Legislature(1997 - 1998)
04/03/1998 01:35 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 3, 1998
1:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Sean Parnell
MEMBERS ABSENT
Senator Mike Miller
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 310(RLS)
"An Act relating to the utilization of groundfish; and providing
for an effective date."
- MOVED CSHB 310 (RLS) OUT OF COMMITTEE
SENATE BILL NO. 216
"An Act providing for the civil commitment of sexually violent
predators."
- HEARD AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 310 - See Resource Committee minutes dated 3/25/98.
SB 216 - No previous action to report.
WITNESS REGISTER
Ms. Amy Daugherty
Staff to Representative Alan Austerman
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented HB 310
Mr. Joe Kyle
Pacific Associates
234 Gold Street
Juneau, Ak 99801
POSITION STATEMENT: Supported HB 310
Ms. Chris Blackburn
PO Box 2298
Kodiak, Ak 99615
POSITION STATEMENT: Supported HB 310
Mr. Al Burch
Alaska Draggers Association
PO Box 991
Kodiak, Ak 99615
POSITION STATEMENT: Supported HB 310
Mr. Bill Stoltz
Staff to Senator Rick Halford
State Capitol
Juneau, Ak 99801-1182
POSITION STATEMENT: Presented SB 216
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law, Criminal Division
PO Box 110300
Juneau, Ak 99811-0300
POSITION STATEMENT: Commented on SB 216
Mr. Karl Brimner
Department of Health, Education and Social Services
Division of Mental Health and Developmental Disabilities
PO Box 110620
Juneau, Ak 99811-0602
POSITION STATEMENT: Commented on SB 216
Mr. Bruce Richards
Program Coordinator
Department of Corrections
240 Main Street suite 700
Juneau, Ak 99801
POSITION STATEMENT: Commented on SB 216
Ms. Margo Waring
Alaska Mental Health Board
POSITION STATEMENT: Commented on SB 216
Ms. Barb Brink
Public Defender's Office
900 West 5th #200
Anchorage, Ak 99501
POSITION STATEMENT: Commented on SB 216
Ms. Kate Das
Alliance for the Mentally Ill
4345 York Ave
Fairbanks, Ak 99707
POSITION STATEMENT: Commented on SB 216
Mr. Al Aaron
Alliance for the Mentally Ill
PO Box 74132
Fairbanks, Ak 99707
POSITION STATEMENT: Commented on SB 216
Ms. Julie Webb
Attorney, Alliance for the Mentally Ill
221 6th Ave. #11
Fairbanks, Ak 99709
POSITION STATEMENT: Commented on SB 216
Ms. Jeannette Grasto
Alliance for the Mentally Ill
1369 Ballaine Road
Fairbanks, Ak
POSITION STATEMENT: Commented on SB 216
ACTION NARRATIVE
TAPE 98-29, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order and announced HB 310 would be the first order of business.
HB 310 - UTILIZATION OF GROUNDFISH
MS. AMY DAUGHERTY, staff to bill sponsor Representative Alan
Austerman, presented the bill as a simple one that merely extends
the existing ban on the waste of pollock to include all groundfish.
MS. DAUGHERTY explained that the North Pacific Fisheries Management
Council has begun to mandate increased utilization of groundfish
under their plan titled Increased Retention/Increased Utilization
(IR/IU). The authority to do this already exists for offshore
processors and vessels, yet onshore processors are left out of the
loop. MS. DAUGHERTY concluded this authority needs to be expanded
to include onshore processors as well.
MR. JOE KYLE, the industry committee chair for the National Pacific
Fisheries Management Council said this bill is a simple addition to
the federal regulations that has broad support throughout the
fishing industry.
MS. CHRIS BLACKBURN, representing trawl vessels and shore-based
processors, said this rule is being complied with now voluntarily
and is widely supported by her constituents. She said the bill is
in the tradition of Alaska's long term conservation and will
increase care in targeting species for capture.
MR. AL BURCH, representing the Alaska's Draggers Association,
expressed support for the bill which reflects the current common
practice. The bill closes a possible loophole and he urged its
passage.
CHAIRMAN TAYLOR announced he will entertain a motion to move the
bill when he regained a quorum. He then brought up SB 216 as the
next order of business.
SB 216 - CIVIL COMMITMENT OF SEXUAL PREDATORS
MR. BILL STOLTZ, staff to sponsor Senator Rick Halford, came
forward and presented the bill as "the third of Senator Halford's
crime bills; the trifecta." MR. STOLTZ testified that the bill
provides for civil commitment of a certain class of the most
heinous, violent sexual predators. MR. STOLTZ said these criminals
are antisocial, not amenable to treatment, and likely to engage in
sexually violent behavior. This bill allows these criminals to be
civilly committed after their term of incarceration expires, and is
modeled after the Kansas statute, which was upheld by the U.S.
Supreme Court. The Court ruled that civil commitment is not Ex post
facto punishment nor does it constitute double jeopardy, and is a
legitimate and non-punitive government objective. MR. STOLTZ
concluded that this bill was the same as a piece of companion
legislation and he has heard and addressed the concerns of the
Departments of Law and Corrections as well as the mental health
community.
Number 164
MR. STOLTZ recalled the primary concern regarded providing separate
facilities so that mental health consumers, a vulnerable group of
people, would not be exposed to these types of violent predators.
MR. STOLTZ said he was unable to address the philosophical concerns
of the Office of Special Prosecutions and Appeals, but has worked
with MS. CARPENETI and others in an attempt to address some
concerns.
MR. STOLTZ reported that civil commitment is not expected to be an
easy process and will require stringent testing, court proceedings,
and the satisfaction of built in safeguards.
SENATOR PEARCE remarked that the committee substitute appeared to
be narrow. She asked who qualifies. MR. STOLTZ deferred to MS. ANNE
CARPENETI, representing the criminal division of the Department of
Law, who was available to answer these questions.
SENATOR PEARCE asked if Senator Halford had considered including
chemical castration in the bill. MR. STOLTZ said the issue had
never been raised. CHAIRMAN TAYLOR commented that he had also
wondered about this.
MS. ANNE CARPENETI explained that this bill is an attempt to deal
with those people who cannot stop themselves from victimizing
others. MS. CARPENETI agreed the U.S. Supreme Court did uphold this
law in other states, but that does not mean the Alaska Supreme
Court will also uphold it, and she does anticipate challenges to
it.
Number 250
Ms. CARPENETI suggested one change to narrow the bill, inserting
the word "substantially" to page 10, line four, so the line would
read ". . . suffers from a mental illness that makes them
substantially likely to commit a sexually violent, predatory act."
SENATOR PEARCE asked if the bill employed a medical or a criminal
definition of mental illness, and asked if there was a difference.
MS. CARPENETI replied it was a criminal definition broad enough to
apply to the target group. MR. KARL BRIMNER, representing the
Division of Mental Health and Developmental Disabilities, agreed
with MS. CARPENETI regarding the definition, which seems more
oriented toward crime than mental health.
MS. CARPENETI suggested that the definition of predatory should be
slightly broadened by including intra-family abuse against children
and step-children, as the bill currently only covers children who
have been formally adopted or are related by blood. CHAIRMAN TAYLOR
agreed this change is necessary, as he has seen cases of this in
his own experience. MS. CARPENETI said other states have adopted
the law without this provision and have found they cannot prevent
this. CHAIRMAN TAYLOR stated this was an appropriate expansion of
the scope of the bill.
Number 310
MS. CARPENETI said the last criteria of the bill is that the person
has committed a sexually violent offense defined in paragraph
three. SENATOR PEARCE asked if a pattern or series of crimes is
necessary. MS. CARPENETI said that is not necessary, but in other
states there generally has been a pattern before the state has
filed for civil commitment.
CHAIRMAN TAYLOR expressed his concern over the dispute about
placement of these people. He asked if the issue was addressed in
the bill and MS. CARPENETI replied the committee substitute has a
provision to prohibit these offenders from being housed with other
civil prisoners or with the general mental health population. MS.
CARPENETI reported that this section also explicitly allows
contracting out the treatment of these prisoners.
MR. BRIMNER clarified that other mentally ill patients are there
for treatment and are more amenable to treatment. He said if theses
two populations were housed together it might even occur that a
criminal would be housed with his or her victim, which would be
totally inappropriate. He stressed the need for separate facilities
and agreed that the treatment might take place out of state.
CHAIRMAN TAYLOR commented that these people would have been mixed
in with the general prison population and asked why they couldn't
just remain incarcerated. MS. CARPENETI said this civil commitment
happens at the end of their sentence and must be in a treatment
facility. CHAIRMAN TAYLOR said they would be using a subterfuge of
treatment for these people who have been deemed more or less
untreatable. MS. CARPENETI replied she hoped it would not be a
subterfuge, but regardless, treatment must be provided.
CHAIRMAN TAYLOR asked if this specific definition would cover a
prostitute with a deadly sexually-transmitted disease who continued
to be promiscuous. MS. CARPENETI said it would not, it covers only
sex offenses, murder, kidnaping or any attempt of the above. MS.
CARPENETI said her department had advised the exclusion of burglary
(with intent to rape or commit sexual assault) as the intent would
be very difficult to prove if the crime was not actually committed.
Number 392
MR. BRUCE RICHARDS, representing the Department of Corrections,
informed the committee that the department had conducted a study
and determined, based on the original bill, that this bill might
apply to about 25-38 people per year. He noted that with the
narrower definition in the committee substitute this number is
likely to be reduced. CHAIRMAN TAYLOR expressed concern with the
standards used to identify these people. He said the bill includes
a much higher standard than that used by the parole board. MS.
CARPENETI explained that the standard would be employed after the
State determined beyond a reasonable doubt that the person was a
sexual predator, substantially likely to re-offend. MS. CARPENETI
stated that the state of Washington has, since the enactment of
this law, filed for civil commitment on only two per cent of sexual
predators, and has not been denied any. CHAIRMAN TAYLOR remarked
that the entire prison population has a high rate of recidivism.
Number 450
MR. BRIMNER said this population has no will to change and are not
amenable to treatment and that is why, for public safety reasons,
these people need to remain institutionalized for as long as
necessary, even if that means for life. CHAIRMAN TAYLOR stated that
the intent of the Legislature must be clear on this and the
definitions should provide good guidance for future decision
makers. MS. CARPENETI indicated that the Department of Law is
currently working on commentary that might provide further
direction. CHAIRMAN TAYLOR said he would like a chance for that to
be included in the record and he did not intend to move the bill
today.
SENATOR PEARCE asked about the petition for release, questioning
how a qualified expert would decide a person is no longer a danger
to the public. MR. BRIMNER responded by saying it is a very
difficult determination to make, but it is partially influenced by
whether or not a person is responsive to treatment. MR. BRIMNER
said some psychiatrists have said they would have a hard time ever
releasing anyone because of concerns about public safety and
liability. CHAIRMAN TAYLOR commented that he advocates liability
for the parole board and for the Department of Corrections if they
countermand a judge's order.
MS. MARGO WARING, representing the Alaska Mental Health Board
(AMHB), laid out the assumptions the board brings to their review
of this bill. First, consumers of mental health services are brain-
disordered, need specialized treatment and are entirely
inappropriate to mix with a population of sexual predators. MS.
WARING also stated that the money for this should come from the
Department of Corrections and not from mental health funds. Also,
MS. WARING believed it would be best to look at ways that the
criminal justice system could perform this function. MS. WARING
appreciated the amendments that have been adopted and address some
of her concerns, especially the change assuring separate facilities
for sexual predators.
Number 542
CHAIRMAN TAYLOR remarked that he had always been torn by the
M'Naghten rule that exonerates people for committing crimes
depending on their mental state. CHAIRMAN TAYLOR argued that there
are many mentally ill people serving criminal time now as anyone
who kills another person is insane, no matter what. However, our
current law only relieves from liability those who meet a crude
standard of mental illness.
CHAIRMAN TAYLOR said this seems to have developed into a turf
dispute, with each side wanting to protect their resources.
CHAIRMAN TAYLOR said historically if people have been unable to be
committed, they have been encouraged to commit a petty crime so
they could be taken off the street and given some sort of help. He
did note that these sexual predators will be housed in a separate
facility, but could not say that no mental health funds would be
expended for their treatment, as he believes some of these people
may fall closer to the mental health side than the criminal.
Number 566
MARGO WARING said that the separation of these two populations is
very important as mentally ill patients would be easy targets for
sexual predators. She added that she hopes the mental health budget
won't be an easy target as well. MS. WARING added that these
people have antisocial personality disorders and mental health
resources are better spent on community services.
TAPE 98-29, Side B
Number 001
MS. BARBARA BRINK, representing the Alaska Public Defender's
Office, said this bill represents a fundamental change in criminal
justice philosophy; this will lock people up in anticipation that
they may do something wrong in the future. She stated that the
Alaska Supreme Court may find this unconstitutional.
MS. BRINK cited arguments that suggest psychiatrists cannot
clearly identify sexual predators and this bill would be an
inappropriate use of scarce mental health resources. MS. BRINK
restated the idea that even mental health professionals are
unwilling and unable to make this kind of prediction about future
behavior. MS. BRINK believes the definition in the bill is still
overly broad, as it includes attempts to engage in sexual contact,
juvenile offenses and those perpetrated by people who are mentally
ill. She suggested that this broad category of people may open the
bill to constitutional challenges.
MS. BRINK reported that she had not yet prepared a fiscal note, but
was working on it. She indicated that it might be more appropriate
for the Public Defender's office to handle these cases, rather than
the Office of Public Advocacy. MS. BRINK stressed that these people
will face a possible lifetime sentence and will require incredibly
thorough and expensive proceedings conducted by highly experienced
litigators on both sides. The process will be very costly and time
consuming, according to MS. BRINK. Additionally, she reminded the
committee that there are other offenders currently on parole that
may fit into this classification. MS. BRINK concluded that when
people realize a sex offense charge may result in a lifetime
sentence, defendants will change the way they respond to the
initial charge and may want to pursue collateral attacks on
previous convictions, and this may change the number the number of
cases settled without a jury trial (which is currently 90 per
cent).
Finally, MS. BRINK noted that the state of Washington recently was
placed under a federal injunction for "warehousing" these inmates
without treatment. She stressed these people will need treatment,
and there will have to be mental health resources spent for it.
Number 518
MS. KATE DAS, representing the Fairbanks Alliance for the Mentally
Ill, testified via teleconference from Fairbanks opposing the bill
to emphasize the point that this population will require a separate
facility, as the general mental health population are too fragile
to be housed with sexual predators who are likely to abuse them.
MR. AL AARON, also representing the Fairbanks Alliance for the
Mentally Ill, testified via teleconference from Fairbanks to say a
better definition would be needed for a just bill. MR. AARON said
the major problem is the confusion of criminal problems with
medical problems.
MS. JULIE WEBB, an attorney and a member of the National Alliance
for the Mentally Ill (NAMI), Fairbanks, stated her support for the
purpose of the bill, but her opposition to the bill itself,
suggesting a better solution might be to actually treat these
people while they are incarcerated. MS. WEBB said those who are not
rehabilitated should have longer sentences. She concluded this bill
was not the way to go about solving this problem. CHAIRMAN TAYLOR
encouraged MS. WEBB to send any recommendations she might have to
the committee.
MS. JEANETTE GRASTO also testified via teleconference representing
NAMI. She shared the concerns that had been expressed and remarked
that this bill would further stigmatize the mentally ill who are
brain disordered and not generally violent. She reiterated the need
for separate facilities and the fact that this is a public safety
issue that should be funded with public safety money, not mental
health funds. MS. GRASTO suggested the Legislature look at an
independent recommendation regarding how to proceed on this issue.
She suggests investing more money in research and development of
treatment options.
BILL STOLTZ recapped his testimony by saying they had addressed the
concern of having separate facilities and were prepared to
entertain another amendment by the department. MR. STOLTZ said the
number of people this bill may apply to must be determined as well
as what type of facility would be needed to house them. CHAIRMAN
TAYLOR commented that there is a brand new maximum facility being
built in Anchorage that might be able to accommodate them.
CHAIRMAN TAYLOR suggested the sponsor may consider amending the
bill with the knowledge that the first of these cases will
invariably go before the Supreme Court. MR. STOLTZ agreed and said
the screening process would be excruciatingly thorough. He added
that the sponsor's intent was to work toward ironing out the
concerns they had heard through the process. CHAIRMAN TAYLOR said
he intended to hold the bill and bring it up again. He suggested
MR. STOLTZ work with the appropriate parties to create a new
committee substitute.
Number 400
SENATOR PEARCE said she'd like to see the fiscal note in this
committee, before the bill reaches the finance committee, as she
anticipates it will be a big one. CHAIRMAN TAYLOR agreed, saying
until they have a clear picture of the scope of the bill, they
won't be able to draft a fiscal note. He noted that he has some
concerns about the precision of some psychiatric judgements. While
some are sound, others make the psychiatrists themselves seem
bizarre and looney. He expressed hope that medical research will
discover some type of chemical treatment to deal with these cases.
Number 375
SENATOR PEARCE asked if these people are so dangerous and resistant
to treatment why they are not incarcerated for life in the first
place. MS. CARPENETI responded that the legislature has recently
changed the laws toward this, but for those prisoners already
sentenced the system has to plan on what to do when they get out.
SENATOR PEARCE moved CSSB 310 out of committee with individual
recommendations and without objection, it was so ordered.
Having no further business to come before the committee, they were
adjourned at 2:55 p.m.
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