Legislature(2003 - 2004)
04/28/2003 01:20 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 28, 2003
1:20 p.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 52(JUD)
"An Act relating to the forfeiture of property used to possess
or distribute child pornography, to commit indecent viewing or
photography, to commit a sex offense, or to solicit the
commission of, attempt to commit, or conspire to commit
possession or distribution of child pornography, indecent
viewing or photography, or a sexual offense."
MOVED SCS CSHB 52(STA) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 2(JUD)(title am)
"An Act relating to the statute of limitations for certain civil
actions relating to acts constituting sexual offenses; and
providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 85
"An Act relating to sentencing and to the earning of good time
deductions for certain sexual offenses."
HEARD AND HELD
SENATE BILL NO. 97
"An Act relating to public interest litigants and to attorney
fees; and amending Rule 82, Alaska Rules of Civil Procedure."
MOVED SB 97 OUT OF COMMITTEE
SENATE BILL NO. 22
"An Act limiting the factors that may be considered in making a
crime victims' compensation award in cases of sexual assault or
sexual abuse of a minor."
SCHEDULED BUT NOT HEARD
NON-AGENDA ITEMS
SENATE CONCURRENT RESOLUTION NO. 9
Suspending Rules 24(c), 35, 41(b), and 42(e), Uniform Rules of
the Alaska State Legislature, concerning House Bill No. 52,
relating to the forfeiture of certain property used in certain
crimes.
MOVED SCR 9 OUT OF COMMITTEE
PREVIOUS ACTION
HB 52 - See State Affairs minutes dated 4/8/03.
HB 2 - See State Affairs minutes dated 4/10/03.
SB 85 - See State Affairs minutes dated 4/10/03.
SB 97 - See Resources minutes dated 3/28/03, 4/7/03 and
Judiciary minutes dated 4/23/03.
WITNESS REGISTER
Representative Lisel McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 52.
Ms. Suzanne Cunningham
Staff to Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Commented on HB 2.
Representative Kevin Meyer
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 2.
Ms. Linda Wilson, Deputy Public Defender
Alaska Public Defender Agency
POSITION STATEMENT: Supported SB 85.
Ms. Laurie Huganin
Alaska Network on Domestic Violence and Sexual Assault
Juneau AK
POSITION STATEMENT: Supported SB 85.
Ms. Annie Carpeneti
Criminal Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Supported SB 85.
Ms. Portia Parker, Assistant Commissioner
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 85.
ACTION NARRATIVE
TAPE 03-32, SIDE A
HB 52-SEX CRIME AND PORNOGRAPHY OFFENSES
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 1:20 p.m. Present were SENATORS
OGAN and FRENCH. He announced HB 52 to be up for consideration.
REPRESENTATIVE LISEL MCGUIRE, sponsor, explained that the new CS
adds a punitive sentencing option for judges to use in the cases
of child pornography, indecent photography, etc. under AS
11.61.123 - AS 11.61.127. The goal is to provide law enforcement
with the tools that would come, for example, out of a computer
to allow them to see where a perpetrator has been. She said it
has become a better bill with the addition of Senator Dyson's
language that adds a new section (d) to AS 11.61.125, which
expands the definition of distribution of child pornography to
include providing billing collection or other ancillary services
or otherwise supporting activities.
She explained that across the United States some people are
setting up server farms to provide billing services to serve
pornography sites and others. Those people are looking at Alaska
because of our colder temperatures and access to natural gas. We
are, therefore, anticipating a boom of server farmers and want
to make it absolutely clear that they are legitimate and cannot
prey upon our children.
SENATOR THERRIAULT arrived at 1:22 p.m.
SENATOR FRENCH said he has had personal experience with
prosecuting highly sophisticated pornography computer
perpetrators.
SENATOR OGAN added that children are getting jaded with some of
the filth that comes over the Internet. A GCI tech rep told him
that one third of the sites on the Internet are pornographic and
that's what is actually funding the rest of the Internet.
REPRESENTATIVE MCGUIRE said that it is an all-pervasive problem,
but if they can start at the federal level and make laws for all
states to be off limits, that would be a good place to start.
She also felt there would be more of a shift in the future in
the area of child pornography and First Amendment rights as it's
use on the Internet is compared to the real and significant harm
that it brings to a child and our society.
SENATOR OGAN moved to pass SCS HB 52(STA), version \H, from
committee with individual recommendations. There were no
objections and it was so ordered.
SENATOR THERRIAULT moved to pass the two zero fiscal notes
attached to HB 52 from committee and asked for unanimous
consent. There were no objections and it was so ordered.
SCR 9-SUSPEND UNIFORM RULES FOR HB 52
SENATOR THERRIAULT motioned to pass SCR 9 from committee with
individual recommendations. There was no objection and it was so
ordered.
HB 2-CIVIL STATUTE OF LIMITATIONS/SEX OFFENSES
CHAIR SEEKINS announced HB 2 to be up for consideration.
MS. SUZANNE CUNNINGHAM, staff to Representative Kevin Meyer,
said that HB 2 is a clean up bill to HB 210, which passed in the
2001 session. It clarifies which misdemeanors and which felonies
involving sexual assault and sexual abuse of a minor have a
three-year statute of limitations and which have no statute of
limitation. She told members:
In the original bill, HB 210, the criminal statute of
limitation for felony sexual assault and sexual abuse
or a minor was removed and that was the original
intent. However, when HB 210 came to the House floor,
an amendment was adopted that eliminated the civil
statute of limitation for felony sexual abuse of a
minor and felony sexual assaults. The one thing the
amendment did not do is reference the particular
crimes in the criminal code. So, it was uncertain
which felonies were intended to have no civil statute
of limitation and which ones would have a three year
or two year civil statute of limitation. It also
didn't make a special provision for misdemeanor sexual
abuse and sexual assaults. So, indirectly the civil
statute of limitations for those misdemeanors dropped
back to two years for torts, in general.
The crimes that were inadvertently changed by the
floor amendment were misdemeanor sexual assaults,
misdemeanor sexual abuse of a minor, incest, felony
indecent exposure and unlawful exploitation of a
minor. Prior to the floor amendment, the statute of
limitations for these crimes was set at three years.
So, under HB 2, which is before the committee,
unlawful exploitation of a minor, which is a class B
felony, is added to the list of felony sexual assault
crimes with no civil statute of limitation.
Misdemeanor sexual assaults, misdemeanor sexual abuse
of a minor, incest, and felony indecent exposure are
reestablished at three years for the civil statute of
limitation.
She said that HB 2 has a retroactive clause because the 22nd
Legislature did not intend the indirect change that occurred
with the floor amendment. She said the title was amended to
clarify that the civil actions are limited to the civil actions
for acts constituting sexual offenses.
SENATOR OGAN said he is struggling with the retroactive
provision. He thought that would make this bill ripe for
litigation and asked, "Why don't we just say from now forward?"
SENATOR ELLIS arrived at 1:35 p.m.
MS. CUNNINGHAM replied that while working with the revisor of
statutes on this legislation, they discussed the retroactive
clause and it was clearly not the intent of the legislature to
change the statute of limitations. They feared that there might
be people who would not have the opportunity to seek civil
recourse pertaining to the crimes.
SENATOR OGAN said again that he thought this language was
inviting litigation.
CHAIR SEEKINS said he was confused about the statute of
limitations that was to start on October 1, 2001; anything
beyond that date is outside the statute of limitations and
anything within that date is within the statutes of limitations
that are created by this law.
REPRESENTATIVE MEYER explained that he did not want the
amendment to adversely impact anyone that fell in the gap of
ambiguity. Basically, this is a cleanup bill of what was not
captured in the amendment made by the minority leader on the
House floor.
SENATOR FRENCH said he wanted a couple of days to look into the
statute of limitations issue and bring the bill up at the next
reasonable time frame.
CHAIR SEEKINS announced that there were no objections to holding
the bill and it would be brought up on another day.
SB 85-REPEAT SERIOUS SEX OFFENSES/VICTIM COMP.
CHAIR SEEKINS announced SB 85, version\U, to be up for
consideration.
SENATOR FRENCH, sponsor of SB 85, explained the impetus behind
this bill is to increase the penalties for repeat sex offenders,
the true repeaters. The law today doesn't distinguish between
the first felony conviction and he feels if your first felony is
a vehicle theft and the second is a sex crime, that's okay; but
if you've been convicted of a sex crime and you commit another
one, that's another thing altogether and you've shown that you
didn't get the message. He is asking for a lot more jail time
for the second go-around.
Attachment A shows the current sentencing law. Presumptive
sentencing is applied if you've been convicted of a felony in
the past and you come to the court on a second go-around.
Unclassified felonies are the most serious crimes of
penetration. A first felony offense carries eight years; if you
have a prior felony and you commit a sex assault in the first
degree, you get 15 years. This law does not distinguish as to
whether or not that first crime was another rape.
The other portion of the bill is that it takes away good time.
Folks get a one-third good time deduction for basically minding
their Ps and Qs in prison, which means a 15-year sentence can be
served in 10 years. However, the federal system does not have
good time. Our system uses good time to encourage folks to
behave well in prison but the repeat offenders have used up
their good time.
SENATOR FRENCH said that Alaska has led the nation for the last
25 years in per capita reported rapes and, "We owe it to the
folks we represent to tell them that we are going to take this
seriously and that people who repeat are going to go away for a
long time."
He used the example of a man in Fairbanks who recently was
convicted of fondling his wife's 15-year old sister and her
friend after giving them alcohol. Maybe that is the only time
he'll go wrong in his life, buy maybe not; maybe when he does
his prison time, he'll do it again and at that point, this guy
"can't fix himself." The law is designed to treat repeat
offenders, a small hard-core class differently; it also protects
women and children.
SENATOR THERRIAULT asked him to explain the age difference in
statute for sexual assault.
SENATOR FRENCH replied that there has to be a three-year age
difference. If the girl is 14, 15, or 16 and a male is three
years older than she is, he can't have a relationship with her.
So, a 14-year old can have a relationship with a 16 or 17-year
old, but not with an 18 year old. Those are the areas that are
prosecuted the least, prosecuted with the most care, prosecuted
typically with a schoolteacher situation.
SENATOR ELLIS pointed out as a side note that there are public
service announcements issued by the Department of Health that
make the point about different ages and inappropriate
relationships.
MS. LINDA WILSON, Deputy Public Defender, praised Senator French
for addressing the high per capita rate of rape in Alaska, and
in Anchorage in particular.
The concerns of the agency are the harshness and extremity of
the solution he has proposed. The increase in the maximum
sentences and presumptive sentences are very severe, increasing
by 10 years the maximum sentence for class A and class B
felonies for a sex offense. It also doubles the sentence for a
class C felony. The concern is with the disparate treatment and
equal protection. Treating sex offenders differently by pulling
them out of the classification system they are in raises the
risk that there will be a challenge of unequal protection. She
explained:
Another section on page 3, lines 17 - 18, shows what
the current law is, if you are convicted of a first
felony offense (unclassified), if you possessed a fire
arm or dangerous instrument or caused serious physical
injury, you would get 10 years. If you were convicted
under the second provision of that, it's unclassified
for a sex assault in the first degree and you get a
presumptive 10 years. If you're convicted of a class A
felony for an attempted sex assault, on page 4, line 7
- if it's a first felony conviction, you possess a
firearm or dangerous instrument or cause serious
physical injury, it's the same 10 years. So, a
presumptive for a class A and an unclassified are
identical. Whereas in another offense you wouldn't
have that jumping up so high.
MS. WILSON said the other problem is when you have a specific
law that deals with second felony sex offenders, in Title
12.55.155 (c)(21), there are aggravators that already address
when you have a prior offense or a similar one.
She explained that Section 6 eliminates the 10-year look back
for prior convictions. So, no matter what the prior conviction
was, it doesn't have to be a prior sexual offense, there would
be no 10-year look back limitation anymore.
She stated that totally eliminating good time seems to be
extreme and raises concerns about the ability to supervise these
people. She told members:
It seems you would want to ease them back into the
community and have the ability to supervise them in a
community on mandatory parole, which you're not going
to be able to do. They're going to have to do their
entire sentence. If there's no treatment available in
the institution, they're going to get out and not have
any of the benefits of treatment or the supervision
you would have normally for people who are released on
mandatory parole.
TAPE 03-32, SIDE B
MS. WILSON pointed out that another part of the statute lumps
these people with two other categories of offenders that don't
get any good time. However, those people fall under Title
12.55.125(j) after they have served half of their sentence so
they get an opportunity to go back before the court for a
modification of their sentence. It is the same for people
convicted under Section L that get a mandatory 40 to 99 year
sentence. People convicted under this bill would not have the
opportunity to go back before the court for a modification. They
would have no opportunity for good behavior in the institution
assessed for purposes of pleaing for some sort of modification
or reduction.
She did not think they would have incentives that would be
helpful for the Department of Corrections. This bill will have a
fiscal impact on the operations of the Public Defender Agency as
there will likely be more litigation and more cases that go to
trial when a person who is charged with an offense is going to
receive such an increase in a sentence. There could be longer
and harder trials and more appeals if a person is convicted. The
longer sentences could result in more suspended time down-the-
road and more increases in probation revocations.
MS. LAURI HUGANIN, Alaska Network on Domestic Violence and
Sexual Assault, said she supported SB 85. During FY02, over
2,000 victims of sexual assault came to the Network's programs
seeking support services. One in four girls and one in six boys
will be sexually assaulted before they reach the age of 18. The
Network supports both concepts in the bill of increasing
sentences for repeat offenders and eliminating the good time.
She continued:
It's important to realize that the first time somebody
gets in front of the court isn't the first time they
have committed a sexual offense. You can look at
research, you can talk to inmates, you can look at
people who are going through treatment and find out
that they have sexually assaulted many more people
than what they are coming before the court for even in
their first occasion, particularly with children.
You'll often find many counts of abuse there during
the trial and afterwards. So, it's important to know
that they are already repeat offenders the first time
they come....
When you look at treatment, what you find when you're
reading studies and looking at recidivism is often
they'll say, 'Well, if that person received treatment,
they'll last longer in the community before
reoffense.' They don't say, 'They're not going to
reoffend.' It's just that they're able to maintain
themselves longer in community without reoffense if
they go through treatment.
MS. HUGANIN stated that people who believe in treatment
acknowledge that keeping offenders out of the community really
is the best protection. Other states do day-for-day sentencing
for sex offenders, like Arizona. Other felons are able to have
their time reduced by 15%. In Tennessee a child rapist and
multiple rapist is required to serve their entire sentence
undiminished by any sentence reduction credit; other felons in
Tennessee are able to. In Oregon, earned time is not available
for a specific set of felons, which includes people convicted of
sexual assault and sexual assault of a minor. In Illinois,
offenders get 50% off good time for almost every offense except
sexual assault and abuse. Those offenders are not able to get
more than 4.5 days of good conduct credit for each month served.
Iowa's sentencing for repeat sex offenders differs from
sentencing for repeat offenders of other felonies. A person
convicted a second time for a predatory offense, which is a
felony, has to serve twice the maximum period of incarceration.
SENATOR ELLIS asked if Alaskan statistics justify that this
legislation pass this year rather than next year.
MS. HUGANIN replied yes.
MS. ANNIE CARPENETI, Criminal Division, Department of Law,
supported SB 85 for the reasons stated.
SENATOR THERRIAULT asked her if the department would be
submitting a fiscal note.
MS. CARPENETI replied that they prosecute these cases vigorously
as it is. The length of the sentence wouldn't have that much
impact on the department's prosecution efforts.
SENATOR THERRIAULT said the Department of Corrections' fiscal
note is zero yet people would be spending more time behind bars.
He asked Senator French if he spoke to the Department of
Corrections about that and why it is not asterisked.
SENATOR FRENCH replied that he had the same concern and expected
a hefty fiscal note. However, he had several conversations with
Ms. Parker about this subject and the gist was because these
folks tend to come back in the system one way or another, that
it's hard to quantify how much more they will spend.
CHAIR SEEKINS said it would also be hard to forecast the
chilling effect that serving more time would have on offenders.
SENATOR THERRIAULT said he really couldn't see any savings and
wanted to know more about the fiscal impact beyond five years.
SENATOR FRENCH said he would get a better explanation for the
Department of Corrections fiscal note.
2:22 - 2:30 p.m. - at ease
SENATOR THERRIAULT said the fiscal note indicates zero for the
first five years, but he was concerned that there would be
substantial costs after that and wanted the department to
comment.
MS. PORTIA PARKER, Deputy Commissioner, Department of
Corrections, explained that they had a difficult time trying to
project the potential impact down the road, which would more
likely be 15 to 30 years and certainly not within the first five
years. She explained:
The reason we chose to not even attempt to estimate
that is we had our research division look at the
recidivism rate for sex offenders and we determined
that it might actually save the criminal justice, as a
whole, money, because of the high rate of recidivism
for sex offenders. I'll give you some statistics.
Currently, in custody on a sex offense, we have 727
offenders. In previous and released at some point,
were 581, so, about 80%. The average number of times
admitted, for all the sex offenders in our system, was
6.24 times - arrested, charged. The percent admitted
to DOC 10 or more of that group of sex offenders was
52%. So, with the cost of offenders coming back in,
booking, law enforcement, court costs, prosecutors,
defenders and then into the Department of Corrections
and back out again was so high that we weren't even
sure it would be an increased cost in the long term to
just leave them in prison.
It might be a slight increased cost to DOC, but we
couldn't even really determine that. If there were a
higher cost, maybe for the Department of Corrections,
there may be a savings or at least cost containment
down the road.... That is why we did not project out
the cost. It was indeterminate. We could not determine
whether it would actually be an increase.
CHAIR SEEKINS asked if she had any statistics on how long the
repeaters are out on the street before they are back in.
MS. PARKER replied that she didn't ask for that information.
SENATOR OGAN said the difference is there are fewer victims out
there.
SENATOR ELLIS said her figures put this issue in perspective and
asked if she was in favor of passing the legislation. The
statistics she mentioned are people who are either unwilling or
unable to stop their bad behavior and they keep victimizing
again and again.
SENATOR THERRIAULT asked the department to write up this
discussion and attach it to the fiscal note.
SENATOR OGAN said he wanted to know how many victims knew the
perpetrator.
SENATOR FRENCH responded that far more know their perpetrator
than he would guess. The classic rapist who drags a stranger off
in the bushes is rare. Typically, sex offenders present well and
behave in prison, but they'll get out, go out and do their
grooming behavior. They'll plan a long time before they commit
the crime.
CHAIR SEEKINS said they would hold the bill for the work on the
fiscal note.
SB 97-ATTY FEES: PUBLIC INTEREST LITIGANTS
CHAIR SEEKINS announced SB 97 to be up for consideration. This
bill primarily provides that in a civil action contesting a
decision of the Department of Environmental Conservation,
attorney's fees may not be awarded to or against a public
interest litigant as provided in Rule 82(g) in the Alaska Rules
of Civil Procedure. This would be, in effect, on the floor a
vote for a direct court rule amendment.
SENATOR FRENCH said he noticed the small amount of money
involved. He came up with $718,000 over the course of a decade
for public interest litigants in the natural resources area and
that's about enough to pay one person $70,000 per year to be the
one member of the public who challenges the government on their
public resources front. Another point is in the final paragraph
of the fiscal note. The idea to somehow provide legal fees to
these folks drives litigation and makes people file cases they
wouldn't otherwise file. None of the cases have been found to be
frivolous, which may not be the best measure. However, the
fiscal note says they have not been able to find objective data
to indicate whether or not the public interest exception is a
primary motivation for parties to litigate public interest
issues.
CHAIR SEEKINS responded that the $70,000 is only one facet of
what they are considering, because Senator French is looking
only at the amounts that were awarded to public interest
litigants, not the amount of money the state had to spend that
the public interest litigants may have had to pay the state.
Subjective data indicated and a number of people in the
Department of Law felt that cases were being brought by public
interest litigants to harass and delay, which cost the state a
tremendous amount of money. Testimony from the companies that
were delayed also indicated that they incurred millions of
dollars in losses in terms of appreciation on equipment and
additional time necessary to bring worthwhile and permitted
projects to the extraction phases.
SENATOR OGAN noted the cost to the treasury, as well, that comes
from companies being discouraged to even do business here.
CHAIR SEEKINS commented that Alaska is the only state with a
Rule 82 type of provision, which causes higher insurance rates
and he thought providing an exemption to the state in this
category was reasonable.
2:50 p.m.
SENATOR OGAN moved to pass SB 97 from committee with individual
recommendations and the attached fiscal notes. SENATOR ELLIS
objected. Senators Therriault, Ogan and Seekins voted yea;
Senators Ellis and French voted nay; and SB 97 moved from
committee.
CHAIR SEEKINS adjourned the meeting at 2:52 p.m.
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