Legislature(1997 - 1998)
03/11/1998 01:30 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
March 11, 1998
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
All members present.
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 323(JUD)
"An Act relating to sexual offenses, to those who commit sexual
offenses, and to registration of sex offenders; amending Rule
6(r)(2), Alaska Rules of Criminal Procedure; and providing for an
effective date."
- MOVED CSSB 323(JUD) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 36
Proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature, and repealing as
obsolete language in the article setting out the apportionment
schedule used to elect the members of the first state legislature.
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
No previous action to report.
WITNESS REGISTER
Mr. James Baldwin
Department of Law
PO Box 110300
Juneau, Ak 99811-0300
POSITION STATEMENT: Commented on SJR 36
Mr Glen Klinkhart
Anchorage Police Department
1901 Jarvis Ave.
Anchorage, Ak 99515
POSITION STATEMENT: Supported SB 323
Mr. Terry Vrabec
612 Yukon Drive
Fairbanks, Ak 99775
POSITION STATEMENT: Supported SB 323
Mr. Paul Sweet
PO Box 1562
Palmer, Ak 99645
POSITION STATEMENT: Commented on SB 323
Mr. Don Bowman
5700 East Tudor Rd.
Anchorage, Ak 99507
POSITION STATEMENT: Supported SB 323
Mr. Ralph Bennett
Staff to Senator Robin Taylor
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SJR 36
Mr. Jeff Logan
Staff to Representative Joe Green
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Commented on SJR 36
ACTION NARRATIVE
TAPE 98-17, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:30 and called SB 323 as the first order of business.
SB 323 - SEX OFFENSES & OFFENDER REGISTRATION
SENATOR PEARCE came forward to present SB 323, saying the use of
children in the production of sexually explicit material is a form
of sexual abuse than can result in physical and psychological harm
to the children involved. SENATOR PEARCE said individuals who are
attracted to children often seek out this type of sexually explicit
material. Access to the Internet has become one of the preferred
methods of obtaining this kind of pornography and law enforcement
agencies across the country are finding thousands of pieces of
child pornography in their investigations. SENATOR PEARCE noted
that Congress passed the Child Pornography Prevention Act in 1986
and several states are taking action to strengthen their
pornography laws.
SENATOR PEARCE explained that the Alaska penalty for distribution
of child pornography is not more than five years, and law
enforcement officers are having trouble proving distribution and
are having to charge offenders with lesser crimes, such as
possession of child pornography, which is merely a class A
misdemeanor.
SENATOR PEARCE stated that SB 323 increases the penalties for both
possession and distribution of child pornography to class B
felonies, punishable by not more than 10 years in prison. SB 323
also creates the crime of indecent exposure in the first degree if
an offender knowingly masturbates within the observation of a
person less than 16 years of age. SENATOR PEARCE said this offense
would also be a class B felony, and the existing offense of
indecent exposure becomes a class C felony when committed before a
person less than 16 years of age, and a class A misdemeanor when
committed before a person 16 years of age or older.
SENATOR PEARCE said the bill also requires sex-offender
registration for the offenses of indecent exposure in the first and
second degree, and the possession of child pornography. Currently,
only offenders convicted of the crime of distribution of child
pornography have to register.
SENATOR PEARCE remarked that the existence and distribution of
child pornography creates the opportunity for many types of harm in
a community and presents a clear and present danger to all
children. She stated this bill is intended to help protect children
by inhibiting the creation and distribution of child pornography.
Strengthening the penalties for these crimes will send a clear
message that the degradation and exploitation of children will not
be tolerated.
SENATOR PEARCE added that the original idea for the bill came from
an Anchorage police officer frustrated with the difficultly of
proving distribution of child pornography. SENATOR PEARCE said this
individual officer has seen thousands upon thousands of different
pictures in the possession of a single child pornographer.
SENATOR PEARCE said the bill brings in some other areas due to the
fact that the drafter thought some of the ancillary crimes should
be looked at in order to maintain consistency in sentencing.
Number 095
CHAIRMAN TAYLOR commented on the frustration he experienced, as a
judge, sentencing people guilty of these same crimes. He said, in
one particular case, an offender was apprehended in what appeared
to be the execution of an even more serious crime and CHAIRMAN
TAYLOR sentenced him to the maximum available penalty, ninety days.
CHAIRMAN TAYLOR said, after imposing this maximum penalty, he was
disqualified by every public defender in Anchorage for this act.
CHAIRMAN TAYLOR said this law would provide another level of
consideration when faced with this type of offenders, who are often
serial offenders. He believes this is an important piece of
legislation and thanked SENATOR PEARCE for bringing it forward.
SENATOR PEARCE noted that the drafter had made an error in drafting
the bill, she offered amendment #1 as a technical change,
addressing this error.
SENATOR MILLER moved amendment #1. Without objection, it was so
ordered.
Number 177
OFFICER GLENN KLINKHART testified via teleconference from Anchorage
and thanked SENATOR PEARCE for the bill. He said his involvement
with the prosecution of these crimes began three years ago when he
joined the police force. Up until then, he was totally unaware of
the volume of child pornography and pedophiles out there. He said,
unfortunately, he could be kept continuously busy working these
cases. OFFICER KLINKHART said the U.S. Customs officers have also
reported a marked increase in this type of crime.
OFFICER KLINKHART reported about a man in Eagle River who plead
guilty to possession of child pornography in addition to other
charges and was found to possess pornographic pictures equivalent
to the volume of 17 reams of paper. OFFICER KLINKHART said these
pedophiles trade pornographic pictures like baseball cards and, at
any given time, several Alaskans can be found downloading
pornographic pictures in Internet chat rooms.
OFFICER KLINKHART said several reasons explain why this type of
crime is found in Alaska: the young population, coupled with a high
percentage of home computers and widespread Internet access makes
this an easy crime to commit. OFFICER KLINKHART said this type of
material used to be distributed through the mail from Europe and
dealt with by the U.S. Customs service.
OFFICER KLINKHART spoke of different varieties of crimes committed
by pedophiles and stressed the need for officer training in order
to more effectively fight this type of crime. He said with more
training, there will be more arrests. As it is now, OFFICER
KLINKHART generally has to bring in federal authorities to charge
cases, as they have stricter statutes. He does not mind doing this
but the process is sometimes slow.
Number 269
SENATOR PEARCE asked about the fiscal note from the Public
Defender's Office and OFFICER KLINKHART replied that the reason
there are only two cases pending is due to the fact that they are
generally charged as federal cases, since a misdemeanor charge is
not adequate to punish these crimes.
MR. TERRY VRABEC testified via teleconference from Fairbanks and
agreed with the testimony provided by OFFICER KLINKHART. MR. VRABEC
also mentioned the fact that, in order for these pictures to be
taken, children were sexually abused. He agrees with increasing the
penalties for this type of crime, and requiring offenders to
register as sex offenders. MR. VRABEC said if there were more
police officers working on this type of case, they could catch more
offenders.
MR. PAUL SWEET testified via teleconference from Mat-Su. MR. SWEET
asked about disqualification from holding a teaching certificate
under this bill, he wondered how private school teachers, without
certification, would be dealt with.
CHAIRMAN TAYLOR remarked he was not sure they could restrict hiring
by a private enterprise. MR. SWEET said then only certified
teachers would fall under the bill. SENATOR PEARCE commented that,
in schools where the state does not require certification, it is up
to the parent of students to ensure the school performs background
checks. CHAIRMAN TAYLOR added that the bill does require
registration of offenders and this list is accessible to any
interested parties.
Number 340
PAUL SWEET said there are currently about 3,500 sex offenders in
the state required to register and only about 450 of them are
actually signed up. If these people are not signed up and he is
unable to get information on them until they do, he sees this as a
problem. CHAIRMAN TAYLOR responded that those who worked on the
passage of the original sex offender registration legislation were
dismayed to find out about the glitch in the law that allowed for
misinterpretation. He said the intent was that the Department of
Corrections would register them before they were set loose, and
they have another law working its way through the process to
mandate this. CHAIRMAN TAYLOR said he shares MR. SWEET's
frustration in this regard.
MR. SWEET asked about parolees who are not included. CHAIRMAN
TAYLOR said he believed they were required to register and that was
one of the many things they were trying to work on.
MR. SWEET suggested that if they published a few names of those
offenders who failed to register, the rest of them would come
running. CHAIRMAN TAYLOR said there are lots of devices that could
be used, they're trying to do it through legislation. MR. SWEET
mentioned one sex offender who was restricted from unsupervised
conduct with children less than 14, but whose court order
explicitly allowed him to teach above the seventh grade.
MR. DON BOWMAN testified via teleconference from Anchorage and
simply stated that the Department of Public Safety and the Alaska
State Troopers support SB 323.
SENATOR ELLIS expressed concern about the definition of child
pornography. He cited a case in Oklahoma where police seized copies
of an academy-award winning film, which fell under their state's
definition of child pornography. He asked if this might happen
here, under Alaska's definition of child pornography. SENATOR ELLIS
also asked about the definition of indecent exposure, and how it
might relate to breast-feeding. He also asked about "mooning" and
how it might be looked upon.
SENATOR PEARCE mentioned there was no intention to change any
present definitions, only to address the problem of prosecuting
these crimes.
MS. ANNE CARPENETI, representing the Department of Law, came
forward and said "mooning" falls under the crime of disorderly
conduct, a class B misdemeanor.
Number 450
MS. CARPENETI explained that the definition of child pornography
defines it as audio or visual content meeting certain criteria.
SENATOR ELLIS clarified that it is not based on the gratification
of the viewer and MS. CARPENETI agreed. SENATOR ELLIS said he
wondered as he had just sent a postcard depicting kids in the
bathtub, he considered it cute but wondered how it would be viewed
by another state.
SENATOR PEARCE read the definition of pornography as material that
visually or aurally depicts conduct including sexual penetration,
lewd touching, masturbation, bestiality, sadism and masochism.
SENATOR ELLIS replied it seemed to exclude kids in the bathtub and
MS. CARPENETI agreed it wasn't babies on bear rugs.
OFFICER KLINKHART said SENATOR ELLIS made a good point and said in
his work, they use a standard of "lewd and lascivious," and look to
see what the focal point of a picture is. He concluded that he did
not think the movie incident would occur here in Alaska.
Number 504
SENATOR PEARCE commented on the wide availability of this material
through the Internet and asked OFFICER KLINKHART if they were
seeing an increase in this type of crime by adolescent males.
OFFICER KLINKHART replied the offenders were primarily males over
the age of 30. He sees this crime as a precursor to child
molestation.
SENATOR PEARCE moved CSSB 323(JUD) from committee with individual
recommendations and accompanying fiscal notes. Without objection,
it was so ordered.
SJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING
Mr. RALPH BENNETT, staff to CHAIRMAN TAYLOR, presented the sponsor
statement for SJR 36, saying the bill proposes an amendment to
articles six and fourteen of the Alaska Constitution. According to
MR. BENNETT, these changes will reflect rulings by the U.S. and
Alaska Supreme Court and will enshrine single-member districts in
the Alaska Constitution. MR. BENNETT said certain supreme court
rulings established a "one person one vote" rule and, as a result,
all legislative bodies in the U.S. are apportioned on the basis of
population. He added that the Alaska Constitution, as originally
written, bases Senate districts partly on population and partly on
geography. MR. BENNETT said certain Alaska Court rulings have
established an equal basis for both civilian and military
population.
MR. BENNETT explained that Section three of the bill removes the
authority of the Governor to reapportion, and affords the Governor
only the authority to redistrict. He pointed out two memos in the
member's packets that address the difference between the two terms.
MR. BENNETT stated that section four of the bill establishes
single-member legislative districts for the House, essentially,
constitutionalizing what is already happening. Single member
districts seem to work well in Alaska, according to MR. BENNETT.
MR. BENNETT informed the committee that section eight eliminates
references to reapportionment and specifically allows for judicial
review of a Governor's acts or failure to act. He said this section
also gives priority to redistricting cases that are brought before
the Superior or Supreme Courts. Section ten repeals sections five
and seven in article six and article 14 of the Alaska Constitution.
RALPH BENNETT explained that article 14 sets out the original
reapportionment schedule, now obsolete.
CHAIRMAN TAYLOR stated that this is basically the same as a piece
of legislation moving through the House.
SENATOR MILLER moved the adoption of the Workdraft "E" version as
a committee substitute in lieu of the original bill. SENATOR ELLIS
objected and asked about the difference between the two versions.
MR. BENNETT explained that some changes were made as the bill
passed through the process in the House. Section four specifically
mentions the number of house and Senate seats. Section eight
establishes the priority for a judicial review and redistricting is
changed to reapportionment throughout the bill. MR. BENNETT said
the terms are similar but defined very differently.
SENATOR ELLIS asked MR. BENNETT to read the definitions for the
record. RALPH BENNETT said Black's Law Dictionary defines
apportionment as "the process by which legislative seats are
distributed among units entitled to representation or for
reapportionment, or a new apportionment of seats in the House of
Representatives among states according to their respective
numbers." He said districting is defined as "the establishment of
precise geographic boundaries of such units or constituency. He
again referred to the memos in the member's packets and suggested
it might also be helpful in understanding the differences between
these two words.
SENATOR ELLIS asked, simply stated, what the change in the bill
results in. MR. BENNETT replied that, under the new bill, more of
an emphasis is placed on population and geography, not a formula.
TAPE 98-17, SIDE B
Number 001
MR. JEFF LOGAN, Staff to Representative Joe Green, said that the
change from redistricting to reapportionment due to the suggestion
of the bill drafter, who believes redistricting is more a term of
art and more accurately reflects what the Governor is doing by
changing lines within the state. Reapportionment takes place among
the states and is more directed by population and geography.
SENATOR ELLIS asked if the drafter's opinion was that the framers
of the Alaska Constitution had used the wrong word. MR. LOGAN
replied he was not sure, he only knew that it was their opinion the
change describes the process more accurately.
MR. JIM BALDWIN, representing the Attorney General's office, came
forward and agreed that the change in wording was not intended to
change the process, but only alters the label given to it. He said
this is his understanding and nothing to the contrary has come to
light in the testimony on the companion house bill thus far. He
said there are many alarming things about this bill but, unless the
change in wording does more than it seems to, these changes do not
alarm him.
MR. BALDWIN said his main concerns begin with the preclearance
requirements of the Voting Rights Act. He said that when the state
comes up with a plan, it must be submitted for preclearance. He
thinks certain aspects of this resolution may also require
preclearance and the fiscal note his department has not yet, but
intends to provide, will reflect this. He said the bill also
requires reapportionment be done in single member districts, as it
was done in the 1990 reapportionment. MR. BALDWIN says this
reapportionment was upheld by the courts, although some questions
were raised about single-member districts in Southeast Alaska.
MR. BALDWIN commented that multi-member districts have been used
in prior plans and have been validated. He said the court decision
cited in previous testimony do not mandate single-member districts,
though they do express a preference for them. He said redistricting
and reapportionment are difficult for the large geography and
sparse population of our state. MR. BALDWIN said the flexibility
that multi-member districts can give the Governor in the case of
retrogression is useful. He fears we may face a retrogression
situation in regards to minority voters in the next plan. He said
retrogression in some districts might be avoided by the use of
multi-member districts, in others he feels it may be unavoidable.
MR. BALDWIN speculated that the ability to go to a multi-member
district also might help meet preclearance requirements, but said
he can't say for certain.
CHAIRMAN TAYLOR asked if the preclearance requirements based on the
Voting Rights Act were partially thrown out by the federal court,
specifically the portion relating to racial quotas. JIM BALDWIN
responded that some plans, in some states, were invalidated.
CHAIRMAN TAYLOR asked if it was because of an attempt to quantify
and include a certain percentage of racial groups within the areas.
MR. BALDWIN explained that the reason they were thrown out was
because the court believed there was too much emphasis on race, and
not enough placed on typical redistricting standards. When race is
figured in equally with other factors like compactness and
contiguity, a plan will be upheld. When race is placed above all
else, plans will fail, as has happened. CHAIRMAN TAYLOR commented
that our last reapportionment considered race above other factors,
saying linguistics was even considered in attempting to draw the
lines. He believes Alaska is subject to the same type of litigation
as the other states mentioned. He said this is why he was surprised
to hear MR. BALDWIN referring to the retrogressive effect that
single-member districts might have, since it is retrogressive only
racially.
MR. BALDWIN clarified that he was not saying single-member
districts are themselves retrogressive, he meant that the state
will have to deal with the fact that the native population in
proportion may have reduced representation. One way to remedy this
would be to set up "influence districts", which may help also with
preclearance.
SENATOR MILLER asked if the recent court rulings didn't tend more
toward the "one person, one vote" idea. He also recalled that in
the 80's when there was a combination of single and dual-member
districts, the dual-member districts were all in the urban areas
and the single-member districts were in the rural areas. SENATOR
MILLER said he was having a hard time reconciling this with the
argument that single-member districts work against rural Alaska.
MR. BALDWIN replied it is simply a tool that might be used if they
found themselves in a retrogression situation as he predicts. He
thinks it is wise to refrain from cutting themselves off from this
useful tool.
CHAIRMAN TAYLOR said he thought that whoever had advocated that
theory before the court was severely chastised by the courts. MR.
BALDWIN interjected that these same people played a strong role
here the last time and CHAIRMAN TAYLOR agreed and asked Mr. BALDWIN
to define "retrogressive." MR. BALDWIN replied it is defined as
the loss of representation for minority voters from one
reapportionment to the next. SENATOR PARNELL asked if that was a
function of how the boundaries were drawn. SENATOR MILLER added
that Alaska is a growing state, though the minority population is
staying the same. He said the result of this is a loss of
representation, but this would be due more to "one person, one
vote" than to how you draw the lines within the state, even when
striving to give minority districts the most voting power possible.
He restated that if there is a shrinkage in seats, it's probably
due to the "one man, one vote" rule and he does not think this can
be corrected. JAMES BALDWIN agreed, saying also once you get
outside the urban areas, it is a difficult task.
CHAIRMAN TAYLOR commented he believes that Southeast Alaska will
lose a house seat due to industrial and population decline and the
Mat-Su valley will gain one to go along with their population boom.
He said this may have a retrogressive effect, but does not have
anything to do with someone going out and causing something to
happen, it is solely a factor of one person, one vote. CHAIRMAN
TAYLOR asked if the state would have to be sure that, if they drew
single-member districts, one of them was Jerry Mackie's old
"iceworm" district in order to satisfy preclearance requirements.
MR. BALDWIN replied they have to be very careful, establish a good
record and have a good justification for making drastic changes in
plans. He noted we are still being monitored and SENATOR ELLIS
explained it is due to past discrimination against natives.
CHAIRMAN TAYLOR said he never understood that ruling and found it
very insulting. MR. BALDWIN remarked that it is a burden and
requires much time and effort to satisfy. CHAIRMAN TAYLOR agreed
and expounded on that theme, asking if they will have to get
preclearance on whether or not they can pass the Governor's sell-
out of this state's sovereignty to the U.S. government. He allowed
some people may characterize this differently than he does, but
emphasized the heavy burden of preclearance.
MR. BALDWIN said anything affecting voting must be precleared under
the federal act. He mentioned he did not seem to be making inroads
on single-member districts and would therefore move on.
CHAIRMAN TAYLOR said everthing he sees in the House bill indicates
they are not utilizing a panel constructed out of the courts. JEFF
LOGAN indicated that this was a different bill CHAIRMAN TAYLOR was
referring to, HJR 44 which restructures the reapportionmnet board.
CHAIRMAN TAYLOR asked if they couldn't be rolled together and MR.
BALDWIN replied that the bill in front of them was looking better
and better.
JIM BALDWIN said section three, which says that redistricting shall
be based on census, is changed by removing the word "civilian",
resulting in the inclusion of military people who temporarily
reside in the state. He said surveys were done to try and establish
who was an actual resident, and adjustments made to remove the non-
resident military personnel. MR. BALDWIN said he believs that this
bill takes away the ability to remove and adjust for non-resident
military personnel and this is problematic. He said although this
was not done in the last reapportionment, the court ruled that if
it is too difficult to be done, it need not be done, but the court
still requires proof of an attempt to do it. MR. BALDWIN said with
the recent base alignment and closures,the allocation of more
military personnel (he estimates 9,000 plus dependents) could
create an entire district. This would be an urban district, and MR.
BALDWIN suggested it could have a voting rights affect, and become
a preclearance issue. He addmitted it is a policy call for the
Legislature to decide if they want to do this, but he thinks it is
better to leave it as it stands now.
SENATOR MILLER, who represents a base, asked MR. BALDWIN if he
feels military people are less deserving of equal representation
than others. He finds this offensive. SENATOR ELLIS clarified that
military personnel who are residents get the same representation in
state elections as non-military residents, MR. BALDWIN was only
referring to the ability to exclude non-resident military persons.
SENATOR MILLER replied that JIM BALDWIN had used the term non-
voting, which is very different. He said there are many non-voting
people in rural Alaska as well. MR. BALDWIN clarified that was, in
fact, what he meant. SENATOR ELLIS said he thinks it is important
that the people in rural Alaska are held to the same criteria.
CHAIRMAN TAYLOR asked what would happen if the state held an
election without being granted preclearance. MR. BALDWIN replied
that someone would make a motion to enjoin the state. CHAIRMAN
TAYLOR asked if that meant we could not hold the election ansd MR.
BALDWIN responded that the law mandates we receive preclearance for
any changes requiring preclearance before an election is held.
CHAIRMAN TAYLOR said it would be an interesting thing to watch.
SENATOR PEARCE commented that she did not think the staate had
preclearance for the last time and CHAIRMAN TAYLOR explained that
the entire ballot must be stated before preclearance, and this
requires knowing everything that will appear on the ballot. MR.
BALDWIN noted that precinct changes must be precleared also.
SENATOR PEARCE mentioned that when the courts threw out our
reapportionmnet plan the election was not nullified and MR. BALDWIn
said this was because there was preclearance of the interm plan,
which was left in place until preclearance of the final plan was
granted. CHAIRMAN TAYLOR interjected that all this oversight smacks
of reconstruction bigotry. He characterized it as liberal elitism
and said it is getting a little old. He wanted to know when some
one would take the federal government on and stand up for Alaska.
MR. BALDWIN said the law requires that ten years elapse without an
objection, and the objection to the 1990 plan set Alaska's clock
running again. SENATOR MILLER remarked that any reapportionment
plan will draw an objection and the state will never get out from
under preclerarance requirements, he added that it may be a good
idea to reapportion every twenty years instead.
CHAIRMAN TAYLOR said this type of bigotry should be thrown out and
is insulting to the people of Alaska. He commented that there has
been no discrimination against natives by Alaska's government since
territorial days when the federal quthorities were in charge.
SENATOR MILLER said he thinks both redistricting and the
reapportionment board should be addressed together, preferably in
one constitutional amendment rather that two. CHAIRMAN TAYLOR
agreed and asked staff to bring them back a committee substitute
that rolls the two bills together.
MR. JEFF LOGAN mentioned that there are a few documents the
committee may find instructive. He read from one of these documents
that suggested there may be as few as 6,201 military and military
dependents recorded in the 1990 census. MR. LOGAN remarked that the
advisory board concluded there were not enough people to worry
about, and they were unlikely to make a difference. Additionally,
MR. LOGAN relayed to the committee a determination made by the
former Attorney General Charlie Cole was that single member
districts do not result in retrogression.
CHAIRMAN TAYLOR asked if MR. LOGAN would assist in rolling the two
bills together and MR. LOGAN agreed he would, to the extent he
could.
With nothing further to come before the committee, they were
adjourned.
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