03/17/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB293 | |
| SB234 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 234 | TELECONFERENCED | |
| + | SB 293 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 17, 2008
1:38 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Lesil McGuire
Senator Bill Wielechowski
Senator Gene Therriault
MEMBERS ABSENT
Senator Charlie Huggins, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 293
"An Act relating to electronic communication devices and to
personal information."
MOVED CSSB 293(JUD) OUT OF COMMITTEE
SENATE BILL NO. 234
"An Act relating to the crimes of assault in the fourth degree
and of resisting or interfering with arrest; relating to the
determination of time of a conviction; relating to offenses
concerning controlled substances; relating to issuance of search
warrants; relating to persons found incompetent to stand trial
concerning criminal conduct; relating to probation and to
restitution for fish and game violations; relating to
aggravating factors at sentencing; relating to criminal
extradition authority of the governor; removing the statutory
bar to prosecution of certain crimes; amending Rule 37(b),
Alaska Rules of Criminal Procedure, relating to execution of
warrants; and providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 293
SHORT TITLE: ELECTRONIC COMMUNICATION DEVICES
SPONSOR(s): SENATOR(s) MCGUIRE
02/19/08 (S) READ THE FIRST TIME - REFERRALS
02/19/08 (S) L&C, JUD
03/04/08 (S) L&C AT 1:30 PM BELTZ 211
03/04/08 (S) Heard & Held
03/04/08 (S) MINUTE(L&C)
03/13/08 (S) L&C AT 1:30 PM BELTZ 211
03/13/08 (S) Moved CSSB 293(L&C) Out of Committee
03/13/08 (S) MINUTE(L&C)
03/14/08 (S) L&C RPT CS 2DP 2NR NEW TITLE
03/14/08 (S) DP: ELLIS, DAVIS
03/14/08 (S) NR: BUNDE, STEVENS
03/17/08 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 234
SHORT TITLE: CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/18/08 (S) READ THE FIRST TIME - REFERRALS
01/18/08 (S) JUD, FIN
02/22/08 (S) JUD AT 1:30 PM BELTZ 211
02/22/08 (S) -- MEETING CANCELED --
02/29/08 (S) JUD AT 1:30 PM BELTZ 211
02/29/08 (S) Heard & Held
02/29/08 (S) MINUTE(JUD)
03/17/08 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
TREVOR FULTON, Staff
to Senator McGuire
Alaska State Capitol
Juneau, AK
POSITION STATEMENT: Introduced SB 293 on behalf of the sponsor.
ALLISON FLEMING
EPC Global
POSITION STATEMENT: Pointed out shortcomings of SB 293.
MELISSA NGO, Senior Counsel
Electronic Privacy Information Center (EPIC)
Washington D.C.
POSITION STATEMENT: Stated strong support for SB 293.
THERESA BANNISTER, Legislative Counsel
Legislative Legal and Research Services Division
Legislative Affairs Agency
Juneau, AK
POSITION STATEMENT: Provided information related to SB 293.
DOUG PICKEREL, Sergeant
Anchorage Police Department
Anchorage, AK
POSITION STATEMENT: Testified on SB 234 and explained how
electronic reporting works for the Anchorage Police Department.
JERRY LUCKHAUPT, Legislative Counsel
Legislative Legal and Research Services Division
Legislative Affairs Agency
Juneau, AK
POSITION STATEMENT: Provided information related to SB 234.
QUINLAN STEINER, Director
Alaska Public Defender Agency
Anchorage, AK
POSITION STATEMENT: Expressed concern with provisions in SB
234.
RON ADLER, CEO and Director
Alaska Psychiatric Institute (API)
Anchorage, AK
POSITION STATEMENT: Expressed concern with provisions in SB
234.
JOSHUA FINK, Director,
Office of Public Advocacy (OPA)
Department of Administration
Anchorage, AK
POSITION STATEMENT: Echoed the comments by Mr. Steiner and Mr.
Adler with respect to SB 234.
ANNE CARPENETI, Assistant District Attorney
Criminal Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Answered questions related to SB 234.
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:38:21 PM. Present at the call to
order were Senators French, McGuire, Therriault, and
Wielechowski.
SB 293-ELECTRONIC COMMUNICATION DEVICES
CHAIR FRENCH announced the consideration of SB 293. Before the
committee was CSSB 293(L&C).
TREVOR FULTON, Staff to Senator McGuire, said SB 293 is intended
to protect personal and consumer privacy and to nip the
potential for identity theft in the bud. The bill does this by
regulating the use of radio frequency identification detector
(RFID) technology in the state of Alaska.
1:39:40 PM
MR. FULTON explained that RFID is wireless technology that
includes three elements: a tag that has an antenna that is
capable of transmitting data; a reader that receives data
transmitted by the tag; and a database that stores the
information that's exchanged. Common RFIDs include employee
access passes, payment cards that don't require swiping, toll
passes, and pet implants. Those sorts of RFIDs are good for the
consumer and they won't be negatively impacted by this bill, he
said.
MR. FULTON said that some less overt examples of RFIDs are U.S.
Food and Drug Administration approved tags that can be implanted
in humans and contain patient records for use in hospitals. RFID
tags are also being used to track the movement of products from
the manufacturer to the retailer and points in between. RFIDs
bring convenience but it could be at the cost of security, which
is why SB 293 was introduced. Private information such as bank
account numbers, Social Security numbers, driver's license
numbers, or health records that are transmitted by RFID tags and
stored in RFID databases can leave consumers vulnerable to
identity theft. SB 293 seeks to minimize vulnerability and
protect personal and consumer privacy by regulating the use of
RFID technology in the state of Alaska. As RFID use becomes more
widespread it will become increasingly important that consumers
are informed about products that carry RFID tags, that
businesses obtain consumer consent to using this technology, and
that minimum security standards are adopted for RFID use.
Currently there are no minimum standards for encryption
technology used to relay personal information from a tag to a
reader or for securing information that's stored in databases
either. SB 293 aims to set standards for both.
1:44:37 PM
MR. FULTON said that SB 293 establishes RFID regulations where
none currently exist. It prohibits scanning or reading an RFID
tag without the consumer's consent and it establishes that
misuse of RFID devices would be an unfair trade practice. SB 293
is proactive and aims to stay ahead of those who would misuse
this growing technology. He asked the committee to reflect on
how being more proactive about protecting consumer and personal
information 10 years ago might have lessened the epidemic of
identity theft that's seen today.
1:46:34 PM
CHAIR FRENCH referred to page 1, line 7, and asked if the
provider of an RFID is the manufacturer. For example, HID
Corporation is the provider for the capitol building RFIDs.
MR. FULTON clarified that the business or office that issued the
RFID would be considered the provider.
CHAIR FRENCH referred to page 5, lines 28-29, that defines a
provider as a person who sells, offers to sell, or issues an
electronic communication device. He asked if the bill allows the
consumer to know how much personal information is stored on the
RFID tag they're carrying around.
MR. FULTON directed attention to page 3, line 31, through page
4, line 2, that says, "an electronic or written record; the
record must, at a minimum, clearly and conspicuously state the
provider's privacy policy and the manner in which information
relating to the consumer will be collected and disseminated;".
SENATOR McGUIRE noted that page 2, lines 20-25, relate to
consent. It says that the consumer shall be notified that the
RFID transmits personal information and the consumer must give
consent. But if it needs to be clearer then let's do so, she
said.
CHAIR FRENCH commented that he'd think twice about using an RFID
card if he knew that his bank account number, driver's license
number, and Social Security number was on that card.
1:50:47 PM
MR. FULTON said that's a good point and he believes the sponsor
would be happy to amend the bill to make that clear.
CHAIR FRENCH said Section 45.48.020 is close and adding a word
or two would tighten it up.
SENATOR THERRIAULT commented that part of the concern relates to
knowing what information your card is transmitting. That needs
to be spelled out because a person may want to destroy or never
accept a card that has too much personal information on it.
SENATOR McGUIRE said that's the point of the bill. Although
there are some very good uses for RFID technology, she believes
that many Alaskans are unaware that their personal information
is being collected and used. This is really more about
information, she said.
1:52:33 PM
CHAIR FRENCH noted that the "Stanford Technology Law Review"
article was useful and he was surprised to learn how easy it is
for some people to read information on passports and other
documents that he thought were highly secure. He asked if any
financial transactions have been intercepted using technology
that captures RFID transmissions.
MR. TREVOR replied he doesn't have documented examples, but it
probably is occurring. The problem is that it's difficult to
determine how identity theft occurs. It could be from RFID
transmissions or from digging in someone's trash, or from stolen
mail.
CHAIR FRENCH asked to what extent RFIDs are used commercially in
Alaska.
MR. TREVOR replied it's difficult to quantify, but it's a growth
industry worldwide. In 2006 there were about 1.3 billion RFIDs
worldwide and the following year there were over 4 billion.
SENATOR McGUIRE added that this bill will help to figure that
out.
CHAIR FRENCH asked if there is any opposition to the bill.
MR. TREVOR replied two people spoke in opposition to the bill in
the last committee; one was from EPC and the other was from the
American Electronics Association.
1:55:16 PM
SENATOR THERRIAULT asked if some of the 4 billion RFIDs he
mentioned are for tracking products which wouldn't present any
sort of security risk.
MR. TREVOR said that's correct; most are probably used in supply
chain management that has nothing to do with individuals. The
scope of this bill is to address RFID devices that transmit
personal information.
1:56:31 PM
SENATOR THERRIAULT asked how the transmitting tag works.
MR. TREVOR explained that there are two basic types of RFID
devices - active and passive. Active RFID devices are larger,
contain a power source, transmit a signal continuously, and
transmit longer distances. Passive RFID devices are smaller and
don't have a power supply. They use energy that's transmitted
from the reader to create a signal and send it back to the
reader.
CHAIR FRENCH commented that most RFIDs must vary with regard to
strength. For example, his capitol building RFID must be fairly
close to the reader for it to unlock the door, but it's not
necessary to get that close with toll booth easy passes.
MR. TREVOR said that's a good example of the difference between
a passive tag and an active tag. All toll passes are active so
they transmit a signal all the time.
1:58:28 PM
SENATOR McGUIRE highlighted the document summarizing the changes
made in the L&C committee.
CHAIR FRENCH asked if the bill is based on draft legislation
from another state.
MR. TREVOR replied it's based on legislation from Washington
State. He added that in the last several years over 50 pieces of
RFID legislation have been drawn up in 27 different states.
CHAIR FRENCH opened public testimony.
2:00:10 PM
ALLISON FLEMING, EPC Global, said she is representing a not-for-
profit GS1 organization that works on international standards
for RFID applications. Industries that participate in the
standards development process include: aerospace, retail,
entertainment, defense, healthcare, chemical, pharmaceutical,
transportation and logistics. These industries use an electronic
product code (EPC), which is a type of RFID application. They
have unique numbers that are similar to a barcode. The number is
stored on an RFID tag that combines a silicone chip and
antennae. The EPC is read from the tag and can be associated
with data that's held in a secure database where it'd be
possible to find information like where an item originated or
the date it was produced. EPC data is about products not people
so the tags do not carry an individual's personal information.
They carry information related to a product.
MS. FLEMING said that EPC Global believes that EPC/RFID
technology is in its infancy. In the short term EPC/RFID
applications will be at the container, case, and pallet level.
Wide scale item tagging applications are years away. RFID
technology can be used for many different applications and it
gives more information about a product than a barcode. In the
future the extra information could help expedite all steps in
the supply chain from manufacturing to checkout. Consumers will
benefit from increased product availability and faster more
efficient product recalls. Food safety is another potential
benefit because the EPC allows manufacturers and retailers to
monitor production, expiration dates, and temperature control to
ensure food freshness. EPC can also reduce product
counterfeiting.
MS. FLEMING said that the next several years will be crucial to
the development of the technology. Laws requiring specific types
of notice, written consent, or deactivation at the point of sale
could stifle innovation and delay potential benefits to
consumers and businesses in Alaska and elsewhere. Specific
legislation regulating the technology isn't flexible and could
negatively impact advancements of EPC and RFID as new post-
purchase benefits and uses are uncovered. She urged the
committee to be prudent and pragmatic in considering measures
that regulates this technology.
CHAIR FRENCH asked if EPC is a particular sort of RFID that her
organization uses.
MS. FLEMING said yes.
CHAIR FRENCH asked if the organization members use EPC in supply
chain management or at point of sale where there is contact with
an individual consumer.
MS. FLEMING said currently the technology is used at the case
and pallet level. Item level tagging is probably years in the
future, but there may be item level tagging pilot programs where
consumers would have direct contact.
2:06:09 PM
CHAIR FRENCH asked if she's concerned with any particular part
of the bill.
MS. FLEMING expressed concern with the notice section, the
consent section, and the deactivation at the point of sale
section.
SENATOR WIELECHOWSKI said he doesn't understand why stores would
oppose this because from his perspective the bill is trying to
prevent people from having RFID used in ways they don't agree
with.
MS. FLEMING explained that stores have consumer guidelines that
member companies agree to. That includes providing notice and
giving the consumer choices about how the RFID tag is used. With
regard to notice, the issue is that if Alaska has specific
tagging requirements that would present problems for members
that have a global supply chain. At this point there's really no
effective means for retailers to automatically deactivate EPC
tags at the point of sale. For the most part any tag a consumer
comes into contact with would be on the packaging so the
consumer could just throw that away, she said.
MS. FLEMING agreed with Mr. Fulton's statement that other states
have proposed lots of RFID legislation, but there hasn't been
any comprehensive bill like SB 293 that's been passed. The
Washington State legislation originally looked like SB 293, but
it was changed to look at the behavior of people who were using
RFID for illegal means.
2:09:22 PM
CHAIR FRENCH commented that this issue cries out for a federal
solution. He asked if anything is happening at that level.
MS. FLEMING replied there was a hearing about this technology
about three years ago but she hasn't heard of any legislation
since that time. A Senate caucus does meet to discuss technology
and where it's going.
SENATOR McGUIRE said this is an opportunity for Alaska to be a
leader. With respect to the bills that have been introduced but
have gone nowhere, she said it's because of the tremendous
pressure that lobbyists apply. We tried to do this quietly to
"get out ahead of it and get it as far as we possibly could
because we knew that the pressure would come down from the
different companies." Clearly it's in their best interest to do
what they want with respect to collecting and using personal
data. As policy makers it's in our best interest to look out for
our constituents, she said. For the most part they're completely
unaware that their information is being collected and used. She
suggested EPC Global think about adopting an international
policy that strikes a balance between the consumer and those
that want to make money off the consumer
2:11:35 PM
MELISSA NGO, Senior Counsel at the Electronic Privacy
Information Center (EPIC) in Washington D.C. said she submitted
written testimony. EPIC is a non partisan public interest
research organization that was established in 1994 to focus
attention on emerging civil liberties issues. EPIC has
considerable expertise on RFID technology and has testified
about security problems before Congress and state legislatures
and has submitted detailed analyses on FRID programs to
different federal agencies. This technology is increasing
rapidly. It is currently used in easy pass highway systems,
passports, university ID cards, credit and debit cards, and in
addition to supply chain management. As this technology is
increasingly used it's important to be aware of the many
problems inherent in using this technology. If security isn't
adequate, RFID tags are remotely and secretly readable. In fact,
last week the Dutch government reported an RFID security breach
because several researchers were able to hack into the system.
Worldwide there are 1 billion cards using these RFID chips
including government building access cards and the Boston
transportation system. Hacking into the system allows criminals
to clone the cards. RFID technology for supply chain management
has never been controversial, but once it's used to attach an
identifier and create a profile on a person there's a problem.
2:14:55 PM
MS. NGO said that EPIC strongly supports SB 293 but it can be
improved. The most important way is to address unique
identifiers that are linked to databases containing personally
identifiable information. Although companies have opposed this
regulation, it should be included in the bill because the misuse
of unique identifiers could be as risky as the misuse of Social
Security numbers. Also, EPIC recommends an enforcement provision
through a private right of action as well as through the
attorney general, stronger provisions on deactivation of tags
including permanent deactivation, and clear and prominent
labeling of RFID readers and transponders.
MS. NGO said she agrees with the sponsor that Alaska should be a
leader in protecting consumers from misuse of RFID technology.
2:17:00 PM
CHAIR FRENCH referred to the consent provisions on page 2, lines
22-25, and asked Ms. Bannister if the language is specific
enough to capture the idea that the consumer would know what
information is being disclosed.
2:17:55 PM
THERESA BANNISTER, Legislative Counsel, Legislative Legal and
Research Services Division, Legislative Affairs Agency, said the
bill doesn't specify what information is being disclosed, what
is transmitted, or what's on item itself. It does indicate that
it is personal information and the definitions section of the
bill indicates what personal information means.
CHAIR FRENCH asked if she could draft an amendment that captures
that idea.
2:18:54 PM
MS. BANNISTER said she's been working on a conceptual amendment
to Sec. 45.48.020, on page 2, line 23.
CHAIR FRENCH moved conceptual Amendment 1.
Conceptual Amendment 1
Page 2, line 23, following "consumer":
Insert ", identify the type of personal information
that is contained on or that may be scanned or read
from the electronic communication device,"
Finding no objection, he announced that Conceptual Amendment 1
is adopted.
CHAIR FRENCH closed public testimony. Finding no further
discussion, he asked for a motion.
2:21:49 PM
SENATOR McGUIRE motioned to report amended version E CS for SB
293 from committee with individual recommendations and attached
fiscal note(s).
CHAIR FRENCH announced that CSSB 293(JUD) is moved from
committee.
SB 234-CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
2:22:13 PM
CHAIR FRENCH announced the consideration of SB 234. He asked for
a motion to adopt the draft committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt CS for Senate Bill 234,
labeled 25-GS2038\C, as the working documents.
2:22:53 PM
CHAIR FRENCH objected for discussion purposes. He informed
members that his intention is to work on the bill today and
Wednesday and hopefully move it from committee that day.
At ease from 2:24:04 PM to 2:27:59 PM.
CHAIR FRENCH said the idea for Sections 1 and 2, which was
discussed in the crime summit, is to require electronic
reporting of pawn shop transactions in communities that have
more than 5,000 people. Transactions from garage sales, used
book stores, and the Salvation Army wouldn't be reportable, but
transactions from places that loan money on secondhand articles
would be reported to law enforcement in an electronic and
searchable format. This will make items that frequently end up
in pawn shops as a result of burglaries and robberies more
locatable.
CHAIR FRENCH, noting that Anchorage pawn shops already report
electronically, asked Sergeant Pickerel to explain how this
works and what benefit it provides.
2:29:09 PM
DOUG PICKEREL, Sergeant, Anchorage Police Department, relayed
that there are about 3,500 pawn transactions per week in
Anchorage. Many of those transactions include items that have
been reported stolen and because of the reporting requirement,
many of the items are recovered. Electronic reporting has made
it easier for the police department since it's no longer
necessary to visit each pawn shop to pick up the transaction
lists.
CHAIR FRENCH asked what sort of push-back there's been from the
pawn shops.
SERGEANT PICKEREL replied all but one of the pawn shops report
electronically. He believes it's easier for shop owners as well
as the police.
2:30:44 PM
CHAIR FRENCH asked how many of the 3,500 items per week have
been stolen.
SERGEANT PICKEREL estimated 5 percent, maybe as high as 10
percent.
CHAIR FRENCH said if it's 5 percent that means that 175 items
per week could be returned to the rightful owner because of this
simple recordkeeping requirement.
SERGEANT PICKEREL reevaluated and said it's not that many, but a
good number of items are recovered. It does provide leads in an
investigation and aids in prosecutions. This has been a big help
to the Anchorage Police Department and he's sure other
jurisdictions will find it helpful as well.
SENATOR WIELECHOWSKI referred to page 1, Section 1, and asked
for a definition of "A person who lends money on second hand
articles…."
2:32:28 PM
JERRY LUCKHAUPT, Legislative Counsel, Legislative Legal and
Research Services Division, Legislative Affairs Agency,
explained that it's not defined. Provisions in Title 8 don't
regulate pawn shops per se, but they talk about loaning money on
items and the record keeping that must occur. "We refer to pawn
shops but we always talk about whether or not it's a person that
engages in the business of buying and selling second articles or
lending money on second hand articles."
2:34:17 PM
SENATOR WIELECHOWSKI reviewed AS 08.76.010(a), which isn't in
the committee substitute (CS), and said he was concerned about
inadvertently extending the reporting requirement to anyone who
might lend $10 to another person.
MR. LUCKHAUPT said he doesn't see that the intent is to have
this apply to persons who loan money to friends. He believes the
section is referring to someone who is receiving an item in
exchange for money and holding that item until the money is
repaid.
CHAIR FRENCH asked if used book or clothing transactions would
fall under this section.
MR. LUCKHAUPT replied he doesn't believe so because money isn't
loaned on those items in exchange for holding them for
redemption. Similarly, transactions from a consignment shop
wouldn't fall under this section. He doesn't know that current
statute has ever been applied to those items. AS 08.76.040 was
added in 1981 and it does use the term "pawnbroker" but the term
isn't defined and it only relates to what happens when someone
doesn't redeem their pawned item.
2:37:27 PM
CHAIR FRENCH directed attention to the language on page 2, line
3, and said the phrase "accessible on the Internet" will be
changed to reflect that the information will be "electronically
available." The idea is to have the transaction lists emailed to
law enforcement rather than to have a database of pawned items
that the public can search. This will comport with the
suggestion made by Wasilla Police Chief Long.
2:38:20 PM
SENATOR McGUIRE remarked this is long past due and she's pleased
this will be included.
2:39:16 PM
QUINLAN STEINER, Director, Alaska Public Defender Agency, said
his biggest concern relates to the involuntary commitment
proceedings. Preferable language was discussed in the House, but
it's not reflected in version C. He offered to provide that
language.
CHAIR FRENCH urged him to submit any suggestions to his office
as soon as possible because he'd like to move the bill on
Wednesday.
MR. STEINER said the commitment proceedings have been discussed
at length with DOL and the issues have been fairly well hammered
out. He summarized that Sections 9, 10, and 11 relate to
involuntary commitment when a criminal defendant is found
incompetent. The concern was that there was no outlet for cases
that didn't really require commitment for an evaluation.
Criminal trespass cases, for example, are relatively minor and
the person may have been found incompetent numerous times. This
provision could lead to almost a year commitment. Typically when
a person's conduct isn't threatening or dangerous they would
only receive 10 days. Language was drafted to require a
coinciding finding of dangerousness, which would take care of
the concern about more dramatic cases such as arson, he said.
MR. STEINER said there was also debate about Section 11, which
is a rebuttable presumption of mental illness of someone who is
found incompetent. That is somewhat inconsistent with a possible
basis for incompetency, which could be a disability rather than
mental illness. There was no agreement on that issue, but it's
worth review because someone could be found incompetent without
being mentally ill. For example it could be due to mental
retardation, developmental disability, or autism.
2:43:41 PM
CHAIR FRENCH asked his view on Section 8.
MR. STEINER said he believes that the reason that was written in
was to ensure that all warrants are not called in. He asked the
committee to consider that even in a state the size of Alaska,
sometimes a judge should look at things.
CHAIR FRENCH asked if he had other comments.
MR. STEINER highlighted Section 3, which makes the third
domestic violence assault a felony offense. The House changed
this section substantially based on the concern that the two
misdemeanor predicate crimes could be non-assaultive as could
the C felony offense. That body established that all the
offenses had to be physical assaults and he believes a 10-year
look back was included. He suggested the committee consider the
broad definition of household member with respect to domestic
violence and getting a restraining order. Under current statutes
household members could include college roommates, people living
on a fishing boat, or cannery workers.
2:47:35 PM
CHAIR FRENCH questioned whether a cannery worker who lives down
the hall really would be considered a domestic partner.
MR. STEINER replied not with the common understanding of
domestic partner, but there would be a legitimate argument for
people sharing a house or rooms in a boarding house. He doesn't
think that's the intent with regard to domestic violence but it
does make sense in a protective order situation. There you're
trying to maximize protection under a short timeframe. In the
criminal environment where there's more time to examine
culpability then the broad definition makes less sense. An
interesting part of the definition of household member is
dating. He doesn't have a good definition for that but it could
mean widely different things depending on location and
perception of the people who are dating. One person may call it
a date while another may not. It's totally undefined but it's
worth considering when looking at using that for the purpose of
criminal culpability.
2:49:53 PM
RON ADLER, CEO and Director, Alaska Psychiatric Institute (API),
said he too is concerned with the references to incompetency due
to mental illness. He explained that someone could be
incompetent to stand trial because their maladaptive behavior is
a result of a developmental disability. But someone who is
mentally ill could commit a crime and not be able to understand
the charges because they're responding to internal stimuli.
2:51:24 PM
CHAIR FRENCH asked if his concern centers on the new Section 11
that talks about a defendant who is rebuttably presumed to be
mentally ill.
MR. STEINER said that's correct.
CHAIR FRENCH questioned why a rebuttable presumption isn't the
way to go. If the DA goes into court and says someone is
mentally ill and has been found to be incompetent, a doctor
could stand up and rebut the statement and end the dispute.
MR. STEINER asked where the defendant would be during the
rebuttal. If he or she is already at API, there will be a
capacity issue at the hospital with respect to bed space. API
only has a 10-bed medium security forensic unit and all 10 beds
are currently occupied.
CHAIR FRENCH asked what happens now if a district court judge
finds someone to be incompetent to proceed and thus rebuttably
presumed to be mentally ill.
MR. STEINER explained that the hospital would notify the
licensing and certification agency about the extra person.
Probably the seclusion and restraint room would be used to house
the extra person. "It would create serious problems if we go
over 11." In that event the fire marshal would also have to be
notified, he said.
2:54:58 PM
CHAIR FRENCH asked how many times API has exceeded capacity in
the last two years.
MR. STEINER estimated it's happened three times. His concern is
that this bill could increase the number of referrals to the 10-
bed medium security forensic unit.
CHAIR FRENCH asked if API tracks the number of defendants in the
criminal system found to be incompetent to proceed. Data from
the last several years would be useful information for the
committee to have, he said.
MR. STEINER agreed to get the numbers to the committee before
the next hearing.
2:55:44 PM
JOSHUA FINK, Director, Office of Public Advocacy (OPA),
Department of Administration, echoed the comments by Mr. Steiner
and Mr. Adler. He suggested the committee look at the definition
of "household" because the application is far too broad. For
example, two MatSu Valley cellmates recently got into a scuffle
and initially they were going to be charged with domestic
violence. This caused a situation because one of the definitions
is "live with or ever lived with" so that includes cellmates,
people in assisted living homes, and college roommates. This is
a real issue. He agrees that when the definition was written in
Title 18 it was to give the court broad discretion in fashioning
a restraining order. It wasn't intended to define a domestic
relationship for criminal liability purposes.
MR. FINK relayed that the House version of this legislation sets
up a new section that defines domestic violence relationships
and limits it to the present tense. The idea is to get to the
familial and romantic relationships versus the broad definitions
in Title 18.
2:57:34 PM
CHAIR FRENCH asked if he's comfortable with the three strikes
language contained in the bill by Representative Holmes.
MR. FINK replied that bill has good language: the predicate
crimes are assaultive in nature, there's a 10-year look back,
and the definition of household is narrowed. "It's a tight bill
and it gets at the public policy she wants implemented," he
said.
CHAIR FRENCH told the committee that it's been his intention
that the current Section 3 is a placeholder for the language
Representative Holmes has developed. She's worked on it
extensively so that everyone is more or less happy. He expects
to have that language by Wednesday.
CHAIR FRENCH directed attention to Section 4, which addresses
detaining people who leave a commercial establishment with large
amounts of merchandise in plain view. Previously merchandise had
to be concealed for a store security guard to have authority to
detain a person until the police arrive. This broadens that
definition to allow theft to serve as a predicate.
SENATOR WIELECHOWSKI asked about the suggestion to add Lunestra
[zopiclone] to the list of controlled substances in Section 6.
2:59:55 PM
ANNE CARPENETI, Assistant District Attorney, Criminal Division,
Department of Law (DOL), said Lunestra is on the federal
schedules said DOL doesn't object to adding it here.
CHAIR FRENCH agreed that it's a good idea to include it in the
bill.
3:00:37 PM
MS. CARPENETI emphasized that Section 3 is very important to the
Department of Law. She urged the committee to consider that the
governor's bill didn't have an enhanced penalty for domestic
violence offenses. It's not the most popular approach but it's
more practical and it makes more sense for prosecutors to just
provide that the third conviction of assault in the fourth
degree be a class C felony if the person has been convicted of
assaultive behavior within the last 10 years. She explained that
there are different ways to consider what the predicate offenses
are, but in Alaska law there isn't a crime involving domestic
violence. It's not an element of any offenses so with each case
it'd have to be proved to a jury beyond a reasonable doubt that
the crime involved domestic violence. She believes that Mr.
Steiner and Mr. Fink will say that the governor's approach is
much cleaner and more preferable. Leaving that element out will
still capture all the people you're trying to capture. In fact
there's a good reason to apply this enhanced penalty to bullies
on the street who beat up non family members. She urged the
committee to consider Mr. Luckhaupt's draft that made another
way to commit assault in the third degree by having committed
non fear assaults in the first and second degree with various
predicates.
3:03:25 PM
SENATOR WIELECHOWSKI expressed the view that it's cleaner and
more practical to do what Ms. Carpeneti suggests. People who
have assaulted others three times shouldn't be on the street.
MS. CARPENETI reminded the committee that some people have
convictions for 10 and 12 assaults in the fourth degree. They're
not all domestic violence, she added.
SENATOR McGUIRE echoed a similar sentiment. Someone who is
exhibiting fourth degree assaultive behavior on a consistent
basis is ratcheting up and it's time to say that behavior is a
felony. "I'm supportive of just keeping it general," she said.
3:04:47 PM
CHAIR FRENCH asked her view on the sections about mentally ill
and incompetency.
MS. CARPENETI observed that Mr. Steiner wasn't looking at the
latest version of the bill. He and Mr. Fink worked with DOL on
the provisions in version C, she said.
CHAIR FRENCH agreed, adding that he knows that his staff sent
out the latest version. "We went out of our way to make certain
that before the hearing he had the language. We'll try it again
for Wednesday." He said his sense was that there had been
conversations.
MS. CARPENETI agreed that they've spent hours together working
on this language. "It would be interesting for you to get Mr.
Fink's and Mr. Steiner's testimony because they've both
represented to me that they liked the governor's version. It's a
whole lot cleaner …."
3:05:54 PM
SENATOR WIELECHOWSKI asked if she's considered extending this to
other types of recidivist offenders. It would aim at those
people who have 30, 40 and 50 offences. They're a menace to
society and clearly they aren't correcting their behavior. At
some point these people have to be sent to sit in a cell to
think about their actions. He asked if she would support an
amendment to that effect.
MS. CARPENETI replied she'd always be willing to consider it,
but she knows that the price tag would be considerable. "This is
a really good start in terms of people who beat up on other
people, whether they be a domestic partner or a total stranger,"
she said.
3:07:41 PM
CHAIR FRENCH highlighted the fiscal note shows the cost of these
provisions in 2012 to be $9 million per year and nearly $17
million per year in 2014.
MS. CARPENETI stated a preference for taking it one step at a
time.
CHAIR FRENCH directed attention to Section 17, page 6, that
relates to returning a search warrant. Although Mr. Svobodny
made a fairly good case for relaxing the current 10-day rule, he
said he'd prefer putting an upper-end limit on the number of
days you'd have to wait for a search warrant to be returned. He
asked her view on extending the limit to 30 days.
MS. CARPENETI said 30 days is reasonable as long as there's a
statement about the possibility of going to the court and asking
for an extension. That's what happens now and judges are
generally good about cooperating, she said. She talked to Mr.
Svobodny earlier and he indicated that 30 days with some
extension provision would be acceptable.
CHAIR FRENCH reread the current provision and agreed that just
two 10-day extensions are allowed. He said he wants to give the
court guidance with regard to number of days. "We'll work on
keeping some reasonable lid on that and we'll also give the
public defender a chance to respond," he said.
CHAIR FRENCH held SB 234 in committee.
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:11:15 PM.
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