Legislature(1995 - 1996)
03/14/1995 08:07 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 14, 1995
8:07 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Scott Ogan, Vice Chair
Representative Joe Green
Representative Ivan
Representative Brian Porter
Representative Caren Robinson
Representative Ed Willis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 199: "An Act creating the crime of criminal transmission of
HIV."
PASSED OUT OF COMMITTEE
* HB 2 "An Act allowing courts to require certain offenders as
a special condition of probation to complete a boot camp
program provided by the Department of Corrections; making
prisoners who complete the boot camp program eligible for
discretionary parole; providing for incarceration of
certain nonviolent offenders in boot camps operated by
the Department of Corrections; allowing the Department of
Corrections to contract with a person for an alternative
boot camp program; creating the Boot Camp Advisory Board
in the Department of Corrections; and providing for an
effective date."
HEARD AND HELD
HSTA - 03/14/95
* HB 201: "An Act relating to prisoner litigation, post-conviction
relief, sentence appeals, amending Alaska Administrative
Rule 10, Alaska Rules of Appellate Procedure 204, 208,
209, 215, 521, 603, and 604, and Alaska Rules of Criminal
Procedure 11, 33, 35, and 35.1; and providing for an
effective date."
SCHEDULED BUT NOT HEARD
HSTA - 03/14/95
* HB 234: "An Act relating to administrative adjudication under the
Administrative Procedure Act."
SCHEDULED BUT NOT HEARD
(* First public hearing)
WITNESS REGISTER
REPRESENTATIVE SCOTT OGAN
Alaska State Legislature
State Capitol Building, Room 409
Juneau, AK 99801
Telephone: 465-3878
POSITION STATEMENT: Provided Sponsor Statement on HB 199
ALLEN KINGMAN, Legislative Aide to Representative Scott Ogan
Alaska State Legislature
State Capitol Building, Room 409
Juneau, AK 99801
Telephone: 465-3878
POSITION STATEMENT: Provided information for HB 199
BARBARA BRINK, Deputy Public Defender
Alaska Public Defender Agency
Department of Administration
900 W. 5th Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Answered question via teleconference on HB 199
JERRY SHRINER, Special Assistant
Office of the Commissioner
Department of Corrections
240 Main Street, Suite 700
Juneau, AK 99801
Telephone: (907) 465-4640
POSITION STATEMENT: Provided legal information for HB 199 and
HB 2
AL ZANGRI, Chief
Bureau of Vital Statistics
Department of Health and Social Services
P.O. Box 110675
Juneau, AK 99801-0675
Telephone: (907) 456-8606
POSITION STATEMENT: Testified against HB 199
MARGOT KNUTH, Assistant Attorney General
Attorney General's Office
Department of Law
Dimond Courthouse, 7th floor
Juneau, AK 99801-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided information on HB 199
REPRESENTATIVE ED WILLIS
Alaska State Legislature
State Capitol Building, Room 400
Juneau, AK 99801-1182
Telephone: (907) 465-2199
POSITION STATEMENT: Provided Sponsor Statement for HB 2
PREVIOUS ACTION
BILL: HB 199
SHORT TITLE: CRIMINAL TRANSMISSION OF HIV
SPONSOR(S): REPRESENTATIVE(S) OGAN
JRN-DATE JRN-PG ACTION
02/27/95 487 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 487 (H) STATE AFFAIRS, JUDICIARY, FINANCE
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: HB 2
SHORT TITLE: BOOT CAMP FOR NONVIOLENT OFFENDERS
SPONSOR(S): REPRESENTATIVE(S) WILLIS,Rokeberg
JRN-DATE JRN-PG ACTION
01/06/95 20 (H) PREFILE RELEASED
01/16/95 21 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 21 (H) STA, JUD, FIN
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: HB 201
SHORT TITLE: PRISONER LITIGATION AND APPEALS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
02/27/95 488 (H) READ THE FIRST TIME - REFERRAL(S)
02/27/95 488 (H) STATE AFFAIRS, JUDICIARY, FINANCE
02/27/95 488 (H) 3 ZERO FISCAL NOTES (LAW, CORR, DPS)
02/27/95 488 (H) 2 ZERO FISCAL NOTES (ADM)
02/27/95 488 (H) GOVERNOR'S TRANSMITTAL LETTER
03/07/95 (H) STA AT 08:00 AM CAPITOL 102
03/07/95 (H) MINUTE(STA)
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
BILL: HB 234
SHORT TITLE: ADMINISTRATIVE ADJUDICATIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
JRN-DATE JRN-PG ACTION
03/06/95 590 (H) READ THE FIRST TIME - REFERRAL(S)
03/06/95 590 (H) STATE AFFAIRS, JUDICIARY
03/06/95 591 (H) 14 ZERO FISCAL NOTES (ADM, DEC, F&G)
03/06/95 591 (H) (DHSS, LABOR, LAW, DPS, DOTPF)
03/06/95 591 (H) (4-DCED, 2-DOE)
03/06/95 591 (H) GOVERNOR'S TRANSMITTAL LETTER
03/08/95 665 (H) ZERO FISCAL NOTE (DNR) 3/8/95
03/14/95 (H) STA AT 08:00 AM CAPITOL 102
ACTION NARRATIVE
TAPE 95-25, SIDE A
Number 000
REPRESENTATIVE JEANNETTE JAMES called the meeting to order at 8:07
a.m. The members present at the call to order were Representatives
Green, Ivan, Porter, Robinson and Willis. Representative Ogan
arrived a few minutes after the roll call.
CHAIR JAMES asked Representative Ogan to refresh their memories
about HB 199. She also mentioned that Barbara Brink was on
teleconference from Anchorage to testify.
HSTA - 03/14/95
HB 199 - CRIMINAL TRANSMISSION OF HIV
REPRESENTATIVE SCOTT OGAN said they had done some work over the
weekend on HB 199 and handed out a committee substitute.
CHAIR JAMES said the problem with introducing a committee
substitute, then, was that the committee members needed time to
think over the changes. She said they would hear the bill but
would probably hold it in committee.
REPRESENTATIVE OGAN agreed, then read the sponsor statement for HB
199.
"This bill is simple. A person who knowingly has HIV and
commits an act that is known to transmit HIV to others,
is guilty of a Class A felony.
"Acts that will be illegal will include sexual contact,
deliberately exposing someone to bodily fluids, donating
organs or blood, and using nonsterile devices and
needles.
"The reality of this issue is that if a person is
unknowingly exposed to this virus, it is likely to be a
death sentence. People infected with HIV have a grave
responsibility to the people they interact with. There
are many people with high risk behaviors infected with
HIV. These people continue to engage in this behavior,
which is sentencing unknowing victims to death. Reckless
disregard for another person's life is a crime in any
other case. To deliberately infect someone with HIV
should be a crime in Alaska. To know one's self is
infected, and continue to engage in high risk behaviors
should be legally considered a deliberate act of
attempted murder.
"This law would provide some recourse for people
involuntarily exposed to HIV, as well as provide some
protection to unsuspecting people with high risk
behaviors. The largest single group of people acquiring
this disease is young people. Often they are impulsive
and reckless. Once the word gets around that HIV
transmission is a crime, this reckless behavior should
dramatically decline.
Number 103
REPRESENTATIVE BRIAN PORTER asked if Representative Ogan could tell
the committee what the differences were in the CS.
Number 110
REPRESENTATIVE OGAN said that on page 2 of the CS, line 31, they
added "or another identified caustic agent of Acquired Immunity
Deficiency Syndrome." The reason for this addition was that they
worry about mutations of this virus, and that any other viruses
discovered in the future, besides HIV, are also covered in the law.
Page 3, line 2, gave a definition to intimate sexual contact.
Sexual contact means "Sexual penetration or any sexual contact in
which the body of one person is exposed to the body fluid of
another." They based these changes on conversations Allen Kingman
had with Illinois prosecutors, and others who have had a similar
law on their books. He noted that the Illinois bill was
challenged in the Illinois Supreme Court, and they appealed it to
the U.S. Supreme Court. The U.S. Supreme Court would not hear it,
so it has withstood the constitutional test. He thought it would
be prudent to include more descriptive language so there would be
less possibility of somebody challenging it. They included the
Compensation Victims of Crime Compensation Board and added criminal
transmission of HIV to that list.
Number 162
REPRESENTATIVE ED WILLIS asked what other states besides Illinois
have this legislation in law now.
ALLEN KINGMAN, Legislative Aide to Representative Ogan, answered
Representative Willis's question saying there are at least 26 other
states with a statute similar to HB 199 on their books.
CHAIR JAMES recognized Barbara Brink on teleconference. Ms. Brink
asked to be heard by telephone from Anchorage to answer a question
she was unable to answer at the last meeting.
Number 218
BARBARA BRINK, Deputy Public Defender, Department of
Administration, answered a question she had been asked with regard
to what laws Alaska has on the books that provide some sort of
penalty for failure to abide by a quarantine. The question was
asked in the context of a smallpox quarantine. In researching
this, Ms. Brink found there was a law that provides for a
quarantine in the case of active pulmonary tuberculosis; AS
18.15.136. It says if a person is extremely infectious and no
other reasonable means can be provided to prevent other people from
being exposed, the infected person can be quarantined. A
violation of a quarantine can be charged as a Class A Misdemeanor,
and the sentence can be up to one year in jail and a $5,000 fine.
MS. BRINK knew of only one actual case when this quarantine law was
used. The need to use the law arose over a case of tuberculosis
this fall in Kotzebue. She said there are problems with the law,
for it does not provide for a hearing and an opportunity to contest
the question about whether a quarantine is appropriate. The State
Department of Epidemiology only uses the law as a last resort,
however. Its use is to encourage medically safe behavior. This
was the reason the law was used in Kotzebue, to insure that an
individual received their daily medication. There was no pursuit
of criminal charges once that purpose was accomplished. It was,
basically, a device used to encourage a change in behavior. Nobody
wanted to put a sick person in jail, or to fine them.
MS. BRINK validated Mr. Kingman's statement that 26 states
currently have some sort of HIV transmission law on their books.
Illinois was the only state she found, however, that had actually
litigated the law to the end. Challenges on similar grounds are
being raised in other states, but she pointed out that the Alaska
Constitution would provide different standards than the Illinois
Constitution or the U.S. Constitution. In 1989, the American Bar
Association (ABA) stated that civil and criminal remedies are
available to prosecute reckless or intentional transmission, so HIV
specific sanctions should only play a limited role when a state
attempts to combat the HIV epidemic. A resolution, based on the
same concerns, which were raised in this committee at the last
hearing, was passed by the American Bar Association. She said the
criminal system is not the best fit for controlling risky conduct.
It contains the potential for abuse due to current public
sentiment, problems with respecting and enforcing constitutional
barriers, and the confidentiality of medical records. The ABA
has, therefore, discouraged the use of criminal sanctions in
combating HIV.
CHAIR JAMES thanked Ms. Brink for her input and asked if the
committee had any further questions of her. Ms. Brink said she
would stay on line.
Number 250
REPRESENTATIVE IVAN expressed curiosity about if there were any
isolated cases in the jail system now, and asked how they deal with
these cases.
Number 291
JERRY SHRINER, Special Assistant to Commissioner, Department of
Corrections, said he did not have an answer to that question. A
small number of people exist within the system now who have AIDS,
maybe three or four, and the staff takes reasonable precautions to
protect themselves and other inmates. A common practice among law
enforcement officers is to take precautions such as wearing rubber
gloves for protection against body fluids. The infected people are
not isolated from the rest of the population as there are no units
or rooms in any of the prisons for isolating HIV carriers from the
rest of the general population.
REPRESENTATIVE IVAN asked how the Department of Corrections would
deal with the execution of this law if this bill passed and became
law. He wondered if Mr. Shriner could foresee an increase in
funding.
MR. SHRINER said the Department of Corrections filed a zero fiscal
note with respect to this legislation. He has spoken with people
in institutions and the consensus was, if anyone was convicted and
sentenced under this legislation, they would be handled similarly
to any other Class A or Class B felons. The number would probably
be too small to create a measurable impact on the system with
additional inmates. Also, medical people who provide inmate
health care responded with a zero fiscal note, which surprised him.
His concern arises from $600,000 in medical expenses paid by the
state over six or seven months for a single inmate who has AIDS.
Class A felons who have AIDS would be in the system for long
periods of time, so the medical costs to the state could be
enormous. The view of medical people, however, is that it is
difficult to predict medical costs for inmates with AIDS because of
the unpredictability of the disease. The costs are purely
speculative.
Number 317
REPRESENTATIVE JOE GREEN questioned the situation of married
couples who engage in intimate sexual relations, and if there was
transmission of HIV in spite of the use of reasonable prophylactic
measures. He thought this legislation, when considering the
current language, might be catastrophic in marriage.
Number 339
CHAIR JAMES said in most cases there are laws on the books to take
care of an assault, even if the assault is not specified in the
law. The assault can still be addressed in the existing law. It
bothered her that HIV is treated so differently compared to other
contagious diseases, such as smallpox and tuberculosis. The right
to privacy is so well protected with HIV. She believes the bill is
an attempt to determine intent, and to identify criminal intent.
It is hard to know if a crime is committed when someone transmits
HIV, or difficult to discern if someone would intentionally
transmit HIV or if they simply do not care.
Number 378
REPRESENTATIVE BRIAN PORTER spoke about the affirmative defense to
prosecute on page 2 of the bill. It seems to indicate if two
people are legally married at the time of contact, regardless of
their attempt to prophylactic escapement, that is an affirmative
defense.
REPRESENTATIVE GREEN said that he was not reading it that way,
because there is the word "and" after Section b. That language
made the intent questionable in his view.
REPRESENTATIVE PORTER agreed, but the extent to which reasonable
prophylactic measures are taken is a fact situation that would need
to be established at the time of trial. He did not think there was
a standard set in this state.
Number 392
REPRESENTATIVE OGAN commented that sexual relations with a spouse
who has HIV is not unlawful under this bill as long as the spouse
understands the risks involved. He seriously doubted there would
be any prosecutions under that clause: A wife or husband is not
obligated to testify against their spouse in court. This comment
raised questions among committee members. Some wondered if that
was really true.
REPRESENTATIVE GREEN suggested, to avoid problems, that they either
drop the "and," and put "or," or that they separate "a" from "b"
completely. If the section pertaining to a consenting married
couple is separated in that way it should keep police out of the
bedroom.
REPRESENTATIVE CAREN ROBINSON requested that they hear from the
Department of Law on this issue.
Number 420
AL ZANGRI, Division of Public Health, Department of Social
Services, came forward to testify, saying the department cannot
support this bill. The department is aware that 26 states passed
similar legislation; they did so under a federal requirement to
receive federal money. Alaska did not pass this legislation at
that time because the Feds and our Attorney General agreed we had
enough legal protection; the state could prosecute intentional
transmission under current statutes. This bill will make
transmission without intent a "Class A Felony" rather than a "Class
A Misdemeanor."
MR. ZANGRI explained the department's belief on this, saying the
result of this legislation could reduce incentives for voluntary
HIV testing in high risk populations. The primary effect of this
bill is "to make transmission without intent to harm." He
explained if someone transmits HIV with intent to harm, currently,
they can be prosecuted under current law for assault or attempted
murder. Under the current law, if HIV is transmitted without
intent to do harm, they can be prosecuted on the grounds of
reckless endangerment. This bill, according to the Department of
Social Services, will change reckless endangerment to a "Class A
Felony" rather than a "Class A Misdemeanor." Mr. Zangri
reiterated that the department believes, in effect, that incentives
for high risk individuals to be tested will be seriously reduced if
this bill passes as it is. If they do not know they are HIV
positive they cannot be prosecuted under this bill. Generally,
people with HIV act responsibly in their attempt to minimize the
possibility of transmission. In those states having this
legislation on the books, the total testing has increased. It may
be, primarily, the result of a general increase in the use of HIV
testing. For instance, there is automatic HIV testing for blood
donations, for obtaining life insurance policies and health
insurance, and so forth. They are most concerned about high risk
populations.
MR. ZANGRI said the Department of Social Services recommends a
number of amendments to this bill. First, they recommend deleting
the section Representative Porter was discussing: AS 11.41.600.
(1) (b) (a), which has to do with a married couple's defense. The
reason for this recommendation is that it is difficult to find good
reasons to exempt a married couple, but not a couple that is only
living together. They are in much the same situation.
The second recommendation is to delete AS 11.41.600 (1) (a) (3) on
page 2, line 20, of the original bill. They would prefer to delete
the entire section; or, if not, at least "parental transmission of
the disease." Parental transmission of HIV occurs during birth,
not prior to birth. If we make it a crime to give birth, then we
give the pregnant person no other alternative but abortion. She
must either terminate the pregnancy or commit a crime. The
department also believes the bill should define the appropriate
prophylactic measures if it is going to define transmission of the
disease.
Number 505
REPRESENTATIVE OGAN asked Mr. Zangri, with all due respect, if he
would have sex with someone with a prophylactic device knowing they
had AIDS.
MR. ZANGRI answered, "No." Representative Ogan said that he
wouldn't either.
Number 515
REPRESENTATIVE OGAN debated Mr. Zangri's statement about the lack
of knowledge as a reason a person would not be prosecuted.
Representative Ogan read a portion of the bill. On page 2, line
23, it reads:
"In a prosecution under (a) of this section, the
determination of whether a defendant acted with knowledge
that the defendant was infected with HIV shall be based
on the totality of the evidence concerning the existence
of the knowledge, and may not be construed as requiring
that the accused has submitted to or received the results
of a particular test or method of diagnosis."
REPRESENTATIVE OGAN said what they are trying to do with this
legislation is eliminate the argument that someone is going to
discourage testing. The intent is to get to the irresponsible
people. They are those people with reasonable knowledge, who have
exercised high risk behaviors, and who may be getting symptoms of
having HIV, but who do not get tested. These people deliberately
expose other individuals to the HIV virus. The people who suspect
that they have HIV and are responsible will surely get the test and
abstain from behaviors that could possibly infect other people.
MR. ZANGRI also believes responsible people will get tested and
will act responsibly. He and the department are more concerned
about the people who are not particularly responsible and who will
not get tested. Evidence exists to show that the probability of
transmission from a single contact is very low. Without the use of
a condom, for instance, transmission is about 1 in 1,000, and with
the use of a condom it is about 1 in 10,000. There is a problem
of facing an issue of "what is reasonable knowledge?" The
department's main concern is that this will develop a set of
incentives to work against high risk populations from being tested
and acting responsibly.
Number 546
REPRESENTATIVE ROBINSON directed a comment to Representative Ogan
about a discussion she had with some young men who heard about the
laws in the lower 48 states. Whether right, wrong or indifferent,
she said that these young people are not ready to accept that they
need to become tested. These young men said they would not get
tested because they could be prosecuted. So, there are not just
people who are irresponsible or bad, but those who feel themselves
invincible and need not worry about these sorts of things. Some
stand on the old cliche: "What we don't know won't hurt us."
REPRESENTATIVE PORTER said that he and Representative Ogan
discussed this bill, and this type of attitude was one area of
discussion. That issue is the reason they used that language in
the bill. If someone is engaging in activities of high risk, as
relates to acquiring AIDS, and if there is symptomology, that
person would still be vulnerable under this statute and should get
tested. He felt that anyone making such a statement would be, by
omission, potentially committing murder. He did not consider that
excusable.
REPRESENTATIVE GREEN asserted that a person would be a fool if they
were in a high risk venture and did not become tested. His
question was if our court system is ready for this kind of
legislation. Looking at the bill, as written, it says that
ignorance of law is no excuse.
Number 586
MR. ZANGRI pointed out that the symptomology of HIV transmission
can appear many years after the initial exposure, and long after a
person is infected. It could be 6, 10 or 15 years after.
Meanwhile, the infected person can be infecting others and creating
a long history of problems. Another issue is the lack of
incentives for individuals to get tested for HIV. If an individual
engages in high risk behavior and becomes tested, it tells them
they have a death sentence if it is positive. There is no
incentive except to be responsible and to protect other people.
If there is a law that states that additional contact after testing
HIV positive is potentially criminal, it takes away the incentive
for responsible people. This would explain why the department
argues that the bill changes the incentives. There is no way of
knowing what will actually happen, but it may create an incentive
for someone to get into prison for the state care. He was not
suggesting it would happen, but the potential and incentive are
there. If he found that he had HIV, for instance, his insurance
companies would drop him within the next five or ten years. On the
other hand, it would be difficult for the state to drop a person
imprisoned as a Class A felon.
Number 612
REPRESENTATIVE OGAN said that if someone's insurance company drops
them that they would be on the state system anyway. He asserted
that it is irrelevant whether a person receives treatment inside or
outside prison. It would be the same amount of money. As for
incentives, this bill contains some good ones: To stay alive and
to keep from killing other people. It also addresses in a
reasonable way the notion of a disincentive provided someone that
they can act promiscuously without impunity. This bill, he added,
was not intended to have bedroom police. The intent is to get to
the worse offenders: For instance, prostitutes who know they have
HIV, yet refuse to change their life style and proceed to infect
other people. Representative Ogan pointed out that Representative
Porter, in his official capacity as the former police chief of
Anchorage, could alone testify to the amount of prostitutes in
Anchorage. He also spoke of rumors he has heard about people who
have gone into places with syringes of blood and threatened to hold
up stores. Also, police officers have had to pat down prisons and
accidentally got a needle stick.
REPRESENTATIVE ROBINSON agreed that AIDS is a serious issue facing
our country. She appreciated what Representative Ogan was trying
to do with this bill; however, she felt the current laws would
handle this kind of situation. The Department of Law provided
ample information, in her estimation, to show they are confident
that current laws are adequate to deal with this problem.
Representative Robinson also had strong personal feelings about
people who have not been tested for HIV as being considered bad.
She issued a warning that people should be careful about saying who
is or is not high risk. Her final point was that laws are on the
books to deal with this, so she didn't believe it was necessary to
create more laws.
Number 691
REPRESENTATIVE GREEN said being a blood donor is one good way to
get tested for HIV. They screen all blood samples.
TAPE 95-25, SIDE B
Number 000
CHAIR JAMES asked Mr. Zangri about the mandatory testing for
tuberculosis and other diseases. The issue of privacy becomes an
issue with HIV that she did not understand. The question was why
TB is easier to deal with than AIDS.
MR. ZANGRI stated that he could not respond intelligently to that
question without speaking first to his HIV people.
Number 018
MARGOT KNUTH, Criminal Division of the Department of Law,
approached the table to answer questions and to give some
information regarding legal matters that arise from this bill.
REPRESENTATIVE GREEN asked if this bill were to become law if it
would cause people who are primarily law-biding to do what is
required, but not do anything to irresponsible people. He wanted
to know if we would be further affecting those who are law-biding
and not doing much to the irresponsible people. The people with
the highest probability of passing the disease would probably
ignore this.
MS. KNUTH said the greatest gap with this bill is the marginal
young female who knows, but does not truly understand or appreciate
the risks of AIDS. It is a very vulnerable group, such as the
young person with the borderline IQ, and with, perhaps, some
developmental disability. These people are aware that the people
they are with have AIDS, and they have knowledge that the disease
is transmitted by sex, yet they have no true appreciation of what
it means to have AIDS. To prosecute the person preying upon that
group is an extremely difficult proposition under any criminal
statute. What they need, she said, is a civil remedy. She said
there are difficulties, because quarantine comes up. It is an
option, yet the times you want to use quarantine are very few, and
the times you want to avoid quarantine are very great. She said it
is a tough issue to take on.
Number 093
REPRESENTATIVE PORTER asked Ms. Knuth if a statute is on the books
to deal with the classic cases this legislation is attempting to
address: For instance, prostitutes who tested HIV positive but who
continue the same life style.
Number 103
MS. KNUTH said they have several different statutes depending upon
the level of knowledge, from attempted murder to an assault statute
that deals with extreme indifference to the value of human life.
That would cover the situation that Representative Porter was
describing. It would be a Class A felony. There is also the
misdemeanor of "reckless endangerment," which would pertain to
someone who almost deliberately does not know they are infected and
who continues to engage in sex anyway. It is a misdemeanor, but a
criminal case. She pointed out that the committee might need to
determine to what extents people are deterred by the threat of
criminal prosecution. They should also determine what they will
accomplish by prosecuting these people.
Number 137
REPRESENTATIVE GREEN asked if Ms. Knuth thought this bill would do
what the committee intends. She answered, "No." She did not
believe it would as it is. Nobody, she said, has found the right
solution, or they would be implementing it.
Number 148
REPRESENTATIVE ROBINSON asked Ms. Knuth about rape victims.
Number 155
MS. KNUTH remembered legislation, which she believed had passed,
when you could have the defendant tested in a rape case, so the
rape victim did not have to go through that. If the defendant
tested HIV positive the victim raped would be notified.
CHAIR JAMES said that Representative Ivan had to leave for another
meeting, but he had a question of Mr. Shriner, which he put in
writing.
Number 241
REPRESENTATIVE IVAN's question and comments are added below for the
record.
"How can Corrections have a zero fiscal note if more HIV
positive or AIDS carriers are or possibly may be
incarcerated?
"The liability issues alone are seemingly very costly,
not to mention increased medical costs.
"Corrections might want to rethink their position in
regards to their handling of AIDS or HIV positive inmates
and how they are placed in general population."
Number 181
MR. SHRINER said, in answer to Representative Ivan's question, that
they believe, based on the small number of known HIV carriers and
individuals within the system who have AIDS, that they cannot
reasonably project a significant increase of inmates. If this law
went into effect, there might be an increase, but it would be very
small. It could be one, eight, or none. The impact on the system
would be relatively insignificant. On one hand, it costs $107.00
per day to take care of an inmate, yet in terms of having a fiscal
note it is difficult to say what the additional costs of an
individual inmate would be. If someone came into the system
without AIDS and never developed the disease while in the system,
the cost would be no more than normal medical care for an inmate.
Therefore, the fiscal note is zero. If, on the other hand, a
person was serving a ten year sentence and developed AIDS after
seven years, with three years left to serve, the cost could be
about $1 million a year until they are released. Since everything
is speculative they cannot predict what the real amount would be.
Number 241
CHAIR JAMES brought up Representative Ivan's statement:
"Corrections might want to rethink their position in regards to
their handling of AIDS or HIV positive inmates and how they are
placed in the general population. She assumes that Representative
Ivan's concern is that Corrections handles everyone, those with
AIDS and without AIDS, the same way.
Number 255
CHAIR JAMES also brought out a letter, dated March 13, 1995,
written to her by the Alaska Civil Liberties Union (ACLU). It
concerns HB 199 and SB 91. The ACLU wanted to testify at that
meeting, but they were not able to do that today. She did not read
it word for word, but she read parts of it, the underlined
headings, and she referred to it, so it would be part of the
record.
1. Transmission of AIDS may already be prosecuted under
existing criminal statutes.
2. These bills discourage Alaskans from becoming
informed of their HIV/AIDS status.
3. It will be difficult, if not impossible, to
prosecute these cases.
4. These bills violate rights to privacy and equal
protection.
CHAIR JAMES also added, for the record, that there were some court
cases in the letter to support their concerns.
Number 276
ALLEN KINGMAN, Legislative Aide to Representative Ogan, testified,
at the request of Representative Ogan. He had points to address
from testimony heard. First, the existing law has a gap in it that
this proposed law would address. Under existing law you could
punish someone for intentionally transmitting HIV to someone else.
This would be a situation when a person knew he had HIV and really
wanted another person to have it too, and would willfully give it
to them. That would be a felony under existing law. On the other
hand, the reckless endangerment type of law is a Class A
Misdemeanor. This would be a situation where someone knows they
have HIV and the person doesn't want to infect someone else, but he
has little or no regard for the fact that he might killing people.
This type of person goes about his or her business without concern
about whether or not others are being infected. Between these two
types is a huge gap. This bill is intended to bridge that gap.
He did not believe the existing law is adequate to do that.
MR. KINGMAN also brought up the issue of discouraging testing,
which is an issue that has come up repeatedly in every state that
has considered a bill like HB 199. While attempting to draft this
bill they addressed this issue; they do not want to discourage
testing. He recalled a statement made that there is currently no
incentive at all to testing. Mr. Kingman did not agree, because
if somebody has reason to believe they have HIV, and they are
tested and diagnosed, they can get on a course of treatment, such
as AZT, which can effectively double their life span if they do it
early enough. That is a pretty good incentive to get tested. The
longer a person waits to be diagnosed as HIV positive the less they
can do for them medically. Another important focus should be what
they want to accomplish by testing people. The question is: Why
is testing a desirable goal at all as a public policy goal? If
they encourage testing, they hope the people who are diagnosed as
HIV positive will choose to do the responsible thing by changing
their life style, so they will not infect others. Otherwise, it
hardly matters if they get tested. It seems that the only people
this bill would discourage from being tested are those who would
not modify their behavior under any circumstance. This is where
Representative Green's question comes in, which was if this would
really modify anybody's behavior. Hardened criminals, for
instance, don't care if something is illegal or not. Still, nobody
wants to go to jail. Mr. Kingman said if he were diagnosed as HIV
positive and told he had five years to live, he would not want to
spend those last five years in jail. This bill gives an incentive
in that regard.
Number 385
Another concern addressed in the letter from the Alaska Civil
Liberties Union was that it would be nearly impossible to prosecute
these cases. This concern was raised on the fiscal note from the
Department of Law in Alaska. Mr. Kingman informed the committee
that he had contacted numerous staff attorneys in the Attorney
General's office in Illinois for information. He spoke to people
at the policy making level, and he spoke with actual prosecutors
who tried cases like this. Illinois law is similar to Alaska's.
He asked for input about any problems that we could address in our
law and they brought up two concerns. One was that there was a
challenge that went all the way to the Supreme Court; it was
challenged because of the lack of definition to intimate contact.
They said it should be defined further. Still, the Illinois
Supreme Court upheld their looser language with less definition.
The other concern they brought up was the difficulty of proving
someone had knowledge that they had HIV. They put the language in
HB 199 to address this concern. There is a paragraph that says:
"You can't judge a person's knowledge by whether or not they have
had one specific type of test or medical diagnosis." Mr. Kingman
felt they addressed the problems Illinois has had with this bill.
As for the concerns about violating the right to privacy, people
misunderstand the privacy right. It is not a constitutional right
to be left alone. In constitutional legal terms the right to
privacy is "a right to define oneself." That includes defining
oneself by choosing their sexual preference, or if they wanted to
be a parent. The Supreme Court has never given anyone the right to
define themselves at the expense of another person's life.
Number 462
REPRESENTATIVE ROBINSON asked Mr. Kingman if he knew how many
people in the state have been tested for HIV.
MR. KINGMAN did not know how many have been tested. He knew how
many were diagnosed as HIV positive, but not how many were
diagnosed as negative. Since December 31, 1994, there was
something like 272 living cases of HIV in Alaska. There have been
more than 500 cases that were tested HIV positive, who have since
died or moved out of state.
REPRESENTATIVE ROBINSON mentioned that, in the concept of testing,
part of the procedure would be to notify all the other partners
that the infected person was with.
MR. KINGMAN answered that if someone had received notification that
a former partner was tested and found to be HIV positive, it would
place some sort of a duty on them to be tested themselves. Whether
or not by doing that there were grounds to prosecute them if they
continued to engage in high risk behavior, he thought it would be
a question for a jury to decide.
MS. KNUTH came back to bring to the committee's attention that our
assault in the first degree statute, which is AS 11.41.200, is a
Class A felony. One way assault in the first degree is committed
is when a person knowingly engages in conduct that results in
serious physical injury to another, under circumstances manifesting
extreme indifference to the value of human life. In defining
serious physical injury, it would include being exposed to the HIV
virus.
Number 486
REPRESENTATIVE OGAN asked Margot Knuth to confirm that he heard it
right, that the statute says, "results in a serious injury."
MS. KNUTH confirmed that it was correct.
REPRESENTATIVE OGAN went on to say then that HIV oftentimes will
not show up for five or seven years. It would be difficult to
prosecute a case five or seven years later, which is probably why
nobody has yet been prosecuted under the current law.
MS. KNUTH said that if HIV was transmitted, even though it has not
become a full blown case of AIDS, it would still qualify as serious
physical injury under our statutes as the terms are defined. If
the partner did not become HIV positive, it would be difficult to
prosecute.
Number 503
REPRESENTATIVE PORTER commented that HIV is not the element that
takes five or eight years to development. HIV is a virus that
develops right away or within six months. A person would have a
period of time where it is reasonable to determine whether HIV has
been transmitted.
Number 511
REPRESENTATIVE ROBINSON reaffirmed her belief that adequate laws
already exist to prosecute. She said the state does not need
another law.
Number 541
REPRESENTATIVE GREEN said he wants something to close the loophole
in the law, and something to stop this insidious disease. He had
a concern, however, about adding statutes that don't accomplish
what we want. He wanted to know if there is a way to tighten the
loop so it will do that.
CHAIR JAMES said her mind was running, because AIDS is something we
cannot get our hands on. More and more people become infected with
AIDS now, and it seems there is nothing to stop it. She was not
convinced either that this bill would do what they wanted.
Number 567
REPRESENTATIVE PORTER had the same feeling of urgency about the
AIDS problem. It is expeditiously growing, but he was not
convinced either that this bill would be the way to go. There were
constitutional issues. He said that he would be willing to meet
with the sponsor and the Department of Law to work out the
problems.
REPRESENTATIVE OGAN wanted to add that the current assault law does
not address irresponsible people who avoid getting AIDS. He
described a game like Russian Roulette to define intent versus the
lack of intent to harm in cases of irresponsibility. This bill
focuses on people who live very promiscuous life styles, and those
who have no regard for the well being of others. He concurred that
HB 199 is not a cure-all, but it sends a message of disapproval
regarding this kind of behavior. The message is that we will not
approve of or condone these promiscuous life styles or
irresponsible behavior.
Number 601
CHAIR JAMES had a follow up for the Russian Roulette scenario
Representative Ogan used. The person might keep shooting until
there was a shell in the chamber, and then the person would be
dead. The point was, if an irresponsible person thought he got
away with something once, he would probably try to get away with it
again.
REPRESENTATIVE ROBINSON stressed that education is a way we can do
something about AIDS. She brought up that Representative Toohey
pulled her bill, about educating children in schools, believing
from testimony that children were being education. The Department
of Health has said since, it is not true. Some schools forbid any
kind of education within the school district regarding AIDS.
Another law is a band-aid attempt to end the AIDS problem,
especially when we are not willing to insure that every child is
appropriately educated about AIDS in this state, and if we are
unwilling to heed what health providers tell us. She urged the
committee to remember that as the bill moves forward. They should
keep the budget in mind, and also how we work with the schools and
health department on this issue.
Number 624
REPRESENTATIVE GREEN asked if they are going to review this bill in
Judiciary, and if it would include input from the Department of
Law.
REPRESENTATIVE PORTER said he cannot think of a situation where
there would not be the same requirement for giving testimony on the
elements of reckless disregard before a jury to establish a felony
in this bill or any existing law. He would have to research this
with the Department of Law in particular.
REPRESENTATIVE GREEN asked that question, because it would have a
direct bearing on whether he voted to move the bill out of
committee. If they cannot make it a tougher, more workable,
smaller loophole kind of law so it would do some good, he would
rather not have another law on the books.
Number 640
CHAIR JAMES brought up the scenario Representative Ogan spoke of,
about shooting the gun and the empty cartridge being there so
nobody got shot. She had another scenario of a person who knows
they have AIDS, who has no regard for the value of human life, and
continues to expose other people to AIDS. The individual exposed
himself, in an intimate encounter, to a particular person who was
unsuspecting, and the person found out afterward and charges the
person on the grounds that he or she violated this law. The person
is then prosecuted, found guilty, and sentenced to a jail term.
Under existing law, as she understood it, if it was a consensual
arrangement and the person did not contract AIDS or the HIV virus,
that there would be no way to charge the person. If the infected
person is not stopped at that point and keeps with the same
reckless and uncaring behaviors, Representative James wondered if
there were safety measures, or some recourse. She questioned if a
person could be stopped on account of their disregard for the law,
and whether or not the violated person contracted AIDS.
REPRESENTATIVE PORTER attempted to validate what Representative
James was saying by her scenario. He spoke about whether there was
a way to retrace the steps like a normal contagious disease check
back to all exposures, in order to do something with those people
who were exposed. Representative James told Representative Porter
that was not what she meant.
CHAIR JAMES clarified her point by repeating her scenario, then she
added a question about whether or not it would be beneficial to
prosecute a person who has AIDS, if the person continued to behave
with blatant disregard of the law and disregard for others. Her
question was, if this bill took that person off the streets, out of
exposure, and it prevented him or her from continually behaving
recklessly, would it be a benefit? The question was if the good
parts of the bill negate the bad parts, or visa-versa. She
believes there is a window of guilt that is not currently
protected. The only way the guilt can be protected is if the act
was a rape and not a consensual meeting. If it was a rape then it
would be a crime, but if it was a consensual meeting it would not
be a crime, unless an unsuspecting person got the AIDS virus.
Number 688
REPRESENTATIVE ROBINSON brought up other things to consider, such
as two people who share a needle, and one person knows they are HIV
positive and the other does not. She asked if the unsuspecting
person who just shared the infected person's needle could prosecute
if they found out the other person knowingly had the HIV virus.
REPRESENTATIVE PORTER said the state could prosecute the other
person if the act was reported to them.
CHAIR JAMES determined that the committee would have to adopt a
committee substitute and asked for a motion.
REPRESENTATIVE PORTER moved to adopt the CS for HB 199, Version F,
as the working document. Hearing no objections, the CS HB 199,
Version F, was adopted.
Number 700
CHAIR JAMES asked what Representative Ogan wanted to do with this
CS. The fact that they adopted the CS was not an indication they
would pass it out of committee, although she felt that 1:40 minutes
was ample time to give to HB 199, and she didn't want to give it
any more attention. Judiciary is the next committee of referral,
and Representative Porter stated that he would work with the
sponsor and the Department of Law on the bill.
REPRESENTATIVE GREEN said that even though the committee heard the
bill they should hear it again, since they still feel uneasy about
it. They got hung up on the legal portion of this bill rather than
the humanitarian or social issue, and because of that and that
Representative Porter would work with the sponsor to make it
acceptable, he would be willing to move it out of committee.
REPRESENTATIVE ROBINSON objected.
CHAIR JAMES said that State Affairs had covered its responsibility
on this bill and she felt that the decision each committee member
needed to make was if the bill would have positive or negative
effects on the affairs of the state. Since they did not know
about the legal costs she felt that should be addressed in
Judiciary.
TAPE 95-26, SIDE A
Number 044
REPRESENTATIVE GREEN said he would move that the CS for HB 199,
State Affairs Version F, be passed out of committee with individual
recommendations and the accompanying fiscal note. There being an
objection from Representative Robinson, Chair James asked for a
roll call vote.
Number 057
REPRESENTATIVE WILLIS wished to make a comment. He was very torn
after hearing all the testimony. However, he was willing, from his
perspective, to allow the bill to go on to Judiciary. He felt that
in Judiciary they would cover the questionable points he was
concerned about, which were raised through the testimony.
Number 070
REPRESENTATIVE ROBINSON wanted to state why she opposed the bill.
She believed we had adequate laws to deal with this issue, and we
must not create more laws and regulations. Her opinion was that we
must try to live within the law we now have. If there had been
testimony to the contrary, or testimony saying there were not laws
on the books to prosecute in these situations, she would support
moving this bill forward. She did not feel the testimony did that.
She believes there are laws on the books, and she said, "We do not
need to be doing another law."
Number 118
CHAIR JAMES called the roll. Representatives Porter, Willis,
James, Ogan, Green voted in favor of passing the CSHB 199(STA) out
of committee. Representative Robinson voted against passing the
bill out of committee. Chair James said the bill was moved.
HSTA - 03/14/95
HB 2 - BOOT CAMP FOR NONVIOLENT OFFENDERS
Number 129
REPRESENTATIVE WILLIS read his sponsor statement for the committee.
It read as follows:
"In 1993, I introduced legislation relating to boot camps
for nonviolent, first-time adult offenders. The bill
before you today is a refined version of that 1993 bill.
It represents the work of the Eighteenth Legislature's
Health, Education and Social Services Committee, and
contains changes and suggestions requested by
legislators, correction professionals, and other persons
interested in the legislation.
"I feel that placing nonviolent, first-time felony or
misdemeanor offenders in a prison setting is not the best
way to accomplish rehabilitation of this offender.
Providing an alternative to prison time and an
opportunity to learn discipline and acceptable behavior
would offer these offenders a chance to avoid further
encounters with the law.
"The bill before you would offer the boot camp as an
alternative sentence option for first-time convicted
felons, or misdemeanants under the age of 26.
Individuals convicted of crimes such as homicide,
assault, kidnapping, sexual offenses and offenses
involving the use of deadly weapons would not be eligible
for this sentencing option. The emphasis here is on
nonviolent, first-time offenders.
"At least 24 states operate boot camp programs. As can
be expected, each state offers the program to different
groups. For example, in 1993 Virginia's program was
limited to nonviolent male felony offenders 24 years or
under and did not allow felons convicted of murder,
manslaughter, kidnapping, sexual assault, etc., to
participate in this program. Massachusetts' program, in
1993, was for male offenders under the age of 40.
"I have submitted to the committee various articles and
studies concerning boot camp programs. I believe that a
boot camp program could help us address many problems
from prison overcrowding to recidivism rates. A boot
camp program has the potential of providing us with many
long-term benefits. I would urge positive consideration
of this bill."
REPRESENTATIVE WILLIS wanted to point out, having made his opening
statement, that the bill before them does not have an upper age
limit of 26 years. That omission would be caps he wants to have
put back into the bill. Other states use a cap of 25 to 26 years
old is the age used. He spoke to Mr. John Shriner, and said the
Administration had some concerns in Section 1. He asked for the
Chair to allow him some discretion in working with the
Administration on the points they brought up that should go into
the bill, including this age cap.
CHAIR JAMES had no objections to Representative Willis's request.
She felt that he had a good start on the bill and asked if another
week would be enough to work with the Administration to get the
language so it will be more compatible.
REPRESENTATIVE GREEN had a concern about the fiscal note. He asked
if these people going to boot camp if it would be in lieu of other
incarcerations. It would seem less expensive than conventional
prison, so there should almost be a positive fiscal note.
REPRESENTATIVE WILLIS recommended that Mr. Shriner address the
issue. As he said, there is no facility now for a boot camp
program, and the fiscal note addresses the building of a facility.
Number 242
JERRY SHRINER, Special Assistant, Department of Corrections,
concurred with what Representative Willis said. If the state were
to take this course, it would require a separate or detached
facility on the ground. To qualify as a boot camp in this bill,
and in most other programs, individuals in the boot camp could not
be mixed into the general prison population. It wouldn't fit with
the theory of why boot camps are beneficial. Also, if one requires
a boot camp to operate, a facility would need to be constructed.
There is no available space in any existing facility that could be
converted to use without capital costs, so there is a fiscal note.
CHAIR JAMES commented that the capital expenditures would be
$5,000,000. She questions the $2,062,300 in the upcoming years.
She assumes this would be for operating costs and wondered if the
note meant it would be more to have them in boot camp than it would
be in other incarceration.
MR. SHRINER said that wasn't it, but if they built a 50-bed
facility of any kind, whether it was boot camp or medium security
facility, it would be the operating costs for that institution. He
said the state does not have the capacity to convert any existing
facilities for a boot camp program, nor is there the existing
staff.
CHAIR JAMES asked if he thought this would be on top of the amount
of money we are already spending to incarcerate people. In other
words, the number of people would be so few who would be
transferred to this program that they would not notice a difference
in the cost of other operations to offset this program.
MR. SHRINER said they based the fiscal note on a count of
individuals in the prison system on the day it was done. That was
about 30 days ago or more. There were 255 people in the system who
would qualify for this boot camp. However, inmates would move
through the boot camp facility faster than they would move through
the current prison system, because of certain sections in the bill
that relate to discretionary parole and so forth. There would not
be a need to build a facility for the whole 255. They could
account for a number of people going in and out of the system, and
from that group of 255 people, 50 would be left. Therefore, a
facility to handle a group of 50 people would be adequate.
REPRESENTATIVE GREEN asked if we have any people currently
incarcerated who would qualify for this program.
Number 335
MR. SHRINER said that under the conditions of this bill, the
Commissioner of Corrections could find 255 people who would qualify
for this program.
REPRESENTATIVE GREEN said that is where he was coming from. The
fiscal note was based on 255 beds, when a 50-bed facility would be
adequate. He thought it was unfair to burden the bill with the
entire cost, or a fiscal note based on that number of people. They
were freeing up beds in a more restrictive incarceration area to
allow people to go to a less restricted and less expensive
incarceration, yet burdening that group with the cost of building
a new facility. He thinks the cost should be spread and that the
people opening beds up for harder crimes should be taken into
account on the fiscal note. With the current legislative attitude,
which is to avoid spending money, this could kill this bill, when
it may be very much to the benefit of the state.
Number 357
MR. SHRINER said the department shares that concern; in fact, the
federal government is revising or refining its regulation for the
distribution of capital money from the most recently passed federal
crime bill, and some of that money is earmarked for boot camps.
They are near maximum capacity, so there is no chance that they can
close a wing and save some money. He said he would like to do
that, but it is not possible.
REPRESENTATIVE GREEN asked why we don't show we are offsetting the
contempt of court citations by reducing our overcrowding through
this process. That would be a benefit to the state.
MR. SHRINER said that at this point the department does not intend
to pay those fines, so there is nothing to save.
Number 369
REPRESENTATIVE PORTER said if the Department of Corrections had
control of the client population, then they could do the kinds of
the things we have asked them to consider. They don't; they get
their plans from another direction.
Number 379
REPRESENTATIVE ROBINSON was unsure of how they could show it, but
once they got the system set up, getting nonviolent offenders into
the boot camp, they would be saving money. They have to build a
new facility, but if this is not done we may have to build another
hard bed facility which could cost much more money.
MR. SHRINER said he believed she was correct. He could not promise
anything, but after reading more information he found there is a
private consulting firm on the East Coast that has a program that
could give them some figures about the costs and savings. He could
provide those figures in a week or two.
Number 409
CHAIR JAMES said she would carry the bill over to the next meeting.
HSTA - 03/14/95
The last thing on the agenda was a request from Representative Pete
Kott. He filed HB 164, which would establish December 7, 1995, as
Pearl Harbor Day. It was referred to the House Special Committee
on Military and Veterans Affairs and State Affairs. The bill was
passed out of the Committee on Military and Veterans Affairs, but,
because of an oversight, it was not referred to State Affairs.
Representative Kott hoped they would waive the bill from the House
State Affairs Committee. Chair James asked if there were any
objections.
REPRESENTATIVE WILLIS moved to waive the bill from the committee.
There being no objections, it was so moved.
ADJOURNMENT
Representative James adjourned the meeting at about 10:14 a.m.
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