01/21/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB255 | |
| HB301 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 255 | TELECONFERENCED | |
| *+ | HB 301 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 21, 2008
1:06 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Ralph Samuels
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Max Gruenberg
OTHER LEGISLATORS PRESENT
Representative Andrea Doll
COMMITTEE CALENDAR
HOUSE BILL NO. 255
"An Act relating to dual sentencing of certain juvenile
offenders; amending Rule 24.1, Alaska Delinquency Rules; and
providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 301
"An Act relating to partial-birth abortions."
- MOVED HB 301 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 255
SHORT TITLE: DUAL SENTENCING
SPONSOR(S): REPRESENTATIVE(S) JOHNSON
05/04/07 (H) READ THE FIRST TIME - REFERRALS
05/04/07 (H) JUD, FIN
05/11/07 (H) JUD AT 1:00 PM CAPITOL 120
05/11/07 (H) Heard & Held
05/11/07 (H) MINUTE(JUD)
01/21/08 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 301
SHORT TITLE: PARTIAL-BIRTH ABORTION
SPONSOR(S): REPRESENTATIVE(S) KELLER, COGHILL, LYNN
01/11/08 (H) PREFILE RELEASED 1/11/08
01/15/08 (H) READ THE FIRST TIME - REFERRALS
01/15/08 (H) JUD
01/21/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE CRAIG JOHNSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 255.
TONY NEWMAN, Social Services Program Officer
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 255, and expressed support for the bill.
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
HB 255, and expressed support for the bill.
QUINLAN G. STEINER, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 255.
JOSHUA FINK, Director
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 255.
REPRESENTATIVE WES KELLER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as one of the joint prime sponsors of
HB 301.
KAREN LEWIS, Alaska Right to Life
(No address provided)
POSITION STATEMENT: Provided comments during discussion of
HB 301.
SIDNEY HEIDERSDORF, President
Alaskans for Life, Inc.
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 301.
JOHN P. MONAGLE
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 301.
DEBBIE JOSLIN, President
Eagle Forum Alaska
Delta Junction, Alaska
POSITION STATEMENT: Provided comments during discussion of
HB 301.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:06:30 PM. Representatives Samuels, Lynn,
Holmes, Coghill, and Ramras were present at the call to order.
Representative Dahlstrom arrived as the meeting was in progress.
Representative Doll was also in attendance.
CHAIR RAMRAS offered a few quotes by Martin Luther King, Jr., in
recognition of the holiday.
HB 255 - DUAL SENTENCING
1:10:42 PM
CHAIR RAMRAS announced that the first order of business would be
HOUSE BILL NO. 255, "An Act relating to dual sentencing of
certain juvenile offenders; amending Rule 24.1, Alaska
Delinquency Rules; and providing for an effective date."
1:11:04 PM
REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee
substitute (CS) for HB 255, Version 25-LS0914\E, Luckhaupt,
1/18/08, as the work draft. There being no objection, Version E
was before the committee.
1:11:29 PM
REPRESENTATIVE CRAIG JOHNSON, Alaska State Legislature, sponsor,
relayed that HB 255 [proposes an expansion of the dual
sentencing provisions of Title 47] so that those juveniles who
commit a certain class of crime can be given a chance to serve a
sentence within the juvenile justice system (JJS) but can then
be "remanded to adult court" should they not satisfy the terms
of the juvenile order. The bill provides that an individual who
has reached the age at which his/her juvenile order no longer
can be enforced but who the department feels still needs more
supervision can then be placed under adult probation. He noted
that during the interim, the issue of dual sentencing was
discussed by a "task force in Anchorage," but no consensus was
reached; one of the points discussed pertained to the age at
which a young person could also be subject to an adult sentence.
REPRESENTATIVE JOHNSON offered that the bill gives the judge
more flexibility with regard to which crimes a juvenile can
receive dual sentencing for. Under dual sentencing, a judge can
order a juvenile to participate in the JJS and impose an adult
sentence that will only be enforced if the juvenile does not
then successfully rehabilitate himself/herself via the JJS. He
relayed that initially he'd intended to expand the statutory
provisions pertaining to mandatory waivers, but the department
had expressed concern with that concept, and so HB 255 simply
addresses the provisions pertaining to dual sentencing with the
goal of providing juvenile offenders with an incentive to
complete their juvenile orders and rehabilitate themselves. The
bill gives the administration another tool by which to
rehabilitate those juvenile offenders that can be rehabilitated,
and a tool by which to further control those that can't be
rehabilitated - they can instead be dealt with as an adult
before they have an opportunity to commit another crime as an
actual adult.
REPRESENTATIVE JOHNSON, in conclusion, said:
This is a public safety issue - so many of our crimes
these days are being committed by juveniles in gang-
related incidences. So if we can get our hands on
these ... young people and work them through the
system, great. For those that we can't, it's an
opportunity for us to protect the public into the
future.
REPRESENTATIVE SAMUELS questioned whether under the bill, the
[prosecuting] attorney would still have the ability seek a
discretionary waiver instead of dual sentencing.
REPRESENTATIVE JOHNSON said the bill won't reduce the
prosecuting attorney's ability to seek a discretionary waiver
for those crimes that are deemed heinous.
REPRESENTATIVE SAMUELS asked what the appellate process would be
in such situations.
REPRESENTATIVE JOHNSON suggested that others might be better
able to address that question.
1:17:43 PM
REPRESENTATIVE HOLMES referred to Section 4 of the bill, and
noted that in part it is proposing to change the standard of
proof - from a preponderance of the evidence to clear and
convincing evidence - [that a juvenile must provide to justify a
continuance of the stay of the adult sentence], and that a court
need only find by a preponderance of the evidence that the
juvenile has committed a second offense. She asked whether,
when the juvenile commits a subsequent offense, another trial
must take place wherein the juvenile is actually convicted.
REPRESENTATIVE JOHNSON offered his understanding that if the
prosecuting attorney chose to prosecute that subsequent offense,
"that offense would be there," and that the adult sentence that
was part of the original dual sentencing procedure could be
imposed immediately while the juvenile awaits further trial.
Part of the purpose of the bill, he added, is to keep those
juveniles with a propensity to reoffend incarcerated.
REPRESENTATIVE HOLMES characterized the standard of a
preponderance of the evidence as a low threshold by which to
impose the adult sentence, particularly given that a higher
standard is being imposed on the juvenile to provide evidence
that mitigating circumstances exist.
REPRESENTATIVE JOHNSON opined that it shouldn't be difficult to
impose the adult sentence for those that [continue to] endanger
the public; in such cases, that lower threshold is justified.
Although he doesn't wish to violate anyone's rights, he
remarked, he would like to tip the scales toward protecting the
public. However, should the juvenile then be found innocent of
a subsequent offense, he surmised that the judge would then have
the discretion to again stay the adult sentence.
REPRESENTATIVE HOLMES asked why a change to the standard of
evidence the juvenile must provide is being proposed.
REPRESENTATIVE JOHNSON suggested that others might be better
able address that question as well.
REPRESENTATIVE SAMUELS offered an example in which a 15-year-old
commits murder and the prosecuting attorney chooses to pursue
dual sentencing. He asked how old that juvenile must be before
he/she is "booted out of McLaughlin [Youth Center] - ... 19 or
20?"
REPRESENTATIVE JOHNSON said that is correct, unless he/she is
victimizing other inmates or otherwise becomes a problem.
REPRESENTATIVE SAMUELS asked who determines whether the
treatment "sticks."
REPRESENTATIVE JOHNSON surmised that that is an administrative
decision that would be made by the Division of Juvenile Justice
(DJJ).
CHAIR RAMRAS characterized [dual sentencing] as an interesting
approach to a public safety issue.
REPRESENTATIVE SAMUELS, referring to his aforementioned example,
asked whether the juvenile's records would be sealed.
1:26:40 PM
TONY NEWMAN, Social Services Program Officer, Division of
Juvenile Justice (DJJ), Department of Health & Social Services
(DHSS), explained that if a juvenile succeeds in the JJS, the
juvenile goes back to court wherein it is determined that
his/her juvenile order has been satisfied and that he/she is
thus "finished." This same process would apply under dual
sentencing except that the juvenile [must then] ask the court
not to impose the previously-pronounced adult sentence. If the
department, however, feels that the juvenile hasn't succeeded in
the JJS, then it would petition the court to have the adult
sentence imposed.
REPRESENTATIVE SAMUELS questioned what criteria would be used to
make the determination of whether a juvenile has been successful
in the JJS, and who would be held accountable should that
juvenile then go on to murder someone else.
MR. NEWMAN said that the DJJ is already making such
determinations, and that DJJ treatment facilities already have
standards regarding what constitutes [success]; for example, the
DJJ considers whether the juvenile is likely to live a crime-
free lifestyle, what is in the best interest of both society and
the juvenile, and whether it is likely that any further progress
will be obtained by requiring the juvenile to remain in the
program. In addition to those considerations, every juvenile
also has an individualized treatment or probation plan outlining
goals that he/she is expected to achieve while in the JJS or
while out on probation, and these plans can be used to help
determine whether the juvenile is succeeding. Juveniles who
don't meet their goals but who must be released from the DJJ
facility because their juvenile jurisdiction is about to end
have notations made in their discharge summaries outlining that
they have failed in meeting their goals, or, for example that
they are "surface compliant" only.
MR. NEWMAN noted that currently under juvenile orders, once the
juveniles turns 19 or 20, "they're gone," and so the bill gives
the DJJ an opportunity to impose some sort of sanction on the
juveniles that continues beyond their reaching the age of 19 or
20.
1:30:09 PM
REPRESENTATIVE SAMUELS again asked whether the records of
juveniles who succeed in the JJS would be sealed.
MR. NEWMAN offered his belief that currently under the dual
sentencing provisions, court records are open to the public as
adult records.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
added that juvenile records are available to probation officers.
1:31:41 PM
REPRESENTATIVE SAMUELS questioned whether the court could look
at an adult felon's juvenile record and see that he/she
committed a similar felony crime while he/she was a juvenile and
then use that information to increase the sentence.
MR. NEWMAN said that is true for felony crimes; when a juvenile
is adjudicated on a felony, a judge, in determining mitigating
and aggravating factors, can use a previous felony adjudication
to help determine those factors.
REPRESENTATIVE SAMUELS questioned whether Alaska has a "three
strikes and you're out" law.
MS. CARPENETI explained that there is such a law, but that
juvenile adjudications don't count as a conviction. The
aforementioned law is very limited with regard to what counts as
a "strike." In response to a question, she explained that
currently there is a discretionary waiver procedure available;
the state can ask the court to consider the discretionary waiver
of a juvenile who is under the age of 18, or who is under the
age of 15 if it's a very serious crime that would otherwise be
subject to automatic waiver, into adult court. Currently the
state's dual sentencing statute only applies to one class B
felony against a person - second degree sexual abuse of a minor
- whereas HB 255 proposes to expand that statute such that it
could apply to all class B felony crimes against a person.
However, there are several steps that must occur before dual
sentencing is considered, the first of which is that the
prosecuting attorney must make the decision to request that dual
sentencing be applied to the person.
MR. NEWMAN clarified that under the bill, dual sentencing would
also be available for any felony crime against a person as long
as there is a previous adjudication or conviction for a felony
crime against a person.
MS. CARPENETI concurred.
MR. NEWMAN, in response to a question, offered that currently,
for a juvenile 15 years of age who commits a murder, there are
two processes, one of which is the discretionary waiver process,
though that isn't used very often because it presents a
difficult legal tangle with regard to determining whether the
juvenile would be amenable to treatment in the JJS; sometimes
when a discretionary waiver is sought, it is denied and the
juvenile is sent back to the DJJ, but sometimes a juvenile is
waived into the adult system and is never given the chance to
possibly succeed in the JJS. What's attractive to the DJJ about
HB 255 is that it would provide yet a third way of dealing with
such a juvenile; he/she would be allowed to spend some time in
the JJS, but if the DJJ still has concerns about him/her when
he/she turns 19 or 20, the state still has the ability to
"continue some measure of public safety and accountability on
that person for a while."
MS. CARPENETI offered her understanding that at one point the
proposal was to expand the automatic waiver provisions to
include more crimes for which juveniles would automatically be
sent into the adult justice system, but since the mission of the
DJJ is to try to rehabilitate juvenile offenders, "public safety
would really mitigate in favor of trying to work with them at an
early age," rather than just sending them to adult prison where
the chances of being rehabilitated are not as good.
1:39:26 PM
MS. CARPENETI, in response to a question, said that the DOL
supports HB 255.
REPRESENTATIVE HOLMES offered a hypothetical situation in which
a juvenile commits the crime of manslaughter, goes through the
JJS, but then reaches the point where he/she is going to "age
out" of the system. How long would the adult probationary
period be for that person, up until what age could the adult
sentence possibly be imposed, and what happens if the person
commits a subsequent lesser crime such as the crime of driving
under the influence (DUI)?
MR. NEWMAN offered that if a 15-year-old commits the crime of
manslaughter, and he/she is referred for dual sentencing - thus
receiving both an adult sentence and a juvenile order - and he
serves the standard two years for the juvenile order in the JJS,
but the DJJ then extends the order because it is not yet sure
about his/her public safety risk, he/she could stay within the
JJS until he/she reaches the age of 20. If the DJJ still has
some concerns about him/her even though he/she has reached the
age of 20, since the timeframes of the adult sentence would
already be spelled out, the DJJ could go back to court and the
judge could then decide how much of that adult sentence should
be served and in what fashion.
REPRESENTATIVE HOLMES questioned whether such a person might
simply have adult probation imposed, and, if so, for how long.
MR. NEWMAN said the person would be placed on probation, and the
length of time would depend on the parameters of the previously-
pronounced adult sentence. If the person then commits another
crime while on that adult probation, then that would be dealt
with as a new crime - "almost entirely out of the juvenile
[justice] system altogether," he added. As another example, if
a juvenile under a dual sentence is on juvenile probation and
he/she commits a serious felony assault, the DJJ could decide
whether to move the juvenile offender to the adult system, and
whether to discretionarily waive him/her [for the second crime]
if he/she is still a juvenile. Again, one of the attractive
aspects of HB 255 is that it provides the DJJ with more tools
than the existing dual sentencing statute, which is not being
used very much - only five times in the last ten years.
REPRESENTATIVE HOLMES surmised, then, that the bill gives the
court discretion with regard to probation and violations of
probation.
MR. NEWMAN concurred.
REPRESENTATIVE COGHILL asked whether plea bargaining occurs when
serious crimes are committed by juveniles, and whether such
would occur under a dual sentence.
MS. CARPENETI said she assumes that plea negotiations would
proceed in a potential dual sentence case, and that the question
of whether to proceed with a discretionary waiver or dual
sentencing would definitely be a subject of discussion and
negotiation between the prosecution, the DJJ, and the defense.
Once the dual sentence is imposed, however, the court has chosen
what adult sentence would be appropriate under the
circumstances, and so her belief, she relayed, is that there
would not be any further negotiations.
REPRESENTATIVE COGHILL indicated that he is still questioning
how the appropriate adult sentence would be determined.
1:49:29 PM
QUINLAN G. STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), mentioned that
with regard to HB 255 as a whole, he did have a chance to work
with the aforementioned task force, and so was privy to some of
the discussions that arose regarding the bill. The three main
issues raised that merited discussion were: at what age should
dual sentencing become available - currently the bill could
apply to someone as young as 12 who commits certain crimes - and
whether there is research indicating that such a decision could
not be supported for someone of that age because of brain
chemistry and brain development; whether the standard of
evidence showing an ability to be rehabilitated should be
changed to clear and convincing when a probation violation has
been established - currently, for a discretionary waiver, the
standard is still a preponderance of the evidence; and which
process, dual sentencing or discretionary waiver, is the
preferable method by which to achieve the sought-after goals.
MR. STEINER, in response to a question, said that the PDA
doesn't have a position on HB 255, but noted that one unintended
consequences could result from changing the standard of evidence
to clear and convincing, given that there is a very broad
definition of what constitutes a probation violation that could,
under the bill, result in the imposition of an adult sentence.
The juvenile would have the burden of proving that the adult
sentence should not be imposed, and so mistakes in providing
that evidence would accrue to the juvenile. With regard to the
proposed age threshold of 12, he offered his understanding that
there was some research provided during the task force meetings
addressing that issue.
1:53:18 PM
JOSHUA FINK, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), noted that a
representative from the OPA also attended the aforementioned
task force meetings, and that he concurs with Mr. Steiner's
summation of those meetings. The OPA does have some concerns,
one being that "the brain science" seems to indicate that 12-
and 13-year-olds should not be held to the same level of
culpability as an adult; furthermore, the U.S. Supreme Court has
discussed this issue in Roper v. Simmons. Another concern
pertains to changing the standard of evidence for the juvenile.
It won't be hard for the state to prove, by a preponderance of
the evidence, that a probation violation such as truancy has
occurred, but then the juvenile must prove, by clear and
convincing evidence, that that doesn't warrant having the adult
sentence imposed. This could result in more juveniles receiving
adult sentences than under current law, though that is a policy
call for the legislature to make. He offered to provide the
committee with further comments in writing regarding the PDA's
concerns.
MS. CARPENETI, referring to Section 4's proposed change to the
standard of evidence for the juvenile, said that although that
does change the burden, it is not an unintended consequence.
The rationale behind that change is that at that point in time,
the juvenile would have already been given both a juvenile
sentence and an adult sentence, and the DJJ doesn't petition for
imposition of the adult sentence lightly and wouldn't do it for
simple truancy, for example. Again, the whole mission of the
DJJ is to get a child into a position where he/she can become a
productive member of society. When the DJJ does decide to
petition to have the adult sentence imposed and when it is found
that the juvenile has violated a condition of his/her probation,
the juvenile is then asking for yet another chance. Changing
the standard is a way of saying to the juvenile that he/she has
already had a couple of chances and so he/she must make an
effort to convince the DJJ that he/she really will do well in
the JJS; at that point the juvenile ought to be able to clearly
articulate his/her request for another chance, she opined. The
standard of clear and convincing evidence is just a little bit
higher than a preponderance of the evidence and no where near as
high as the criminal standard of beyond a reasonable doubt.
1:56:31 PM
MR. NEWMAN assured the committee that the DJJ does not take the
concept of moving juveniles into the adult system lightly - the
reward and the mission of the DJJ are to keep juveniles out of
the adult criminal system. So the fear that mere probation
violations such as truancy or being late for a probation
appointment could result in an imposition of an adult sentence
[is unfounded] because that is not the intention of the DJJ.
With regard to crimes, he went on to say, the bill provides that
if a juvenile commits either a felony or a misdemeanor involving
injury to a person or the use of a deadly weapon, the DJJ can
seek to have the adult sentence imposed. However, there are a
whole range of crimes that don't fit within those specific
categories but that could still represent a public safety
concern to the DJJ. For example, if a juvenile under dual
sentence for the crime of killing someone while drunk is
arrested for DUI while on probation, although that DUI is not a
felony, it is still cause for concern. Or, as another example,
if a juvenile sex offender under dual sentencing is released and
a condition of his/her probation is that he/she may not spend
time with small children but is then found on a playground in a
daycare center, although that specific activity is not a crime,
it is a probation violation and is cause for concern.
CHAIR RAMRAS asked how many juveniles move through the JJS
annually.
MR. NEWMAN said that annually the DJJ is referred between 5,000-
6,000 juveniles, with the majority of those being "adjusted
out," and with a majority of those that do enter a court process
being held on juvenile probation in their homes and communities.
The McLaughlin Youth Center currently has about 200-250 beds,
and there are about 350 juveniles around the state being held in
secure treatment facilities.
CHAIR RAMRAS questioned whether a juvenile has to be
incarcerated before being subject to dual sentencing.
MR. NEWMAN explained that any juvenile that is alleged to have
committed one of the listed offenses could be subject to dual
sentencing.
REPRESENTATIVE SAMUELS asked how many discretionary waiver
proceedings have taken place since that provision was adopted.
MR. NEWMAN said he's found record of nine juveniles who were
discretionarily waived, though more were referred for
discretionary waiver.
2:01:47 PM
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 255.
MR. NEWMAN, in response to a question, said that the DJJ
supports HB 255.
[HB 255, Version E, was held over.]
HB 301 - PARTIAL-BIRTH ABORTION
2:03:17 PM
CHAIR RAMRAS announced that the final order of business would be
HOUSE BILL NO. 301, "An Act relating to partial-birth
abortions."
2:03:45 PM
REPRESENTATIVE WES KELLER, Alaska State Legislature, speaking as
one of the bill's joint prime sponsors, indicated that HB 301 is
tailored to meet the intent of federal law; that it defines the
term, "partial-birth abortion" using [some of] the language
currently in federal law; and that 36 states currently restrict
partial-birth abortions, which have been characterized as
inhumane and brutal.
REPRESENTATIVE COGHILL, speaking as one of the bill's joint
prime sponsors, offered his understanding that the language in
federal law has been considered by the U.S. Supreme Court, and
that existing Alaska law restricting partial-birth abortions has
not been enforced. House Bill 301 will help Alaska meet the
federal court's standard and put Alaska's law in the forefront
again, and though that could lead to challenges, he opined,
[adoption of HB 301] still constitutes good public policy. He
noted that members' packets contain one proposed amendment.
2:07:56 PM
KAREN LEWIS, Alaska Right to Life, first relayed that Alveda
King, the niece of Martin Luther King, Jr., was the keynote
speaker at her organization's 2007 Proudly Pro-Life Dinner last
November and told participants that had her uncle been alive he
would have spoken against "the injustices that are being
inflicted on the unborn children in our nation" and that she
believes abortion is the present-day human rights issue. Ms.
Lewis said it is difficult for her to understand why and how the
nation continues to allow the "brutal and merciless slaughter of
our most precious resource - our children." She offered her
understanding that a little over 150 years ago, the U.S. Supreme
Court deemed African Americans as not being fully human, and
that Native Americans were systematically slaughtered with tax
funds; thus she is not very surprised to "see what's going on
now with the killing of our babies." She noted that as of
tomorrow, Roe v. Wade will have been in effect for 35 years, and
offered her understanding that about 50 million "pre-born"
children have been killed at the hands of their mothers and
hired abortionists. In conclusion, she said she appreciates the
[committee hearing] HB 301 "as a very good piece of
legislation."
2:10:10 PM
SIDNEY HEIDERSDORF, President, Alaskans for Life, Inc., relayed
that his organization supports HB 301 as well as all efforts to
bring Alaska statutes in line with abortion restrictions as
permitted by the courts. He added:
We are opposed to partial-birth abortion - it's a
gruesome, horrifying procedure. However, this is not
why we oppose it. We oppose it because it kills a
baby. And there is no moral difference, really,
between a partial-birth abortion and any other
abortion. What sets partial-birth abortion apart is
that it's a procedure which is so horrifying that ...
you would have rights to hope that even abortion
supporters would condemn it. Simply reflecting on
what it is should be adequate to convince anyone that
this is a procedure which should be prohibited.
Supporting it really is an effort to defend the
indefensible. Partial-birth abortion really is
virtual infanticide.
So we think it shouldn't be a controversial issue,
really. Sadly, in many instances, we have been
mistaken and not fully appreciating the commitment
that some individuals have to abortion regardless of
the circumstances of the pregnancy. This is simply
reaping, I believe, the harvest of Roe v. Wade, which
legalized abortion at any stage of pregnancy for any
reason or for no reason. So we need to have this ban
enforced if we want to maintain at least some
semblance in our society as a civil society when it
comes how we treat the most defenseless members of the
human family. So we thank the [joint prime] sponsors
for this proposed legislation and we ask for favorable
consideration by this committee. Thank you very much.
2:12:46 PM
JOHN P. MONAGLE said that no one can convince him that a fetus
is anything other than a human being - a baby - that is being
killed [via abortion], and so anything that can be done to stop
"this crime" should be done. In conclusion, he said he supports
[HB 301].
2:13:51 PM
DEBBIE JOSLIN, President, Eagle Forum Alaska, after thanking the
committee for hearing HB 310 and the joint prime sponsors for
introducing it, characterized it as "a good thing." She offered
her understanding that there was broad, bipartisan support for
passing the federal partial-birth abortion ban, perhaps in part
due to the publicity highlighting what is actually entailed in
such a procedure. It really isn't a pretty way to kill an
unborn baby, she remarked; it is particularly gruesome. She
offered her understanding that the U.S. Supreme Court has
already ruled that it is constitutional to ban this form of
abortion. In conclusion, she urged the committee to pass HB 301
without amendments, surmising that it will merely align Alaska
law with "the U.S. Constitution."
CHAIR RAMRAS, after ascertaining that no one else wished to
testify, closed public testimony on HB 301.
2:16:30 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 1,
labeled 25-LS1139\C.1, Kurtz, 1/21/08, which read:
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. AS 18.16.050(a) is amended to read:
(a) Notwithstanding compliance with AS 18.16.010,
a person may not knowingly perform a partial-birth
abortion unless continuation of the pregnancy is
likely to result in the pregnant woman's death or
poses a substantial risk of permanent injury to the
pregnant woman's physical or mental health [A PARTIAL-
BIRTH ABORTION IS NECESSARY TO SAVE THE LIFE OF A
MOTHER WHOSE LIFE IS ENDANGERED BY A PHYSICAL
DISORDER, ILLNESS, OR INJURY AND NO OTHER MEDICAL
PROCEDURE WOULD SUFFICE FOR THAT PURPOSE]. Violation
of this subsection is a class C felony."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
CHAIR RAMRAS objected [for the purpose of discussion].
REPRESENTATIVE HOLMES noted that Amendment 1 proposes to amend
AS 18.16.050(a), a provision of statute not currently included
in HB 301, which just changes the definition of "partial-birth
abortion". As currently written, AS 18.16.050(a) contains an
exception to the restriction on partial-birth abortion, and
Amendment 1 would change the wording of that exception such that
a partial-birth abortion could be performed not only if the life
of the mother is threatened but also if there is a substantial
risk of permanent injury to her physical or mental health. She
offered her belief that including such language is critical.
CHAIR RAMRAS questioned what constitutes "mental health".
REPRESENTATIVE HOLMES offered: "The requirement of it being a
... substantial risk of permanent injury applies to both the
physical and mental health aspects; there are cases in which it
could be found that it would cause severe trauma. I don't know
the exact medical definition."
REPRESENTATIVE COGHILL said he objects to Amendment 1, though
likes the inclusion of the words "permanent injury". He opined
that Amendment 1 would soften the effect of HB 301, and noted
that it will be hard to substantiate a potential permanent
mental health problem. He offered his belief that the life that
is healthy needs to be protected, and that physical and mental
injury can probably be repaired, whereas killing "a child" is
irreparable.
2:21:04 PM
REPRESENTATIVE LYNN, speaking as one of the bill's joint prime
sponsors, opined that life is precious, whether it be the
mother's or the child's, and so both should be saved whenever
possible. He asked how often "this situation" has occurred, and
whether current statute contains a definition of mental health.
REPRESENTATIVE COGHILL noted that mental health disorders are
described in the [Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV)], and surmised that as used
in Amendment 1, the term, "mental health" could fall under that
code, which he characterized as very broad.
REPRESENTATIVE HOLMES explained that the language of Amendment 1
was derived from Colorado and Delaware state statutes.
REPRESENTATIVE DAHLSTROM relayed her belief that if the child in
the womb is of the size described in the bill, then a Cesarean
section could be performed - instead of a partial-birth abortion
- and the child could then be given up for adoption. If the
steps outlined in the bill have to be taken in order to kill the
unborn child, then that child is probably capable of living in
an incubator and thus wouldn't have to be killed. She said she
opposes Amendment 1.
REPRESENTATIVE HOLMES offered that the U.S. Supreme Court has
already debated, in two cases, whether there needs to be a
"health of the mother" exception in "a statute like this," and
whether such a procedure is ever medically necessary to save and
protect the health of the mother. In both cases there was a lot
of serious debate among the medical community on this issue, and
this debate is ongoing. Even if the court does find Alaska's
existing exception to be adequate, because the debate is still
so active, it may not be the right decision; therefore, she
remarked, "I have to come down on the side of allowing a health
exception." The language of Amendment 1 is not meant to be a
"light" standard, she assured the committee, and if it ever were
deemed medically necessary to perform a partial-birth abortion
in order to preserve a woman's health, it would be important to
have included such an exception.
REPRESENTATIVE DAHLSTROM pointed out that even during a "normal"
child birth, complications can occur resulting in problems that
doctors may or may not be able to fix. She relayed her
knowledge of one woman who'd chosen to give birth and then to
give the baby up for adoption because she felt she couldn't care
for it properly, and offered her belief that any expectant
mother in a similar situation would prefer to give birth - via a
Cesarean section if necessary - and then let the baby be
adopted. She noted that when her mother was pregnant with her
brother during the Rubella epidemic, the doctors advised her to
have an abortion; her mother instead chose to give birth to her
brother, and although he was born prematurely and had a hearing
problem, he was not "the monster that they said he was going to
come out to be." Although she understands the intent of
Amendment 1, she relayed, she feels that delivering the baby via
Caesarean section is an alternative to a partial-birth abortion.
2:34:23 PM
REPRESENTATIVE COGHILL noted that existing AS 18.16.050(a)
already references the life of the mother and protecting the
life of the mother - in situations wherein only one may live,
the mother gets priority. Historically, he surmised, before Roe
v. Wade, it was the other way around - if they had to make a
choice, doctors would try to save the baby and not the mother.
Statute currently says that the life of the mother has value,
and so it is important, he opined, to also say, wherever
possible, that the life of the child has value as well; one
obvious place to make such a policy statement is in the statute
restricting the use partial-birth abortions, because to him,
"that's a life," regardless of whether it starts at conception.
House Bill 301, he indicated, is the best that can be done at
present.
REPRESENTATIVE HOLMES argued that just because the U.S. Supreme
Court has said "we can" doesn't mean they should. Noting that
she puts a very high value on the life and health of the mother,
and given that the debate regarding whether such a procedure is
ever necessary is still ongoing, she said she thinks that
including a "life and health of the mother" exception is
important.
2:38:48 PM
A roll call vote was taken. Representative Holmes voted in
favor of Amendment 1. Representatives Lynn, Dahlstrom, Coghill,
Samuels, and Ramras voted against it. Therefore, Amendment 1
failed by a vote of 1-5.
REPRESENTATIVE KELLER, in conclusion, said he appreciates that
Representative Holmes discussed her amendment with him
beforehand.
REPRESENTATIVE LYNN relayed that he is pro-life and believes in
protecting human life from the moment of conception until
natural death occurs. House Bill 301 addresses the issue of
infanticide, he opined, because for all practical purposes,
during a partial-birth abortion, the baby has already been born.
In conclusion, he said that life is precious and needs
protection, and that he supports HB 301 as doing "just that."
REPRESENTATIVE HOLMES reiterated her belief that the health of a
woman is [paramount], and said she is disappointed that her
proposed exception is not included in the bill and will
therefore be objecting to passage of the bill.
2:41:41 PM
REPRESENTATIVE DAHLSTROM moved to report HB 301 out of committee
with individual recommendations [and the accompanying zero
fiscal note].
REPRESENTATIVE HOLMES objected.
A roll call vote was taken. Representatives Dahlstrom, Coghill,
Samuels, Lynn, and Ramras voted in favor of reporting HB 301
from committee. Representative Holmes voted against it.
Therefore, HB 301 was reported out of the House Judiciary
Standing Committee by a vote of 5-1.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:43 p.m.
| Document Name | Date/Time | Subjects |
|---|