Legislature(2019 - 2020)SENATE FINANCE 532
05/12/2019 01:00 PM Senate FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB49 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 49 | TELECONFERENCED | |
SENATE FINANCE COMMITTEE
May 12, 2019
1:33 p.m.
1:33:05 PM
CALL TO ORDER
Co-Chair von Imhof called the Senate Finance Committee
meeting to order at 1:33 p.m.
MEMBERS PRESENT
Senator Natasha von Imhof, Co-Chair
Senator Bert Stedman, Co-Chair
Senator Click Bishop
Senator Lyman Hoffman
Senator Peter Micciche
Senator Donny Olson
Senator Mike Shower
Senator Bill Wielechowski
Senator David Wilson
MEMBERS ABSENT
None
ALSO PRESENT
Senator Cathy Giessel; Senator Jesse Kiehl; Senator Lora
Reinbold; Senator Shelley Hughes; Juli Lucky, Staff,
Senator Natasha von Imhof; Buddy Whitt, Staff, Senator
Shelley Hughes; Kelly Howell, Legislative Liaison,
Department of Public Safety; Mary Siroky, Deputy
Commissioner, Department of Transportation and Public
Facilities; John Skidmore, Director, Criminal Division,
Department of Law; Sonja Kawasaki, staff, Senator Bill
Wielechowski; Jen Winkelman, Director of Probation and
Parole, Department of Corrections.
PRESENT VIA TELECONFERENCE
Nancy Meade, General Counsel, Alaska Court System; James
Stinson, Office of Public Advocacy, Department of
Administration.
SUMMARY
CSHB 49(FIN) am
CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
SCS CSHB 49(FIN) was REPORTED out of committee
with a "do pass" recommendation and with
forthcoming fiscal notes from the Department of
Health and Social Services, the Department of
Administration, the Department of Law, the
Department of Public Safety, the Court System,
and the Department of Corrections; and one new
previously published zero fiscal note: FN 1(DHS).
Co-Chair von Imhof acknowledged members in the gallery.
CS FOR HOUSE BILL NO. 49(FIN) am
"An Act relating to criminal law and procedure;
relating to pretrial services; establishing the crime
of possession of motor vehicle theft tools; relating
to electronic monitoring; relating to controlled
substances; relating to probation and parole; relating
to sentencing; amending the definitions of 'most
serious felony,' 'sex offense,' and 'sex offender';
relating to registration of sex offenders; relating to
operating under the influence; relating to refusal to
submit to a chemical test; relating to the duties of
the commissioner of corrections; relating to testing
of sexual assault examination kits; relating to
reports of involuntary commitment; amending Rules
6(r)(6) and 38.2, Alaska Rules of Criminal Procedure;
and providing for an effective date."
1:33:51 PM
Co-Chair von Imhof read from a prepared statement:
While this is the first time this particular CS has
been before our committee, I want to acknowledge the
immense amount of work that has gone in to crafting
this legislation.
Alaskans demand a response to rising crime levels in
our state, and much of our energy this legislative
session has been devoted to addressing issues with our
criminal justice system.
It started with the Governor introducing a suite of
four bills to roll back the negative aspects of SB 91,
including toughening our criminal statutes as they
relate to sexual crimes.
The Senate has taken the governor's bills through a
careful and deliberative committee process that
included over fifty hours of "on the record" committee
time, over ten hours of public testimony, and hundreds
of hours behind the scenes by legislators and staff
working to refine and improve these bills.
The Senate strongly believes that our four-month
process has been transparent and deliberative, and we
are ready to present a work product that repeals
problematic aspects of SB 91, as well as toughening
our sex crime laws.
With this in mind, we present today the Committee
Substitute before you. We believe it includes the best
aspects of the House, the Senate and the Governor's
versions of the crime bills.
We believe in our process and we believe this is the
best way forward to make Alaskans feel safer in their
homes and communities.
Co-Chair Stedman MOVED to ADOPT proposed committee
substitute for CSHB 49(FIN) am, Work Draft 31-GH1029\O
(Radford, 5/11/19).
Co-Chair von Imhof OBJECTED for discussion.
1:36:13 PM
JULI LUCKY, STAFF, SENATOR NATASHA VON IMHOF, noted that
the majority of the changes to the bill had been made in
the Senate Judiciary Committee (SJUD). Staff from the
committee would be available to speak in detail to the
changes.
Ms. Lucky informed that the proposed Committee Substitute
(CS) was a compilation of elements from SB 32, SB 33, SB
34, and SB 35 [legislation pertaining to criminal justice
reform]. She clarified that the compilation was drawn from
the bills as they were introduced in the Senate Finance
Committee, rather than from the original bills as proposed
by the governor; and would include changes made in the
Senate State Affairs Committee (SSTA) and SJUD.
Ms. Lucky detailed that there were some items that were put
in the bill in the House and reworded with the direction of
the Department of Law (LAW) and the Legislative Legal
Department. From SB 32, there were sections pertaining to
indecent viewing and photography, which were replaced by
the House language. There was a "truth in sentencing"
section put in another version of the bill that did not
appear in the CS. There was compromise language being
considered, and the Courts felt it would be difficult to
put through the reports as requested by the SJUD committee.
She detailed that the compromise language would be
forthcoming in an amendment package to be considered later
in the day.
Ms. Lucky referenced a section of SB 35. The bill had
expanded some mandatory reporting for child sexual abuse.
The bill also included required additional training, and
there had been concern about unfunded mandates for schools.
The training component had been removed, but mandatory
reporting items had been included so that the committee
could consider how to implement the training using existing
resources without putting an unfunded mandate on schools.
Ms. Lucky spoke to additions to the CS. She reminded that
technical violations and administrative sanctions had been
repealed in other bill versions. In the CS technical
violations were repealed, but administrative sanctions were
allowed. She addressed the pre-trial risk assessment tool
that had been repealed in previous Senate bill versions.
The House had language for allowing the tool to be
considered by the court, but there was concern about the
bill language. The CS made a pre-trial risk assessment
available for the court to use at its discretion.
Ms. Lucky discussed additions to the bill regarding the
possession of motor vehicle theft tools. The proposed CS
included language regarding the intent to steal contents of
a vehicle in addition to the vehicle itself. There was a
section added regarding aggregation of small theft crimes
over time. She mentioned additional bill provisions in the
CS pertaining to solicitation or production of an indecent
picture of a minor, and sexual assault examination kits.
1:40:37 PM
Ms. Lucky informed that there had been amendments that had
been incorporated into the CS, while others would be
considered individually by the committee. There was a
change in the language regarding terroristic threatening.
The new language would not affect the original intent.
There was an addition to expressly list Native
organizations as an eligible entity to run a Village Public
Safety Officer (VPSO) program. She understood that the
language was a technical fix which would conform statute to
current practice.
Ms. Lucky continued that there was a section in the CS
related to when car headlights would be required, which
would annul the current Department of Transportation and
Public Facilities (DOT) regulations on the topic.
Ms. Lucky noted that the CS had an expansion to include
murder I, murder II, and manslaughter in some of the
prohibitions regarding discretionary parole, mandatory
parole, and good time. There was also a requirement for the
three crimes that two-thirds of sentence be served prior to
being eligible for discretionary parole.
Ms. Lucky explained that there had been a section in all
the previous related bills that required courts to report
involuntary commitment data. She recalled that there had
been relevant amendments considered in the other body. In
the CS, the date chosen was 2011 forward, which would allow
for the work to be done without cost. The last addition was
new language that required parole decisions, orders, and
conditions to be posted on the internet. The intent of the
section was to allow victims to easily access parole
information.
Co-Chair von Imhof thought it made sense to go through a
modified version of a Sectional Analysis and highlight
important bill sections that had been identified in
previous committees.
Ms. Lucky addressed Section 1, which was intent language
that incorporated all findings and intent from all the
associated bills. She did not think that there had been
concern about the intent language. She stated that Section
2 and Section 3 were mostly technical changes to conform
felony murder statutes. The sections would add a reference
to the items in felony murder statutes.
Ms. Lucky stated that Section 4 and Section 5 included
language that changed the mental state by removing the word
"know," which reduced the ability of offenders to avoid
prosecution by claiming they did not positively know that a
victim was incapacitated. The section was not in the House
bill versions and had been added by the SJUD.
1:45:24 PM
BUDDY WHITT, STAFF, SENATOR SHELLEY HUGHES, affirmed that
Section 4 and Section 5 of the CS amended sexual assault in
the second and third degree; and removed the consideration
of whether an offender knew that a victim was
incapacitated.
Mr. Whitt noted that there were 10 sections from SB 35 that
were in the CS and were not in the original version of bill
as it came to the committee. He mentioned the repeal of
previous criminal justice reform legislation. After
reviewing crime data presentations and other factors, SJUD
had considered strengthening laws that pertained to sexual
crimes against children and adults. It was pointed out to
him by a colleague that if Alaska was a country in and of
itself, the number of forcible rapes per capita would
relegate the state to the second highest rate by country.
He noted that SJUD had considered public testimony and many
other factors in developing enhanced sentencing structures
and increases in classification in the bill.
1:48:16 PM
Ms. Lucky spoke to Section 6 and Section 7 of the CS, which
addressed the marriage defense. The repeal section in the
bill was Section 142. There were conforming changes made.
She drew attention to Section 7 of the CS, in which a
marriage defense would exist for those crimes that had to
do with the relationship of one person to another if there
was a position of authority or custody.
Ms. Lucky addressed Section 8 and Section 9 of the CS,
which were added by SJUD to allow a higher sentence for
sexual abuse of a minor in the third degree with more than
a 6-year age difference. She continued that Section 10
through Section 12 expanded the definition of enticement of
a minor. Section 13 increased crimes for unlawful
exploitation of a minor and raised the crimes by one
degree.
Mr. Whitt discussed unlawful exploitation of minors,
including production of child pornography. The classes of
the crime were raised in the CS.
1:52:09 PM
Ms. Lucky addressed Section 14 of the CS, which dealt with
indecent exposure and public masturbation. The section was
identical to Section 12 of SB 35.
Mr. Whitt stated that the section was in the original bill
and made the crime of masturbation in front of a minor less
than 16 years of age to be indecent exposure in the first
degree.
Ms. Lucky stated that the next few sections of the bill
addressed minor property crimes. She recalled that SB 91
had changed the felony threshold and added an automatic
inflation adjustment. She noted that HB 49 took out the
automatic inflation adjustment to allow the community to be
involved when the levels were bumped up rather than being
automatically done through statute. She pointed out that
the changes made in the other body were included; including
the addition of identification documents.
Ms. Lucky looked at Section 22 on page 12. She pointed out
that the felony threshold had been reduced for fraudulent
use of an access device or identification document. The
change had been made in the other body.
1:55:08 PM
Ms. Lucky discussed property crime changes in Section 25.
The section came from the other body and pertained to motor
vehicle theft tools. The automatic adjustment for inflation
was removed.
Ms. Lucky looked at Section 32 of the CS, which had to do
with aggregation of small amounts. There were no changes to
the language that passed from the other body.
Ms. Lucky considered Section 37, which had to do with
violations of conditions of release. The language was the
same as what was in SB 32 but had not been included in
House bills. She spoke to Section 39, which pertained to
disorderly conduct and was included in the original
governor's bills. She discussed Section 40, which pertained
to the showing of indecent photographs and harassment.
Ms. Lucky discussed Sections 41 through 45 of the CS,
relating to the viewing of indecent photographs. She added
that the bill sponsors had worked with LAW and assorted
stakeholders and the bill language that came from the other
body was adopted. Section 46 was an addition from the other
body pertaining to solicitation or production of an
indecent picture of a minor. She stated that most of the
changes were fairly similar until Section 50.
1:59:28 PM
Ms. Lucky reviewed Section 47 of the proposed CS. She
discussed the charge of misconduct involving a controlled
substance. She pointed out that while the section and the
following section were fairly similar, the House had
proposed to allow for the first two charges of possession
of a controlled substance to count as a misdemeanor, while
the third charge would be a felony. She believed there
would be a forthcoming amendment to discuss the broader
topic.
Ms. Lucky spoke to Section 50. She noted that much of the
"misconduct involving a controlled substance" crimes had to
be renumbered and reorganized within sections, but the
largest policy call was the treatment of a first possession
charge.
Ms. Lucky looked at Section 55. She explained that in the
governor's proposed bill, a person would be taken to
arraignment within 24 hours of arrest absent compelling
circumstances. The Senate bill and House bill changed the
language to allow 48 hours after any arrest. There had been
concern about the topic in committee.
Ms. Lucky discussed Section 56, and language that was not
repealed. She mentioned the addition of a pre-trial risk
assessment as an optional tool.
2:03:39 PM
AT EASE
2:08:15 PM
RECONVENED
Co-Chair von Imhof expressed appreciation for the work of
Ms. Lucky and Mr. Whitt.
Mr. Whitt relayed that Section 57 through Section 59 of the
CS were exactly the same as had passed the House. He
offered to highlight sections of the bill that were not in
the previous versions of the bill, as the previous versions
had been vetted.
Senator Micciche stated that the bill had adopted much of
the House language. He thought that it was important to
identify parts of the bills that were the same.
Co-Chair von Imhof asked Mr. Whitt and Ms. Lucky to
identify sections of the CS that were the same as the House
bills.
Mr. Whitt advanced to Section 60 of the bill. The section
directed that a person detained could not be released until
there had been a chemical test and the detainee was under
the legal limit of being intoxicated. The word "may" had
been changed to "shall."
Ms. Lucky pointed out that lines 27 and 28 showed that the
court may consider a pre-trial risk assessment as a factor.
Mr. Whitt considered Section 61 and Section 62 of the CS,
which were identical to the bill as it was brought to the
committee. Section 63 was a new section.
Ms. Lucky noted that the sections were added by SJUD.
Mr. Whitt stated that Section 63 was changed in SJUD so
that in cases of a sex offense or offense involving
domestic violence, the court would make a presumption of a
no contact order between the person being charged and the
victim. Section 64 was identical to the House bill as it
came across from the other body.
2:12:31 PM
Ms. Lucky noted that Section 65 was identical to SB 33,
Section 11. The sections had to do with when electronic
monitoring was allowed. She furthered that Section 66 was
identical to SB 33 Section 12. Section 67 was identical to
SB 33 Section 13. The change pertained to notification of a
prosecuting attorney when a person left a treatment
program. There were provisions in the bill that required
the prosecuting attorney to notify the victim.
Ms. Lucky stated that Section 68 was identical to SB 33
Section 14. Section 69 was identical to SB 34 Section 2 and
removed caps for technical violations.
Senator Micciche discussed the removal of pre-trial credit
for electronic monitoring. He asked if there was anything
in the CS that conflicted with prior changes in SB 14.
Ms. Lucky stated that there had been changes to electronic
monitoring. She had asked the bill drafters to ensure that
there was not a conflict within the bill. She would follow
up with greater detail at a later time to confirm. She
thought the committee could consider taking sections out of
the bill that pertained to electronic monitoring.
Senator Wielechowski understood that there was an agreement
between the bodies regarding HB 14 and electronic
monitoring issues. He continued that Section 65 to Section
68 were agreed to as part of the deal in HB 14.
Ms. Lucky stated that the matter had been a difficulty in
drafting. It was the intent to leave out the electronic
monitoring changes as it had been addressed in HB 14. She
stated that a conceptual amendment would be forthcoming to
remove the sections from the proposed CS.
2:16:11 PM
Ms. Lucky stated that Section 69, pertaining to lifting the
cap on technical violations, had been identical in all
associated legislation. Section 70, changing the periods of
probation, was identical in all versions of the
legislation. The intent of Section 71 had remained constant
in the Senate bills. The point of the section was to allow
a probation officer to recommend to the court when
probation could be terminated, and a defendant could be
discharged. She reminded that current law required a
recommendation when certain conditions were met. There had
been re-wording of language, but the intent was the same as
SB 32 Section 3.
Ms. Lucky spoke to Section 72, which provided class A
felony sentences. The section was the same as the previous
Senate bill. She noted that the sentences were reduced by
approximately one year as the bill came over from the other
body. She continued that Section 73, pertaining to class B
felonies, was also reduced by approximately one year. She
noted that class C felony changes in Section 74 were
consistent between the House and Senate versions of the
bill.
Mr. Whitt reported that Section 75 added conforming
sentencing guidelines for the crimes of unlawful
exploitation of a minor, indecent exposure, and other
offenses. The section also had an enhanced sentencing
structure for those that hosted or created multi-party
sharing or distribution of child pornography. The section
was changed in SJUD and had not been included in the
version of HB 49 as it came to the committee.
Ms. Lucky stated she had been alerted that there was a
problem with the sentencing in the section on page 48,
lines 7 through 11. There would be a conceptual amendment
to address the issue. The point of the section was to allow
for higher sentences however due to the placement of the
language, corrective language was needed.
Ms. Lucky noted that Section 76 of the CS, which prohibited
the lessening of mandatory probation for sex offenders, was
identical in all the associated bills.
2:20:04 PM
Ms. Lucky spoke to Section 77, which was the same in all
versions of the bill. Section 78 had to do with Class A
misdemeanors. The CS remained consistent in making a 90-day
sentence. The language being removed had a tiered approach,
as did the House bill; however the Senate bill had all
Class B misdemeanors at 90 days.
Ms. Lucky addressed Section 79, which had clarifying
language for felonies that counted as prior conviction for
the sentencing of sex offenses. The intent was the same
throughout all the bills. Section 80 removed "online" from
"online enticement," and the change was consistent
throughout all the associated bills.
Ms. Lucky noted that Section 81 was a technical change to
make sure sentencing matched what was previously put into
law. Section 82 and Section 83 were items added by SJUD.
Mr. Whitt addressed Section 82, pertaining to notification
of a victim when a perpetrator was released from a
treatment program for non-compliance. Section 83, also
added in SJUD, required DOC to expand notification and
resources for victims of a sex crime or domestic violence.
Ms. Lucky looked to Section 84 and Section 87, which
pertained to out of state sex offenders registering in-
state. The language had been perfected in the House, and
most of the language was identical in all versions of the
bill. The only changes to the sections solved a
constitutional issue.
Ms. Lucky noted that there were technical changes in
Section 88, which conformed to the 24-hour deadline time to
arraignment. Previous bills envisioned 48 hours, and the CS
envisioned a 24-hour period from arrest to arraignment.
Ms. Lucky discussed new concepts in the CS in Section 89
through Section 92, which added Native organizations as
eligible entities to provide the VPSO program.
2:24:34 PM
Senator Micciche assumed there would be more discussion on
the technical change relating to VPSOs. He did not know
much about the subject.
Co-Chair von Imhof suggested a conversation at present or
during the amendment portion of the meeting. She
acknowledged that the many moving parts of the bill were
put in the CS, and others would be presented as amendments
in order to facilitate conversation. She suggested to make
a note of the topic and include it as part of the amendment
conversation.
Ms. Lucky affirmed that Section 93 and Section 94 was
similar in all bill versions. There would be an amendment
needed to change the sections back to the Senate version.
Ms. Lucky discussed Section 95 and Section 96, which
allowed DOC to have discretion over a first conviction of
Driving Under the Influence (DUI). There had been a
difference between the House and Senate versions of the
provision. Sections 97 and 98 dealt with reinstatement of a
driver's license after 10 years. There had been some
differences in language between the House and Senate. It
was the intent of the CS to adopt the Senate version, and
there would be a forthcoming amendment to do so.
2:27:44 PM
AT EASE
2:28:27 PM
RECONVENED
Ms. Lucky continued discussing Section 97 and Section 98 of
the CS. She clarified that there were two different crimes
that were generally given the same penalty: DUI and
Refusing a Chemical Test. The sections had always gone
together. The language would need to be amended.
Co-Chair von Imhof asked about Section 99 of the CS.
Ms. Lucky stated that Section 99 was a new section
pertaining to the failure to use headlights. The language
was previously in DOT regulation and was annulled later in
the CS. She explained that it would be considered an
infraction when a person did not use headlights one-half
hour after sunset or one-half hour before sunrise or if
there was insufficient light or clear visibility to 1000
feet.
Ms. Lucky addressed Section 100. The Senate bill had
removed pre-trial enforcement duties to DOC. There were
changes in the bill that referenced the pre-trial
enforcement division.
Ms. Lucky spoke to Section 101, which was also a departure
from House language. She thought Senator Micciche knew the
details of the language change.
Mr. Whitt stated that Section 101 and Section 102 had been
added to SB 34. Section 101 pertained to earned compliance
credits for probationers. The section was not in the House
bill as it came to the committee. Section 102 precluded
certain persons from participating due to crimes of
unclassified felonies, a sex offense, a felony crime
against a person, or a crime involving domestic violence.
2:33:10 PM
Ms. Lucky pointed out that Sections 102 and 103 were also
related to repealing the pre-trial enforcement division.
There was also a section that allowed the commissioner of
DOC to procure and enter into agreements or contracts on
electronic monitoring. The sections were in previous Senate
bills as the bills came into committee.
Ms. Lucky detailed that Section 105 of the CS was similar
to SB 33 Section 21. She pointed out that new language
requested by the Legislative Legal Department stated that
it was the duty of a probation officer to conduct a
pretrial risk assessment. She understood the duty was
current practice and was being codified in the law.
Senator Micciche wanted to clarify that Section 101 and 102
did not change intent. The end result accounting for earned
compliance credits was the same.
Ms. Lucky noted that Section 106 and Section 107 were new.
The section prohibited mandatory parole for murder I,
murder II, and manslaughter; and had been an addition to
the bill by the Senate Finance Committee.
Ms. Lucky explained that Section 108 clarified that a
prisoner would have to submit an application in order get
parole. The section was in the bill originally proposed by
the governor.
Ms. Lucky continued that Section 109 of the CS was
identical to SB 34 Section 10. The version that came from
the house had some additional language; the section
proposed in the CS was from the Senate language and related
to who was eligible for discretionary parole and the
minimum time served to be eligible.
Ms. Lucky pointed out that Section 110 had a change to
accommodate murder I and murder II. The section required
that two-thirds of an active term of imprisonment be served
before a person could get discretionary parole. The new
language applied to higher offenses.
2:36:46 PM
Ms. Lucky addressed Section 111 of the CS, relating to
eliminating a presumption of release, which was identical
in all three versions of the bill. Section 112 was
identical in all versions of the bill and had to do with
applications for discretionary parole.
Ms. Lucky stated that Section 113 and 114 also pertained to
a prisoner's application for parole and what must be
included. Section 115 was a new section relating to the
confidentiality of parole board decisions. She understood
that the amendment was sought in order for victims to
better understand parole decisions.
Ms. Lucky spoke to Section 116, which was identical to SB
33 Section 22, and had to do with the movement of the
pretrial enforcement division. Section 117 was identical to
SB 34 Section 16 and dealt with a parole officer's
recommendation for early discharge for a parolee.
Ms. Lucky noted that Section 118 and Section 119 removed
references to a technical violation. She recalled that the
administrative sanctions were allowed in the originally
Senate bill.
2:39:46 PM
AT EASE
2:40:25 PM
RECONVENED
Mr. Whitt spoke to Section 120 and Section 121 of the CS,
which pertained to compliance credits for parole. A
deduction would come from the compliance credit. Section
121 would establish those that were ineligible for the
credits.
Ms. Lucky noted that Section 120 was very similar to SB 34
Section 19; but for the addition of the language relating
to murder I, murder II, and manslaughter.
2:42:03 PM
AT EASE
2:42:42 PM
RECONVENED
Mr. Whitt informed that Section 123 stated that a prisoner
could not be awarded a good-time deduction for time spent
in a treatment program, private residence, or under
electronic monitoring. The language was identical to that
in SB 34 Section 21.
Ms. Lucky stated that Section 124 put new crimes enacted by
the bill into the definition of illegal activity involving
a controlled substance. There were technical corrections in
the section, but it was otherwise identical to what was in
SB 32.
2:43:38 PM
AT EASE
2:50:03 PM
RECONVENED
Mr. Whitt drew attention to Section 125 of the CS, which
related to the DOC's quarterly report to the Alaska
Criminal Justice Commission (ACJC) working group.
Ms. Lucky pointed out a technical change on page 78 line 25
and line 26.
Mr. Whitt stated that Section 126 and Section 127 went
together, which had to do with tracking and compilation of
data on sex offense complaints and felony sex offenses.
Section 126 stipulated that the data be included on the
ACJC annual report.
Ms. Lucky added that the provisions were added in the
Senate.
Mr. Whitt informed that Section 128 added a new subsection
instructing the Department of Law to gather various data on
sex offenses. The section was not included in HB 49 when it
came to the committee. Section 129 through Section 132 all
related to the sexual assault examination kits bill, and
was exactly the same as the bill as it came to the
committee.
Ms. Lucky confirmed that the sections were the same. There
would be one conceptual amendment that was requested by LAW
to re-word a sentence pertaining to anonymous reports.
Ms. Lucky stated that Section 133 was a technical change to
address the renumbering of controlled substance crimes.
Mr. Whitt stated that Section 134 through Section 136 all
dealt with the "duty to report" laws in the state. Under
the sections, there would be a requirement to report to law
enforcement harm done to against child.
Ms. Lucky recalled concerns about unfunded mandates and
stated that the training component had been removed from
the bill.
Ms. Lucky noted that Section 137 added a reference to the
"sex offense" definition. Section 138 through Section 141
were all direct court rule amendments.
Mr. Whitt noted that Section 142 was the repealer section.
Ms. Lucky noted that Section 143 was an annulment of DOT
regulations. Section 144 was added in SB 33 as it came from
SJUD, and instructed DOC to report on certain
rehabilitative services and their impact.
Ms. Lucky stated that Section 145 pertained to the report
of the Superior Court regarding involuntary commitment. The
section had been changed to only reflect orders issued
after January 1, 2011; which were electronic and would not
require additional personnel to transfer.
2:55:57 PM
Ms. Lucky addressed Section 146, which was an applicability
section. There would be some technical amendments requested
by LAW.
Mr. Whitt addressed Section 147, which was transition
language as pre-trial services officers were transferred to
probation officers. Section 148 was transition language for
the LAW, the attorney general, and the Department of Public
Safety (DPS) to be able to work together on regulations in
order to implement the reporting mechanisms that were added
to the bill. Section 149 had to do with indecent viewing or
photography.
Ms. Lucky pointed out that Section 150 was the statement of
the conditional effect of Section 138 and Section 141. She
listed court rule changes. The next sections were effective
date sections.
Mr. Whitt added that the effective date of September 1,
2020 in Section 153 related to the sections of the bill
pertaining to duty to report. The change was made to give
more time to enable training before the start of the school
year.
Ms. Lucky noted that there was a typographical error on
page 5 that was addressed in the technical amendment
packet.
Co-Chair von Imhof stated that the committee would consider
questions from members. There were several people present
to answer questions pertaining to specific departments. She
hoped the committee would adopt the CS, and then consider
amendments that were already drafted. There would be an at-
ease to consider the amendments.
Senator Bishop wanted to hear from DPS.
2:59:15 PM
Senator Bishop asked if DPS had the tools to do what it
needed and make arrests on small property crimes.
KELLY HOWELL, LEGISLATIVE LIAISON, DEPARTMENT OF PUBLIC
SAFETY, stated that the Alaska State Troopers were
diligently working to recruit and retain troopers. She
continued that there were 18 recruits at the academy. She
recognized that understaffing did create workload issues
for the troopers. She noted that there was a significant
amount of overtime involved in being able to respond to
calls for service across the state. She hoped that once
recruits were in the field that the department would have
the tools to respond to the crimes mentioned by Senator
Bishop.
Senator Hoffman referenced page 65, Section 99 of the bill,
which pertained to the use of headlights. He asked if the
section applied to boats.
Ms. Howell thought that the language applied only to
vehicles travelling on roadways.
Senator Micciche asked if the department supported
returning possession of certain drugs to a felony charge.
He asked about drug crimes and related property crimes. He
asked if the department supported the changes proposed in
the CS and if the bill provided the tools to intervene in
drug houses around the state.
Ms. Howell thought the troopers had communicated that the
CS would provide enhanced and stronger tools to address
drug houses and other problems. The department supported
the increased penalties for drug crimes.
Senator Olson referenced Section 99 which pertained to
headlights. He asked if the section was a deviation from
statute.
Ms. Howell thought that most of the language was identical
to regulation already in place. The section that was
annulled in regulation and was not included in the bill
section required that headlights be illuminated in any
section of roadway with signs indicated headlights be on.
Senator Olson asked if the section applied to four-
wheelers.
Ms. Howell deferred to LAW.
Senator Olson wondered why the section would not apply to
four-wheelers.
3:03:53 PM
MARY SIROKY, DEPUTY COMMISSIONER, DEPARTMENT OF
TRANSPORTATION AND PUBLIC FACILITIES, addressed Senator
Olson's question and stated that the section only applied
to four-wheelers on major highways where headlight rules
were posted.
Senator Olson asked about the road between Teller and Nome.
Ms. Siroky affirmed that it was possible to drive on the
road between Teller and Nome without headlights.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered. The SCS for CSHB
49(FIN) was adopted.
3:05:04 PM
AT EASE
3:19:21 PM
RECONVENED
Co-Chair von Imhof noted that there were several amendments
to be considered. Several of the amendments were technical
in nature, and others were new concepts brought forward by
committee members. She detailed that Senator Shower was
working on a technical amendment and would be joining the
committee shortly.
Co-Chair Stedman MOVED to ADOPT Amendment 1 (copy on file).
Co-Chair von Imhof OBJECTED for discussion. She explained
that the amendment was a technical change brought forward
by LAW in order to make conforming changes throughout the
bill.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, spoke to Amendment 1. He explained that the conceptual
amendment would add language to ensure that the crime of
harassment in the second degree did not overlap with other
crimes. The amendment also addressed pre-trial risk
assessment. There was cleanup language to ensure the true
discretion of a probation officer in terms of making a
recommendation for early termination. He described
technical changes contained in Amendment 1.
3:23:10 PM
Mr. Skidmore continued to address Amendment 1. He spoke
about two sections that dealt with applicability. He
referenced earned compliance credits and caps for technical
violations. The effective date was adjusted in the
amendment.
Mr. Skidmore explained that other portions of Amendment 1
addressed parole. Earned compliance credits and technical
caps for parole were addressed.
Co-Chair von Imhof WITHDREW her objection. There being NO
OBJECTION, it was so ordered. Amendment 1 was ADOPTED.
3:26:09 PM
Co-Chair von Imhof MOVED to ADOPT Amendment 2 (copy on
file).
Co-Chair Stedman OBJECTED for discussion.
Co-Chair von Imhof spoke to the amendment, which included
compromise language pertaining to truth in sentencing. She
explained that the courts had approved the change, and the
amendment would add a new subsection.
Co-Chair Stedman WITHDREW his OBJECTTION. There being NO
further OBJECTION, it was so ordered.
Senator Wilson MOVED to ADOPT Amendment 3.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wilson spoke to the amendment. He detailed that the
amendment would set a limit for the number of DUI's a
person could receive. He asserted that the state had
serious alcohol-related issues. He understood the need for
rehabilitation so individuals could learn from their
mistakes, but he thought there should be a limit on the
number of offenses before the state put a permanent
consequence in place. He discussed consequences for sex
offenders. He discussed current law and the ability of a
person to regain a driver's license after 10 years with no
offense. He stated that the amendment would put a cap on
the number of offenses before a person lost a driver's
license permanently.
Senator Olson asked if the amendment was supported by LAW
or DPS.
Senator Wilson had not asked the departments if there was
support for the amendment.
Mr. Skidmore considered Amendment 3. He thought it made
logical sense.
Co-Chair von Imhof asked if the amendment would be in
conflict with a provision that allowed a person to
potentially get a license back after ten years without re-
offense. Under the amendment, if a person had six DUIs, a
driver's license would be revoked permanently.
Co-Chair von Imhof reiterated her question about whether
the amendment would be in conflict with existing law.
Mr. Skidmore wanted a few moments to consider the
amendment.
3:30:59 PM
Ms. Howell spoke to Amendment 3. She stated the DPS had not
seen the amendment and did not have a position. The
department would defer to the judgement of LAW.
Senator Hoffman asked if the amendment would apply to out
of state DUI offenses for individuals that moved to Alaska.
He asked if the count of offenses would start after
enactment of the new law if passed.
Senator Wilson believed that the count would start after
bill passage.
Senator Micciche asked if three offenses constituted a
felony DUI.
Mr. Skidmore affirmed that three DUI charges within ten
years would constitute a felony. He asked about line 2 of
the amendment, which referenced line "v."
Co-Chair von Imhof asked if after the sixth DUI the license
would be revoked. She asked if a person could potentially
retain a license after ten years of no offenses.
Senator Wilson answered in the negative. He felt that there
should be a limit set after which a person would never be
allowed to drive again.
3:34:38 PM
Co-Chair von Imhof asked which of the lower committees was
considering the issue of driving under the influence. She
reminded of the lengthy discussions that had taken place
pertaining to the bill matter, while the amendment was on a
new subject. She was not suggesting that Amendment 3 was
not sound, but she wanted to ensure the amendment was
properly vetted.
Senator Micciche thought the amendment was less than two
felony DUIs. He reminded that it was possible to get a DUI
charge for driving a lawn mower in your front yard. He
thought the amendment was counter to the spirit of the
bill. He emphasized that he was not condoning any operation
of a vehicle under the influence. He opposed the amendment
but would consider supporting an amendment if it pertained
to a person after three felony DUIs.
Senator Shower understood the thinking behind the
amendment. He thought more work needed to be done on the
concept of rehabilitation within criminal justice reform.
He acknowledged the difficulty of persons trying to live
life without access to a driver's license and thought the
amendment might be setting people up to fail.
3:38:45 PM
Senator Micciche stated that if the maker of the amendment
would consider a conceptual amendment of three felony DUIs
rather than 5 DUI offenses.
Co-Chair von Imhof thought it was difficult to speculate
the intent of a group of people that could or could not be
rehabilitated over the course of ten years. She thought
that members had issues with the amendment. She asked if a
person lost a driver's license after a certain number of
DUI offenses.
Mr. Skidmore stated that in a DUI prosecution at the
misdemeanor level, a license was revoked for a period of
days. The first offense revoked a license 90 days, and
after a second DUI a license was revoked for longer. After
a felony DUI, the current law currently stated a person
would permanently lose a driver's license. In Section 96 of
the bill, there was a path back for a person after being
convicted of a felony DUI and not having a conviction for
ten years.
Mr. Skidmore apologized for misspeaking earlier. He noted
that subsection "v" was in the amendment itself. The
amendment would indicate a person was not eligible to have
a license restored after a period of ten years if convicted
of five or more DUI offenses. Whether or not the DUI
offenses were felonies was dependent upon the amount of
time between offenses, and the amendment did not address
the matter.
Mr. Skidmore stated that the amendment did not conflict
with Section 96.
3:42:33 PM
Senator Wilson questioned whether a person was reformed
after being imprisoned for five years for a felony DUI. He
mentioned experience with an agency that had many DUI
offenders, and thought many people managed to not be caught
for offenses.
Co-Chair von Imhof did not think anyone was suggesting that
DUIs were not a serious issue in the state. She did not
particularly understand current laws sufficiently to vote
on the amendment. She thought if the concept was brought up
later in committee the topic could be considered more
fully.
Senator Wilson noted that laws were being amended and he
was not comfortable with allowing a person to have a
driver's license reinstated after having an unlimited
number of DUI offenses.
Senator Micciche was willing to work on the topic over the
interim. He thought the amendment brought up an important
point but did not evaluate different consequences such as
off-road vehicle or lawnmower. He would not support the
amendment.
Co-Chair von Imhof MAINTAINED her OBJECTION.
A roll call vote was taken on the motion.
IN FAVOR: Wilson, Olson, Wielechowski
OPPOSED: Shower, Bishop, Hoffman, Micciche, VonImhof,
Stedman
The MOTION FAILED (3/6).
3:46:12 PM
Senator Bishop MOVED to ADOPT Amendment 4.
Co-Chair von Imhof OBJECTED for discussion.
Senator Bishop spoke to the amendment, which inserted
language that directed the DOC commissioner to work with
DEED and DOL to help strengthen the rehabilitation section
of the bill.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered.
Senator Bishop MOVED to ADOPT Amendment 5.
Co-Chair von Imhof OBJECTED for discussion.
Senator Bishop spoke to the amendment, which pertained to
the commissioner of DOC. There had been no timeline on the
regulation package, and stakeholders had agreed the
regulation package would need to be written and adopted
within 15 months after the effective date.
Senator Shower asked if DOC was consulted.
Senator Bishop answered in the affirmative.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered.
Co-Chair von Imhof MOVED to ADOPT Amendment 12.
Co-Chair Stedman OBJECTED for discussion.
Co-Chair von Imhof explained that LAW had requested
additional technical changes.
Co-Chair Stedman WITHDREW his OBJECTION.
3:48:53 PM
AT EASE
3:49:30 PM
RECONVENED
Co-Chair von Imhof informed that Senator Shower wanted to
hear from LAW on the amendment.
Mr. Skidmore asked for a motion to delete line 1 through
line 3 of them amendment.
Senator Wielechowski asked for an explanation of Mr.
Skidmore's proposal. He wondered if the change would affect
the bill in a substantive way.
Mr. Skidmore explained that the lines referred to the crime
of sharing images of genitalia. The change would correct
the statutory reference. The change would provide clarity.
Senator Wilson MOVED to ADOPT a conceptual amendment to
Amendment 12. There being NO OBJECTION, it was so ordered.
There being NO further OBJECTION, it was so ordered.
Amendment 12 passed as AMENDED.
Co-Chair Stedman MOVED to ADOPT Amendment 13.
Co-Chair von Imhof OBJECTED for discussion.
Co-Chair von Imhof explained that the amendment would
correct presumptive terms for distribution of child
pornography, ensuring that repeat offenses would receive
higher sentence ranges. The amendment was brought forward
by LAW.
Co-Chair von Imhof WITHDREW her OBJECTION. There being NO
further OBJECTION, it was so ordered.
3:52:58 PM
Co-Chair Stedman MOVED to ADOPT Amendment 15.
Co-Chair von Imhof OBJECTED for discussion. She explained
that the intent of the amendment was a technical correction
related to administrative sanctions. The amendment was
brought forward by LAW.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered.
Senator Wielechowski MOVED to ADOPT Amendment 6.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wielechowski noted that he discussed the topic of
the amendment with LAW. He recalled that in 2007, the
legislature passed a bill that allowed municipalities in
the state the ability to impound a person's vehicle if they
had over $1,000 in outstanding moving violations. He
recounted that he had a constituent that had been severely
injured by a driver that had numerous unpaid tickets. The
municipality of Anchorage posted a list of people with
unpaid citations and the amount that was owed. He noted
that the number one person on the list had 78 citations
with $9,473 in outstanding fines.
Senator Wielechowski continued to discuss Amendment 6. He
detailed that there were thousands of citations and
thousands of dollars in outstanding fines. The total amount
of fines in Anchorage (counting people owing more than
$1,000) was $6.1 million. The rest of the state had a total
of $16.3 million in outstanding moving violations. He
stated that the amendment would allow the Division of Motor
Vehicles (DMV) to revoke a license after a person did not
pay over $1,000 in unpaid fines for moving violations. He
noted that there was a payment plan available. He believed
the amendment was supported by LAW. He had sent the
amendment to DMV, and it had supported the cancellation of
licenses.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered.
3:56:28 PM
Senator Wielechowski MOVED to ADOPT Amendment 7.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wielechowski explained that under current law, the
first-time and second-time offense for drug possession
required no jail time. The third offense had jail time. The
previous version of the bill made the first two offenses
class A misdemeanors, with jail time. The CS had the first
offense as a felony, which he thought was harsh. He thought
the amendment was an attempt to find a middle ground. He
thought a first offense charged as a felony could create
problems with housing, employment, and possibly child
custody.
Co-Chair von Imhof asked if the amendment provided a
misdemeanor for the first offense, but with jail time
potential of zero to 365 days in jail.
Senator Wielechowski clarified that the first offense would
be a class A misdemeanor punishable by up to 365 days in
jail. The second offense would be a class C felony.
3:59:13 PM
Senator Micciche referenced the serious issue of drug
abuse, addition, and drug trafficking. He asked about the
probability of LAW giving some jail time to have a person
take a first offense seriously. He asked how Mr. Skidmore
felt about the change proposed in Amendment 7.
Mr. Skidmore stated that current law stated that a person
convicted of possession was always a misdemeanor and the
first two times had zero jail time associated with it. The
proposed amendment would require that a first-time offender
face up to a year in jail, and at a second conviction
(within ten years) that it would constitute a felony. He
thought the amendment proposed a significant change in law
and was more aggressive that what was in the bill that came
from the House. He thought the one year in jail was a
substantial tool to work with. The department was not
opposed to the concept.
Senator Micciche wanted to ask DPS if it would arrest a
person for possession of heroin or methamphetamine if the
first charge was a misdemeanor. He wanted to know that
troopers would arrest and prosecute a person for the first
offense.
Ms. Howell affirmed that troopers would arrest for
misdemeanor possession.
Senator Hoffman believed, given Mr. Skidmore's testimony,
that the amendment made sense. He thought a disincentive
would still exist. He thought that the state would still be
viewed as tough on crime, and he supported the amendment.
Senator Olson thought it had been pointed out by Senator
Micciche that people would or would not be prosecuted, and
troopers would not necessarily be aware of how many times a
person had been charged. He had many close friends in rural
Alaska that had been convicted of a felony. He spoke to the
many burdens that came with being a felon. He was in favor
of the amendment.
4:03:48 PM
Senator Bishop supported the amendment. He thought the
possibility of zero to 365 days in jail was a big
disincentive. He looked forward to the following year and
consideration of rehabilitation services that would be
examined in a forthcoming bill.
Senator Shower associated himself with Senator Bishop's
comments. He suggested that it would be possible to enact
harsher penalties in the future if needed. He mentioned the
huge problem of drugs in the state. He thought the
amendment was a step in the right direction. He did not
think the amendment took tools from law enforcement. He
supported the amendment. He thought the amendment was a
good compromise.
Co-Chair von Imhof WITHDREW her objection. There being NO
OBJECTION, it was so ordered. Amendment 7 was adopted.
4:05:31 PM
Senator Wielechowski MOVED to ADOPT Amendment 8.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wielechowski stated that the amendment dealt with
the issue of bail. He cited that 40 to 45 percent of people
in prison were pre-trial and had not been convicted of a
crime. He acknowledged that some were there because some
individuals would be offered no bail and were a severe
danger to society. He discussed a huge percentage of people
were in jail due to not being able to afford bail. He
discussed the disparity between individuals with and
without financial resources. The amendment tried to
mitigate the situation. He acknowledged that there were
persons that were a danger to society, at which time a
judge would set a high bail or no bail.
Senator Wielechowski explained the amendment would give a
judge the ability to reevaluate the conditions of bail. The
amendment was an attempt to deal with inequality in the
legal system.
Co-Chair von Imhof thought Senator Wielechowski proposed to
allow a judge to look at bail again to decide whether a
change was needed.
Senator Wielechowski answered in the affirmative. He stated
that a person (after making a good faith effort) could ask
a judge for reconsideration.
4:08:56 PM
Senator Micciche thought the amendment was a creative
approach. He reminded that the bail issue was not
necessarily only applicable to disadvantaged people. He
thought some individuals sometimes exhausted resources
through addiction behavior. He thought judges generally
took individuals' ability to pay when setting bail. He
mentioned repeat offenders. He did not support the
amendment.
Senator Bishop asked about line 10 and line 11 of Amendment
8; and wondered if the amendment only addressed one time
when a person could request reconsideration of bail
conditions.
Senator Wielechowski affirmed that the amendment proposed
to give a person one more time to convince a judge. He
explained that the amendment would give judges discretion.
Senator Olson discussed the potential for harmful exposure
to bad elements while a personal was held in prison. He
acknowledged that a judge had the opportunity to consider
different bail conditions rather than waiving bail. He
supported the amendment on the grounds that it would keep
people out of jail while awaiting trial.
4:12:11 PM
Senator Hoffman thought the amendment addressed a one-time
chance to reevaluate bail conditions after a good faith
effort. He thought there was a serious problem with jail
overcrowding. He supported the amendment.
Senator Shower asked to hear an opinion from LAW.
Senator Olson asked if the courts were available as well.
Mr. Skidmore addressed Amendment 8. He thought Senator
Wielechowski had done a good job explaining that the
amendment. The way the bill was drafted, it modified
current law to allow the inability to pay and having shown
good effort as a basis for new information for a subsequent
bail hearing one time. He stated that LAW did not have a
position on the amendment and would leave it to the
discretion of the committee.
Senator Micciche asked to clarify that the amendment
allowed for reevaluation of bail conditions for one time
per charge. He thought some individuals were repeat
offenders.
Mr. Skidmore affirmed that the amendment would allow for
one time per case, regardless of how many charges were in
the case. He thought Senator Micciche was pointing out that
individuals would pick up a second case, and the proposed
change would apply to the second case as well.
4:15:08 PM
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM (via
teleconference), stated that the Court System did not have
a position on the amendment. She agreed with Mr. Skidmore's
description of the effect of the amendment.
Senator Wilson asked how many potential additional bail
hearings would be added to the court system.
Ms. Meade stated that there had been slight increase in
bail hearings as a result of SB 91 (where the inability to
pay did result in giving a person a right to a bail
hearing), but not so many as that was difficult to absorb
and accommodate. She thought the passage of the amendment
would likely have the effect of allowing a few more bail
hearings, and she did not anticipate more than the court
system could absorb.
Co-Chair von Imhof thought it seemed like the amendment
would not going to necessarily require a judge to change
bail, but rather to hear it again and decide.
Co-Chair von Imhof WITHDREW her objection.
Senator Micciche OBJECTED for discussion.
Senator Wielechowski asked if a public defender could speak
to the amendment.
4:17:26 PM
JAMES STINSON, OFFICE OF PUBLIC ADVOCACY, DEPARTMENT OF
ADMINISTRATION (via teleconference), stated that the Office
of Public Advocacy would support the amendment. He thought
the amendment was a reasonable balance and would provide
for individuals making a good faith effort.
Senator Micciche MAINTAINED his OBJECTION. A roll call vote
was taken on the motion.
IN FAVOR: Wilson, Olson, Wielechowski, Bishop, Hoffman,
Shower, Steadman, von Imhof
OPPOSED: Micciche
The MOTION PASSED (8/1). Amendment 8 was ADOPTED.
Senator Wielechowski made a motion to WITHDRAW Amendment 9.
There being NO OBJECTION, it was so ordered.
Senator Wielechowski MOVED to ADOPT Amendment 10.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wielechowski spoke to the amendment. He noted that
the amendment was a bit technical and related to marriage
as a defense against certain crimes. He noted that the bill
being considered rightfully did away with the defense for
most encounters. He thought it was inadvertent, but cited a
provision relating to engaging in sexual relations with a
person that was in custody of DOC.
Senator Wielechowski explained that the way the bill was
written, it was possible to use marriage as a defense; and
there was a total of six different where marriage could
still be used as a defense, and the amendment would add the
requirement of consent. The amendment also addressed the
issue where a spouse that had Alzheimer's could consent if
lucid. He thought it was a sensitive issue. He thought the
amendment was a better solution than what was in the bill
and was a nuanced change.
4:21:16 PM
SONJA KAWASAKI, STAFF, SENATOR BILL WIELECHOWSKI, discussed
the intent of Amendment 10. She explained that the
amendment attempted to address concerns expressed by
members relating to sexual contact with persons who were
mentally capable (generally unacceptable that should be
prohibited); and whether there should be two exceptions.
The amendment provided an affirmative defense in which a
spouse could prove that the other person was lucid at the
time of the contact.
Co-Chair von Imhof asked about the ability to prove
lucidity.
Ms. Kawasaki stated that on page 3, lines 7 through 12; the
amendment provided a mechanism that was an affirmative
defense. Normally, a prosecutor would have to disprove the
elements of the defense; which the amendment shifted the
burden of proof to the person charged. By preponderance of
the evidence, the defendant would have to prove that the
elements of the defense existed. She explained that
preponderance of the evidence was typically the probable
truth based on the evidence presented and was a lower
circumstance than reasonable doubt.
4:24:18 PM
Co-Chair von Imhof asked for an explanation of the
amendment in layman's terms. She asked what the bill did in
its current form, and what the amendment tried to fix.
Ms. Kawasaki stated that in four places in the state's
criminal code, a person could be charged for sexual
penetration or sexual content if a victim was mentally
incapable, incapacitated, or unaware when the act was
committed. The bill current would not allow any defense to
any of the three circumstances. She thought there had been
concerns about the term "mentally incapable" as defined in
law, could mean that a person suffering from dementia or
Alzheimer's, in which case there could be periods of
lucidity and possible consent. The amendment would allow
for a spouse to be able to prove that there was clarity and
judgement and consent during the time of the sexual
contact.
4:26:28 PM
Senator Olson asked Senator Wielechowski to explain the
remedy that the amendment proposed. He was concerned about
the possibility of a family dispute.
Senator Wielechowski had heard that the situation was
becoming a more common occurrence. He discussed scenarios
related to the subject. The way the CS was written, a
prosecutor would have to prove mental incapacity. He
thought there had been different legal opinions as to how
the remedy was interpreted. The amendment gave a spouse the
ability to assert that the other spouse was lucid at the
time of the event in question and provide an affirmative
defense. There was also a jury instruction regarding the
affirmative defense.
Senator Wielechowski asserted that the amendment strove to
protect both spouses. The public defender's office had
supported the concept. He relayed that LAW had no objection
to the proposal. He noted that the amendment required for
consent in the five instances of marital defense.
4:30:37 PM
Co-Chair von Imhof asked how Co-Chair von Imhof pictured
one spouse proving lucidity of the other spouse at another
time.
Senator Wielechowski suggested that circumstantial evidence
such as testimony of neighbors and others could go towards
proof of lucidity. He explained that total deletion of the
marriage defense would make it harder to have such evidence
admissible.
Co-Chair Stedman asked to hear from LAW. He asked if the
department would support the amendment.
Mr. Skidmore stated that the department was not in a
position to support the amendment but did not object to it.
He explained the concept of allowing marriage as an
affirmative defense. He reminded that the question was
whether or not a person was capable of consenting at the
time of the sexual activity.
Co-Chair Stedman did not feel that the testimony gave him
guidance.
Mr. Skidmore stated that LAW had provided a letter to the
committee that analyzed its position on the way the law was
drafted (copy on file). Some had disagreed with the
department's assessment.
4:35:00 PM
Senator Shower asked if the marriage defense (if there was
a case of spousal rape) would still be eliminated as
proposed in the bill if the amendment was to pass.
Mr. Skidmore explained that if the amendment passed the
affirmative defense would apply to when a victim was
mentally incapable and under the care of the defendant and
was limited to spouses. He continued that the amendment
differentiated by adding language about consent. He had
indicated consistently that it was most important that
there was consent between both parties.
Mr. Skidmore thought the amendment did not do harm to the
elimination of the marriage defense as the administration
had advocated.
4:38:24 PM
Senator Olson asserted that the legislature was responsible
for policymaking. He asked about Mr. Skidmore's reference
to individuals in his family that had experienced dementia
or Alzheimer's, and the advice he had given his
grandfather.
Mr. Skidmore clarified that he had testified on May 1,
2019; and his remarks pertained to his grandmother who had
suffered from Alzheimer's, and after which time that she
was no longer lucid. He emphasized the importance of
choosing words carefully.
Senator Olson apologized if he misspoke. He asked if Mr.
Skidmore would agree if the amendment cleared up the issue.
Mr. Skidmore reiterated that the amendment would allow for
someone to argue in the affirmative that someone had
consented. His previous testimony and the memo in analysis
of the law said that those elements were required to show
under the defense already.
Senator Micciche asked Mr. Skidmore's opinion was that the
amendment did not hurt either way.
Mr. Skidmore did not believe the amendment softened the
elimination of the marriage defense, and thought it was
another way of describing the very concept that he had been
testifying to from the beginning.
Senator Micciche asked if there was something on page 2
Section 7 that was changed under the amendment.
4:42:19 PM
Senator Wielechowski addressed Senator Micciche's question.
He thought the amendment strengthened the bill and made it
so there had to be consent for the act for which the
defendant was charged.
Mr. Skidmore relayed that AS 11.41.432 currently made it a
defense when a person was married. The amendment on Section
7, page 2, lines 14-22 would add back in the concept of
consent in the circumstance considered in the bill. He
asserted that the law would say that one could not engage
in the conduct when employed or the person was under
supervision; but marriage would be a defense under the
circumstances. He considered that the particular provisions
were not addressing incapacitation, being unaware, or
mentally incapable. He thought consent was already in the
law because sexual penetration without consent (regardless
of employment) was unlawful and marital status did not
apply. He understood what the amendment was trying to
accomplish but did not think it was necessary.
4:45:35 PM
Senator Wielechowski asked for a brief statement from the
Office of Public Advocacy (OPA).
Mr. Stinson stated that OPA supported the marriage defense
provision as an affirmative defense - he understood Mr.
Skidmore's point, but thought the amendment would put
people at ease in a very particular circumstance. He
thought largely everyone was in agreement over repeal the
marriage defense as it currently existed. He thought the
amendment seemed like a reasonable accommodation.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered. Amendment 10 was
ADOPTED.
4:47:20 PM
AT EASE
4:48:26 PM
RECONVENED
Co-Chair von Imhof stated that the committee would consider
three additional amendments and would also make a motion to
rescind Amendment 2.
Senator Wielechowski MOVED to ADOPT Amendment 11.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wielechowski spoke to the amendment. He explained
that the amendment was on page 74 line 13 and was in a new
section. The new section would require that decisions,
orders, and conditions of the parole board were not
confidential and would be posted. The amendment proposed
that confidential medical information would not be
provided.
Co-Chair von Imhof understood that Senator Wielechowski was
stating that the non-inclusion of information would conform
to Health Insurance Portability and Accountability Act
(HIPAA) laws.
Senator Micciche was curious if the amendment sponsor
believed that if substance abuse treatment was part of a
sentence, if it should be redacted.
Senator Wielechowski thought it was possible that treatment
information was HIPAA-related. He stated that the amendment
was conceptual and was open to re-writing it if there was a
better way.
Senator Micciche preferred that the amendment specified
"HIPAA-related" information, not to include treatment that
was part of a sentence. He agreed that personal medical and
mental-health information should not be published.
4:52:13 PM
Senator Wilson stated that medical and mental health
information fell under HIPAA regulations, but substance
abuse fell under another regulation, which was similar to
HIPAA but more stringent.
Co-Chair von Imhof thought Senator Wilson was stating that
substance abuse treatment information was already protected
as confidential by state or federal law.
Senator Wilson affirmed that the information was already
protected.
Co-Chair von Imhof gleaned that the amendment was accurate
as written.
Senator Micciche assumed that substance abuse treatment
information was different than information on the length of
treatment. He noted that some sentences required a certain
amount of treatment, and thought the information was
important for victims.
Co-Chair von Imhof asked Senator Wielechowski (if the
amendment was passed) to work with LAW and OPA to include
specifically what information was protected and not
protected, including substance abuse treatment.
Senator Wielechowski agreed.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered. Amendment 11 was
ADOPTED.
4:54:54 PM
AT EASE
4:55:53 PM
RECONVENED
Co-Chair Stedman MOVED to ADOPT Amendment 16.
Co-Chair von Imhof OBJECTED for discussion.
Co-Chair von Imhof explained that the technical amendment
was an attempt to make additional technical changes as
requested by LAW to remove repealers associated with
administrative sanctions.
Co-Chair von Imhof WITHDREW her OBJECTION. There being NO
further OBJECTION, it was so ordered.
Co-Chair von Imhof noted that after passing Amendment 2, it
had come to the committee's attention that DOC had to be
removed from the amendment.
Co-Chair Stedman MOVED to RESCIND the committee's action on
Amendment 2.
Co-Chair von Imhof OBJECTED for discussion.
4:57:43 PM
AT EASE
4:58:04 PM
RECONVENED
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered. The committee's
action on Amendment 2 was rescinded.
Co-Chair Stedman MOVED to ADOPT a conceptual Amendment to
Amendment 2.
Co-Chair von Imhof OBJECTED for discussion. She explained
that the intent of the conceptual Amendment to Amendment 2
was to remove the reference to DOC.
Co-Chair von Imhof WITHDREW her objection. There being NO
further OBJECTION, it was so ordered. The conceptual
Amendment to Amendment 2 was ADOPTED.
4:59:24 PM
AT EASE
4:59:40 PM
RECONVENED
Co-Chair Stedman MOVED to ADOPT Amendment 2 as amended.
There being NO OBJECTION, it was so ordered.
Senator Wielechowski MOVED to ADOPT Amendment 14.
Co-Chair von Imhof OBJECTED for discussion.
Senator Wielechowski spoke to the amendment. He thought
there might need to be conforming changes. He explained
that the amendment dealt with probation and parole, and
technical violations. Technical violations could include
things like showing up late for a meeting with a
probation/parole officer or consuming alcohol. He
emphasized that the amendment addressed technical
violations rather than a new crime. He reported that there
had been 21,000 technical violations in the previous two
years.
Senator Wielechowski continued to speak to Amendment 14. He
noted that the Senate had created a provision to give
probation/parole officers the ability to handle technical
violations with administrative sanctions. He spoke to the
idea of immediate ramifications and giving a
probation/parole officer the ability to impose immediate
ramifications. The version of the bill that came to the
committee asserted that if administrative sanctions weren't
working, it was possible to go to a judge and there would
be tiered penalties.
Senator Wielechowski continued to speak to Amendment 14. He
explained that the CS would allow a judge discretion to
impose any penalty at all. The amendment would allow for a
judge to impose a penalty of zero to three days the first
time. The hope was that the penalty would be enough of a
deterrent that the penalty would not impact a job and not
throw a person back into a negative cycle. He noted that
LAW did not support the amendment and wanted the judge to
have the ability to impose as much time as desired. He
thought it was a mistake in policy and thought up to three
days was a significant punishment, after which there would
be greater penalties.
Co-Chair von Imhof asked if the issue was addressed in SSTA
or SJUD.
Senator Shower answered in the affirmative. He thought it
might be useful to have someone from the department
testify.
5:05:37 PM
JEN WINKELMAN, DIRECTOR OF PROBATION AND PAROLE, DEPARTMENT
OF CORRECTIONS, stated that DOC probation officers used
administrative sanctions for swift and effective responses
to violations. She continued that by the time the issue
came before the court, there had already been sanctions and
the court could determine the amount of time to impose as a
sanction. The department was in support of the CS the way
it was written without the amendment.
Co-Chair von Imhof asked about the function of the
amendment.
Ms. Winkelman explained that the amendment put the
technical caps back in at a different level than was in the
House version of the bill.
Senator Olson asked about scenarios under which a person
had a technical violation and could lose a job.
Ms. Winkelman supposed there could be a situation where an
individual could lose a job, but such cases were taking
before a judge, who could consider the totality of
circumstances.
Co-Chair von Imhof MAINTAINED her objection.
Senator Micciche clarified that DOC had tools for
administrative sanctions before moving to a higher level of
penalty.
Ms. Winkelman answered in the affirmative.
A roll call vote was taken on the motion.
IN FAVOR: Olson, Wielechowski
OPPOSED: Bishop, Hoffman, Micciche, Shower, Wilson, von
Imhof, Stedman
The MOTION FAILED (2/7).
5:09:57 PM
Co-Chair Stedman MOVED to report SCS CSHB 49(FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO further
OBJECTION, it was so ordered.
SCS CSHB 49(FIN) was REPORTED out of committee with a "do
pass" recommendation and with forthcoming fiscal notes from
the Department of Health and Social Services, the
Department of Administration, the Department of Law, the
Department of Public Safety, the Court System, and the
Department of Corrections; and one new previously published
zero fiscal note: FN 1(DHS).
ADJOURNMENT
5:11:31 PM
The meeting was adjourned at 5:11 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 49 Marriage Defense Memo.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Work Draft Version O (002).pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| Copy of HB049-DHSS-FP-5-12-2019 (002).pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Amendment 14 Wielechowski.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Amendment 2b Conceptual von Imhof.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Amendment 15 von Imhof.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Amendment 16 von Imhof.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Amendment Packet 1-5.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |
| HB 49 Amendment Packet 6-13.pdf |
SFIN 5/12/2019 1:00:00 PM |
HB 49 |