIRE noted that the violation being discussed is the
third-party custodian's failure to immediately report a released
person's violations of his/her conditions of release. Given
that, she remarked, it seems a minimal burden to pick up the
phone and report immediately.
REPRESENTATIVE GRUENBERG asked that the representative from the
Alaska Court System be allowed to comment on this issue.
Number 1989
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), relayed that this coming Friday, the Alaska Judicial
Council (AJC) will be reporting to the committee regarding its
felony sentencing study, a good portion of which addresses
third-party custodians and their impact [on the ACS].
MS. BRINK turned attention to Section 13, which, she opined,
removes the right of a whole class of people to claim self-
defense. She said:
I have great hesitation supporting this because I
don't think these are questions that we can determine
legislatively. Whether or not a person has the
reasonable right of self defense has traditionally, in
the American system of justice, been left to the jury,
who can hear all the evidence. And removing this from
... whole classes of people engaged in fairly petty
conduct actually seems inconsistent with Section 8 ...
that I mentioned. ... In Section 8, we're setting to
value the life of a participant in a felony who gets
killed, and making that a possibility to charge felony
murder.
Well here [in Section 13] it seems like we're removing
the right of self defense for whole classes of people,
and I have a couple of examples and I can also address
the amendment that I know is before you because it
tries to address this but I don't think it addresses
it adequately. I think in the current state of the
bill, as it looks now, let's say a prostitute picked
up a customer and it turned out, which is not unheard
of in Alaska, that he's a serial killer - this bill is
telling her that she has no right to preserve her own
life. Let's say there's a couple of underage kids at
a park sharing a beer and they're attacked by some ...
robber or mugger - you're telling those kids that
their life is not worth protecting. ...
You might think these hypotheticals are overdramatic,
but these are instances that easily could be charged
under this. What we're doing is we're sentencing
people to death if they engage in petty criminal
conduct. What if somebody is driving with a license
that's suspended and they get carjacked [and] there's
a baby in the backseat of the car? The mother has no
right to protect her child or herself because she's
driving with a suspended license. ... What we're
saying is, you don't have a right to defend yourself.
But what are we going to do if these people are
attacked with deadly force and they do defend
themselves? Well, we're going to convict them. We're
not even going to let them bring to the jury the fact
that they had a dangerous situation and it was their
life or the person's life at stake because we're
saying, "You have no right of self defense"; their
lawyer won't even get to ask the jury to consider
that.
Number 1855
MS. BRINK continued:
And the examples can go on and on. What if there's a
woman who has a restraining order out against a
violent husband and she's carrying a concealed weapon
in someplace where it's prohibited or banned, like a
university or a bank? Her husband, who has already
posed a documented danger to her in the past, comes up
and attacks her, and what we're telling her is that
she has no right to defend herself. [If she's]
charged, she may not be permitted to talk the jury
about his violent history, what he's done to her in
the past, because [we've] said to her, "You cannot
defend [yourself]."
And even under the amendment that is being proposed,
where we change it to felonious conduct, [it] doesn't
take much to be [charged with a] felony these days.
If you're shoplifting something worth over $50 and, in
the last five years, you've shoplifted a pack of
cigarettes and a carton of milk, you are facing a
felony. And if some lunatic attacks you [in] the
parking lot as you're fleeing the shoplifting, you may
not defend yourself. ... This reminds me of the case
in California where the "three-strikes law" was
drafted to cover all kinds of conduct. I'm certain
that the drafters in California did not think that
stealing three videos would subject you to a life
sentence.
But under this bill, if you steal three videos - and
you have a prior conviction for a theft - that's over
$50; now, all of a sudden, you're not going to be
permitted to defend yourself. And I just think that
we're removing the power from the people, [because]
we're taking away a jury's right to look into all the
evidence about why someone engaged in self defense.
CHAIR McGUIRE asked whether changing the burden such that the
defendant would have to argue an affirmative defense would
alleviate the PDA's concerns.
MS. BRINK said that might be an improvement, but pointed out
that that is a difficult burden.
Number 1759
REPRESENTATIVE SAMUELS offered a hypothetical situation:
If I go to a house and I'm there to buy a large
quantity of drugs, and I bring a gun and I know it's a
dangerous situation, ... and somebody gets shot, do
you think self defense should be allowed in? Because
that's [a] far more realistic situation than two kids
sitting there drinking beer getting beat up by a
serial killer ....
MS. BRINK replied:
Self defense is a lot more complicated than that.
What would have to be determined is whether the person
who went there to buy drugs with a gun was the initial
aggressor, because, if he was the initial aggressor,
the person in their own home, even if they're selling
drugs, has a right to defend themselves - there's no
duty to retreat in your own home. So I appreciate
what you're saying, but self defense is really
complicated, and all I'm saying is that we should let
the jury sort it out .... No, I don't think the guy
is justified if the person in the house doesn't do
something to attack him or try to hurt him or kill
him. But let's say the person in the house does do
that. Why would we want to force this guy, just
because he's going there to get drugs, to not be able
to defend himself?
REPRESENTATIVE SAMUELS offered a different hypothetical
situation:
You've got two cars full of kids driving down Northern
Lights [Blvd.] shooting back and forth at each other,
and nobody gets charged, even though somebody got
killed, because they both claimed self defense. And
that's a far more realistic [hypothetical] than the
two kids in the park. ... If ... you bring a gun to a
situation and you escalate it, and if it's a drug
dealer, it's already escalated enough. And if it's
not in somebody's house, let's say it's in a parking
lot somewhere, and somebody gets shot, and those, once
again, are far more realistic real-life scenarios, but
I think that ... when the ... Department of Law
drafted this that they were trying to cut those off at
the pass.
Number 1682
MS. BRINK said she doesn't know that she can agree that
Representative Samuels's hypothetical situations are more
realistic, because she has seen more of the type of situations
that she listed. She referred to Representative Samuels's
hypothetical about the two cars full of kids, and said:
Let's say that's true. Let's say there's two cars
driving down Northern Lights [Blvd.] and all of a
sudden one car starts firing on the other. We're
telling the people in the second car that because they
fired back they don't have a right to self defense. I
mean, Representative Samuels, the right of self
defense is inherent in every citizen's right to life,
liberty, and the pursuit of happiness. How can we
decide, before an event even takes place, that someone
has forfeited their right by engaging in petty crime?
And why would we want to do that? Wouldn't that
encourage vigilantism to go on? ... I disagree that
those people can't be charged. They can be charged;
yes, it might be a more difficult case to prove. So
why couldn't the juries figure that out? Why couldn't
the jury, based on all the evidence and proof brought
before them, decide who fired on [whom] first and
whether or not someone was justified. Why can't they
make that decision?
REPRESENTATIVE SAMUELS asked Ms. Brink whether she is proposing
that all the information should just be given to the jury so
that it can determine what occurred.
MS. BRINK said yes.
Number 1604
REPRESENTATIVE GARA said:
There are circumstances where it's hard to prove
somebody is guilty. There are two things we can do:
make it presumptive that ... both guilty people and
innocent people are guilty - that makes it really
easy, you don't have to worry about hard-proof
problems; or you can follow the sort of constitutional
mandate that we've followed in this country that says,
"You know, sometimes proof is really hard to come by,
but we're going to require it anyway." And we know
when we do that, ... that that benefits guilty people
as well as innocent people. That's the fight that we
have here all the time.
But by taking away the right to self defense from
people who didn't do anything to deserve death, by
taking away the right to self defense from people who
should, by all rights, be able to defend themselves,
just because we want to make it easier to prosecute
people, I think is wrong. I understand your point,
Representative Samuels: if we don't do this, there
will be guilty people who go free. But if we do, do
this, we are ... taking away the right to self defense
from somebody who, by all rights, should have that
right to self defense.
CHAIR McGUIRE opined that the current language in the proposed
CS goes too far, and mentioned that she would be offering an
amendment to "add back in the presumption," perhaps by shifting
the burden.
REPRESENTATIVE GRUENBERG asked whether courts have upheld the
constitutionality of shifting the burden.
MS. BRINK said she did not know.
Number 1422
SUSAN A. PARKES, Deputy Attorney General, Central Office,
Criminal Division, Department of Law (DOL), said that other
states currently have such in law and it has been upheld in
those other states.
REPRESENTATIVE GRUENBERG asked whether there are any states
where it has not been upheld.
MS. PARKES said she did not know of any.
Number 1392
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
indicated that she only knew of cases in which it has been
upheld, one of those being a U.S. Supreme Court case.
MS. BRINK, referring to language in Section 13, subsection
(a)(4)(B), said she did not understand what is meant by
"transaction or purported transaction", especially what is meant
by "purported", and that she would be even more confused if this
were changed to an affirmative defense because she doesn't
understand who will have the burden of proving what. Is the
defendant going to have to prove that he/she was not in a
"purported transaction", or was not acting to "further the
criminal objectives of one or more persons"? She opined that
the "purported" language is very vague; if there is even an
accusation that a defendant was trying to buy or sell drugs,
then he/she would lose the right to claim self defense.
CHAIR McGUIRE said she agrees that that language is a bit vague
and relayed that there would be amendments addressing that
section.
MS. BRINK directing attention to Section 14, said that this
section also addresses the issue of self defense but contains
language specifying that the court may only instruct the jury
about the justification of self defense if the court, sitting
without a jury, finds that there is "some plausible evidence".
Currently, jury and judge have two different roles in a trial:
the judge decides what evidence is admissible - and this
involves determining whether the evidence was legally obtained,
whether it's relevant to prove some issue in that particular
case, and whether the evidence would be too prejudicial to one
side or the other - and often hears evidence in advance of the
jury for the purpose of ruling on the evidence's admissibility;
the jury decides what weight to give evidence and whether
evidence is plausible, or credible, or believable. Section 14
takes away the jury's power and give it to the judge.
MS. BRINK said she doesn't understand why such a change should
be made, adding, "we don't make the judge the finder of fact in
a jury trial." "You have a right to have a jury trial, you have
a right to have 12 of your peers determine whether or not your
[claim of] self defense [is] plausible, and what self-respecting
jury would find self defense when the evidence was implausible?"
she asked. She offered her belief that if evidence is
admissible, then the jury should be allowed to determine whether
it is plausible.
Number 1209
MS. PARKES, in response to a question, said that according to
her understanding, the word "plausible" is used in the proposed
CS because the Alaska Court of Appeals currently says any
evidence, even if implausible, raises self defense and [the
jury] "gets the instruction." She said that the DOL is "trying
to make the level of evidence a little higher."
MS. CARPENETI indicated that there are Alaska cases regarding
this issue.
REPRESENTATIVE GARA remarked:
There seems to be an undercurrent here that we don't
want the self-defense defense to be used in cases
where it's really a frivolous claim, and so I think
that was the attempt, frankly, in Section 13. But
Section 13 is written in a way that bothers many of
us. And I wonder whether, if we adopt Section 14, we
don't need to deal with Section 13, if we could just
dump it. And here you have this gatekeeper standard
that says ... if it's plausible, let the jury hear
about it, and [then] we don't have to go through the
whole process of adopting this sort of really loose or
more troublesome standard that's in Section 13. I
wonder if that might be the way to deal with it.
REPRESENTATIVE GRUENBERG offered his belief, however, that there
are two different issues: one, whether the evidence is
plausible; and two, whether "it's susceptible of determination."
Number 1033
MS. BRINK referred to Sections 15-17, which pertain to immunity
for witnesses. She mentioned that the PDA has submitted a
proposed amendment that would simply end [subsection] (i), of
Section 17, after the word "finding" on page 9, line 30.
REPRESENTATIVE GRUENBERG remarked that that proposed amendment
might also require some conforming changes elsewhere in Sections
15-17.
MS. BRINK relayed that [the PDA] doesn't have any problems with
the provisions in Sections 15-17 that clarify statute and
conform it to State v. Gonzalez, wherein the Alaska Supreme
Court held that Alaska's privilege against self incrimination
requires any finding of immunity to be transactional immunity,
not just use and derivative use immunity. She also relayed that
[the PDA] does have a problem, however, with the provisions of
those sections that requires the judge, after a proffer by a
witness who's exercising the privilege against self
incrimination, to share information about what was said during
the hearing in camera in which the judge finds that the witness
does have a valid claim of "Fifth Amendment" privilege. She
remarked that when a judge makes such a finding, the witness has
an absolute right not to testify or give any information
regarding his/her involvement.
MS. BRINK pointed out that language in Section 17 is telling the
judge that he must tell the prosecutor what level of offense the
witness is involved in. She said:
I think, Madame Chair, that that is a link in the
chain tying them to the crime and, under transactional
immunity, that's unconstitutional. I don't you think
you can fix that part. I think the only way you can
make this statute constitutional is to remove that
proffer from the judge to the [district attorney's]
office. I realize the [district attorneys] are
frustrated, they would like to know what that person
is involved in, like to know that before making a
decision to grant them immunity, [but] the privilege
is absolute and it cannot be breached. And I think if
you include that information going from the court to
the [district attorney], this renders that section
unconstitutional.
Number 0869
REPRESENTATIVE GRUENBERG asked Ms. Brink whether she has any
authority to support that proposition or whether any state has
adopted "such a provision."
MS. BRINK, in response, relayed that the Gonzalez case [in
referring to E.L.L. v. State, 572 P.2d, 786 (Alaska)] says that
in Alaska, the privilege against self-incrimination applies
where the answers elicited could support a conviction or might
furnish a link in the chain of evidence leading to a conviction.
She indicated that her position is that the information mandated
by Section 17 to be shared with the prosecution constitutes such
a link.
MS. PARKES said the DOL has not found any state with a provision
such as is being proposed in Section 17, though very few states
require transactional immunity. She said [the DOL does] not
believe that the proposed language is unconstitutional under
Gonzales, which declared that Alaska must have transactional
immunity, and is prepared to litigate the issue. Characterizing
the proposed language as one of the most important provisions of
the bill and as a very minimal request by prosecutors regarding
the extremely powerful tool of immunity, she opined that because
of the possible ramifications, it is very dangerous to give
someone immunity with absolutely no information, which is what
the DOL is required to do now.
REPRESENTATIVE GRUENBERG noted that the Gonzalez case [in
referring to E.L.L. v. State, 572 P.2d, 786 (Alaska)] also says
that a witness may not refuse to testify where there is no real
or substantial hazard of incrimination. He asked Ms. Parkes
whether her view is based on a belief that the information the
judge would be required to reveal to the prosecution is not a
link.
MS. PARKES indicated that that is her view.
REPRESENTATIVE GRUENBERG asked Ms. Brink why she believes it is
a link.
Number 0535
MS. BRINK said:
Because the idea is that a person who has a valid
Fifth Amendment right must be kept in the same
position as if he remained silent. ... So the standard
is, the same position if he remains silent. This is
not the same position. This is giving the state
information about the crime - about the type of crime,
about the level of crime - from his own words; if he
had remained silent, he would have faced no hazards of
incrimination from his own words. And through the
second basis, through the Gonzales opinion, it says
that the court and the state cannot safeguard against
the nonevidentiary use of compelled testimony.
And nonevidentiary use means, what's to prevent law
enforcement or the [district attorney's] office from
focusing the investigation, deciding to initiate a
prosecution, refusing to plea [bargain], ...
interpreting evidence, ... planning a [cross-
examination], or somehow otherwise planning trial
strategy. ... I'd like to point out one more thing.
The state ... prosecutor's office argued extremely
strongly in this case that our statute, which only
provided use and derivative use immunity, was
constitutional, and they were wrong about that. The
[Alaska] Supreme Court held that the statute, this
very statute that you're fixing now and that [the
state] supported, was unconstitutional if it only
provided use and derivative use [immunity]. So that
question of constitutionality was resolved against the
state
REPRESENTATIVE GRUENBERG asked Ms. Parkes what safeguards the
state would use to ensure against nonevidentiary use of
compelled testimony. "It seems to me that if that information's
provided to you, then you could use it," he remarked.
MS. PARKES replied:
It's information, it's not testimony. ... This is just
a judge letting us know the level of offenses, and not
even the specific level, that we're looking at. ... So
I don't think we're getting much information. I don't
consider it evidence to be given that level of
information. What seems to be being implied here is
that we're in an investigative stage of a case, [but]
... we're not. What we're talking about is, when
someone's been charged, we're trying to go to trial,
we've made a charging decision, we've done our
investigation, we're trying to get a witness on the
stand to give evidence, and so I think the concerns
that we're somehow going to be using this information
to now focus on the person we're trying to get to
testify ... are far afield of what would really
happen.
Number 0372
REPRESENTATIVE GRUENBERG, in response, said:
The first, that this is not testimony, frankly, I
can't buy ... because the way the judge learned it was
from the defendant's mouth, or from the attorney's
mouth on behalf of the defendant, in chambers; it
clearly was testimony at that point. Secondly, if
you're saying that you're focusing on whether to get
this person to testify, that's great, but the court
here is talking about whether you, the state, can
provide an assurance [that] it won't be used against
that person. And that's the crux. I don't need an
answer now, but if you want something like this, I
think to meet the standard of Gonzales you have to
have a meaningful safeguard that the words, the
information you obtain, are not going to be used
against that person.
MS. PARKES said she wouldn't be opposed to the addition of
language that said that the information given by the judge -
fruits of that poisonous tree - would be suppressed, couldn't be
used, or couldn't be pursued. She mentioned that she couldn't
see that the information given by the judge would be
particularly useful in an investigation anyway.
REPRESENTATIVE GRUENBERG suggested to Ms. Parkes that she pursue
the issue of additional language.
Number 0133
CHAIR McGUIRE remarked:
The way it is right now, if there's a witness that you
want to put up, and they claim immunity and go and
meet with the judge, you really are in a position
where it could be for something very, very serious.
And I'm sure that there's probably even a case of
somebody ... [wanting] to be a witness because they
could get immunity for something like that, where, at
a minimum, you're granting immunity for something
very, very serious when you could have found another
witness or you could have let that part go.
MS. PARKES responded:
That's exactly the concern: ... you give immunity to
the wrong person because you do it blindly and, yes,
someone's going to get up there and confess to a
homicide. And [if] you've given them transactional
immunity, you're done, you can't prosecute them. And
that's what we're trying to avoid. And I just would
like to point out that many, many times, we work with
witnesses and work these things out, where they tell
us what their concerns are [and] we know what the
crime is that they're concerned about - drug use or
something like that - and we do give immunity in these
cases. These are cases where the witness is
uncooperative with us; sometimes they are afraid to
testify - they've been intimidated by the defendant -
[or] they're friends with the defendant [and] want to
protect them. Those are the kind of cases, often,
where this is coming up, and then we lose very
valuable evidence in a serious case.
TAPE 04-53, SIDE A
Number 0001
REPRESENTATIVE GARA remarked:
We're asking the court to advise the prosecution
whether the privilege was for [a class A felony, a
class B felony, a class C felony, or a misdemeanor],
and I don't think that's knowable in many cases
because the gradations in the severity of your conduct
are so subtle, sometimes, between a high level
misdemeanor and low level felony, and a mid level
felony and a high level felony. That's why
prosecutors submit jury instructions that say, "If you
find all of this evidence, convict the defendant of
this; if you find some of it, convict the defendant
this lesser offense." And so how is a ... defendant
supposed to tell a judge, and a judge supposed to tell
the prosecution, whether the conduct is clearly [a
class A felony, a class B felony, a class C felony, or
a misdemeanor] when it might be very fuzzy as to
[which] side of the line the conduct falls on.
MS. PARKES clarified that the bill only refers to a higher-level
felony, a lower-level felony, and a misdemeanor. For a judge to
make a finding that a person has a valid Fifth Amendment
privilege, he/she has to have some concept of what crime the
person potentially could be prosecuted for. She said she has
faith that judges are able to make that call and perhaps err on
the side of "a higher potential liability."
REPRESENTATIVE GARA pointed out, though, that the bill does not
specify that if it's unclear the judge should assume it's a
higher-level crime. The bill presumes that the level of crime
will be really clear.
MS. PARKES said she did not think it will be that difficult for
a judge to determine what the potential charge could be. With
regard to the aforementioned jury instructions given by
prosecutors, she said, "What you're actually going to be able to
prove beyond a reasonable doubt in front of a jury may be a
different thing and so we want to give juries options, but the
prosecutor, I can guarantee you, always believes that the
highest level charge charged is the accurate charge."
Number 0300
MS. BRINK, with regard to the suggestion of adding language to
limit the state's use of the information given by the judge,
said she didn't think that that would be effective because, in
Gonzales, the Alaska Supreme Court has said, "Even the state's
utmost good faith is not an adequate assurance against
nonevidentiary uses because there may be 'nonevidentiary uses of
which even the prosecutor might not be consciously aware.'" She
pointed out that in that case, the court also said:
We sympathize with the Eighth Circuit's lament in
McDaniel that "we cannot escape the conclusion that
the [compelled] could not be wholly obliterated from
the prosecutor's mind in his preparation and trial of
the case." ... This incurable inability to adequately
prevent or detect nonevidentiary use, standing alone,
presents a fatal constitutional flaw in use and
derivative use immunity.
MS. BRINK turned attention to Sections 18 and 19, which pertain
to consecutive sentences. She said:
What these provisions do is specify, in great detail,
what cases have to have consecutive sentences and, in
many cases, in fact, what amount of jail time has to
be consecutive. And I guess I'm unhappy with [these
sections] because I've always felt like individualized
case consideration is the hallmark of our system of
justice. I don't really understand why we want this
judicial discretion taken away from judges. They have
a lot more time and energy to listen to all the facts
of a particular individual case and try to determine
the appropriate sentence. And there might be
individual circumstances that warrant a deviation from
a strict application of presumptive ... [consecutive]
sentences.
Number 0497
Why would we, as a state, want to spend $56,000 a year
to house an inmate when it isn't justified in ... [a]
particular case? I think this will have a huge fiscal
impact on [the Department of Corrections] that isn't
reflected in their fiscal note. And I realize that
all we're trying to do is to punish people
appropriately and somehow reduce recidivism and save
money that way, but I have to say, after being a
[public defender] for 21 years, I have not seen an
instance where we, as a state, have decided to
increase penalties [and] that has then resulted in the
reduction of a particular type of crime.
One of our goals, in criminal justice, is to have
uniformity of sentences, sentences that are not
influenced by race, whether [the defendant] had a
public attorney [or] a private attorney, [or] what
[the defendant's] socioeconomic status is. I think
that by doing this you'll actually damage uniformity
of sentencing because, in essence, you're leaving the
sentencing decision up to an individual prosecutor.
That individual person, who draws up the charging
document and deals with the case and either negotiates
it or sends it to trial, has the ultimate say in the
number [and] types of counts that are charged against
any one [defendant]; ... that individual prosecutor
can decide whether all these counts and charges should
be resolved in one judgment or more than one judgment,
and if it's more than one judgment, there's no
possibility of concurrent sentencing.
MS. BRINK continued:
Now, I have to say, some prosecutors I've dealt with
for years I could trust to make that decision. But I
frankly trust the judges to make objective and fair
decisions more than I do the prosecutors because the
prosecutors are advocates in this process - they're
subject to the human emotions of engaging in a
competitive and ... [adversarial] system - and I would
prefer that we (indisc. - coughing) decisions by the
judge and the probation officer in the Department of
Corrections who writes the presentence report and is
supposed to give an objective viewpoint. As
advocates, our viewpoint is not objective.
Number 0609
Frankly, the trend nationally is to get away from
rigid and mandatory minimums. We often read in the
paper about federal judges who are complaining about
the federal sentencing guidelines; many states are
starting to revoke mandatory minimums because they
found that the people who don't need to be in jail are
staying there a long time and draining the state of
the resources that they really need to use for other
matters. [This] seems to be regressive and
unnecessary. People are getting long sentences;
people are getting long presumptive sentencing. I
don't know that ... you, as a legislative body, or we,
as people outside of a case, can determine that
somebody should have gotten 20 years instead of 13 -
we have limited information. I think the judges, who
have all the information, should get [to make] that
decision of what sentence a person should get.
And the report that Mr. Wooliver was testifying about
had another interesting conclusion. In case you think
that we're not punishing people enough, in that report
they concluded that more Alaska defendants are
sentenced to jail time than in other places in the
Nation, and that they're likely to serve more of the
time that's imposed on them than defendants in the
rest of the country. So, believe me, if we think
we're not already being punitive enough, compared to
the national standards, we certainly are.
Number 0739
MS. BRINK, in response to a question, said that for the most
serious crimes, the PDA agrees that the presumptive term has to
be imposed consecutively.
CHAIR McGUIRE asked Ms. Brink, if three people are murdered, for
example, why isn't each one of those lives deserving of an
individual sentence?
MS. BRINK replied:
I do think each individual life has value, but I think
that those of [us] who've practiced in the courts
don't think that the value of the person who was lost
is characterized by the sentence that is imposed. I
think that what judges do and what lawyers understand
is that the total gravity of the situation is
reflected in the total length of the sentence. And
that's why, for a double homicide, for example, a
person might get 99 years for the first one and an
additional 20 or 10 for the second one to run
consecutive.
It's not that that second life is only worth 10 or 20
years, Madam Chair, it's that the fact that there was
more than one person involved increases the gravity of
this crime and the seriousness and the punishment to
go beyond the maximum, beyond what anybody could get
for a single homicide, and that the total sentence of
say 119 years is reflective of that situation. I
don't think any judge ever intended that that should
somehow be a measure of each individual life, and I
think that's why we err when we try to calculate time
in that manner. I don't think that that's what the
sentence is reflective of because certainly no one's
life could be measured in a term of years.
CHAIR McGUIRE posited that many share a frustration over the
tendency to view a situation as one criminal act even if
multiple people are seriously harmed or killed. "I really do
feel like, for each person who is hurt, for each life that is
taken, there ought to be that opportunity for a separate
sentencing," she relayed.
Number 0938
REPRESENTATIVE GARA, referring to page 10, line 26, asked what
AS 11.41. pertains to.
MS. PARKES explained that AS 11.41 pertains to offenses against
a person.
REPRESENTATIVE GARA referred to page 11, lines 6-7, which read:
"two years or the active term of imprisonment, whichever is
less, for each additional crime that is criminally negligent
homicide". He asked whether a two-year minimum term of
imprisonment will be required for criminally negligent homicide,
and whether that is more jail time than is currently required.
MS. PARKES replied: "I don't believe there's a mandatory
minimum on criminally negligent homicide, so I think ... the
belief was [that] two years was an appropriate amount of
additional time for each count."
REPRESENTATIVE GARA asked what "active term of imprisonment"
means.
MS. PARKES explained that if someone is sentenced, for example,
to five years of imprisonment with four years suspended, the
active term of imprisonment would be one year. She noted that
these provisions of the proposed CS are identical to provisions
in the original version of HB 244
REPRESENTATIVE GARA asked whether Section 19 is saying that if
there are two or more crimes against a person, then the total
sentence has to be at least the minimum for one of those two
crimes.
Number 1266
MS. BRINK responded:
No, I think what [Section 19 is] saying is it has to
be doubled. What's happening in this section is that
it's a regimented approach. Already the statute
creates a presumption of consecutive sentences, so
judges know that judges do have the opportunity to
impose consecutive terms. What this does is it
regiments how much time must be consecutive. If it's
an escape, all the imprisonment must be consecutive.
If it's [murder in the first] degree, the mandatory
minimum term for each one much be consecutive. Same
with an unclassified felony. In a manslaughter or a
kidnapping that's a class A felony, the presumptive
term must be consecutive. So, depending on the number
of people involved, it's really arithmetic: you take
the mandatory minimum term and you chop it up among
the different counts.
Now currently, the judges can get to the same overall
sentence, if they want to, in the appropriate case
just by doing a larger term of years or doing
consecutive sentencing. But they don't have to parse
it out; they don't have [to] apportion it among
victims. And so that's what's different, here; this
is a regimented approach, dealing with cases that
haven't even happened yet, deciding what might be
appropriate in the individual circumstances by
arithmetic.
REPRESENTATIVE GARA asked, "Currently, if the presumption is
consecutive sentences, that just applies to felonies?"
MS. BRINK said it applies to all crimes, both felonies and
misdemeanors.
MS. PARKES remarked, however,
I don't think there's a presumption that every
sentence, every time, should be consecutive. There
are times that the statute indicated that it should be
consecutive, but there are times it can be concurrent.
And frankly, part of this proposal was because it
appeared that judges were not necessarily following
what was already in the statutes; they were not giving
consecutive times when it appeared that that was the
legislative intent of the statutes that are currently
on the books.
Number 1359
REPRESENTATIVE GARA asked, "So are you saying that the statutes
provide that in some cases the presumption is not consecutive
sentences?"
MS. PARKES offered as an example AS 12.55.025(g), which says in
part: "If the defendant has been convicted of two or more
crimes before the judgment on either has been entered, any
sentences of imprisonment may run concurrently if ...". So it's
a clear opportunity, she remarked, rather than a presumption.
REPRESENTATIVE GARA asked: "So the statutes provide that ... if
the defendant meets certain standards, then they can get out of
the concurrent sentence presumption - is that what you're
saying?"
MS. BRINK offered:
I have to strenuously disagree that the presumption is
for concurrent sentences. The presumption is for
consecutive sentences. [In AS] 12.55.025(e) it states
very clearly, "Except as provided in (g) and (h) of
this section" - and that was the section that [Ms.
Parkes just referred to] - "if the defendant has been
convicted of two or more crimes, sentences of
imprisonment shall run consecutively.
REPRESENTATIVE GARA said, "So [AS 12.55.025(e)] says they shall
be presumptive, and then [AS 12.55.025(g) and (h)] say here are
the circumstances where you can get out of a presumptive ...
consecutive sentence. ... What are the circumstances that ...
now would get you out of the consecutive sentence?"
MS. BRINK replied:
For you to get out of the consecutive sentence, ...
what you have to show is that the crimes violate
similar societal interests; they are part of a single,
continuous criminal episode; there was not a
substantial change in the objective of the criminal
episode, including a change in the parties to the
crime, the property or the type of property right
offended, or the persons offended; the crimes were not
committed while [you] ... attempted to escape or avoid
detection or apprehension after commission of another
crime; it's not for a violation of [AS] 11.41.100-
11.41.470, which, again, [are] crimes against persons;
and it's not for a violation of [AS] 11.41.500-
11.41.530 that results in physical injury or serious
physical injury, [and those] I believe [are]
misdemeanor crimes against [a person].
Number 1529
So it is very, very difficult to get a concurrent
sentence. And in fact, when that section was changed,
it was a sea change; the presumption, when I began
practicing ... was for concurrent sentences. [The]
legislature changed that and made the presumption very
clear: they are to be consecutive sentences. [if]
there's a change in the parties, if you have more than
one person who is injured, in two different assault
counts, they cannot get concurrent [sentences].
MS. BRINK turned attention to Section 20, and said she likes
this section because it codifies the current practice regarding
instances in which an indigent witness is called upon to testify
in a court proceeding and the judge thinks that that person
needs legal representation to address the issue of whether or
not he/she has a valid Fifth Amendment privilege. That person
can be appointed a public defender so that the judge and the
witness are not left to sort out that point on their own without
assistance.
MS. BRINK turned attention to Sections 21 and 23, and surmised
that [Section 21] says that once someone gets convicted of
felony driving under the influence (DUI), any DUI after that
will always be a felony, and that Section 23 says the same
regarding "felony [DUI] refusal." She urged the committee to
consider a time limit for those provisions. She elaborated:
If you have a young kid struggling with a drinking
problem who, say, gets [DUIs] when he's 16, 17, or 18,
[but] he successfully attends a [rehabilitation]
program and ... remains clean and sober [and] becomes
a hard working and productive citizen for 30, 40, 50
years, ... do we really want to make that person a
felon at the age of 48, 58, 68? Do we really want to
make that a felony? ... I know there is pending before
the legislature another bill to adjust the current
look-back for mandatory minimum sentences on [DUI]
sentences. ... We're looking at that because what
we've discovered is, we have among the harshest look-
back ... and [DUI] sentencing provisions in the
country; we have the longest look-back provision, and
so, once again, I think that making it a felony
anytime in the next lifetime of a person would be
extremely harsh.
CHAIR McGUIRE remarked that those are good points.
Number 1633
MS. BRINK turned attention to Section 22, which, she remarked,
has to do with eliminating what [prosecutors] characterize as
the "big gulp" defense. She said this provision would prohibit
any introduction of evidence regarding the consumption of
alcohol [that occurred before] the driving or operating. So
that means that the person who's charged with a blood alcohol
concentration (BAC) level of .08 does not get to come in and
testify that, "No, I only had a beer," even if there are
witnesses to that effect. She posited that this provision is
broader than what people have said is the intent. She added:
I don't think we ought to eliminate the big gulp
defense because, frankly, don't we want to punish
those people whose judgment and skills [are] impaired?
Don't we want to punish those people who are driving
under the influence? If a person isn't under the
influence at the time they're driving, do we really
want to treat them the same as somebody who is?
That's what we do if we adopt this measure saying that
that evidence is not relevant or admissible. And I,
frankly, think we should concentrate on punishing
those people who are under the influence or impaired
at the time of driving.
MS. PARKES relayed that for those very reasons, the DOL has
drafted a proposed amendment for the purpose of tightening down
that provision such that it will only apply in the situations
intended. That proposed amendment read [original punctuation
provided]:
Delete Page 13, lines 7-10
Insert in its place:
(s) In a prosecution under (a) of this section, a
person may introduce evidence of having consumed
alcohol before operating or driving the motor vehicle,
aircraft or watercraft, to rebut or explain the
results of a chemical test, but it is not a defense
that the chemical test did not measure the blood
alcohol at the time of the operating or driving.
Add a new section and renumber other sections
accordingly:
*Sec.__. AS 28.35.030(a) is amended to read:
(a) A person commits the crime of driving while
under the influence of an alcoholic beverage,
inhalant, or controlled substance if the person
operates or drives a motor vehicle or operates an
aircraft or a watercraft
(1) while under the influence of an
alcoholic beverage, intoxicating liquor, inhalant, or
any controlled substance;
(2) if [WHEN], as determined by a chemical
test taken within four hours after the alleged offense
was committed, there is 0.08 percent or more by weight
of alcohol in the person's blood or 80 milligrams or
more of alcohol per 100 milliliters of blood, or if
[WHEN] there is 0.08 grams or more of alcohol per 210
liters of the person's breath; or
(3) while the person under the combined
influence of an alcoholic beverage, an intoxicating
liquor, an inhalant, or [AND] a controlled substance.
Number 1606
MS. PARKES added:
If someone wants to attack the validity of the
[Intoximeter 3000] and needs to talk about how much
alcohol they've had to say the Intoximeter wasn't
accurate at the time of the test, that certainly
should be admissible. And this is a policy call for
the legislature. It appeared to us that the intent in
the original drafting of the DUI statute - [which] ...
said, within four hours of driving, you get tested and
you're .08, you're considered under the influence
under the statute - was [that that would] ... be a
presumption. And we feel that the big gulp defense
of, "Well, ... my blood alcohol was rising," sort of
thwarts the legislative intent. If the legislature
doesn't believe that that thwarts it, then you would
want to reject this provision ....
MS. PARKES, in response to a comment, remarked that the defense
[currently used] is, "My blood alcohol was rising, and if I'd
only made it home before I got stopped, I wouldn't have been
drunk driving."
Number 1789
REPRESENTATIVE GARA posed a scenario in which someone has two
drinks, drives home, starts "partying like a maniac," and the
police, who've received a call, come, test that person, and find
that he/she has a BAC level of .15. He asked whether the
aforementioned proposed amendment would allow that person to
offer the defense that he/she had only had two drinks before
driving.
MS. PARKES pointed out that the person really ought to speak to
how much alcohol he/she consumed after driving. That's the real
defense, and that's preserved, she remarked.
REPRESENTATIVE GARA said: "And you could talk about what you
had before you started driving, too, right? ... Frankly, that's
the more important part."
MS. PARKES remarked, "To rebut or explain the results of the
chemical test."
REPRESENTATIVE GARA offered, "I don't really want to have to
prove how much I had to drink after I got home; I want to be
able to prove that I only had two drinks before I got in the
car."
MS. PARKES responded, "Under those circumstances, that is not
what we're intending to exclude now."
REPRESENTATIVE GARA asked, "But it's clear in the amending
language that you can show that I only had two drinks before I
got in the car?"
MS. PARKES said she'd have to look at the DOL's proposed
amendment to see if it addresses the aforementioned scenario.
CHAIR McGUIRE surmised that a person's conduct after he/she gets
out of the car can be used as a defense, and that a person will
still have the ability to question the validity of the
Intoximeter. What they didn't want to allow, she posited, is
the argument that it was that last drink before leaving the bar
that "put you over the edge and that you weren't drunk when you
were driving - it was that you were tested later and that huge
drink that you took, before you left, kicked in."
MS. PARKES concurred.
Number 1887
MS. BRINK opined that under the scenario offered by
Representative Gara, the jury would be instructed to disallow
those facts as a defense because a portion of the proposed
amendment stipulates that it is not a defense that the chemical
test did not measure the blood alcohol at the time of the
operating or driving. So, although a person may be allowed to
offer evidence, the jury will be told that it is not a defense
that the chemical test did not measure the blood alcohol at the
time of the operating or driving.
MS. PARKES disagreed, saying that "this does not preclude the
alcohol that was then [drunk] at the house after the driving,
and could be introduced to explain why the chemical test was
high."
REPRESENTATIVE GARA suggested that they write an amendment that
says a person shall be allowed to show what he/she had to drink
before driving.
MS. PARKES argued, however, that the real defense pertains to
the alcohol that was consumed after driving; evidence regarding
that is what will show that a person was not DUI, and that
evidence would still be admissible. She noted that part of the
proposed amendment will alter "when" to "if" in the current
statute because the court, in the Conrad (ph) case, focused on
that current statutory language and decided that it didn't
clearly disallow a big gulp defense.
REPRESENTATIVE SAMUELS offered his belief that everyone is in
agreement with regard to the intent, and now they just need the
right language.
Number 2080
MS. BRINK turned attention to Section 27 and said she doesn't
like Section 27 because it doesn't offer protection to
juveniles. She elaborated:
The reason we treat juveniles differently and we have
their information be confidential is because, although
juveniles don't have the (indisc.) capabilities of
processing information like adults - their brain is
not sufficiently developed - many, many juveniles who
come (indisc.) are rehabilitatable and never reappear
in the adult [system]. And so we keep their record
and their cases confidential.
I understand wanting to be able to protect members of
the public, but if we were going to do that, I would
suggest we limit [it] strictly to sexual offenses
[and] we limit [it] strictly to adjudications. What
about a case that's investigated and dismissed? Or
[a] case where the juvenile is acquitted at trial? We
don't want to give that information to members of the
public. So I would like to pick and chose between
these two version to find the one that provides, first
of all, the most-needed information for reasons of
public safety - and I think that's adjudication having
to do with [sexual] offenses - upon request, giving
that to members of the public.
MS. BRINK noted that although a proposed amendment was drafted
with the assistance of the Division of Juvenile Justice (DJJ)
and stipulates that the department shall formulate regulations
regarding disclosure, nothing in the bill precludes someone from
giving out information before those regulations are actually in
place. Additionally, nothing in the bill precludes members of
the public, once they receive information, from putting up
flyers all over the neighborhood saying that "Johnny" is being
investigated for a sexual offense by the DJJ, and include that
child's picture and home address on those flyers. She
characterized the aforementioned as a good reason for not freely
giving out this sort of confidential information.
Number 2215
PATTY WARE, Director, Division of Juvenile Justice (DJJ),
Department of Health & Social Services (DHSS), said that
although she understands the PDA's concerns, the language in the
proposed amendment contains "may" rather than "shall" with
regard to disclosing information. She offered that the intent
of Section 27 is to allow the Office of Children's Services
(OCS) employees and DJJ employees to share information when it's
appropriate. Noting that Section 27 proposes to alter AS
47.12.310, she relayed that under existing AS 47.12.315, there
is a fair amount of information that the DJJ can share with the
public, information related to specific offenses though not
solely limited to cases that have been adjudicated. For
example, when a juvenile is 13 years of age or older and the DJJ
is going to file a petition on a felony crime against a person,
or a crime that involves a deadly weapon, arson in the first or
second degree, burglary in the first degree, distribution of
child pornography, promoting prostitution in the first degree,
or misconduct involving a controlled substance, the DJJ can
disclose that information to the public.
MS. WARE said that the DJJ is committed to working closely with
the DOL and the OCS to ensure that regulations are crafted to
address concerns about treating juvenile information differently
than adult information. In response to questions, she said that
the DJJ is already able to share information with the OCS, but
the OCS cannot then share that information with a member of the
public; that AS 47.12 addresses the issue of inappropriately
releasing information; and that the penalty is a Class B
misdemeanor.
TAPE 04-53, SIDE B
Number 2381
CHAIR McGUIRE surmised, then, that that penalty would also apply
to the provision proposed via Section 27.
MS. WARE, in response to a further question, offered her belief
that Section 27 would not expand the amount of information that
may be shared with the public; rather, it would just ensure that
all relevant agencies would be allowed to share information that
is currently available to the public.
MS. BRINK offered her belief that the disclosure prohibition in
AS 47.12.320 only applies to state officials or employees, and,
thus, there is no punishment for a member of the public who
inappropriately disseminates information. She acknowledged that
it is hard to find a balance between protecting juvenile
offenders and protecting the public, but asked the committee to
err on the side of ensuring control of confidential information
once it's released and limiting disclosure to circumstances in
which there is a genuine danger to the public.
CHAIR McGUIRE said she did not see that the type of information
that could be released is being changed by Section 27.
MS. BRINK said:
The way I read [AS] 47.12.310, which has to do with
agency records, we have to go to [subsection] (a),
[and the] amendment starts with [subsection] (c). But
in [subsection] (a), if you're complying [with AS]
47.12.310, [it] allows [disclosure of] all information
and social records pertaining to a minor prepared by
or in the possession of [a] federal, state, or
municipal agency or employee.
CHAIR McGUIRE remarked that that point is critical. She asked
whether a minor's criminal record is destroyed when he/she turns
18, and what happens to "the trail of that record" if that
record had to be disclosed.
MS. PARKES explained that there will be three sets of records:
the court system's records - she remarked that did not know what
occurs with those records; the DHSS's records - she surmised
that the DHSS must have a policy regarding those records; and
the DOL's records - she said that the DOL keeps files on
delinquency cases until the person is 21 because sometimes that
information can be used if the person gets into trouble as an
adult, and that those records are archived and ultimately
destroyed.
Number 2031
MS. WARE said that something similar occurs with the DJJ's
records. She noted that although the DJJ can disclose a fair
amount of information to the public, it does not disclose that
information unless requested. Once that information is
disclosed, though, nothing in existing statute limits what can
be done with it - it becomes public information - and the
proposed changes will not alter that.
CHAIR McGUIRE said that one hopes that when a member of the
public asks for such information, he/she does so for legitimate
reasons, because that information could be used against the
minor from then on. This is of concern to her, she remarked.
CHAIR McGUIRE, after ascertaining that the representative from
the Office of Public Advocacy (OPA) was willing wait until HB
244's next hearing to testify, suggested that any forthcoming
amendments from interested parties should be in written format.
[The committee had a brief discussion regarding when the bill
would be heard next; HB 244 was held over.]
ADJOURNMENT
Number 1673
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:55 p.m.
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