02/08/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB321 | |
| HB353 | |
| HB363 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 353 | TELECONFERENCED | |
| *+ | HB 339 | TELECONFERENCED | |
| *+ | HB 363 | TELECONFERENCED | |
| += | TELECONFERENCED | ||
| += | HB 321 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 8, 2006
1:14 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara
MEMBERS ABSENT
Representative Max Gruenberg
COMMITTEE CALENDAR
HOUSE BILL NO. 321
"An Act relating to high risk operation of a motor vehicle,
aircraft, or watercraft while under the influence of an
alcoholic beverage, inhalant, or controlled substance and to
refusal to submit to a chemical test."
- MOVED CSHB 321(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 353
"An Act relating to sentences for sexual offenses."
- HEARD AND HELD
HOUSE BILL NO. 363
"An Act increasing the number of superior court judges
designated for the third judicial district, to provide
additional superior court judges at Anchorage, Palmer, and
Kenai; and providing for an effective date."
- MOVED HB 363 OUT OF COMMITTEE
HOUSE BILL NO. 339
"An Act relating to the definition of 'victim' in relation to
crime; and relating to parole board hearings and information
provided to the public by the parole board."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 321
SHORT TITLE: AGGRAVATED DRUNK DRIVING
SPONSOR(S): REPRESENTATIVE(S) RAMRAS
01/09/06 (H) PREFILE RELEASED 12/30/05
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
01/18/06 (H) JUD AT 1:00 PM CAPITOL 120
01/18/06 (H) Scheduled But Not Heard
01/25/06 (H) JUD AT 1:00 PM CAPITOL 120
01/25/06 (H) Heard & Held
01/25/06 (H) MINUTE(JUD)
01/27/06 (H) JUD AT 1:00 PM CAPITOL 120
01/27/06 (H) Heard & Held
01/27/06 (H) MINUTE(JUD)
02/08/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 353
SHORT TITLE: SENTENCING FOR SEXUAL OFFENSES
SPONSOR(S): REPRESENTATIVE(S) NEUMAN, LYNN
01/09/06 (H) PREFILE RELEASED 1/6/06
01/09/06 (H) READ THE FIRST TIME - REFERRALS
01/09/06 (H) JUD, FIN
02/03/06 (H) JUD AT 1:00 PM CAPITOL 120
02/03/06 (H) <Bill Hearing Canceled>
02/08/06 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 363
SHORT TITLE: ADDITIONAL JUDGES FOR THIRD DISTRICT
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/13/06 (H) READ THE FIRST TIME - REFERRALS
01/13/06 (H) JUD, FIN
02/08/06 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JANE PIERSON, Staff
to Representative Jay Ramras
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Explained the proposed CS for HB 321,
Version Y, on behalf of the sponsor, Representative Ramras.
JAMES A. HELGOE, Lieutenant, Legislative Liaison
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified that HB 321 is a step in the
right direction.
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 321.
SUSAN A. PARKES, Deputy Attorney General
Criminal Division
Office of the Attorney General
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 321, answered
questions regarding interlock devices; provided comments during
discussion of HB 353; presented HB 363 on behalf of the
administration.
REPRESENTATIVE MARK NEUMAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: One of the prime sponsors of HB 353.
REX SHATTUCK, Staff
to Representative Mark Neuman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Discussed the importance of proportionality
in HB 353 on behalf of one of the bill's prime sponsors,
Representative Neuman.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 353 and
discussed the treatment of sex offenders.
LEONARD M. LINTON, JR., District Attorney
3rd Judicial District(Anchorage)
District Attorneys
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 363, relayed that
he did not object to passage of the bill.
LARRY COHN, Executive Director
Alaska Judicial Council (AJC)
Anchorage, Alaska
POSITION STATEMENT: Asked a question during discussion of
HB 363.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:14:14 PM. Representatives
McGuire, Anderson, Coghill, and Wilson were present at the call
to order. Representative Gara and Kott arrived as the meeting
was in progress.
HB 321 - AGGRAVATED DRUNK DRIVING
1:14:58 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 321, "An Act relating to high risk operation
of a motor vehicle, aircraft, or watercraft while under the
influence of an alcoholic beverage, inhalant, or controlled
substance and to refusal to submit to a chemical test." [Before
the committee was the proposed committee substitute (CS) for HB
321, Version 24-LS1099\F, Luckhaupt, 1/16/06, which had been
adopted as a work draft on 1/25/06; left pending from 1/27/06,
and not addressed further during this meeting, was the question
of whether to adopt an Amendment 3 to Version F.]
1:15:33 PM
REPRESENTATIVE WILSON made a motion to adopt the proposed
committee substitute (CS) for HB 321, Version 24-LS1099\Y,
Luckhaupt, 1/30/06, as the work draft. There being no
objection, Version Y was before the committee.
1:15:49 PM
JANE PIERSON, Staff to Representative Jay Ramras, Alaska State
Legislature, sponsor, explained on behalf of Representative
Ramras that Version Y [contains a new] Section 3, which
clarifies that a person convicted of driving under the influence
(DUI) with a high blood alcohol concentration (BAC) will be
subject to the enhanced penalties in accordance with the
previous number of DUIs he/she has been convicted of.
REPRESENTATIVE ANDERSON asked whether HB 321 will substantially
curb drinking and driving.
JAMES A. HELGOE, Lieutenant, Legislative Liaison, Division of
Alaska State Troopers, Department of Public Safety (DPS),
offered his belief that HB 321 is a step in the right direction.
There are many factors contributing to the problem of [drinking
and driving in Alaska]. The media and law enforcement agencies
throughout Alaska are attempting to increase public awareness as
well as voluntary compliance. He opined that tougher penalties
is a means of educating the public that it will be held more
accountable [for drinking and driving], whether through
increased [fees] or longer jail time.
1:20:44 PM
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, sponsor, in
response to a question, relayed HB 321 is endorsed by both the
Cabaret Hotel Restaurant & Retailer's Association (CHARR) and
Mothers Against Drunk Driving MADD. He noted that he attended
10-15 meetings of the Fairbanks MADD chapter and initially they
were reluctant to endorse HB 321 because they didn't want to
differentiate between "drunk" and "really drunk." It wasn't
until other MADD chapters around the country began to endorse it
that the local MADD chapter "came around." The Cabaret Hotel
Restaurant & Retailer's Association, on the other hand, embraced
HB 321 initially at its annual convention because it recognized
that it's not the intent of the hospitality and/or food and
beverage industry to put drunk people out on the road.
REPRESENTATIVE RAMRAS noted that 31 states have adopted an
aggravated drunk driving law. Currently, there is one threshold
for drunk driving, which is .08 BAC. He expressed his hope that
[HB 321 will result in] safer roads. He noted that he explored
the issue of federal grants and found that Alaska can't qualify
unless it adopts several provisions outlined by the federal
government. He informed the committee that the fiscal note for
HB 321 is $1.2 million.
1:27:15 PM
REPRESENTATIVE WILSON asked Representative Ramras whether he
feels that [Alaskans] who "don't have that much of a problem but
just have to be careful of how much they drink" are going to
[take notice of HB 321]. She opined that those whom [the
legislature] is concerned about aren't going to be aware of how
high his/her BAC is.
REPRESENTATIVE RAMRAS relayed that in states where an aggravated
drunk driving law has been passed and implemented, the
recidivism has decreased. He noted that license suspension
isn't working since there are people who have had their licenses
suspended for a lifetime but are still driving and are still
getting [DUIs]. He suggested that for those people the bill
will put them in jail longer and thereby act as a deterrent. He
noted that felony drunk driving is already "on the books" and
that it's not that successful against chronic drunk drivers. He
posed the questions of whether HB 321 will lead to safer roads
and greater public safety, and whether it will be worth the
fiscal note of $1.2 million. He answered, "A resounding yes
because it has the potential of changing behavior."
REPRESENTATIVE WILSON, in regard to the states that have already
adopted [an aggravated drunk driving law], asked what the impact
has been.
REPRESENTATIVE RAMRAS referred Representative Wilson to a
document in the packet that addressed her question.
REPRESENTATIVE GARA relayed that he's not convinced that HB 321
is going to make major changes in recidivism rates or behavior.
State law currently doesn't allow the use of interlock devices
to prevent people from driving as a condition of probation if
one has been convicted of a felony [DUI]. He asked why that is.
1:33:48 PM
SUSAN A. PARKES, Deputy Attorney General, Criminal Division,
Office of the Attorney General, Department of Law (DOL), relayed
that the statute may not require [the use of an interlock
device] in felony [cases], but she doesn't know why it couldn't
simply be a condition of probation.
REPRESENTATIVE GARA asked whether [the use of an interlock
device] is required in misdemeanor DUI cases.
MS. PARKES relayed her understanding that in certain instances,
[interlock devices] are required or order for a person to get a
limited license, but said she would research that issue further.
CHAIR McGUIRE inquired as to whether driving under the influence
of marijuana would be considered a DUI.
MS. PARKES indicated that driving under the influence of any
drug or alcohol is a DUI crime. However, "drug driving" cases,
whether involving OxyContin, methamphetamine, or marijuana are
much more difficult to prosecute in terms of proving the level
of intoxication; for example, in regard to marijuana, specific
blood tests have to be conducted and one has to be able to show
that tetrahydrocannabinol (THC) was active in the body at the
time of the driving.
CHAIR McGUIRE remarked that she's heard that judges are
routinely throwing out evidence related to [driving under the
influence of] marijuana on the grounds that that evidence is
more prejudicial that probative. She asked, "Is it a question
of changing the law or is it a question of funding or coming up
with a test that's more accurate in showing how those other
drugs also [influence driving]?"
MS. PARKES, in response to questions, reiterated that [people
who are driving under the influence of drugs] are subject to the
same penalties as those driving under the influence of alcohol,
but it's just much more difficult to prove those cases. The
problem with drugs, especially when [the drugs] are interacting
with alcohol, is that there are differences in body type and
tolerance, and standard levels haven't been set for every drug,
although the Division of Alaska State Troopers has recently
[employed] certified drug recognition experts. The specific
problem with marijuana is that THC remains in one's body up to
30 days after one has used marijuana. To determine whether it's
just still in one's body because he/she got high two weeks ago
or because he/she just got high and got in his/her car takes a
very specific test that state's crime lab doesn't do. When
"drug driving" cases are prosecuted, the tests have to be sent
to an outside laboratory to determine whether [THC] was actually
active in one's body.
1:38:30 PM
CHAIR McGUIRE remarked that the more severe the penalties become
for DUI and the focus being on alcohol, questions regarding
drugs arise. When new crimes or enhanced penalties for existing
crimes are being considered, recidivism and deterrence are not
the only things that are looked at. She added that there are
graduated penalties for the severity of crimes.
REPRESENTATIVE GARA offered his understanding that in the
"seriously high" BAC level cases, the courts are already
imposing longer sentences, adding that he's worried that HB 321
is going to send a message that driving with a BAC of .159 is
okay. Therefore, why run that risk if judges are already
imposing longer sentences for higher BACs?
REPRESENTATIVE RAMRAS clarified that his approach is to set an
aggravated drunk driving standard to discourage people from
drinking and driving. The very first thing that goes out the
window when one has been drinking is his/her ability to
reason/think rationally.
REPRESENTATIVE GARA expressed his interest in adding a provision
that would require the use of interlock devices.
1:49:36 PM
MS. PARKES referred to AS 12.55.102, which read:
(a) The court may order as a condition of probation or
generally as part of a sentence that a defendant
convicted of an offense involving the use,
consumption, or possession of an alcoholic beverage
may not operate a motor vehicle during the period of
probation unless the vehicle is equipped with a
properly functioning, monitored, and maintained
ignition interlock device.
MS. PARKES added that it's clear that [an interlock device] can
be ordered in DUIs or any alcohol-related offense. She referred
to AS 28.15.201, which read in part: "(ii) the court or
department requires the person to use an ignition interlock
device during the period of the limited license;".
REPRESENTATIVE GARA said that he would drop the interlock device
idea until later, and remarked that there's a certain amount of
logic to HB 321, so he's partially supportive of it; HB 321
addresses people who are so irresponsible that they won't stop
drinking. He again expressed his concern, however, about the
state advertising that .16 BAC is no longer tolerated, because
that will imply that driving with lower BAC levels is okay.
1:53:22 PM
REPRESENTATIVE GARA made a motion to adopt Amendment 1, which
read [original punctuation provided]:
In any public relations efforts by the state to inform
the public about AS 28.35.030(b)(1)(B), the state
shall in no way minimize the danger of intoxication
below those levels while driving, and shall advise
that intoxication below those levels is also illegal
and/or dangerous.
REPRESENTATIVE COGHILL objected.
REPRESENTATIVE GARA explained that Amendment 1 provides that if
the State of Alaska begins advertising the dangers of driving at
a .16 BAC and above, it also needs to emphasize that driving
drunk at all is dangerous and unacceptable. He said he doesn't
want the State of Alaska to put money into anything suggesting
that driving with something less than a .16 BAC is acceptable
behavior.
REPRESENTATIVE RAMRAS said that he did not object to
Amendment 1.
REPRESENTATIVE COGHILL indicated that he is not in favor of
having the language in Amendment 1 listed in statute, and would
therefore vote against it.
REPRESENTATIVE WILSON added that she would also vote against
Amendment 1 because she doesn't feel that such language needs to
be put in statute.
REPRESENTATIVE ANDERSON inquired about a letter of intent.
1:55:49 PM
REPRESENTATIVE GARA withdrew Amendment 1.
1:55:58 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual
Amendment 2, to add to the uncodified law [the text of Amendment
1], thereby sending a message to the current administration
and/or future administrations to think through its advertising
campaign. There being no objection, Conceptual Amendment 2 was
adopted.
1:56:36 PM
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
321, Version 24-LS1099\Y, Luckhaupt, 1/30/06, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVE COGHILL objected. He relayed that he's against
drunk driving, but is not convinced that HB 321 is going to do
what Representative Ramras intends for it to do. He's said that
although he's convinced that HB 321 will change the state's
behavior, he is not convinced that it will change drunken
driving behavior.
REPRESENTATIVE COGHILL then withdrew his objection.
CHAIR McGUIRE asked whether there were any further objections to
reporting the bill from committee. There being none, CSHB
321(JUD) was reported from the House Judiciary Standing
Committee.
HB 353 - SENTENCING FOR SEXUAL OFFENSES
[Contains brief mention of SB 218.]
1:59:15 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 353, "An Act relating to sentences for sexual
offenses."
1:59:45 PM
REPRESENTATIVE WILSON moved to adopt the proposed committee
substitute (CS) for HB 353, Version 24-LS1449\G, Luckhaupt,
2/2/06, as the work draft. There being no objection, Version G
was before the committee.
1:59:59 PM
REPRESENTATIVE MARK NEUMAN, Alaska State Legislature, one of the
prime sponsors of HB 353, explained that HB 353 deals with
sentencing for sexual offenses. The bill will essentially
double the present presumptive sentencing for all sexual assault
crimes, sexual abuse of a minor crimes, and a few other similar
crimes, thereby sending a clear message of zero tolerance to
anybody contemplating or involved in these most egregious acts.
The bill also provides for periodic polygraph testing for sex
offenders on probation, which will give the Department of
Corrections (DOC) an additional tool to identify potential
repeat offenders before another child is victimized.
REPRESENTATIVE NEUMAN commented that with the amount of sexual
assault crimes on the rise in Alaska and the increased numbers
of Alaskans speaking out, it's time to toughen the laws. Other
states have enacted, or are in the process of enacting, laws
with stiffer penalties for those who commit these heinous
crimes. According to statistics compiled by the Federal Bureau
of Investigation (FBI), Alaska has the highest per capita rate
of reported rapes, and that rate is nearly 71 percent greater
than that of the next highest state. According to the report,
"Making Sense of Rape in America: Where Do the Numbers Come
From and What Do They Mean?", the reporting of these cases is as
low as 16 percent. Arrest rates are also low, with as few as 27
percent of reported crimes resulting in arrest. Furthermore,
Alaska has 4,300 registered sex offenders. He remarked that
these figures lead him to the conclusion that the number of
actual sex offenders in Alaska is significantly higher.
REPRESENTATIVE NEUMAN relayed that there's no record of any
treatment or therapy having any significant effects on sex
offender recidivism rates. However, there are steps that can be
taken to reduce repeat offenses. Longer sentences will ensure
that the most dangerous offenders are kept away from [Alaska's]
children. He informed the committee that regular polygraph
testing for all sexual offenders has proven to have an effect on
sexual behavior. Supervision of offenders with polygraph tests
has lead to a 69 percent compliance with probation requirements,
while supervision without polygraph tests has lead to only a 26
percent compliance rate. He opined that requiring a probation
period as part of a sentence, along with mandating regular
polygraph tests, will make Alaska safer and reduce the number of
sexual assault over time. He further opined that adopting
HB 353 is imperative if they want to change Alaska's position as
the number one state in the nation with regard to sexual assault
and sexual abuse of minors, and thereby provide a safer place
for Alaska's residents.
2:03:20 PM
REPRESENTATIVE ANDERSON questioned whether HB 353 will curb
sexual offense behavior.
REPRESENTATIVE NEUMAN suggested that doubling the sentences for
the aforementioned crimes will provide some continuity.
REPRESENTATIVE ANDERSON suggested that doing so may possibly
alleviate any potential court challenge.
REPRESENTATIVE NEUMAN relayed that the fiscal note for HB 353 is
currently indeterminate.
2:07:10 PM
REPRESENTATIVE GARA noted that [proposed AS 12.55.125(i)(3)]
pertains to sexual assault in the second degree, which
stipulates in part that engaging in sexual contact with somebody
without his/her consent is a class B felony. He asked
Representative Neuman whether he had a minimum number of years
of jail time in mind for offenses involving sexual contact.
REPRESENTATIVE NEUMAN indicated that he did not.
REPRESENTATIVE GARA observed that HB 353 proposes to send
somebody to jail for four to eight years for such an offense.
He asked Representative Neuman whether he thought that was
appropriate.
REPRESENTATIVE NEUMAN responded that he thinks that that is
something for the court to decide based on circumstances
surrounding the offense; each case will have to be decided on a
case-by-case basis.
REPRESENTATIVE GARA pointed out, though, that HB 353 won't leave
that decision to the court.
2:10:34 PM
CHAIR McGUIRE asked Representative Gara whether he has a
constructive idea about how to remedy his particular concern.
REPRESENTATIVE GARA offered his opinion that Representative
Neuman doesn't recognize the ramifications of simply doubling
"everything."
REPRESENTATIVE NEUMAN responded that what he tried to provide
for proportionality in the sentencing structure, adding HB 353
is meant to send a strong message.
REPRESENTATIVE GARA explained that the court currently has the
flexibility to reduce the sentence, if it's really minor, down
to two years. He said that he agrees with the concept that the
court should be able to apply it to the factual circumstance of
a case, but HB 353 would take that flexibility away and would
mandate a minimum sentence of at least four years.
CHAIR McGUIRE explained that what's difficult in establishing
mandatory minimum sentences is that [legislators] don't get the
opportunity to sit as judges in front of each of these cases
with unique circumstances. Instead [the committee] is simply
saying what the minimum sentence will be in every circumstance
and not allowing a judge or a jury to consider other factors.
REPRESENTATIVE KOTT referred to [proposed AS 12.55.125(i)(4)],
which pertains in part to sexual assault in the third degree.
He noted that the proposed maximum term of imprisonment is "not
more than 30 years", triple the current maximum sentence.
2:17:43 PM
REX SHATTUCK, Staff to Representative Mark Neuman, Alaska State
Legislature, one of the prime sponsors of HB 353, noted on
behalf of Representative Neuman that one of the key things that
Legislative Legal and Research Services pointed out during
drafting was that proportionality was critical, and so doubling
the minimum sentencing range was the only scheme that they could
come up with that allowed proportionality throughout.
REPRESENTATIVE GARA remarked that he doesn't "buy" Legislative
Legal and Research Services' analysis about proportionality. He
said he doesn't think that the sentences for all sexual offenses
should be increased.
MR. SHATTUCK noted that at the present time, the courts have
acknowledged present presumptive sentencing as acceptable.
REPRESENTATIVE GARA remarked that how long someone is sentenced
for a certain kind of conduct is a policy call. He added that
just because the sentence for the most significant crime was
increased, it doesn't have to be increased for the least
significant crime.
CHAIR McGUIRE interjected that those are two separate arguments.
She said that if there are proportionality arguments that the
drafter is advancing, the committee should know what those are.
However, if it's a policy call that's being made, that's a
separate issue. She asked whether judges in Alaska are failing
to provide serious sentences for very serious [sexual]
predators. If such is the case, that's where mandatory minimum
sentencing plays a role.
2:24:20 PM
REPRESENTATIVE COGHILL requested information regarding past
sentencing and the use of sentencing mitigators. If the courts
are continually using mitigators or aggravators, the legislature
should know about it.
REPRESENTATIVE GARA distributed a chart which lists what HB 353
would do in the various crimes compared to what has been done
over the last few years as the sentencing laws have changed. He
informed the committee that he had talked to State of Alaska
employees who work in the prison system with sexual predators,
and his understanding is that in the youth system, the success
rate of treating people so that they don't reoffend is around 30
percent.
2:29:32 PM
SUSAN A. PARKES, Deputy Attorney General, Criminal Division,
Office of the Attorney General, Department of Law (DOL),
informed the committee that the DOL supports increasing
sentences for sex offenders mainly for the reason that in
general, it appears that rehabilitation efforts don't work; [the
bill] will make the streets safer, though the debate on what
would be the right number of years to sentence someone for the
aforementioned crimes is a policy call for the legislature to
make. The DOL has been working with Senators Bunde and Guess on
SB 218, which also increases felony sentences for sexual
offenses, and the proportionality has been discussed.
MS. PARKES explained that proportionality means that as the
offenses become more serious, the penalties becomes more
serious, and so the DOL is concerned that the legislature keep
in mind how increasing sentences for sexual offenses interacts
with the sentencing for other offenses. For example, murder in
the second degree has a mandatory minimum sentence of 10 years
and a maximum sentence of 99 years. When the legislature
decides on a minimum number of years for an unclassified sexual
offense, there needs to be a clear policy statement made on why
the legislature feels that that offense should have a higher
mandatory minimum sentence than the crime of murder in the
second degree. Those are the issues the court is going to be
looking at in reviewing the bill's increased sentences.
MS. PARKES noted that the sentencing for class B and C felony
sexual offenses needs careful review because those offenses
involve a lot of different conduct, including consensual conduct
and teacher/student relationships. The DOL's recommendation,
therefore, is to have a wide range of sentences.
CHAIR McGUIRE requested that Ms. Parkes provide the committee
with an official response, including suggestions. Chair McGuire
asked Ms. Parkes whether she is more comfortable with [SB 218]
or HB 353.
MS. PARKES expressed her support for the polygraph provision of
SB 218 that is now included in HB 353, Version G. She opined
that that's a very important provision because it's "the one
little bit of preventative medicine."
CHAIR McGUIRE requested the guidance of Ms. Parkes in tracking
what things the DOL believes are better in one bill versus the
other.
REPRESENTATIVE GARA remarked that just because the sentence for
the most serious [crime] is increased, that doesn't mean that
the sentence for the least serious has to be increased.
MS. PARKES concurred.
REPRESENTATIVE GARA mentioned that he is sympathetic to giving
judges more discretion in increasing the ranges for the more
serious crimes. He added that he'd be more sympathetic to a
bill that increased the [upper ranges of the minimum mandatory
sentences], but left the [lower ranges] as they are currently.
2:36:41 PM
CHAIR McGUIRE suggested that [the committee] may want to
[increase the sentences] for more serious offenses and maintain
the judge's discretion to use the current sentencing range for
less serious offenses.
REPRESENTATIVE COGHILL concurred, adding that as a result of the
range of issues [the court] will be dealing with, a one-size
answer won't fit all circumstances.
REPRESENTATIVE GARA noted that even the least serious [sexual
offenses the bill addresses] are still felonies.
2:39:39 PM
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), informed the committee
that the DOC supports HB 353 and is pleased with the provisions
that have been [inserted] into Version G. She clarified that
HB 353 in no way impacts juvenile sex offenders, rather it only
impacts adult sex offenders. With regard to treatment issues,
it's very difficult to determine what works and what doesn't
work with particular offenders. Adult sex offenders are an
incredibly diverse group - low-risk, medium-risk, high-risk,
extremely high-risk. The danger that a sex offender presents to
society is based on how many crimes he/she will commit, or may
commit, or has committed, and the harm he/she does to the
victim, which can range drastically. She relayed that there are
things the DOC is able to do to mitigate that risk upon release,
one of them being treatment in the community with intensive
supervision, including using the polygraph as a component of
treatment to try to control and alter the behavior of offenders.
She added that this is "very, very difficult to do."
MS. PARKER remarked that there has been some success with lower-
risk offenders or offenders who are highly motivated to change.
Those who are not motivated to change are much more difficult to
influence. Most sex offender treatment providers will never say
that treatment will cure a sex offender, because it's not
possible. A sex offender is engaged in a relapse prevention
plan and cognitive-behavioral [therapy]. Increasing the
mandatory minimum sentences for repeat Class A and unclassified
felony sex offenders is how the public is protected. With
lower-risk sex offenders, there's a chance that current
prevention programs that focus specifically on those offenders
will be much more cost-effective for the state.
2:43:16 PM
MS. PARKER, in response to a question, assured the committee
that [the polygraph testing] referred to in the bill will not be
used in legal proceedings; polygraph testing will only be used
for post-conviction sex offender supervision and management in
the community. In response to comments, she explained that it
will be used similar to the way urine analysis is used in
substance abuse treatment. It's to verify what is happening in
treatment, whether conditions are being met, and to determine if
any relapse behavior is occurring or whether the sex offender is
engaging in high-risk behaviors; in this way the DOC will be
able to intervene more quickly and get the offender back on
track, or increase the number of visits or treatment sessions if
the DOC feels that such is warranted.
2:45:46 PM
CHAIR McGUIRE announced that committee will hold HB 353
[Version G] over, and requested a presentation regarding the
polygraph program and how the DOC intends to implement it as a
part of HB 353.
HB 363 - ADDITIONAL JUDGES FOR THIRD DISTRICT
[Contains brief mention of SB 237, companion bill to HB 363.]
2:46:34 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 363, "An Act increasing the number of superior
court judges designated for the third judicial district, to
provide additional superior court judges at Anchorage, Palmer,
and Kenai; and providing for an effective date."
2:47:00 PM
SUSAN A. PARKES, Deputy Attorney General, Criminal Division,
Office of the Attorney General, Department of Law (DOL), relayed
that after visiting the state's judicial district offices, the
attorney general was moved to request introduction of HB 363, a
bill that proposes to add four superior court judges to the
third judicial district: one judge each for Kenai and Palmer,
and two judges for Anchorage. She went on to briefly describe
how backlogs in any part of Alaska's judicial system create
backlogs in all parts of the system, though some things are not
easy to quantify, how the increasing complexity of cases and
evidence is contributing to increases in the workloads of all
who play a part in the judicial system, and listed various types
of cases that the system now deals with.
MS. PARKES said that although superior court caseloads have
increased, as have the staffing levels in other parts of the
criminal justice system, there has not been a commensurate
increase in court resources, and this has resulted in a trailing
trial calendar wherein there are more cases than there are
judges to try the cases. She pointed out that although most
cases settle, they won't unless there is a threat that a case
will go to trial. Since 1995, the felony case referrals for the
superior court have increased over 60 percent whereas
misdemeanor referrals have only increased 15 percent;
additionally, felony petitions to revoke probations have
increased [in number] by 148.
MS. PARKES explained that the number one priority is the judge
slated for Palmer, which has experienced an explosion in both
population and crime. For example, in 2002 there were 595
felony referrals in Palmer, whereas in 2005, that number
increased to 869. Furthermore, not only has the number of cases
increased in Palmer, so has the seriousness of those cases; in
2005 there were 12 homicide referrals as well as other referrals
for manslaughter and negligent homicide. Those 12 homicide
cases are more than the two judges currently in Palmer could try
in a year.
2:55:39 PM
MS. PARKES noted that currently there are 161 superior court
cases set for trial in Palmer; that 167 felony cases are set for
trial in Kenai; and that the district attorney in Anchorage can
supply the committee with statistics regarding the 3rd Judicial
District - for example, 17 homicide and 5 manslaughter and
negligent homicide cases have been referred to that court. Ms.
Parkes, in conclusion, urged the committee to support HB 363.
REPRESENTATIVE GARA referred to what he termed "the speedy trial
rule," and asked how adding more judges will reduce the
aforementioned backlog.
MS. PARKES explained that currently, most people have "waived a
lot of time" and a lot of people are willing to "waive time,"
and so most cases don't go to trial within 120 days anyway.
Therefore the aforementioned trailing calendars are "rolling"
cases, and so if there were more judges available those cases
would get resolved then and there.
REPRESENTATIVE GARA asked whether people are "doing open
waivers."
MS. PARKES said that usually "limited" waivers are used, but if
a defense attorney files a motion to suppress, for example, and
the judge says he/she won't have the time to hear that motion
for another three months, then the defendant is forced to waive
those three months because it is his/her motion.
REPRESENTATIVE COGHILL noted that Fairbanks is not slated to get
one of the aforementioned judges, and that Bethel is part of
that same judicial district. He asked whether the "preemption
process" creates calendaring problems in Anchorage, whether
"minimizing" [the preemption process] would provide "calendar
relief," and whether [the preemption process] is really helping
the courts administer justice.
MS. PARKES noted that the [SB 237] contains an amendment adding
a judge for Fairbanks, and concurred that Bethel does fall
within that judicial district's jurisdiction. She offered her
understanding that both side of a case, in both criminal cases
and civil cases, can "preempt" a judge. In situations where
each side "bumps" a judge in locations where there are only two
judges, then a third superior court judge must be [called in].
And while Fairbanks "covers" Bethel, Anchorage covers both
Palmer and Kenai. Although the concept of doing away with the
preemption process [has been discussed], practitioners appear to
like it and so would be opposed to getting rid of it; she
acknowledged that the use of this process can be tactical.
CHAIR McGUIRE pointed out, though, that its use is legitimate
when a judge may have a potential conflict of interest.
REPRESENTATIVE COGHILL opined that adding judges simply adds
complexity to the situation, and indicated that he is
sympathetic to the needs of the courts but is also questioning
whether there are policy issues that could be addressed as well.
CHAIR McGUIRE said she doesn't sense any opposition to HB 363.
LEONARD M. LINTON, JR., District Attorney, 3rd Judicial
District(Anchorage), District Attorneys, Department of Law
(DOL), in response to a question, simply indicated that he has
no objection to the passage of HB 363.
3:03:54 PM
REPRESENTATIVE GARA suggested that they alter the bill such that
two of the aforementioned judges would be appointed by the
current governor and the other two would be appointed by the
next governor.
REPRESENTATIVE COGHILL expressed disfavor with that concept.
REPRESENTATIVE KOTT asked Representative Coghill whether he
wanted to alter the bill such that another judge would be added
to Fairbanks.
REPRESENTATIVE COGHILL said he would prefer that that issue be
addressed in the House Finance Committee.
3:05:02 PM
LARRY COHN, Executive Director, Alaska Judicial Council (AJC),
asked whether the committee had received the AJC's fiscal note.
CHAIR McGUIRE confirmed that the committee does have the AJC's
fiscal note.
3:05:36 PM
REPRESENTATIVE COGHILL moved to report HB 363 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 363 was reported from the
House Judiciary Standing Committee.
ADJOURNMENT
3:05:52 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:05 p.m.
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