02/18/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB22 | |
| Confirmation Hearing: Select Committee on Legislative Ethics | |
| SB22 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 22 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 18, 2013
1:31 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Fred Dyson
Senator Donald Olson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire, Vice Chair
COMMITTEE CALENDAR
CONFIRMATION HEARING
Select Committee on Legislative Ethics
Gary J. Turner
- CONFIRMATION ADVANCED
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 AND 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)
02/11/13 (S) Heard & Held
02/11/13 (S) MINUTE(JUD)
02/15/13 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/13 (S) Heard & Held
02/15/13 (S) MINUTE(JUD)
02/18/13 (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: Presented a sectional analysis for Version U
of SB 22.
QUINLAN STEINER, Public Defender
Office of the Public Defender
Department of Administration (DOA)
Anchorage, AK
POSITION STATEMENT: Commented on SB 22, Version U.
GARY J. TURNER, Appointee
Select Committee on Legislative Ethics
Soldotna, AK
POSITION STATEMENT: Testified as appointee in confirmation
hearing.
ACTION NARRATIVE
1:31:23 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:31 p.m. Present at the call to
order were Senators Dyson, Olson, and Chair Coghill.
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
1:31:35 PM
CHAIR COGHILL announced the consideration of SB 22 and noted
that CSSB 22, Version U, was before the committee. He informed
members that the packets contained the questions and concerns
from the ACLU of Alaska and the comments by the drafter.
1:32:13 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), said the CS
reflects the discussions that took place with the committee and
the public defender. She reported that the Alaska Supreme Court
recently accepted DOL's petition for review of the Collins case,
which is addressed in Sections 1, 21, and 22. Because it is not
unusual for a year to pass before a case is decided, it is DOL's
judgment that it is still a good idea to keep these sections in
the bill.
SENATOR DYSON asked if the controversy had to do with whether
the law followed the legislative intent and if the court
interpreted it correctly.
MS. CARPENETI said yes, the issue is whether the court of
appeals correctly interpreted the legislative intent in 2006.
SENATOR DYSON asked if she agreed that the administration's bill
makes a strong assumption of what the legislative intent was in
2006.
MS. CARPENETI said that was her belief.
SENATOR DYSON asked how this legislature could weigh in on what
it believes the legislative intent was in 2006.
MS. CARPENETI explained that the approach this bill takes is to
adopt a statement of legislative intent and findings saying that
this legislature believes that the court of appeals
misinterpreted the intent of the legislature in 2006. The bill
also specifically excludes consideration of the two mitigating
factors that the court of appeals adopted when it rendered that
decision.
Section 2 removes the statute of limitations for a victim of
felony sex trafficking or felony human trafficking to bring a
cause of action for civil damages. Ms. Carpeneti relayed that
the Department of Law's response to Mr. Mittman's comments in
this area would be that there are other crimes for which there
is no statute of limitations - felony sexual abuse of a minor,
felony sexual assault, and unlawful exploitation of a minor. The
victims of these crimes and the crimes of sex trafficking and
human trafficking are in a similar, less powerful position in
relation to the offender.
1:36:29 PM
SENATOR DYSON questioned why a defendant who has paid the
criminal penalty should spend the rest of his life worrying that
the victim may file a civil action.
MS. CARPENETI said that victims of sex trafficking, like victims
of sex abuse of a minor, have been in an incredibly powerless
position compared to the defendant and may need time to make a
decision about bringing a civil suit. She pointed out that it
won't be any easier to bring a law suit 10 or more years later,
whether it's criminal or civil. The point of removing the
statute of limitations is that when the evidence is still
available, there is no good reason for limiting a victim's
ability to get reparation from a defendant who caused the victim
significant harm.
SENATOR DYSON asked why a successful prosecutor wouldn't ask the
judge to order restitution at trial.
MS. CARPENETI said that's what happens, but it doesn't
necessarily mean that the order of restitution will be
fulfilled.
SENATOR DYSON asked if the judge wouldn't order the restitution
to continue until it was fulfilled.
MS. CARPENETI responded that the law wouldn't allow a victim to
collect restitution and also receive damages for the same
injury. She reiterated that this simply leaves open the
possibility for this kind of law suit. She offered to look for
data on how often victims of sexual abuse of a minor or sexual
assault bring cases after the criminal case is finished. If
there was proof and it was a valid cause of action, it would be
a shame to have it cut off by the statute of limitations.
1:41:31 PM
CHAIR COGHILL asked what a person would have to prove in this
circumstance to get a court hearing.
MS. CARPENETI said the burden of proof in a civil case is by a
preponderance of the evidence, but she would defer further
explanation to someone from the Civil Division.
SENATOR DYSON asked her to entertain the idea of putting some
sidebars on the provision.
MS. CARPENETI clarified that the victim has to show how he or
she was harmed and the damages that were suffered.
SENATOR DYSON indicated that he'd like to hear from someone from
the Civil Division.
1:43:52 PM
MS. CARPENETI continued the sectional analysis of Version U.
Section 3 is unchanged. It prohibits sexual penetration between
a probation or parole officer and a person on probation or
parole. It also prohibits sexual penetration between a juvenile
probation officer or a juvenile facility staff and a person
either on juvenile probation or in the facility.
SENATOR DYSON suggested that it should apply when a probation or
parole officer is supervising a person on probation or parole.
MS. CARPENETI responded that the justification is the same as
for correctional officers and police officers; the power of the
office itself is the concern.
SENATOR DYSON asked if it would apply to a teacher.
MS. CARPENETI said she believes so; a teacher has power over a
student.
SENATOR DYSON asked about a counselor.
MS. CARPENETI said it would be appropriate as long as the
counselor or teacher knew that the child was a student in the
school it would be appropriate to prohibit penetration and
contact.
SENATOR DYSON opined that there was something wrong with that
logic.
1:47:22 PM
SENATOR WIELECHOWSKI said he agreed with the intent, but this
unintentionally criminalizes other relationships. He asked if
the prohibition should extend to supervisors of probation or
parole officers.
MS. CARPENETI responded that the bill talks about probation and
parole officers, but there could be coercion in the situation of
a supervisor of a probation officer just by the office.
SENATOR WIELECHOWSKI reiterated his belief that the provision
criminalizes relationships and maintained that it was bad public
policy and probably unconstitutional.
1:49:04 PM
MS. CARPENETI pointed out that there is a culpable mental state
on the defendant's part, he or she has to be reckless as to
whether the person is on probation.
SENATOR DYSON asked if a parole officer could have sexual
relations with his wife if she is on parole and under the
supervision of another parole officer.
MS. CARPENETI said no; there is a marriage defense in current
statute that would apply to penetration and Version U adds a
marriage defense to fourth degree sexual assault for contact.
SENATOR DYSON asked if the marriage defense applies to people in
long-term, committed relationships.
MS. CARPENETI said no, but she had an amendment that would
address a preexisting relationship.
CHAIR COGHILL noted that Mr. Steiner was available to answer
questions. He asked Ms. Carpeneti to continue the sectional
analysis.
MS. CARPENETI said Section 4, the definition section for
probation and parole officers, is unchanged.
SENATOR DYSON observed that Section 4 creates a different
statute of limitations for parole and probation officers
compared to DHSS employees or police and correctional officers.
MS. CARPENETI clarified that it was a definitional section that
applied to sexual assault in the third and fourth degree. The
definition for "peace officer" is the same as in existing law
and the definition for "probation officer" is the same as the
definition in Title 33. It is a person appointed by the
commissioner of corrections and includes probation officers in
specialty courts. She noted that this issue arose last summer
when a probation officer at a therapeutic court in Anchorage was
having sexual relations with someone on probation.
SENATOR DYSON indicated that he would return to the topic later.
1:53:00 PM
CHAIR COGHILL asked if the reference to "18 or 19 years of age"
is specific to a juvenile facility.
MS. CARPENETI explained that people who are age 18 or 19 would
still be under juvenile probation or are in juvenile facilities.
A different and more serious statute would apply to the
prosecution of a person if the child were under age 18.
Section 5 is unchanged from the original bill. It prohibits
sexual contact between a probation or parole officer and a
person on probation or parole. The prohibition also applies to
juvenile facilities. The marriage defense would apply as would
the affirmative defense of a preexisting relationship.
Section 6 is unchanged from the original bill. [It is the
definitional section for "juvenile facility staff," "juvenile
probation officer," "parole officer," "peace officer," and
"probation officer."]
Section 7 adds sexual assault in the fourth degree to the
defenses that are currently available to sexual assault in the
third degree. She noted that this currently applies to police
officers and correctional officers.
Section [8] clarifies that it is the court that orders a person
not to contact a victim or witness as a condition of sentence,
bail release, or while the person is under official detention;
and it is the parole board that orders a person on parole not to
contact a victim or witness.
Section 9 amends [Section 8] of the original bill. At the
suggestion of this committee, it leaves forfeiture discretionary
with the court and requires the defendant to be convicted.
1:55:49 PM
SENATOR DYSON raised the question of equal protection. "Why are
we seizing property from the john and not the hooker," he asked.
MS. CARPENETI said that the rational is that patrons of
prostitutes are generally in a position to have property and
they make the crime happen according to their power. A
prostitute is generally controlled by somebody else and whatever
property she has isn't necessarily hers to be seized.
SENATOR DYSON declared that the law absolutely should not speak
to the money a person has or does not have and also treat them
differently.
MS. CARPENETI responded that the administration would certainly
entertain making this apply to all people convicted of
prostitution.
1:58:02 PM
SENATOR WIELECHOWSKI asked what the standard is for equal
protection differences among gender.
MS. CARPENETI offered her understanding that gender differences
are the highest scrutiny.
SENATOR WIELECHOWSKI suggested she return with a list of the
strong reasons for doing this. He recalled it was the
intermediate standard.
MS. CARPENETI agreed to follow up.
CHAIR COGHILL asked - pertaining to forfeiture - how to
distinguish between those trafficking on their own for profit
and those who are being trafficked.
MS. CARPENETI explained that a person who is on his or her own
and acting as a prostitute is not considered a sex trafficker;
he or she is considered a prostitute and is prosecuted under AS
11.66.100. Sex traffickers force other people to submit to
prostitution, and they are prosecuted under AS 11.66.110 - AS
11.66.135.
CHAIR COGHILL asked if there was a way under the forfeiture law
to get at the person who is driving the prostitution.
MS. CARPENETI explained that under current law the person who
does the trafficking could have their property forfeited.
CHAIR COGHILL observed that a prostitute working on his or her
own would be the only one who does not fall under the forfeiture
law.
MS. CARPENETI agreed, under the current drafting.
2:00:27 PM
SENATOR WIELECHOWSKI said his concern centered on women who are
forced into prostitution or are put in situations where they
have little choice other than prostitution. It was not his
intent to criminalize that behavior or to seize what little
assets they may have. He added that he had no problem applying
the forfeiture statute to a woman who was running a call girl
center.
MS. CARPENETI responded that there was progress toward that goal
by making the forfeiture discretionary, and the court wouldn't
do it without the prosecution asking.
2:01:48 PM
Section 10 removes the statute of limitations for criminal
prosecution of distribution of child pornography, felony sex
trafficking (unclassified, class A or class B felonies), and
human trafficking (class A or class B felonies).
CHAIR COGHILL asked why the statute of limitations for
prosecution for the distribution of child pornography was
included with kidnapping or murder.
MS. CARPENETI responded that a person who distributes child
pornography does something that will victimize that child for
the rest of his or her life. For that reason, DOL wants the
ability to prosecute that offender any time the victim comes
forward provided the evidence is still available and the
prosecution can prove the case beyond a reasonable doubt.
SENATOR DYSON asked if the prosecution would have to know the
victim.
MS. CARPENETI answered no, just that the victim was a child.
SENATOR DYSON asked how the prosecution would determine that the
victim was a child if his or her identity wasn't known.
MS. CARPENETI said the prosecutor would have to evaluate the
case and look at the pictures to try to determine the victim's
age. Sometimes there is no question that the victim is a child
and sometimes it's too close to tell, so the person probably
wouldn't be prosecuted in that circumstance. However, when it is
clear that the victim is a child and the evidence is available,
it would be a shame not to be able to prosecute the person even
after the general 10-year statute of limitations.
2:05:01 PM
CHAIR COGHILL asked what the standard of proof would be in these
cases.
MS. CARPENETI answered that the burden of proof in criminal
prosecution is beyond a reasonable doubt.
CHAIR COGHILL asked why, in paragraph (8) relating to sex
trafficking in violation of AS 11.66.110 - 11.66.130, the victim
is under 20 years of age.
MS. CARPENETI explained that last year when the legislature
raised the penalties for sex trafficking to an unclassified
felony, the testimony persuaded legislators that an 18 or 19-
year-old girl or boy deserved the highest level of protection
for this crime, so they raised the age limit to under 20 years
of age. Previously it was under 18 years of age.
SENATOR DYSON commented that that was problematic.
MS. CARPENETI said it was included here because of the change
the legislature made, but it was certainly open for discussion.
She explained that Sections 11 and 12 move electronic monitoring
by a global positioning system (GPS) device from the civil
protective order arena to the bail statute. These sections give
the court the discretion, in releasing on bail a person in
connection with a crime involving domestic violence or stalking,
to require GPS tracking of the defendant according to guidelines
adopted by the Department of Corrections (DOC) in consultation
with the Department of Public Safety (DPS).
CHAIR COGHILL noted that this was permissive.
MS. CARPENETI agreed, and added that the judge considers the
safety of the victim, the victim's family, and the community and
then sets standards that are reasonable under the circumstances.
SENATOR WIELECHOWSKI asked if the guidelines currently require
active or passive.
MS. CARPENETI said DOC has not adopted guidelines, but her
understanding was that it probably would be active monitoring.
SENATOR WIELECHOWSKI said he would only recommend active
monitoring if the purpose was to protect people from stalking.
MS. CARPENETI said Section 13 requires a person arrested for a
violation of a condition of release in connection with a
domestic violence crime to appear in person or by telephone in
front of a court before that person can be released from
custody.
Section 14 authorizes the attorney general to make written
application to a court for a warrant to do a wiretapping
investigation for potential sex trafficking in the first or
second degree, or human trafficking in the first degree.
2:10:12 PM
SENATOR DYSON commented on the balance between protecting public
safety and over-criminalizing behavior, and the issue of
privacy. He noted that this section authorizes the attorney
general to intercept telephone calls without first obtaining a
warrant.
MS. CARPENETI clarified that to place a wiretap a warrant from
the court is required.
SENATOR DYSON asked if in the past it was possible to get a
wiretap on a pimp or sex trafficker.
MS. CARPENETI said no; only those crimes listed in [AS
12.37.010] are available for the attorney general to make a
request for a wiretap.
SENATOR DYSON asked if a police officer could get a warrant.
MS. CARPENETI replied that a police officer could get a Glass
warrant, but not for wiretapping.
Section 15 expands the rape shield law to apply to sexual
conduct by the complaining witness to both before and after the
alleged crime. It would require a defendant to request
permission to use this evidence five days before a trial, unless
the information was learned after the deadline occurred.
SENATOR WIELECHOWSKI voiced concern that the requirement to
apply five days before trial clashes with a defendant's
constitutional rights. If an attorney makes a mistake and makes
the request four days before trial, the client will be punished
and will not be able to introduce that evidence.
MS. CARPENETI opined that the judge would use his or her
discretion in considering the request.
SENATOR WIELECHOWSKI pointed out that the language says, "the
defendant shall apply for an order of the court five days before
trial." There is no good cause language and judge has no
discretion, which causes the constitutional problems.
MS. CARPENETI said the idea is to encourage both the prosecution
and defense to raise the issue early so that a complaining
witness knows the parameters of the evidence that will be
introduced. This benefits all parties.
CHAIR COGHILL noted that one concern is whether this creates
another procedural hurdle for the defendant.
MS. CARPENETI suggested the committee ask the public defender if
this answers his concerns, because it came at his suggestion.
2:15:56 PM
QUINLAN STEINER, Public Defender, Office of the Public Defender,
Department of Administration (DOA), acknowledged that he
suggested the current language, and agreed that adding good
cause language would help safeguard against due process
violations.
CHAIR COGHILL asked if the five-day language could be deleted if
good cause language were added.
MR. STEINER said that including both the five-day requirement
and the good cause language would push defense lawyers into
making a timely application and the good cause language would
allow them to argue that they had made a mistake in not filing
ahead of time.
2:18:00 PM
MS. CARPENETI said Sections 16 and 17 require the court to
personally interview a witness who is claiming a Fifth Amendment
privilege not to testify. The court must then make written
findings of fact and conclusions of law in a sealed order.
CHAIR COGHILL noted that legislative legal highlighted a
potential Fifth Amendment issue.
MS. CARPENETI explained that current law says that the
information proffered from that closed hearing is inadmissible
and privileged. It cannot be used for any other purpose.
CHAIR COGHILL offered his understanding that the bill requires
the witness to talk directly to the judge; the information isn't
proffered.
MS. CARPENETI agreed and explained the reasoning for the
proposed change is that when the attorney proffers the
information and the witness doesn't speak or even appear it's
not possible for the court to evaluate the credibility of that
witness.
2:20:13 PM
SENATOR WIELECHOWSKI asked if this would apply only when a
witness is seeking immunity or in other situations where a
witness is invoking their Fifth Amendment rights.
MS. CARPENETI replied that it applies to a witness who is
invoking their Fifth Amendment right not to testify and if the
court finds that they do have a Fifth Amendment privilege, the
state would have to give immunity to that person in order for
them to testify. Alaska has transactional immunity, which means
that the person granted immunity could not be prosecuted for
what they say even if the information might be available from
another source.
SENATOR WIELECHOWSKI asked if any Alaska courts had agreed to
this, because requiring a person to testify in front of a judge
when they've claimed a Fifth Amendment privilege changes a
bedrock constitutional right.
MS. CARPENETI said she believes that a court that is talking to
a witness could ask questions that do not require a person to
say they committed a particular crime. In this setting, the
court is trying to evaluate the credibility of both the witness
and the proffer offered by their attorney, and that is very
difficult if the court can't talk to that witness. Sometimes the
witness doesn't even appear at these proceedings.
SENATOR WIELECHOWSKI reiterated that this was a dramatic change
of Alaskans' constitutional rights not testify against
themselves. That is the philosophical underpinning of the Fifth
Amendment. However, this provision changes that right and says
that a person has to testify to a judge and then possibly before
an entire court if their Version of the facts if found not
credible.
MS. CARPENETI clarified that this pertains to a witness who is
asking for immunity not to testify in a prosecution against
another person. She agreed that it would raise a challenge, but
it was an effort to find a way that is both constitutional and
fair that gives a judge as much information as possible to make
a reasonable determination about the credibility of the witness.
Section 17 provides the state the ability to bring an
interlocutory appeal that decision to the court of appeals.
She offered to work on language that may raise less
constitutional concern before reminding members that only the
judge, the attorney for the witness, and possibly the court of
appeals sees or hears the witness's information.
2:26:03 PM
SENATOR WIELECHOWSKI pointed out that if the judge finds the
witness not credible, he or she would be forced to testify in a
case that could potentially lead to the witness going to jail.
He posed a hypothetical example to illustrate the concern that
it's the judge that determines a witness's credibility and
whether or not they get to exercise their constitutional rights.
MS. CARPENETI clarified that it's whether the person gets to
exercise their constitutional rights and then get immunity for
it. The person could not be forced to testify otherwise.
SENATOR WIELECHOWSKI asked if she was saying that if this were
to become law that the state could not force the witness to
testify before a jury.
MS. CARPENETI confirmed that the state can't force people to
talk.
SENATOR WIELECHOWSKI asked if this provision would apply only
when a witness seeks immunity.
MS. CARPENETI said yes.
SENATOR WIELECHOWSKI said this person seeks immunity and then
the judge tries to decide whether the person is eligible or not.
MS. CARPENETI said yes.
SENATOR WIELECHOWSKI asked if under current law the prosecutor
decides whether to grant immunity to a person.
MS. CARPENETI explained that the prosecutor who evaluates these
issues makes a decision about granting immunity based on limited
information from the court about whether it's a low-level
felony, a high-level felony, or a misdemeanor. If the prosecutor
grants immunity, the witness would testify and be immune from
any prosecution based on what he or she said. If the state
decided against granting immunity, the witness would be
unavailable and would not have to testify.
2:28:58 PM
SENATOR WIELECHOWSKI asked for confirmation that the state would
not be able to compel somebody to testify.
MS. CARPENETI agreed and reiterated that the prosecution wants
the witness to appear in person so that the judge can evaluate
his or her credibility.
SENATOR WIELECHOWSKI asked if the witness would appear before
the judge after the prosecutor has granted immunity.
MS. CARPENETI answered that the witness would appear before the
grant of immunity, unless the prosecution has already decided
that it's fair to grant immunity without a hearing.
SENATOR WIELECHOWSKI asked if the prosecution brings a person
before a judge to see whether that person should receive a grant
of immunity.
MS. CARPENETI clarified that the prosecution doesn't bring
anyone in; the witness claims a Fifth Amendment privilege and
that person and their attorney goes in camera in front of the
court.
SENATOR WIELECHOWSKI posed the hypothetical situation that the
prosecution wants a witness to a crime who is potentially an
accomplice to testify in that case. The witness claims his or
her Fifth Amendment privilege and declines to testify. He asked
if she was saying that the witness could not be forced to appear
before a judge who would administer an oath and make a
determination about the Fifth Amendment claim.
2:30:56 PM
MS. CARPENETI replied that it would depend on the circumstances,
but if the person claimed a Fifth Amendment right to not testify
in the case, the judge would probably sua sponte appoint an
attorney and set up a hearing.
SENATOR WIELECHOWSKI asked if the procedure under current law is
that the prosecution would subpoena the witness to testify and
when on the stand and under oath that witness would claim their
Fifth Amendment right and refuse to testify. With this proposed
change, the witness could be forced to appear before a judge who
would decide whether he has a Fifth Amendment right not to
testify.
MS. CARPENETI disagreed; this pertains to a situation where a
person does not want to testify and makes a Fifth Amendment
claim. The judge schedules a hearing in camera and appoints an
attorney to represent the witness. The prosecution does not call
the witness to the hearing.
SENATOR WIELECHOWSKI asked if under current law the person would
refuse to testify claiming their Fifth Amendment right while on
the stand, but under this bill the person would be required to
testify in the judge's chambers.
MS. CARPENETI clarified that this procedure is already under
current law. The bill only requires the person claiming the
Fifth Amendment privilege to appear in person at the hearing to
answer questions so the judge can evaluate their credibility.
2:32:43 PM
CHAIR COGHILL set SB 22 aside until later in the hearing.
^CONFIRMATION HEARING: Select Committee on Legislative Ethics
CONFIRMATION HEARING
Select Committee on Legislative Ethics
2:33:28 PM
CHAIR COGHILL announced the next order of business would be a
confirmation hearing to reappoint Gary J. Turner to the Select
Committee on Legislative Ethics.
GARY J. TURNER, appointee, Select Committee on Legislative
Ethics, said he was the director of the Kenai Peninsula College
and had served on the ethics committee for six years.
CHAIR COGHILL asked if he had anything to share about his
experience serving on the ethics committee.
MR. TURNER relayed that he enjoyed serving on the committee and
particularly appreciated what Joyce Anderson had done to educate
Alaskans about the work the committee does.
CHAIR COGHILL noted that he served on the committee with Mr.
Turner and they had many robust conversations. Finding no
questions, he asked for a motion.
2:35:53 PM
SENATOR DYSON moved to forward the name Gary J. Turner to the
full body for consideration.
CHAIR COGHILL reminded members that signing the report in no way
reflects any intent to vote for or against the appointee.
Finding no objection, he announced that the name Gary J. Turner
would be forwarded to the full body for consideration.
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
2:37:11 PM
CHAIR COGHILL returned attention to SB 22 and asked Mr. Steiner
if he had any comments on Sections 1-16.
MR. STEINER said his first concern relates to the structure of
the defense in Sections 3-7 which deals with probation and
parole officers in fourth degree sexual assault. The problem is
that the marriage exception does not accommodate long-term
relationships or gay couples who are prohibited from marrying,
which opens it to a constitutional challenge. He suggested that
narrowly focusing on the specific conduct of a parole officer
who is using his or her position of authority to coerce somebody
would eliminate the need for exceptions and avoid the potential
of unintentionally criminalizing certain behavior.
2:41:17 PM
MR. STEINER said he suggested the language in Section 15, which
requires a defense lawyer to seek permission to introduce
certain evidence five days before trial, but also including good
cause language would ensure against due process violations that
would hurt the defendant through no fault of their own.
Responding to a request for further clarification, he said it
would mitigate potential harm to the defendant if it said the
defense could apply for an order during trial if the request is
based on information learned after the deadline, during the
trial, or for other good cause.
MR. STEINER said his concern with Section 16 centers on the
statement on page 10, lines 5-6. It says that the proffer in the
testimony of the witness is privileged and inadmissible for any
other purpose, but it doesn't say how that information should be
handled. If for whatever reason the court unsealed that in
camera hearing and the information got out it could
unintentionally create transactional immunity for that person.
What's discussed is the need to have the person testify before a
judge to determine credibility, but what's at stake is what the
person would testify to.
2:44:57 PM
SENATOR WIELECHOWSKI asked for an explanation of the current
procedure and how the bill would change it.
MR. STEINER explained that if the state calls a witness to
testify and the person asserts a Fifth Amendment privilege, the
state can seek an order from the court ordering that person to
testify. If the state seeks that order, a hearing is held to
determine the validity of the privilege. If the court determines
the privilege is valid, it rests upon the state to make a
determination of whether or not to grant immunity.
SENATOR WIELECHOWSKI offered his understanding that the witness
who is seeking the privilege can't be compelled to testify, but
the bill would compel the witness to provide testimony in an in
camera interview.
MR. STEINER said the current procedure is to have a proffer by
the person's attorney regarding the substance of the testimony,
and there is often argument about how that might implicate
somebody in a crime. The witness currently does not provide
testimony to the judge in camera.
SENATOR WIELECHOWSKI described Section 16 as a fairly dramatic
change in the treatment of Fifth Amendment issues because it
virtually forces a person to testify, albeit in camera.
MR. STEINER agreed that was what it would do.
SENATOR WIELECHOWSKI commented that it was a big change.
CHAIR COGHILL asked Ms. Carpeneti to continue the sectional
review of Version U.
2:49:13 PM
MS. CARPENETI said Section 17 allows the state to bring an
interlocutory appeal of the court's decision that the witness
has a valid claim of privilege to the court of appeals.
Section 18 requires a defendant who claims credit for time spent
in a treatment program as a condition of bail to file written
notice 10 days before the sentencing hearing on that offense.
The notice must include the number of days the person is
claiming. A court may not consider a request for credit that is
made more than 90 days after the deadline except for good cause.
She explained that the intent is to avoid the situation of
having to litigate the issue years after the treatment ended.
CHAIR COGHILL stated that the 10 days before and 90 days after
are hard boundaries unless there is good cause.
MS. CARPENETI said the public defender suggested adding a
provision to address the situation where a person may be in
treatment while pending appeal. Paragraph (l) in Section 18
addresses this situation and requires the defendant to request
credit for the time spent in a treatment program pending appeal
within 90 days after the case is returned to the trial court
following appeal. She suggested inserting a good cause exception
in this provision as well.
CHAIR COGHILL asked if the good cause language would fall on
page 11, line 7.
MS. CARPENETI said she wasn't sure where is should appear in the
section.
Section 19 requires a defendant claiming credit for time spent
in a treatment program as a condition of probation or a
condition of bail in connection with a petition to revoke
probation to file notice of the request 10 days before the
disposition hearing on the petition. The notice must include the
number of requested days of credit. A court may not consider a
request for credit made more than 90 days after the deadline
except for good cause.
2:53:12 PM
Section 20 provides that a person convicted of a sex trafficking
crime is ineligible for a suspended imposition of sentence.
Section 21 is unchanged from the original bill. It requires the
court in sentencing a person convicted of two or more crimes of
distribution of child pornography, possession of child
pornography, or distribution of indecent material to minors to
give at least one day of consecutive time for each crime or
attempted or solicited crime for which the defendant is being
sentenced.
Sections 22-23 were previously discussed in connection to the
Yako Collins decision.
SENATOR DYSON worried that these sections would continue the
pattern of removing judicial discretion. He offered his
understanding that these sections would eliminate the
possibility of referral to a three-judge panel.
MS. CARPENETI said that's not correct. The Collins decision
lowered the standards for referring sex felony cases to a three-
judge panel compared to other cases that can be referred. It did
not eliminate the possibility of referral.
SENATOR DYSON pointed out the language on page 12, line 10, that
says a court may not refer a case to a three-judge panel.
MS. CARPENETI added that it's based on the criteria in
paragraphs (1) or (2).
CHAIR COGHILL asked her to restate the standard the Collins case
set.
2:56:13 PM
MS. CARPENETI explained that a case can be referred to a three-
judge panel under circumstances where the imposition of the
sentence would be manifestly unjust. In addition to factors in
mitigation and aggravation that the legislature has adopted, the
courts have recognized two types of aggravating factors that
they call nonstatutory aggravators. One is that the defendant
has extraordinary prospects for rehabilitation. The other is
that the defendant's post discovery conduct was exemplary. The
Collins case addressed itself to the legislature that raised the
sentencing ranges for sex felonies in 2006 and had introduced a
Letter of Intent stating the reasons for increasing the ranges.
The court still has discretion within the ranges to sentence a
person to imprisonment. According to the Letter of Intent, the
legislature did that because of the finding that sex predators
are more likely to reoffend, less likely to be rehabilitated,
cause serious life-long injury to the victims of their crimes
and various other things so to justify the reasons for raising
these ranges that the court has discretion within the ranges to
sentence a person.
CHAIR COGHILL summarized that a case can be referred to a three-
judge panel if the defendant shows extraordinary prospects for
rehabilitation and does not have a history of behavior that is
prosecutable for sex offenses.
MS. CARPENETI said that the courts currently recognize that it
can be a reason to send a defendant to a three-judge panel if
that person has extraordinary prospects for rehabilitation. The
Collins decision said that in sex felonies that a defendant can
be referred to a three-judge panel if the person has normal
prospects for rehabilitation. That is not what the legislature
intended when it made the sentencing changes in 2006. She said
DOL can find nothing in the legislative minutes or Letter of
Intent that would indicate that the legislature had any
intention of changing the standards that currently exist for
sending a sex felony case to a three-judge panel. That's what
the dissent in the court of appeals said.
2:59:05 PM
CHAIR COGHILL summarized that the three-judge panel is still
available but it has to be for extraordinary prospects for
rehabilitation and the person must not have a history of
unprosecuted, undocumented, or undetected sexual offenses.
MS. CARPENETI responded that the second one is that a mitigating
factor that the Collins court recognized. It plays into whether
or not a person is a first felony offender, a second, or a third
felony offender. There was nothing in the legislative hearings
in 2006 that would indicate that should be a non-statutory
mitigater.
CHAIR COGHILL suggested the committee carefully consider making
it very clear that the intent in this bill is to overturn the
Collins decision and replace it with these standards.
MS. CARPENETI reiterated that it was the intent of the
Department of Law to return to pre Collins, which is that the
court would evaluate a defendant in a sex felony case according
to the same standards as for other felonies.
CHAIR COGHILL said the committee would start at this point at
the next hearing. [SB 22 was held in committee.]
3:01:19 PM
There being no further business to come before the committee,
Chair Coghill adjourned the meeting at 3:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CS for SB 22 JUD.pdf |
SJUD 2/18/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 22 |
| CS SB22 Sectional Analysis by Anne.doc |
SJUD 2/18/2013 1:30:00 PM |
SB 22 |
| Explanation of changes in CS JUD by karen.docx |
SJUD 2/18/2013 1:30:00 PM |
CSSB 22 (JUD) |
| CSSB 22(JUD) Legal Memo.pdf |
SJUD 2/18/2013 1:30:00 PM |
SB 22 |