Legislature(1997 - 1998)

04/20/1998 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
              SENATE JUDICIARY COMMITTEE                                       
                    April 20, 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                                                             
                                                                               
SENATE BILL NO. 232                                                            
"An Act relating to electronic signatures, electronic records,                 
requirements for records, and the reproduction of public records."             
                                                                               
     - MOVED CSSB 232(JUD) OUT OF COMMITTEE                                    
                                                                               
HOUSE BILL NO. 399                                                             
"An Act relating to an optional exemption from, and deferral of                
payment of, municipal taxes on deteriorated property, and defining             
'deteriorated property' for purposes of the exemption or deferral;             
and providing for an effective date."                                          
                                                                               
     - MOVED SCS CSHB 399(JUD) OUT OF COMMITTEE                                
                                                                               
CS FOR HOUSE BILL NO. 395(JUD)                                                 
"An Act relating to civil liability resulting from the use of a                
defibrillator in providing emergency aid or emergency training."               
                                                                               
     - MOVED SCS CSHB 395(JUD) OUT OF COMMITTEE                                
                                                                               
SENATE BILL NO. 216                                                            
"An Act providing for the civil commitment of sexually violent                 
predators."                                                                    
                                                                               
     - MOVED CSSB 216(JUD) OUT OF COMMITTEE                                    
                                                                               
PREVIOUS SENATE COMMITTEE ACTION                                               
                                                                               
SB 232 - See Labor and Commerce Committee minutes dated 3/31/98 and            
        Judiciary minutes dated 4/8/98.                                        
                                                                               
HB 399 - See Labor and Commerce Committee minutes dated 4/18/98.               
                                                                               
HB 395 - No previous action to record.                                         
                                                                               
SB 216 - See Judicary minutes dated 4/3/98.                                    
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-37, SIDE A                                                             
Number 001                                                                     
                                                                               
         SB 232 - ELECTRONIC RECORDS; RECORD REQUIREMENTS                      
                                                                               
                                                                               
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to                
order at 1:30 p.m. and noted the presence of Senators Miller,                  
Parnell and Taylor.  He brought SB 232 before the committee as the             
first order of business.                                                       
                                                                               
SENATOR PARNELL, prime sponsor of SB 232, directed attention to a              
work draft committee substitute that incorporates the amendments               
adopted at the previous hearing on the legislation.  He then moved             
adoption of CSSB 232(JUD), version "E," dated 4/17/98.  Hearing no             
objection, it was so ordered.                                                  
                                                                               
SENATOR PARNELL outlined the following two changes made in the                 
committee substitute:                                                          
                                                                               
(1)  Page 1, line 9:  the reference to AS 11.56.210 was put in to              
tie it back to unsworn falsification; and                                      
                                                                               
(2)  Page 3, line 30:  provides that the state agency may not act              
as a certifying authority for electronic signature unless one of               
the parties to the transaction is in state.                                    
                                                                               
There being no further testimony on CSSB 232(JUD), CHAIRMAN TAYLOR             
asked for the pleasure of the committee.                                       
                                                                               
SENATOR PARNELL moved CSSB 232(JUD) pass out of committee with                 
individual recommendations.  Hearing no objection, it was so                   
ordered.                                                                       
        HB 399 - EXEMPT/DEFERRAL DETERIORATED PROPTY TAX                       
                                                                               
CHAIRMAN TAYLOR recognized the presence of Representative Ryan, the            
prime sponsor of HB 399, which was the next order of business                  
before the committee.                                                          
                                                                               
REPRESENTATIVE JOE RYAN, prime sponsor of HB 399, noted that the               
incorrect committee substitute was placed in the packet passed out             
of the House but it has since been replaced by the correct version.            
Representative Ryan urged the committee to bring forward the Senate            
Judiciary CS, which takes care of many of the concerns regarding               
the renovation that must go forward so that people will not be able            
to speculate.  Representative Ryan noted that another concern was              
that people would let their property deteriorate and take advantage            
of the taxes.  In 1986, the Fairbanks (indisc.) hotel was valued at            
$2,341,555, while its value today is $38,910, and the mill rate on             
the land only was 19.356, and 11.25 on the improvements.                       
Representative  Ryan said that it would take a couple hundred years            
to make up the value in the tax break for the loss of value of                 
property due to its deterioration.                                             
                                                                               
REPRESENTATIVE RYAN explained that HB 399 basically gives the                  
municipality another tool to clean up deteriorated property so that            
it is revitalized and back on the tax rolls where it can earn                  
income for the city and improve the neighborhood.  He emphasized               
that everything in this bill is strictly voluntary.                            
                                                                               
CHAIRMAN TAYLOR pointed out the significant modification in the CS.            
He directed members to page 1, line 7, which adds, "after the day              
substantial rehabilitation and renovation begins."  He noted it                
does the same thing on page 1, line 12, which says, "after the day             
rehabilitation begins."  He said the original bill received did not            
contain a triggering date, and it could have allowed property to               
lie fallow, should the city vote to do so.  He asked whether this              
change would modify the title.                                                 
                                                                               
REPRESENTATIVE RYAN said he would take responsibility for that.                
                                                                               
SENATOR PARNELL made a motion to adopt as a working draft SCS HB
399(JUD), Version B, Cook, 4/20/98.  There being no objection, it              
was so ordered.                                                                
                                                                               
CHAIRMAN TAYLOR expressed appreciation to Representative Ryan, who             
had to leave for a House floor session.                                        
                                                                               
Number 143                                                                     
                                                                               
MARK MARLOW (ph) came before the committee to testify.  He pointed             
out that the newly adopted work draft was unanimously endorsed by              
the Anchorage Assembly.                                                        
                                                                               
CHAIRMAN TAYLOR expressed hope that this legislation will provide              
cities an opportunity to enhance and improve some derelict property            
and get it on the tax roll.  He asked if anyone else wished to                 
testify; there was no response.                                                
                                                                               
Number 150                                                                     
                                                                               
SENATOR PARNELL made a motion to move SCS HB 399(JUD) from the                 
committee with individual recommendations.  There being no                     
objection, SCS HB 399(JUD) moved from the Senate Judiciary                     
Committee.                                                                     
CHAIRMAN TAYLOR announced the presence of Senators Ellis and                   
Pearce.                                                                        
                                                                               
       CSHB 395(JUD) - CIVIL LIABILITY FOR EMERGENCY AID                       
                                                                               
CHAIRMAN TAYLOR announced the committee would hear CSHB 395(JUD).              
                                                                               
PATTI SWENSON, legislative assistant to Representative Con Bunde,              
came forward to explain the new proposed CS on behalf of the                   
sponsor.  She said the first section was added to explain the                  
purpose of the bill, and Section 2 is the "Good Samaritan" portion.            
Removed from the original were subsections (f) and (g), with the               
rest remaining the same.  She said the sponsor had no objection to             
the changes.                                                                   
                                                                               
CHAIRMAN TAYLOR explained the changes delete the references to                 
provide immunity from any liability.  For persons or organizations             
involved in training or making automatic external defibrillators               
(AEDs) available to others, those sections would have provided                 
blanket immunity regardless of what they may or may not have done.             
                                                                               
SENATOR PARNELL asked the reason for the "purpose" section.                    
                                                                               
Number 201                                                                     
                                                                               
MS. SWENSON said it was included to match and support the title.               
As to whether another immunity bill would be required if a new                 
machine were invented the following year, she stated, "You could if            
you want to."                                                                  
                                                                               
SENATOR PARNELL made a motion to adopt proposed SCS CSHB 395(JUD),             
Version L, Ford, 4/20/98, as a work draft.  There being no                     
objection, it was so ordered.  He asked whether there was further              
testimony on the bill.                                                         
                                                                               
MS. SWENSON said there was none.  She expressed her understanding              
that everyone is aware that the bill expands the "Good Samaritan"              
law and provides for use of a manual electronic cardiac                        
defibrillator in airplanes, office buildings, and anywhere else a              
person is trained to use one.  Next year, they plan to limit what              
is available in airplanes and offices, so that people do not start             
intravenous injections, for example.                                           
                                                                               
Number 230                                                                     
                                                                               
MARK JOHNSON, Chief, Community Health and Emergency Medical                    
Services, Division of Public Health, Department of Health and                  
Social Services (DHSS), came forward to testify in support of the              
bill.  He explained that under current law, defibrillation is                  
considered an advanced life support skill requiring certification              
or licensing.  However, the new computerized machines will not give            
a shock to someone lacking a life-threatening cardiac dysrhythmia.             
Therefore, the judgment previously required to interpret and make              
decisions about cardiac dysrhythmia is no longer required with                 
these devices, which airlines and others are already starting to               
use.  The law needs to catch up with what is already happening.                
This device is most successful for people with ventricular                     
fibrillation, which is about 60 percent of those suffering sudden              
cardiac arrest.  The American Heart Association chart based on                 
nationwide studies shows that if cardiopulmonary resuscitation                 
(CPR) is initiated within one minute of a witnessed cardiac arrest,            
if defibrillation is performed with four minutes, and if advanced              
cardiac life support (paramedic-level care) begins within six to               
eight minutes, the survival/discharge-from-a-hospital rate is about            
30 percent.  In contrast, with no CPR and no ambulance arriving                
withing ten minutes, survival drops to 0-to-2 percent.  Mr. Johnson            
stated he believes this will save lives.                                       
                                                                               
Number 155                                                                     
                                                                               
CHAIRMAN TAYLOR suggested this legislation essentially bars a                  
person from bringing a lawsuit for the improper or negligent use of            
this equipment.  He asked whether Mr. Johnson was aware of anyone              
being sued for the misuse of one of these devices.                             
                                                                               
MR. JOHNSON said no.  He pointed out that the legislation also                 
changes the current statutory definition of advanced life support              
to address the manual defibrillation that paramedics, doctors and              
advanced cardiac life support nurses perform.  Under current law,              
it is technically illegal, although there is a question as to                  
whether anyone would enforce it or sue.  This bill makes it legal              
for a properly trained person who is not a licensed or certified               
health care provider to use an AED.                                            
                                                                               
Number 272                                                                     
                                                                               
SENATOR PARNELL made a motion to move SCS CSHB 395(JUD) from                   
committee with individual recommendations.  There being no                     
objection, SCS CSHB 395(JUD) moved from the Senate Judiciary                   
Committee.                                                                     
                                                                               
         SB 216 - CIVIL COMMITMENT OF SEXUAL PREDATORS                         
CHAIRMAN TAYLOR next called upon Donald Stoltz to present SB 216 to            
the committee.                                                                 
                                                                               
DONALD W. (BILL) STOLTZ, legislative administrative assistant to               
Senator Rick Halford, came forward to present the bill on behalf of            
the sponsor, noting that during a previous hearing the committee               
requested him to work with the bill drafters, the Department of                
Law, and other agencies to address some of the concerns that had               
arisen during testimony.  He noted that the latest work draft was              
0-LS1134\F, dated 4/13/98.  The major changes to this version are              
that it includes stepchildren, corrects a technical omission on the            
last page by including the word "substantially" before "likely",               
and, at the request of the Department of Law, develops the criteria            
through regulation rather than in statute.                                     
                                                                               
SENATOR MIKE MILLER made a motion to adopt Version F, Luckhaupt,               
dated 4/13/98, as a work draft.  There being no objection, it was              
so ordered.                                                                    
                                                                               
Number 305                                                                     
                                                                               
MR. STOLTZ indicated the sponsor received fiscal notes since the               
previous meeting that almost belie an intent to not make this work.            
He said the bill allows quite a bit of discretion as to how these              
people are screened.  Conversations with the chief prosecutor                  
indicate she would probably take a slow, careful look at this in               
developing perhaps one case over an extended period; it would be a             
case she could likely win and for which she could lay good                     
groundwork and set a good precedent.  Mr. Stoltz questioned the                
validity of the fiscal notes, particularly the one from the Alaska             
Psychiatric Institute (API).  He characterized this civil                      
commitment statute as a specialized tool for the prosecutor,                   
adding, "And any workman knows you don't use every tool on every               
single job."  Mr. Stoltz said they are looking at an egregious                 
class of criminals.  He emphasized the amount of discretion given              
to the department when screening and implementing the bill, and                
again questioned whether there would be runaway costs.                         
                                                                               
Number 324                                                                     
                                                                               
SENATOR JOHNNY ELLIS referred to page 9, line 29, subsection (b),              
which says, "suffers from a mental illness that makes the person               
substantially likely to commit a sexually violent predatory                    
offense."  Noting that the word "substantially" is new, he asked               
Mr. Stoltz to explain its origin and meaning.                                  
                                                                               
MR. STOLTZ replied that "substantially" had been omitted through an            
oversight in the original draft.  He suggested that the likelihood             
to commit an offense would be determined through the screening                 
process of the Department of Corrections, the Department of Health             
and Social Services, and the Department of Law, probably including             
a psychiatric overview and other determinations by professionals in            
the prosecution arm of law enforcement.                                        
                                                                               
SENATOR ELLIS asked whether it is well known in the field that some            
mental illnesses make a person substantially likely to commit these            
kinds of offenses, whereas other mental illnesses do not.                      
                                                                               
CHAIRMAN TAYLOR suggested that "likely to commit" is far too broad             
a standard to be measurable.  He said he doesn't know that                     
"substantially" sufficiently narrows it but it has a significant               
narrowing effect.  In his reading of it, perhaps a person has a                
greater than 50 percent chance of recidivism, as opposed to a 5 or             
10 percent chance.  He  advised a stronger word or one with a                  
clearer definition may be appropriate.                                         
                                                                               
SENATOR ELLIS responded that it goes to the sponsor's intent as to             
how broad a net to cast.  He referred to the definitions section,              
beginning on page 8, and what goes into defining "predatory."  He              
specifically asked about subsection (i), which read in part, "is               
related up to the fourth degree of consanguinity," and he asked the            
lay person's term for that.                                                    
                                                                               
CHAIRMAN TAYLOR said it is a second cousin.                                    
                                                                               
MR. STOLTZ said he would feel more comfortable if the drafter, Anne            
Carpeneti, and Cynthia Cooper of the Department of Law formulated              
this criteria.  He emphasized the desire to have the screening done            
by professionals, not in a political arena.                                    
                                                                               
Number 378                                                                     
                                                                               
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department              
of Administration, testified via teleconference from Anchorage.  He            
said he and Director Barbara Brink had carefully looked over the               
bill and put in the fiscal note some of the questions and problems             
that might arise.  He agreed with Mr. Stoltz that the prosecutors              
would probably pick the first case carefully, noting that it will              
involve quite a lot of litigation.  He emphasized that this is a               
major departure in Alaska, where criminal confinement is usually               
based upon some act or conduct that occurred, rather than upon                 
predictions of future dangerousness; he said that is certainly a               
concern about the bill.  For example, do the mental health                     
professionals who will have to make this difficult determination               
think they have enough knowledge to do so?  He indicated his agency            
has some real questions about that after reading the American                  
Psychiatric Association Task Force report and other documents.                 
                                                                               
MR. McCUNE said the premise of the bill is that there is a small               
but extremely dangerous group of sexually violent predators who                
don't have a mental disease or defect that would allow an                      
involuntary commitment.  Although the Department of Law and others             
had worked hard on these definitions, the definition of "sexually              
violent offense" is still fairly broad.  Mr. McCune referred to                
page 9, 3(A) and (B), noting that it would include sexual contact.             
Under (C), even a conviction for an attempt at sexual contact could            
be a predicate for commitment if the person is also found, beyond              
a reasonable doubt, to be substantially likely to engage in                    
predatory conduct in the future.  He urged the committee to look               
carefully at these sections, suggesting "violent predator" brings              
something to mind that might not fit the definition.                           
                                                                               
MR. McCUNE next characterized definition (1) which refers to AS                
12.47.090 as broad (page 8).  Reading from that, he said it means              
any mental condition that increases the propensity of the defendant            
to be dangerous to the public peace and safety; however, it is not             
required that the mental illness be sufficient to exclude criminal             
responsibility or that it be the same one that the defendant                   
suffered at the time of the criminal conduct.  Mr. McCune indicated            
this is a bit of a circular definition, explaining, "You're looking            
at somebody who might be dangerous because they might be dangerous,            
as a result of a mental condition."  He said he doesn't know                   
exactly what "mental condition" means, excludes or doesn't exclude;            
this is not what is traditionally known as a mental illness or a               
major mental illness in other statutes, in other contexts.  Mr.                
McCune stated the belief that this would have a fairly significant             
impact.  Referring to the introductory part of the bill, he pointed            
out that these can involve a lifetime of commitment if someone is              
not found treatable or cannot be certified as safe to be at large.             
The resources that would go into this would be commensurate with               
what is at stake for a person.                                                 
                                                                               
MR. McCUNE told members there are additional items, not included in            
the fiscal note, that would be difficult to quantify.  For example,            
they would expect a lot more trials involving these listed cases,              
as people would hesitate to plead "no contest" because of the                  
threat of a possible commitment hearing after serving jail time.               
                                                                               
Number 441                                                                     
                                                                               
CHAIRMAN TAYLOR asked whether Mr. McCune had checked on the actual             
impact on the public defender agency in Washington State, which has            
had similar legislation for some time.  He expressed his own                   
understanding that there was no dramatic increase there, but rather            
a handful of cases despite a population much larger than Alaska's.             
                                                                               
MR. McCUNE answered that they had not checked with other states.               
Although the Department of Law's figures indicate there would not              
be many cases prosecuted, there would be quite a lot of public                 
pressure to bring a proceeding if someone likely to be released                
from jail had committed one of the more serious offenses listed.               
                                                                               
CHAIRMAN TAYLOR suggested Mr. McCune check on that before                      
explaining the fiscal note before the Senate Finance Committee.  He            
said he himself was more concerned with substantive, rather than               
fiscal, aspects of the bill.  He asked whether Mr. McCune had an               
opportunity to check Washington State law; he believed a rather                
famous case there went to the supreme court.                                   
                                                                               
MR. McCUNE replied that he had reviewed that law, although he                  
couldn't recall the defendant's name.  The Washington Supreme                  
Court, after years of litigation, had approved the law.  As he                 
recalled, it then went to federal district court, where the judge              
felt it was an ex post facto law; he believes it is now in the 9th             
Circuit Court of Appeals.  That was all before the Kansas v.                   
Hendricks case came out.  Mr. McCune said he had looked over the               
Kansas law and the Washington law, and he hadn't seen many                     
differences between them.                                                      
                                                                               
CHAIRMAN TAYLOR asked whether he meant differences between them and            
the law currently before this committee.                                       
                                                                               
MR. McCUNE stated his understanding that the proposed legislation              
is essentially based on the Kansas law, suggesting Ms. Cooper and              
Mr. Guaneli from the Department of Law could better explain the                
origins.                                                                       
                                                                               
RANDALL BURNS, Director, Alaska Psychiatric Institute (API),                   
Division of Mental Health and Developmental Disabilities,                      
Department of Health and Social Services (DHSS), noted via                     
teleconference that he and Dr. Osbeck (ph) were available to answer            
questions.  He pointed out that Karl Brimner, Northern Regional                
Mental Health Services Coordinator, was at the meeting on behalf of            
the division.                                                                  
                                                                               
Number 483                                                                     
                                                                               
WALTER MAJOROS, Executive Director, Alaska Mental Health Board,                
came forward to testify.  He reminded members that a staff person              
from his agency had testified at the previous hearing.  He said the            
board's formal position is that issues regarding sexual predators              
are more effectively addressed through the criminal system than                
through the civil system; however, if an issue is addressed through            
the civil system, various safeguards need to be in place.  He would            
address two of those safeguards, about which the board is still                
very concerned even with the latest iteration of the bill.                     
                                                                               
MR. MAJOROS told members the first safeguard is where the treatment            
will take place.  There has been some broadening in terms of the               
capability to send sexual predators outside the state of Alaska to             
receive treatment, which he believes is good.  However, the board's            
concern is that the treatment not take place at API for a number of            
reasons; to that end, they suggest that language be introduced to              
disallow treatment at API.  One reason, pointed out in the bill, is            
that the profile of a sexual predator is very different from that              
of someone who is truly mentally ill with a brain disorder.                    
Sexually violent predators have anti-social behavioral disorders               
that require different treatment approaches than those used for                
mental disorders.                                                              
                                                                               
MR. MAJOROS said second is the safety issue.  Sexual predators need            
to be physically separated from people who are more vulnerable, as             
mentally ill people with brain disorders are, and the security                 
needs for sexual predators are much higher.  Third, API has been               
undergoing a process with the board, the division, the department,             
and the Alaska Mental Health Trust Authority to further downsize.              
Right now it has 79 beds; under the new plan, there will be 54                 
beds.  Already the average length of stay has been reduced to a                
very short period and people have to leave the institution to make             
room for new people.  If a new population were superimposed, those             
with true mental illnesses may not be able to receive the services             
or will be there for only a day or two; they would be put out in               
the streets before being effectively stabilized and before being               
able to be successful in the community.  The board's strong                    
preference is that the bill disallow treatment of sexually violent             
predators at API, for the integrity of the mental health system.               
                                                                               
MR. MAJOROS next addressed funding, saying the board's position is             
that this is a public safety issue.  Public safety funds should be             
earmarked for this, and they do not believe it is appropriate that             
the funding for services to sexually violent predators come out of             
the mental health system.  Resources within the mental health                  
system need to be targeted for mentally ill persons with brain                 
disorders, as well as children with serious emotional disturbances.            
There is a movement now to provide increasing services within the              
community and away from institutionalization.  However, if those               
funds were used for this purpose, movement in the other direction              
would occur.  He pointed out that there are still many unmet needs             
in the mental health system.                                                   
                                                                               
MR. MAJOROS told members sexually violent predators would be there             
for a very long time.  Although there might be a couple of people              
the first year, after several years there would be an increasing               
population that would, in turn, jeopardize more and more funding               
from the public mental health system needed by people who have true            
mental illnesses and children with serious emotional disturbances.             
He concluded, "So, our two main points are:  Please don't allow                
treatment at API, and please fund this through public safety and               
criminal justice resources, and not public mental health                       
resources."                                                                    
                                                                               
Number 535                                                                     
                                                                               
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and            
Sexual Assault (CDVSA), Department of Public Safety, came forward              
to testify in support of the bill, especially the tightening that              
had occurred with the work draft.  At the same time, the CDVSA                 
echoes the concerns expressed by the mental health community.  She             
reminded members that sexually violent predators don't share the               
same problems and concerns of someone who is mentally ill in the               
more traditional sense.  She cautioned about being careful where               
these offenders are placed and how they are treated, so as not to              
put others at risk by placing them at API, for example.                        
                                                                               
MS. ANDREEN pointed out that sex offenders can never truly be cured            
of their disorder or criminal behavior or violent tendencies; at               
most, they can be taught to control those tendencies.  However,                
both in Alaska and elsewhere in the country, the correctional                  
system has been able to consistently identify a small percentage of            
offenders who are so violent that the system doesn't want them                 
released.  The CDVSA believes the current work draft is tightened              
up enough to provide that safety net for the most severe offenders.            
                                                                               
Number 549                                                                     
                                                                               
ANNE D. CARPENETI, Assistant Attorney General, Criminal Division,              
Department of Law, came forward to testify, agreeing with Mr.                  
McCune that this is a significant step in Alaska law.  She said it             
had been their concern all along to work with the sponsor to ensure            
that the step is taken carefully and with a narrow focus.  They had            
worked with the sponsor to limit the definition of sexually violent            
offenses to those that seem to be committed by people who are                  
dangerous or likely to repeat the offense, and perhaps it could be             
looked at further to limit it more.  It was the department's                   
suggestion to change "likely" to "substantially likely" in the                 
definition of "sexually violent predator."                                     
                                                                               
MS. CARPENETI acknowledged these terms are hard to define.  She                
told members she interprets "likely" in terms of a civil case to be            
"more likely than not," whereas "substantially likely" is                      
significantly higher.  In order to prove a person is a sexually                
violent predator, the state would have to prove beyond a reasonable            
doubt, to a jury of 12 who would have to reach a unanimous finding,            
that a person is substantially likely to commit these acts again.              
                                                                               
MS. CARPENETI said she would go through Version F and explain some             
of the changes they had suggested which had been incorporated in               
the draft.  She noted that the Department of Corrections will                  
generally be the agency with custody, although the Division of                 
Mental Health and Developmental Disabilities (Mental Health) would             
have custody of people who had been found incompetent to be tried,             
as well as others.  Generally, the Department of Corrections will              
be doing the initial screening of the group of people convicted of             
sex offenses who are about to be released.  On page 2, lines 14 -              
17, a new provision provides that when the Department of                       
Corrections is looking at these people, the criteria will be                   
developed by Mental Health in consultation with the Department of              
Law and the DHSS.                                                              
                                                                               
MS. CARPENTI advised members there was another amendment that the              
Department of Law had requested be added, and that a conversation              
with Mr. Stoltz had indicated there was no problem.  She asked                 
whether it was in committee packets.                                           
                                                                               
MR. STOLTZ indicated he had thought Ms. Carpeneti was going to                 
present it.                                                                    
                                                                               
MS. CARPENETI explained they wanted to add a provision on page 2,              
line 21, at the end of the line, to provide that the screening                 
standards of people referred from the agency with custody would be             
developed by the department in consultation with the Department of             
Law and the Department of Corrections.  She indicated she had that             
in writing.                                                                    
                                                                               
CHAIRMAN TAYLOR said he would have copies run off to distribute to             
committee members.                                                             
                                                                               
MS. CARPENETI told members that on page 3, line 29, there was one              
other amendment they would suggest.  She said after the probable               
cause hearing a person would be given a formal evaluation by a                 
professional.  She suggested eliminating "under regulations adopted            
by the department" because this draft contains a general regulation            
section therefore, she doesn't believe it needs to specifically                
refer to regulations for this particular decision.                             
                                                                               
TAPE 98-37, SIDE B                                                             
Number 001                                                                     
                                                                               
MS. CARPENETI specified that following the word "examination," the             
words "assigned or retained by the department" would be added.  She            
said it may or may not be a person already employed by the state.              
Throughout the original bill it refers to the person that the state            
is petitioning to have civilly committed as being represented by               
the Office of Public Advocacy.  Ms. Carpeneti indicated Ms. Brink              
had testified that the Public Defender Agency would probably be                
representing these people; therefore, the Department of Law                    
requested that reference be eliminated.  Ms. Carpeneti pointed out             
that in other civil commitment procedures, the Public Defender                 
Agency represents the person that the state is seeking to have                 
civilly committed.  Just one example could be found on page 4, line            
8, of the work draft.  In response to a question, she agreed that              
it is not a new amendment, but rather a cleanup in the work draft.             
                                                                               
CHAIRMAN TAYLOR referred members to the amendment suggested by Ms.             
Carpeneti for page 2, line 21.                                                 
                                                                               
SENATOR ELLIS made a motion to adopt Amendment 1, which read:                  
                                                                               
     Page 2, line 21:                                                          
                                                                               
          Following "sexually violent predator." insert:                       
                                                                               
               "The standards for screening persons referred under             
               (a) of this section shall be adopted by the                     
               department in consultation with the departments of              
               law and corrections."                                           
                                                                               
CHAIRMAN TAYLOR asked whether there was any objection.  There being            
none, Amendment 1 was adopted.                                                 
                                                                               
Number 030                                                                     
                                                                               
SENATOR ELLIS offered as Amendment 2 the following:  On page 3,                
line 29, following "examination", the words "under regulations                 
adopted" would be replaced by "assigned or retained."  There being             
no objection, Amendment 2 was adopted.                                         
                                                                               
Number 040                                                                     
                                                                               
MS. CARPENETI next referred to page 8, lines 29-31.  She stated,"I             
believe this is an addition, duties of the department and their                
regulations - it's a general regulation authority for the                      
Department of Health and Social Services."                                     
                                                                               
CHAIRMAN TAYLOR suggested it is the same thing just added by                   
Amendment 1.                                                                   
                                                                               
MS. CARPENETI agreed, then asked whether subsection (C) is new in              
this draft.  Hearing no response, she said she believes it may be              
in the original bill.  She noted that it is a statement that as                
long as public officials are acting in good faith, they cannot be              
found liable for their actions under this law.                                 
                                                                               
CHAIRMAN TAYLOR said he had noted it earlier.                                  
                                                                               
MS. CARPENETI again referred to page 8, lines 29-31.  She said this            
is not the Department of Law's language; she believes it was added             
by legislative legal counsel.  She told members that in talking                
about fourth degree of consanguinity, she believes it refers to                
first cousins, not second cousins, counting up to a common ancestor            
and then counting down; it would include grandparents and                      
grandchildren, and she believes it would include great-                        
grandchildren.                                                                 
                                                                               
CHAIRMAN TAYLOR stated there are two different ways to count it:               
civil law and church law.  He suggested Ms. Carpeneti was doing it             
according to church law, which is the way most family trees are                
traced.                                                                        
                                                                               
MS. CARPENETI said she doesn't believe there are any additional                
changes to the definitions section from the previous draft.  She               
said it does include the "substantially likely" that was supposed              
to be in the prior draft but which was omitted through an                      
oversight.                                                                     
                                                                               
SENATOR ELLIS asked Ms. Carpeneti to explain page 8, line 24,                  
subsection (b), which read in part, "individuals with whom a                   
relationship has been established or promoted for the primary                  
purpose of victimization".                                                     
                                                                               
MS. CARPENETI replied this is a common definition that other states            
have in their statutory scheme for a predator.  She said it is a               
"grooming" activity, where a person establishes a trusting                     
relationship with an individual, such as a child.                              
                                                                               
SENATOR ELLIS suggested it would be a pedophile who obtains a job              
at a day care center, for instance.                                            
                                                                               
MS. CARPENETI agreed that would be a good example.  Another example            
would be making friends with children in one's neighborhood by                 
offering them candy and establishing trust in a number of ways,                
getting them to feel comfortable enough to go into one's house or              
into a situation where they can be victimized.                                 
                                                                               
SENATOR ELLIS asked whether Ms. Carpeneti suggested adding the                 
language, "lives in the same household".                                       
                                                                               
Number 068                                                                     
                                                                               
MS. CARPENETI said yes.  She explained, "It was our suggestion that            
for the very serious family sexual abuse cases, we would want to be            
able to have this tool available to us, because there have been in             
the past, in our state, some very, very serious familial sexual                
abuse cases."                                                                  
                                                                               
SENATOR ELLIS asked for confirmation that the definition of "sexual            
predator" doesn't rely on the number of victims.                               
                                                                               
MS. CARPENETI answered that generally there would be more than one             
act, although the bill requires only one prior conviction.                     
                                                                               
                                                                               
SENATOR ELLIS asked whether someone could be a sexual predator even            
if that person had preyed upon one person.                                     
                                                                               
MS. CARPENETI replied that it is possible, but it is unlikely the              
state would be able to prove, beyond a reasonable doubt, that a                
person is substantially likely to do it again if there is only one             
victim, with one conviction, and there isn't evidence of other                 
acts.                                                                          
                                                                               
SENATOR ELLIS asked about the language, "lives in the same                     
household".  He asked what would have to happen to make a sexual               
predator of a member of one's own family.                                      
                                                                               
MS. CARPENETI replied, "Well, their own family, it's just the                  
family relationship.  But the 'lives in the same household' was to             
address situations where people will establish relationships with              
other people who have children, in order to make their children                
available as victims.  And it doesn't have to be a marriage                    
situation between the adults, but it could be a live-in situation.             
And it doesn't have to be a formal adoption or assumption of the               
child as a stepchild, but it is often a live-in relationship where             
the child is then available as a victim for the predator."                     
                                                                               
Number 088                                                                     
                                                                               
SENATOR ELLIS asked about the overlap between mentally ill people              
and sexual predators.  He further asked whether all sexual                     
predators are mentally ill.                                                    
                                                                               
MS. CARPENETI acknowledged it is a difficult issue.  She advised               
members that the U.S. Supreme Court decision in Kansas v. Hendricks            
approved the Kansas procedure - which is based on the Washington               
statute and upon which this is also based - on the fact that this              
individual is mentally ill, although the Kansas statute may use a              
different term besides "mentally ill."  The decision turned on a               
person who is dangerous because of past acts and, in addition,                 
suffers from another condition that makes him or her likely to                 
victimize people again.                                                        
                                                                               
MS. CARPENETI mentioned that different terms could be used.  The               
Department of Law had suggested "mentally ill" as defined in Title             
12 because it is a broad definition.  She said people in the mental            
health field will suggest that there are better definitions.  As               
Senator Pearce said, this is perhaps a criminal law definition of              
"mentally ill."                                                                
                                                                               
SENATOR ELLIS brought up the issue of people going to API and                  
crowding other people out for limited services.  He said he was                
trying to get a feel for how many people convicted under this would            
appropriately go to API, and who should go to a forensic unit of a             
regular prison, and who should go outside of Alaska for some sort              
of high-security mental health treatment.                                      
                                                                               
Number 114                                                                     
                                                                               
KARL BRIMNER, Director, Division of Mental Health and Developmental            
Disabilities, DHSS, stated, "I think an attempt at that would be to            
say that those individuals who would be going to API are going to              
API for mental illnesses, major mental illnesses that we consider              
in terms of brain disorders, such as bipolar, schizophrenia, major             
depression, and are usually going there because of a psychotic                 
episode.  Very seldom will you find someone who falls into the                 
categories that we're talking about here today, with regards to                
this bill, [is] psychotic, first of all. ... Secondly, they usually            
do not experience a major mental illness, and if they do, they                 
probably would qualify under the existing Title 47, involuntary                
commitment.  This particular bill as I understand, it tries to                 
protect the public in terms of a behavior that exists that cannot              
be controlled by this individual.  They don't respond to treatment             
very well.  It's not traditional treatment that can be offered to              
these people, that would be offered, say, for instance, in a                   
psychiatric hospital such as API.  It takes a very specialized                 
treatment, and the success of that treatment is very limited,                  
unfortunately."                                                                
                                                                               
SENATOR ELLIS asked if people who commit serial sex crimes are not,            
for the most part, mentally ill.                                               
                                                                               
MR. BRIMNER replied, "Typically not, no. ... Not as we've discussed            
it outside of criminal law.  That's correct."                                  
                                                                               
Number 146                                                                     
                                                                               
CHAIRMAN TAYLOR emphasized that this legislation is not about a                
criminal sanction but rather has to do with a civil commitment to              
try to provide this individual with the very best the state has to             
offer as treatment.  He stated, "Now, the fact that we may not be              
successful in a very high percentage of those cases is probably not            
relevant, except to the extent that we all pray that we will be                
more successful in the future.  The important subject that I think             
is crucial, at least from my perspective as chairman of this                   
committee, is that we focus upon the need to provide protection,               
both for them and for society, from the acts that they carry out.              
And attempting to decide how many angels can dance on the head of              
a pin, whether it's criminal or whether it's more criminal or more             
civil in nature, really does not address the issue.  The issue is              
one of whether or not this person is suffering from a problem,                 
whatever that problem might be, and whether or not they need                   
protection."                                                                   
                                                                               
CHAIRMAN TAYLOR continued, "I often think of the situation, I                  
believe, that will occur.  I believe our courts are, at best, an               
attempt at times to prevent blood feuds.  And hopefully we succeed             
more often than we fail.  But in this instance, where you have a               
sexually violent predator who is preying upon the public, for the              
sake of the predator, you have to hope that the police get there               
first.  In Alaska today, the opportunity for someone to take the               
law in their own hands would be abundantly available.  And as a                
consequence, I think we need to remember that these people also                
need some level of protection, just as our society does, and that's            
why we have civil commitment available to us.  My only concern at              
this juncture is that we very carefully define the terms, and                  
that's what Senator Ellis was attempting to elicit, I believe, is              
those terms under which people may fall within a given category.               
And the debate about whether the -- the turf battle over whether or            
not API is going to pay for it, or the Mental Health Trust is going            
to pay for it, or the general fund budget of the state is going to             
pay for it in some other fashion, is really kind of irrelevant.                
The question is:  Does this person need protection, and does                   
society need protection, and should we not give them the greatest              
level of help and care that we can, to hopefully turn them around              
and change them."                                                              
                                                                               
MS. CARPENETI stated the findings section in the bill says sexually            
violent predators don't tend to respond to treatment that is                   
normally provided for mentally people, but they do suffer from a               
mental illness, mental abnormality or mental condition that makes              
them dangerous.  She referred to the previous draft and said that              
in order to withstand constitutional challenge, she believes these             
people have to be treated.  In addition, the bill provides that                
they must be in a place separate from other mentally ill people and            
separate from prisoners in a correctional facility.                            
                                                                               
CHAIRMAN TAYLOR restated that it is for the protection of                      
themselves and others.  He expressed hope that a cure may be                   
forthcoming in the future, stating his belief that most of it is               
caused by a mental imbalance caused by chemistry.                              
                                                                               
Number 178                                                                     
                                                                               
SENATOR ELLIS asked Ms. Carpeneti whether it is more likely than               
not that people who would be affected by this would have already               
served time in a regular prison for these offenses, and that this              
is a mechanism for the public to put these people away from the                
public after release from their sentences.                                     
                                                                               
MS. CARPENETI said she believes it will mainly apply to people who             
are serving a sentence after conviction of an offense, and who are             
getting close to their release date.                                           
                                                                               
Number 191                                                                     
                                                                               
SENATOR ELLIS asked whether it is not an option, then, for someone             
charged with such a crime.  He further asked whether there is any              
ability to defer to this procedure in lieu of criminal prosecution.            
                                                                               
MS. CARPENETI replied that she believes it depends on whether the              
person has already been convicted of a sexually violent offense.               
She explained, "If we could prove beyond a reasonable doubt that               
this is a sexually violent predator, that option is available, but             
it would be unlikely that we would not proceed with the criminal               
prosecution."                                                                  
                                                                               
SENATOR ELLIS asked whether a person could "self-elect" this track             
- for example, when that person had been convicted previously, had             
served time, had been released, and then committed another act -               
rather than going to jail where there is no hope of treatment.                 
                                                                               
MS. CARPENETI replied that such a person might want to, but she                
believes the state would proceed with a criminal prosecution if                
there was evidence to convict the person.  Then, at the end of the             
sentence, the state would look at the possibility of civil                     
commitment.                                                                    
                                                                               
SENATOR ELLIS asked whether it would not be attractive to be able              
to say, "Okay, this fellow agrees, he's not going to contest this,             
and we can civilly commit, based on the evidence, rather than                  
convicting him and putting him away for three years."                          
                                                                               
MS. CARPENETI answered that the bill before the committee doesn't              
allow the state to put a person away indefinitely.  The person has             
a right to an annual examination by a psychiatrist, and the right              
to petition the court for release.  She said that involves another             
procedure whereby the state has to prove, beyond a reasonable                  
doubt, that this person is still dangerous.                                    
                                                                               
SENATOR ELLIS responded that if it is voluntarily, theoretically               
that person wouldn't exercise those rights of review.                          
                                                                               
MS. CARPENETI said she couldn't imagine allowing a person to elect             
that procedure if he or she has committed a crime that the state               
would prosecute.  Nothing addresses that issue in this bill.  She              
said she could ask her superiors, but that she believes they would             
go ahead with the criminal prosecution and then look at the civil              
commitment at the end of the sentence, because that is what this               
bill does:  It addresses end-of-sentence dangerousness and civil               
commitment at that point.                                                      
                                                                               
SENATOR ELLIS asked whether there is any automatic review                      
envisioned for setting this process in motion.                                 
                                                                               
MS. CARPENETI explained that the bill right now provides that the              
agency with custody - and most of the time it will be the                      
Department of Corrections - three months before the person is about            
to be released will review sex offenders and apply criteria adopted            
in consultation with the DHSS, to do the initial screening to                  
decide who meets these criteria and refer to the DHSS for a more               
in-depth screening procedure.  After that screening is complete,               
the Department of Law will be notified that this person meets the              
screening standards of the DHSS.  Even if they concur that the                 
standards have been met, the Department of Law will then review                
each individual case. Ethically, the Department of Law cannot file             
a petition unless it is believed a jury can be convinced, beyond a             
reasonable doubt, that the person is a sexually violent predator.              
She added that, in addition to screening standards, medical issues             
and mental health issues, evidentiary issues needed to be looked               
at.                                                                            
                                                                               
SENATOR ELLIS asked how a relative of a victim, concerned community            
council president or other member of the public would make his or              
her views known.                                                               
                                                                               
MS. CARPENETI replied that she felt the Department of Law could be             
contacted, adding that the victims of crimes are one of the major              
groups of witnesses in Washington.                                             
                                                                               
SENATOR ELLIS asked if victim notification was required under                  
victims' rights legislation prior to the release of the offender.              
                                                                               
CHAIRMAN TAYLOR recalled a case in Miami, Florida, where a                     
prostitute with full-blown AIDS was still on the streets to support            
her crack cocaine habit.  The judge had given her maximum sentences            
each time she was picked up so that he could hold her for 90 days;             
however, he could not hold her longer.  Chairman Taylor asked if               
this type of person would fall under this definition.                          
                                                                               
MS. CARPENETI responded that she did not believe prostitution was              
included in the definition of a sexually violent offense in this               
particular bill.                                                               
                                                                               
CHAIRMAN TAYLOR questioned whether it would have to be either a                
non-consensual act or an act that was based on some sort of                    
coercion.                                                                      
                                                                               
MS. CARPENETI clarified that, for adult victims, the bill defines              
"sexually violent offense" to be "sexual assault in the first                  
degree," and "contact without consent" to be "sexual assault in the            
second degree."  For child victims, she further added, this would              
include sexual abuse of a minor in the first, second and third                 
degree.                                                                        
                                                                               
CHAIRMAN TAYLOR added that consent is probably not given if the                
person engaging in the activity does not fully understand the                  
consequences.                                                                  
                                                                               
SENATOR ELLIS brought up the conceptual amendment proposed by Mr.              
Majoros to disallow commitment for these offenders at API.  He                 
stated that he was certain funding would be discussed in the                   
Finance Committee; however, he wanted to make sure Mr. Majoros knew            
that he was heard on this matter.                                              
                                                                               
Number 296                                                                     
                                                                               
SENATOR RICK HALFORD expressed appreciation to the committee and               
the Administration for consideration of this bill.  He acknowledged            
that it is a very expensive, difficult, complex and technical tool.            
He further added that he would expect this to be used only in very             
rare cases; broad application would be prohibitive to the rest of              
our systems.                                                                   
                                                                               
SENATOR HALFORD stated, "I think we know, with at least some of                
these people, that they are going to reoffend.  They say they are              
going to reoffend.  Everyone around them says they are going to                
reoffend.  Everyone in a professional relationship in any kind of              
administrative capacity knows that they are going to reoffend. So,             
their time is probably going to be spent in some kind of                       
confinement.  The only difference that we can make is the number of            
victims they contact.  This is an effort so that, at least when the            
very worst of them are well-known, documented and can go through               
the process, we may be able to save some victims from a life-                  
destroying experience."                                                        
                                                                               
SENATOR HALFORD added that the fiscal note could entail a large                
number of people or very small number of people; however, the bill             
is not intended to be a mandatory Act on the part of the                       
Administration.  These cases would come out of the system at the               
rate that they decide to bring them out of the system.  He felt                
this tool would remain in inventory, be used very seldom, and be               
very expensive when it is used.  He again acknowledged the                     
difficulties involved in working this bill through, but stated, "I             
don't want to see the newspaper articles that we have seen from                
some other states where virtually everyone involved was able to                
predict the outcome in every detail except the name of the next                
victim."                                                                       
                                                                               
Number 329                                                                     
                                                                               
SENATOR ELLIS expressed appreciation for the sponsor's work and                
intent, but questioned whether public pressure would be to cover               
this application too broadly, to every sex offender nearing the end            
of his or her sentence, without regard for resources or strains on             
the system in other areas.                                                     
                                                                               
SENATOR HALFORD concurred that the standard of application is                  
incredibly high. He added that the standard of outcome would have              
to be proven beyond a reasonable doubt to an entire jury, and that             
it would be foolish to try this on anything but the very worst                 
cases.                                                                         
                                                                               
Number 346                                                                     
                                                                               
SENATOR ELLIS expressed concern that the public not be given false             
hope.  He has attended numerous community councils where the                   
emphasis is on "putting away" these sex offenders.  He feels this              
would be a tool in place, but feels its application would be more              
limited.                                                                       
                                                                               
Number 358                                                                     
                                                                               
SENATOR HALFORD stated that he agreed with Senator Ellis.  He                  
offered an analogy: "It's like the hypothetical -- coming up with              
a new vaccine for a horrible disease.  The only problem is that it             
costs $10 million for each person treated.  Should we announce it              
or not?"                                                                       
                                                                               
CHAIRMAN TAYLOR asked for further questions, discussion or                     
witnesses.                                                                     
                                                                               
SENATOR MIKE MILLER moved to report the work draft, Version F, 0-              
LS1134/F, Luckhaupt, 04-13-98, as amended, out of committee with               
individual recommendations.  There being no objection, CSSB
216(JUD) moved from the Senate Judiciary Committee.                            
                                                                               
CHAIRMAN TAYLOR announced his intent to bring up Senator Mackie's              
bill on eminent domain in the near future, and that he would be                
happy to entertain thoughts or ideas regarding this.  He stated he             
believed a hearing had already taken place on the "recollection of             
the Attorney General bill," and that, depending on the outcome of              
that hearing, he may bring that bill up in the near future as well.            
                                                                               
CHAIRMAN TAYLOR adjourned the Senate Judiciary Committee meeting at            
3:00 p.m.                                                                      

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