02/11/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| SB22 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 22 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 11, 2013
1:34 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
Senator Donald Olson
COMMITTEE CALENDAR
SENATE BILL NO. 22
"An Act relating to the commencement of actions for felony sex
trafficking and felony crimes involving child pornography or
indecent materials to minors; relating to the human trafficking;
relating to the crime of sexual assault; relating to the crime
of referral of sexual felonies to a three-judge panel; relating
to the definition of 'sexual unlawful contact; relating to
forfeiture for certain crimes involving prostitution; relating
felony' for sentencing and probation for conviction of certain
crimes; relating to the to the time in which to commence certain
prosecutions; relating to release for violation definition of
"sex offense" regarding sex offender registration; relating to
protective of a condition of release in connection with a crime
involving domestic violence; relating orders for stalking and
sexual assault and for a crime involving domestic violence; to
interception of private communications for certain sex
trafficking or human relating to the definition of 'victim
counseling centers' for disclosure of certain trafficking
offenses; relating to use of evidence of sexual conduct
concerning victims of communications concerning sexual assault
or domestic violence; relating to violent certain crimes;
relating to procedures for granting immunity to a witness in a
criminal crimes compensation; relating to certain information in
retention election of judges proceeding; relating to
consideration at sentencing of the effect of a crime on the
victim; concerning sentencing of persons convicted of felonies;
relating to remission of sentences relating to the time to make
an application for credit for time served in detention in a for
certain sexual felony offenders; relating to the subpoena power
of the attorney treatment program or while in other custody;
relating to suspending imposition of general in cases involving
the use of an Internet service account; relating to reasonable
sentence for sex trafficking; relating to consecutive sentences
for convictions of certain efforts in child-in-need-of-aid cases
involving sexual abuse or sex offender registration; relating to
mandatory reporting by athletic coaches of child abuse or
neglect; making conforming amendments; amending Rules 16,
32.1(b)(1), and 32.2(a), Alaska Rules of Criminal Procedure,
Rule 404(b), Alaska Rules of Evidence, and Rule 216, Alaska
Rules of Appellate Procedure; and providing for an effective
date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 22
SHORT TITLE: CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/16/13 (S) READ THE FIRST TIME - REFERRALS
01/16/13 (S) JUD, FIN
01/30/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/30/13 (S) Heard & Held
01/30/13 (S) MINUTE(JUD)
02/04/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/04/13 (S) Heard & Held
02/04/13 (S) MINUTE(JUD)
02/11/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Reviewed proposed changes to SB 22.
QUINLAN STEINER, Director
Public Defender Agency
Department of Administration (DOA)
POSITION STATEMENT: Outlined concerns related to SB 22.
ACTION NARRATIVE
1:34:40 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Present at the call to
order were Senators Dyson, Wielechowski, and Chair Coghill.
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
1:35:08 PM
CHAIR COGHILL announced the consideration of SB 22 and informed
the committee that the Department of Law would review potential
changes to the bill.
SENATOR DYSON asked if the committee would consider any of the
issues raised by the ACLU of Alaska, because some had merit.
CHAIR COGHILL said that he had not spoken to Mr. Mittman
personally, but would consider his written testimony.
1:38:56 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), explained that
the suggestions contained in the informal draft were made after
talking to the public defender and listening to public testimony
in the judiciary committees from both bodies.
She said the first change appears on page 5, line 29, and is in
the context of making it a crime for a probation officer or
parole officer to engage in sexual contact with a person on
probation or parole. The informal draft adds this offense to the
other sexual assault offenses for which there is a marriage
defense.
CHAIR COGHILL informed the committee that Tom Stenson with the
ACLU of Alaska and Kathy Monfreda with the Department of
Corrections (DOC) were available for questions.
1:42:05 PM
SENATOR WIELECHOWSKI observed that this provision still
criminalizes the sexual relationship between a probation or
parole officer and a boyfriend or girlfriend who is on probation
or parole.
MS. CARPENETI confirmed that the marriage defense does not apply
to a relationship outside the confines of marriage. She noted
that this is the same for police officers and correctional
officers; the marriage defense does not extend to a relationship
between two parties. The justification in both situations is
that there is potential for coercion.
SENATOR WIELECHOWSKI suggested amending the language to say
someone under the authority of a probation or parole officer. He
stated support for the intent, because the current language may
inadvertently criminalize a relationship where there is no
authority.
MS. CARPENETI said she was willing to continue the discussion
with the public defender, but coercion was a problem. A
probation or parole officer has power over a person on probation
or parole even if the probationer/parolee isn't under the
officer's supervision.
SENATOR WIELECHOWSKI asked how long probation or parole
typically lasts.
MS. CARPENETI replied that it depends on the crime; it can last
up to 25 years for a felony sex offence and up to 10 years for a
non-sex felony offense. She offered to follow up with other
numbers.
She directed attention to the next change proposed by the
informal draft on page 6, lines 5-18. It clarifies when a
defendant is ordered to have no contact with a victim or witness
as part of a sentence or as a condition of probation or bail,
that the order comes from the court. It further clarifies that
the Parole Board issues no contact orders for parolees.
CHAIR COGHILL asked if without this provision the Parole Board
has that authority.
MS. CARPENETI confirmed that the Parole Board has that
authority. The substantive change is to clarify that when the
court orders a defendant to have no contact with a victim or
witness as a condition of bail, that order applies both when the
defendant meets bail and when the defendant does not meet bail
and returns to jail. She relayed that this issue arose when a
judge in Fairbanks said that the order does not apply when a
defendant doesn't meet bail and returns to jail. She noted that
there were cases of an inmate calling a witness numerous times
to exert influence.
She said the next change proposed by the informal draft occurs
on page 6, lines 22-23. It relates to forfeiture of property in
cases of prostitution. Current law says that the property of sex
traffickers and patrons of prostitutes - where the offense is a
felony - shall be forfeited if it is used to further the crime.
The bill proposes that the forfeiture apply to any patron of a
prostitute, whereas the informal draft makes the forfeiture
discretionary with the court and requires that the defendant be
convicted before forfeiture may be ordered. She noted that
forfeiture proceedings generally do not require a conviction
because they are considered a civil action. She cited fish and
game forfeiture proceedings as an example.
SENATOR DYSON asked if it was DOL's position that patrons of an
adult prostitute would be subject to forfeiture proceedings, and
relayed that he was uncomfortable with that.
MS. CARPENETI confirmed that the bill currently provides that.
She added that part of the Governor's goal to reduce sexual
assault and sexual abuse in the state includes making it as
difficult as possible for the patron or "demand side" of
prostitution.
SENATOR DYSON asked which property of the patron would be
subject to forfeiture.
MS. CARPENETI replied it would be the property that is used to
institute, aid, or facilitate prostitution.
SENATOR DYSON said, "Not his home, but his car."
MS. CARPENETI clarified that it would depend on the
circumstance.
1:50:52 PM
CHAIR COGHILL stated agreement with the concept and support for
the requirement that the defendant be convicted before the
forfeiture could be ordered. He asked for confirmation that the
forfeiture would be discretionary and that under current law it
was mandatory.
MS. CARPENETI confirmed that the informal draft changes the term
"shall" to "may" so the forfeiture would be discretionary. She
highlighted that the Department of Law (DOL) has to ask for
forfeiture, and that doesn't happen very often.
SENATOR DYSON asked when forfeiture of property would become a
possibility.
MS. CARPENETI explained that the informal draft would allow the
court to consider a request to forfeit property for all levels
of sex trafficking, for being the patron of a prostitute at the
felony level..
SENATOR DYSON asked if forfeiture procedures would include
misdemeanor offenses.
1:52:33 PM
MS. CARPENETI confirmed that forfeiture would apply to the
misdemeanor offense of being a patron of a prostitute.
She directed attention to the next change proposed by the
informal draft on page 7, lines 28-31 through page 8, lines 1-
15. It relates to participation in a global positioning system
(GPS) monitoring program as a condition of bail.
The original bill allows the court discretion, in releasing on
bail a person in connection with a crime involving domestic
violence, to require the defendant to participate in electronic
monitoring by a global positioning system (GPS) device. The
informal draft removes it from the civil arena of protective
orders and adds it as a possibility for a court to order GPS
monitoring as a condition of bail for a stalking crime or a
crime involving domestic violence.
SENATOR DYSON asked if that includes the misdemeanor
classification.
MS. CARPENETI confirmed that some crimes involving domestic
violence are misdemeanors. For example, stalking in the first
degree is a class A misdemeanor and assault in the fourth
degree, which can be a domestic violence crime, is a class A
misdemeanor.
CHAIR COGHILL summarized that the informal draft places GPS
monitoring in the criminal code.
MS. CARPENETI agreed and added that the court arguably already
has this authority because it has the general power in the bail
statutes to order conditions on a defendant that are necessary
or reasonable to protect the victim, the victim's family, and
the community. She highlighted that the GPS monitoring program
has to meet guidelines adopted by the Department of Corrections
in consultation with the Department of Public Safety.
She said the next change proposed by the informal draft occurs
on page 9, lines 17-18. It relates to expanding the rape shield
law. The bill provides in cases of sex assault, sex abuse, or
unlawful exploitation of a minor that before a defendant could
introduce evidence about the sexual conduct of the victim, it
must first be raised in camera in the court. This gives the
court the opportunity to weigh the relevance of the evidence
against the prejudice and invasion of privacy of the complaining
witness. The defendant must also raise the issue five days
before trial.
The informal draft gives the defendant the opportunity to
request that the evidence about the complaining witness's sexual
conduct be admissible after the deadline of five days before
trial if the evidence is discovered after the deadline.
SENATOR DYSON asked if this applies to both minors and adults.
1:56:52 PM
MS. CARPENETI answered yes.
SENATOR WIELECHOWSKI asked if this satisfies the public
defender's concerns.
MS. CARPENETI responded that Mr. Steiner said it's a good
compromise but he would suggest using the term "information
learned" as opposed to "evidence discovered," because the latter
has term of art concerns. She said she had no objection to
changing the term.
1:58:10 PM
SENATOR WIELECHOWSKI said he wanted to think about Section 15 a
little more because the language likely had constitutional
issues.
MS. CARPENETI suggested that the best practice would be to raise
the evidence to the court and reserve the decision about whether
to introduce it or not.
1:59:38 PM
SENATOR WIELECHOWSKI said he didn't dispute that it's the best
practice, but it probably wouldn't meet a constitutional
challenge.
2:00:05 PM
MS. CARPENETI directed attention to the next changes proposed by
the informal draft on page 10, lines 18-31 and page 11, lines 1-
13. These relate to claiming credit for time spent in a
treatment program under certain circumstances. The informal
draft allows the defendant to request the credit up to 90 days
after the hearing. The new subsection (l) on page 10 was a
suggestion of the public defender. For those cases that are on
appeal, it requires a person to request credit, if it hasn't
already been given, within 90 days of the case being returned to
the trial court.
2:01:55 PM
SENATOR DYSON asked if it was reasonable to assume that the
credit would not apply if a person goes through a treatment
program and has a subsequent violation.
MS. CARPENETI explained that if a person participates and
follows the rules of a treatment program that is similar to the
constrictions of serving time in jail, that person has a right
to credit whether they finish the program or not.
SENATOR DYSON opined that the court should not give credit if it
has demonstrable evidence that the treatment did not work.
2:03:11 PM
MS. CARPENETI responded that current law provides credit if the
person participated and followed the rules of the treatment
program, regardless of subsequent conduct.
SENATOR DYSON asked if in her professional judgment, she thought
that was wise.
MS. CARPENETI offered her belief that it is worth the effort to
go through a treatment programs even though it may not be
successful the first time.
2:04:02 PM
CHAIR COGHILL recapped that the new subsection gives a new
procedure a tighter timeline than under current law.
MS. CARPENETI agreed.
SENATOR WIELECHOWSKI asked if there was new subsection.
MS. CARPENETI clarified that the informal draft adds a new
subsection (l).
SENATOR WIELECHOWSKI asked if the informal draft adds procedures
that a defendant must follow in order to get the credit.
MS. CARPENETI said she imagines there would be a letter saying
that the defendant participated in the treatment program and
followed the rules. That information should be raised at the
next hearing so that it could be awarded in a timely manner and
not forgotten or confused.
SENATOR WIELECHOWSKI asked about the underlying policy thought.
He opined that it's a bureaucratic hurdle to make someone file
with the court when the person isn't versed in the procedures.
MS. CARPENETI responded that making the decision early rather
than later would save time and effort in the long term. In the
Walker case, for example, the court was trying to figure out
whether the defendant got credit for the time he spent in
treatment back in the early part of the century. It would have
been much easier if the issue had been resolved at the time of
sentencing or disposition on the probation violation.
2:07:37 PM
SENATOR WIELECHOWSKI said it seems that someone who earned the
credit potentially would have to spend more time in jail simply
because he or she missed the 90-day deadline. He posed the
hypothetical situation of someone who files on day 91.
MS. CARPENETI responded that she had enough faith in the justice
system to think that the court would consider that circumstance.
SENATOR WIELECHOWSKI pointed out that this specifically says the
court may not consider a request after the deadline.
2:08:42 PM
MS. CARPENETI offered to work with him on acceptable language to
establish a meaningful deadline.
CHAIR COGHILL said he was thinking about whether there was a
practical reason that somebody in jail or under probation could
not meet this deadline.
2:09:53 PM
MS. CARPENETI said [Sec. 19] deals with the situation where the
person has been in treatment as a condition of bail release in
connection with a petition to revoke probation or as a condition
of probation.
CHAIR COGHILL summarized that it's the same fundamental
requirement under three circumstances.
MS. CARPENETI agreed; it's to make it clear that application for
credit should be made as soon as possible.
2:11:04 PM
SENATOR WIELECHOWSKI suggested [on page 10, line 26, of the
informal draft] inserting "except for good cause" following the
phrase "a court may not" to accommodate a legitimate reason for
not filing within 90 days.
MS. CARPENETI agreed to work on satisfactory language.
CHAIR COGHILL suggested inserting that language in all three
subsections.
2:12:01 PM
MS. CARPENETI said the next changes proposed by the informal
draft occur in Sections 22 and 23. These address the majority
decision in Collins v. State, 287 P.3d 791 (Alaska APP. 2012)
that addressed the standards a sentencing court considers in
deciding whether a person qualifies for referral to a three-
judge sentencing panel. The bill describes the defendant in two
separate paragraphs as being "a youthful offender" and the
informal draft removes that factor.
She explained that the Yako Collins decision looked at the
legislative intent in 2006 when the legislature passed Senate
Bill 218, which raised the sentencing ranges for people
convicted of sex felonies. That legislature adopted a Letter of
Intent that stated the purposes and rationale underlying the
sentencing increases and recognized that people who commit sex
felonies are more likely to reoffend and are more difficult to
rehabilitate.
CHAIR COGHILL noted that both the Collins decision and Letter of
Intent were in members packets.
MS. CARPENETI continued to explain that the majority decision in
Collins found that because the sentencing ranges for sex
felonies were being raised, the legislature in 2006 also must
have intended to create new mitigating factors for referring sex
felons to a three-judge panel. The Department of Law disagrees
with the 2012 court of appeals' interpretation of that Letter of
Intent and these sections are intended to reverse that decision.
SENATOR DYSON asked for an explanation of the role of the three-
judge panel.
2:15:28 PM
MS. CARPENETI explained that in the early 1980s the legislature
adopting a presumptive sentencing scheme that allowed the
application of either aggravating or mitigating factors in order
to avoid manifestly unjust sentences. The legislature also
created a three-judge panel to which the sentencing court could
refer a defendant. It has more discretion in sentencing a
defendant if manifest injustice would result from imposition of
the presumptive term.
2:17:06 PM
MS. CARPENETI relayed that in both Blakely v. Washington and
Apprendi v. New Jersey the U.S. Supreme Court held that
presumptive sentencing schemes - like Alaska had at the time,
violated the constitution unless a jury decided by proof beyond
a reasonable doubt that the aggravating factors were present in
the case, with some exceptions.
CHAIR COGHILL commented that it relates to the "youthful
offender" language in both sections.
MS. CARPENETI responded that both paragraphs that referred to
that factor were removed because that aspect was not directly
addressed in Yako Collins v. State. The main factors are
"prospects for rehabilitation that are less than extraordinary"
and "no history of unprosecuted, undocumented, or undetected
sexual offenses."
Following the Blakely decision, the legislature in 2004 adopted
sentencing ranges and in 2006 raised the ranges for sex felonies
based on findings that sex felons reoffend four times more often
than other felons and are difficult to treat.
CHAIR COGHILL noted that Quinlan Steiner was available for
questions.
SENATOR DYSON asked if the judge or three-judge panel is able to
consider as a mitigater the efforts the defendant has made to
restore the victim.
MS. CARPENETI confirmed that that one consideration for
referring a case to a three-judge panel is the defendant's
conduct after the trial. She cited the McKinley case where the
court concluded that the defendant's subsequent conduct was
exemplary and it was something a three-judge panel could
consider.
CHAIR COGHILL noted that under the Collins case, the standard
for behavior was reduced from good to excellent.
MS. CARPENETI clarified that the Collins case decided that
another factor that allowed a sentencing court to send a case to
a three-judge panel was that the defendant had "extraordinary
prospects" for rehabilitation. The court of appeals in Collins
held that the legislative intent was to refer sex felons to a
three-judge panel if they have less than extraordinary prospects
for rehabilitation.
CHAIR COGHILL noted that the bill puts the standard at
"extraordinary."
MS. CARPENETI confirmed that the intent of the bill was to
return to pre-Collins.
She said the next change proposed by the informal draft tightens
the definition of a military organization that is a victim
counseling center. This occurs on page 14, line 12, and
specifies that it is "an organization operated by or contracted
by a branch of the United States military."
2:22:50 PM
SENATOR DYSON asked if a sex crime would be tried in state or
military court if the offense occurred in Alaska and both the
victim and defendant were members of the military.
MS. CARPENETI responded that if it occurred in Alaska a state
court would prosecute the offense.
SENATOR DYSON asked how the state would get involved in a sexual
assault case that occurred on a base and wasn't reported to
state authorities. He mentioned a hypothetical situation of a
sex assault report to a military officer that went no further.
MS. CARPENETI offered to follow up with more information, but
her understanding was that if it weren't reported to state
authorities, the state wouldn't know about it and therefore
wouldn't investigate. She assumed that the police would
investigate if the incident was reported.
SENATOR DYSON said the inference is that in the hypothetical
situation there is no automatic process for a report to go to
public safety.
MS. CARPENETI offered to follow up because she wasn't familiar
with the process.
CHAIR COGHILL suggested it was a question for public safety.
2:24:54 PM
SENATOR WIELECHOWSKI returned attention to the section that was
removed that would eliminate the possibility of a court
requiring a respondent in a civil matter to participate in a GPS
monitoring program. Notwithstanding the compelling testimony, he
said he continued to believe that in some cases it could be very
beneficial to have court-ordered GPS monitoring. He suggested
that the better policy would be to give the court that
discretion.
MS. CARPENETI said her conclusion was that it's best to start a
GPS monitoring program in the criminal context because probable
cause has established that a crime has been committed, the
person has appeared in court, and the judge has evaluated the
situation. She added that it doesn't mean that the question
shouldn't be reconsidered in the future.
2:26:26 PM
MS. CARPENETI continued that the next change proposed by the
informal draft occurs on page 15, line 24, and relates to
evaluation of judges. The bill refers to the judicial council
collecting information that includes data on a judge's
compliance when imposing sentence on persons convicted of a
felony offense. The informal draft removes the reference to data
so the judicial council will collect information.
SENATOR WIELECHOWSKI expressed interest in hearing from the
court about whether this solves their concerns.
MS. CARPENETI continued that the next change proposed by the
informal draft occurs on page 17, lines 7-9. It defines the
attorney general's designee in connection with issuing
administrative subpoenas to an Internet service provider as the
deputy attorneys general for either the criminal or the civil
divisions. She noted this change addressed Senator
Wielechowski's concerns.
She said the final change proposed by the informal draft relates
to a Court Rule amendment found on page 20, lines 1-18, intends
to limit the publication of child pornography that is attendant
on the criminal discovery process. It clarifies that this rule
applies to material that is prohibited by Alaska law or defined
as child pornography under federal law.
CHAIR COGHILL noted that the members of the Children's Justice
Task Force expressed concern on this topic and the potential for
revictimization.
MS. CARPENETI said she believes that every time this material is
copied or viewed, it revictimizes the child.
CHAIR COGHILL asked Mr. Steiner to comment and offer suggestions
on the informal draft.
2:30:16 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA), said the change regarding Collins that
eliminates the consideration of someone's status as a youthful
offender is an improvement, because that question is
traditionally before the court in making a decision about
referral to a three-judge panel. However, there is still some
ambiguity and the language could possibly be interpreted to
eliminate from consideration the fact that somebody has no prior
criminal history. He noted that he discussed clarifying language
with the Department of Law for this section to go no further
than to reverse Collins.
He said the changes to Section 8 appear to address the concerns
regarding unlawful contact. It clarifies that the order should
come from the court.
He expressed continuing concern with Section 15 about making
application five days before trial to admit evidence about the
sexual conduct of the victim prior to or subsequent to the
charged offense. That concern is mitigated by the changes in the
bill, although the language on page 9, line 18, refers to
"evidence discovered" and those are terms of art that could be
misinterpreted. He opined that the intent of the language is to
be much broader regarding any information learned. A remaining
concern is about strategic decisions that occur after trial for
things that happened during trial.
CHAIR COGHILL asked about the strategy.
MR. STEINER responded that it's good practice to make decisions
on evidence ahead of time, but there may be reasons to change
course or strategy mid trial. He said there would be a due
process concern if new evidence was discovered and the defense
could not change strategy.
CHAIR COGHILL asked about the significance of the time limit and
the preliminary hearing.
MR. STEINER responded that the time limit of not later than five
days still applies. The change that helped was removal of the
phrase "evidence admitted at trial," because it was too narrow.
He suggested amending the language further to say "information
learned by the defense," because "evidence discovered" could be
viewed as a term of art. It would have to be actual evidence
that was discovered through the discovery process rather than
something the defense learned from another source.
2:37:45 PM
SENATOR DYSON asked if it was a concern that either side might
withhold evidence for tactical reasons.
MR. STEINER responded that with few exceptions, the defense
generally has no obligation to disclose its strategy or
witnesses before trial. He continued to say that the notice
wasn't as much a concern as any bar to later seeking application
to admit evidence. If the bar is absolute, that raises due
process issues.
SENATOR DYSON asked if the judge makes the decision about the
admissibility of new information.
MR. STEINER responded that the current draft says the judge
determines whether to admit previously inadmissible evidence.
The problem with the current language is that it does not
explicitly permit application after the deadline in a sufficient
number of situations.
CHAIR COGHILL asked if the time limit would outweigh the factors
of undue prejudice, confusion of the issues, or unwarranted
invasion of the privacy of the complaining witness.
MR. STEINER said he wasn't sure how a judge would weigh that,
but good cause language when something is barred helps to
prevent due process violations and gives the judge latitude to
weigh all concerns and make a decision.
2:41:28 PM
SENATOR WIELECHOWSKI asked if the provision as currently drafted
would lead to more applications by defendants, more in camera
proceedings, and more time spent by the court evaluating the
situation.
MR. STEINER said he shared that concern. He then expressed
continuing concern with Sections 3 and 7 of the informal draft
that relate to a probation or parole officer having sexual
contact with somebody who is on probation or parole. The problem
is that the marriage defense would not absolve someone of
criminal liability if that person were in a long-term
relationship. Individuals would have a constitutional claim
against the statute in that circumstance and for individuals who
are barred from marrying because of the constitutional
definition of marriage as between a man and a woman.
CHAIR COGHILL asked if there was a marriage defense.
MR. STEINER clarified that he was not referring to evidentiary
privileges, but to the fact that there is no exception under the
statue for a probation officer who is in a long-term, committed
relationship. He added that this could include something like
unsupervised misdemeanor probation for a DUI.
CHAIR COGHILL summarized that the intent was to keep somebody
who has authority from exerting undue pressure over another
person, and asked about looking for a different standard.
2:46:17 PM
MR. STEINER said it would be easy to draft the provision to
criminalize the conduct of a probation officer who was either
supervising or using their position of authority to induce
sexual contact. Narrowly tailoring the statute to address
specific conduct would eliminate the need for exceptions.
MR. STEINER informed the committee that his remaining comments
would apply to the original bill, version A. He directed
attention to Section 31 that eliminates good time credit
(mandatory parole) for individuals convicted of sexual offenses
that are class A and unclassified felonies. He said the one
concern is that it would potentially eliminate the incentive for
a person to participate in these treatment programs while
incarcerated.
MR. STEINER returned attention to Section 18 of the DOL informal
draft that relates to claiming good time credit for time spent
in a treatment program as a condition of bail. He said his
continuing concern is that resolving the question ahead of time
and giving correct notice about the number of days somebody is
seeking credit could create unnecessary work that delays
sentencings and dispositions. He opined that inserting the 90-
day resolution [after the sentencing hearing] is an improvement
but there were potential constitutional concerns if the court
were to bar someone from seeking credit after 90 days. He
acknowledged that the courts had not established the
constitutional basis for Nygren but that conceivable would
happen.
CHAIR COGHILL asked if he heard Senator Wielechowski's
suggestion to insert on page 10, line 26, following "request"
the phrase "except for good cause" so that would be part of the
consideration.
MR. STEINER agreed that would largely satisfy his concern.
SENATOR WIELECHOWSKI pointed out that it only addresses the 90-
day concern, not the 10-day concern.
2:52:36 PM
CHAIR COGHILL asked if it was a workable timeframe to keep the
90-day requirement and remove the 10-day notification.
MR. STEINER said 90 days would be a workable timeframe provided
there was a good cause section.
CHAIR COGHILL asked if the 10-day notification would then be
unnecessary.
MR. STEINER said that's correct.
2:53:22 PM
MR. STEINER directed attention to the original bill, version A,
Section 39. The language permits the court to mail evidence to
an out-of-state expert, but not to an in-state expert. He
suggested treating both the same in order to minimize the costs
of having cases handled by an in-state expert. The second
concern relates to the language on page 21, lines 22-23. It
doesn't specify that the material could be made available
somewhere in the Department of Corrections (DOC) and therefore
may require moving a criminal defendant to the facility where
the evidence is stored. He suggested deleting the language about
a law enforcement or prosecution facility and leaving the
management of the viewing to the discretion of the court and
prosecution.
SENATOR WIELECHOWSKI asked if it was his experience that some
Alaska villages do not have law enforcement or prosecution
facilities.
MR. STEINER surmised that the evidence would not be held in a
small village. The concern is not being able to move the
evidence to the jail for viewing, and that it might be difficult
to move the defendant to the evidence.
SENATOR WIELECHOWSKI suggested the better practice would be to
make the evidence available where the defendant is located.
CHAIR COGHILL asked if his concern related to specifying
locations.
MR. STEINER said yes, because the court could potentially
interpret the list as exclusive.
CHAIR COGHILL asked Mr. Steiner if he had any last thoughts.
2:59:20 PM
MR. STEINER noted that he expected to continue working with the
Department of Law on language that would resolve his concerns.
CHAIR COGHILL announced he would hold SB 22 in committee.
3:00:23 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB0022A.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Sectional -- SB 22.doc |
SJUD 1/30/2013 1:30:00 PM SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Cover letter from Gov and fiscal notes.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| Fiscal Notes from Court System.pdf |
SJUD 1/30/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM |
SB 22 |
| Letter from ANDVSA.pdf |
SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM |
SB 22 |
| Comments by Comm Masters re SB 22.pdf |
SJUD 2/4/2013 1:30:00 PM SJUD 2/11/2013 1:30:00 PM |
SB 22 |
| Letter from ACLU.pdf |
SJUD 2/11/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |