Legislature(1993 - 1994)
02/02/1994 02:20 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 2, 1994 2:20 p.m. MEMBERS PRESENT Senator Rick Halford, Vice-Chairman Senator George Jacko Senator Dave Donley Senator Suzanne Little MEMBERS ABSENT Senator Robin Taylor, Chairman OTHERS PRESENT REPRESENTATIVE TOM BRICE COMMITTEE CALENDAR HOUSE BILL NO. 212 "An Act relating to a factor in aggravation of the presumptive term of a criminal sentence, and prohibiting the referral of a sentence based on application of that factor to a three-judge sentencing panel as an extraordinary circumstance." HOUSE JOINT RESOLUTION NO. 36 Urging the federal Department of Health and Human Services to repeal the "100-hour rule" relating to employment of certain persons receiving AFDC and to replace it with a regulation that will serve as an incentive for AFDC recipients to accept part-time employment. SENATE BILL NO. 24 "An Act extending the maximum period of probation after conviction." PREVIOUS SENATE COMMITTEE ACTION HB 212 - NO PREVIOUS ACTION. HJR 36 - See Health, Education & Social Service minutes dated 1/19/94. SB 24 - NO PREVIOUS ACTION. WITNESS REGISTER David Harding, Aide Representative Eileen MacLean State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Supported HB 212. Margo Knuth, Asst. Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified on HB 212 & SB 24. Curtis Lomas, Program Officer Division of Public Assistance Department of Health & Social Services P.O. 110640 Juneau, Alaska 99811-0640 POSITION STATEMENT: Testified on HJR 36. ACTION NARRATIVE TAPE 94-4, SIDE A Number 001 VICE-CHAIRMAN RICK HALFORD called the Judiciary Committee meeting to order at 2:20 p.m. SENATOR HALFORD introduced HB 212 (SENTENCING:AGGRAVATING FACTORS) sponsored by REPRESENTATIVE EILEEN MACLEAN,and invited her aide, DAVID HARDING, to explain the bill. Number 048 MR. HARDING said the intent of HB 212 is to insure the most serious sentences for the crime of sexual abuse against a minor get levied when the offender is in a position of authority over the minor. He quoted the bill.0 as accomplishing this by adding sexual abuse of a minor to the list of aggravators to be considered at sentencing. In addition, he explained Section 2 furthers a similar effort of the 1992 Legislature in adding this to a list of crimes not to be referred to the three judge panel. MR. HARDING quoted REPRESENTATIVE MACLEAN as to her belief that an offender who was in an established trust relationship and breached that trust, deserves to face stronger penalties than a stranger who sexually abuses a child. She said it was the vulnerable nature of the relationship that warrants a more severe punishment, and she thought it more suitable to add the crime to the aggravator list rather than create an entirely different crime category. MR. HARDING suggested that MARGO KNUTH from the Department of Law could further explain the legislation. SENATOR DONLEY questioned whether the legislation was consistent with the philosophy of the other items exempt from the three judge panel review, and he further questioned the use of violence, or consensual touching, in the opinion on the legislation. After some discussion on modifiers, aggravators, and the provocation for the legislation, SENATOR DONLEY asked MS. KNUTH for some clarification. Number 103 SENATOR LITTLE, in reference to page 2, line 4, questioned the use of "extreme youth" in the description of a victim and was told it was in existing law. She asked some additional questions about Paragraph (18), Subparagraph (D) concerning the use of "position of authority" and was referred to a list of definitions on page 22 of AS 11.41.470 in the Alaska Statutes Supplement. SENATOR DONLEY asked MR. HARDING if he knew of any case, involving the "position of authority," that has gone to a three judge panel and was deemed inappropriate by REPRESENTATIVE MACLEAN. MR. HARDING didn't think it involved any specific instance, but it was more of an effort to make sure it was not to be mitigated to insure the most serious sentence for the offense. He described an event involving a teacher in REPRESENTATIVE MACLEAN'S district which precipitated the legislation. SENATOR DONLEY clarified the sentencing by a three judge panel was not really a factor in the case. Number 149 SENATOR HALFORD brought to the attention of the committee the resolution from the North Slope Borough School District and indicated the wording had designated "sexual contact of a student by a teacher as sexual abuse of a minor in the first degree;". He explained it was going about three steps further than just adding an aggravator. MS. KNUTH from the Criminal Division of the Department of Law, was asked to address two matters, the first being Section 2 of the bill which lists the aggravators which cannot be referred to a three judge panel. She explained that less than half of the list are assaultive or violent, and she gave some definitions for the listing of "most serious conduct" in Aggravator (10) of the list. MS. KNUTH, in reference to Aggravator (15), explained it would be three or more felonies, regardless of the type of cases, (17) is the pecuniary gain for the defendant, (20) is if the defendant was on furlough or release at the time of the new offense, and (21) relates to a history of similar offenses. MS. KNUTH thought it curious that (18) is the aggravators for sexual assault and sexual abuse cases in particular, but it is already specified in (18)(B) that a sexual assault or an abuse case committed against a minor, "and the defendant has engaged in the same or similar conduct involving the same or another victim who was a minor" would also not be heard by a three judge panel. She explained (18)(A), and (C) separated out minors as having plenty of authority for the legislation, and in terms of (18)(D), MS. KNUTH said REPRESENTATIVE ULMER had sponsored legislation several years ago that did make it a more serious offense for sexual penetration or sexual contact to occur by an offender in the position of authority or trust over the victim. Number 198 MS. KNUTH had researched reasons for the added aggravator in (18)(D) and found her answer "in all our sexual abuse of minor statutes, there are multiple ways the offense can be committed, but always against a child under the age of 13," and she reviewed the provisions for first and second degree offenses for both those under the age of 13 and of those 16 years old. She said the legislation created a new class for children ages 14 through 15, and she gave some examples of sexual abuse of children in this age range by those who are in the age range of 17 through 18. She concluded that the aggravators in (A) through (C) were needed for (D). SENATOR DONLEY asked if the three judge panel should be removed, but suggested situations when the potential review by the panel would be useful. Number 249 MS. KNUTH said there were arguments both ways, and she discussed with SENATOR DONLEY presumptive sentence, aggravators, class A felony for sexual abuse of a minor, unclassified sentence, stiff sentences, and the gap effect in the 16 to 18 year old. Number 297 SENATOR LITTLE asked about the three judge panel, and MS. KNUTH explained a defendant can petition for a referral to the three judge panel, which may or may not be interested in hearing the case. She also explained how the composition of the panel changes and whether or not they are conservative or liberal. She gave an example of the use of the panel, and how the panel can be affected by a possible backlash. MS. KNUTH explained taking a case away from the three judge panel is a fairly extreme thing to do, and she expressed surprise at the number of aggravating factors being taken from the three judge panel. She said it was a move towards harsher sentences, and she reviewed the messages being sent by the legislation, including "the protection of minors is an important societal goal." Number 358 SENATOR DONLEY spoke in support of the aggravator in Section D, including the "act of violence," and he asked if there were any situations in the sections where there is no violence. MS. KNUTH said none of the offenses had violence, but had penetration or contact, but violence would be charged separately as sexual assault in (18)(B). SENATOR DONLEY described the tendency for aggression in divorce cases to accuse the spouse of sexual assault, and asked if it would be affected by the legislation. MS. KNUTH explained there were separate offenses for the household and the legislation did not address them. Number 398 SENATOR LITTLE observed that sexual contact is very violent. MS. KNUTH explained there were different forms of violence, and they were identified differently, but she did concur with SENATOR LITTLE'S remarks. SENATOR HALFORD concluded there was no more testimony on HB 212, reviewed some positions on the bill, and asked for the will of the committee. SENATOR DONLEY spoke in support of the aggravator, but expressed concern about the three judge panel. He questioned MS. KNUTH about the addition of AS 11.41.434, 11.41.436, or 11.41.438, and she described them as "sexual penetration," "contact," and "contact with a closer age." They discussed whether there could be a middle ground with the removal of 11.41.438 from exemption, the ages of the participants, and the example of a sixteen year old baby sitter and a thirteen year old victim. SENATOR DONLEY spoke in opposition to 11.41.438 and suggested dropping it. SENATOR LITTLE defended leaving 11.41.438 in the legislation, and MS. KNUTH explained how all of the provisions would work together. Number 499 SENATOR HALFORD said he preferred not to drop 11.41.438 until he checked with the sponsor, REPRESENTATIVE MACLEAN. SENATOR DONLEY renewed his argument with the previous example of a sixteen year old baby sitter and a thirteen year old child where there was consensual touching. He asked SENATOR HALFORD his objections to having it reviewed by a three judge panel. MR. HARDING said he thought dropping 11.41.438 would be approved by REPRESENTATIVE MACLEAN. SENATOR HALFORD explained the bill had passed overwhelmingly in the House, and he expressed his support, as did SENATOR DONLEY. He said HB 212 would be held until the next calendar. SENATOR HALFORD introduced HJR 36 (REPEAL 100 HOUR RULE FOR AID TO FAMILIES TO DEPENDENT CHILDREN PROGRAM), and invited the prime sponsor, REPRESENTATIVE TOM BRICE, to testify. REPRESENTATIVE BRICE explained the federal Department of Health and Human Services has developed and implemented regulations relating to the Aid to Families with Dependent Children Unemployed Parent Program, setting the number of hours at 100 per month, a grant recipient can work and still maintain eligibility for the program. If a job that exceeds 100 hours per month is accepted by the unemployed parent, the family becomes ineligible for AFDC and Medicaid even if employment earnings are less than the amount of the AFDC grant. He further explained how repealing the 100 hour rule would allow those families to accept employment that exceeds 100 hours per month that may partially support them, reduce the amount of aid they receive, promote self sufficiency, and save state dollars at the same time. REPRESENTATIVE BRICE said there was a federal welfare reform working group meeting to formulate recommendations to be included in a welfare reform package and indications suggest the repeal of the 100 hour rule would be one of the recommendations. He felt it was important the State of Alaska supported this element of welfare reform. Number 499 REPRESENTATIVE BRICE offered to answer questions or refer the questions to persons attending from the Division of Public Assistance. SENATOR HALFORD, while approving basically of the legislation, asked about adding more incentive for the program. REPRESENTATIVE BRICE said SENATOR HALFORD'S points had not been considered, but he was interested in dealing with the incentives as proposed by SENATOR HALFORD. REPRESENTATIVE BRICE said CURTIS LOMAS, Program Officer for the Division of Public Assistance in the Department of Health and Social Services, might be able to suggest some ways to make SENATOR HALFORD'S ideas work. SENATOR HALFORD explained it might not be possible under the title, but he would like to work in that direction. REPRESENTATIVE BRICE thought the title was fairly tight, and SENATOR HALFORD agreed. SENATOR LITTLE asked REPRESENTATIVE BRICE whether he had seen any of the polls as to what is happening in Washington as far as Welfare Reform. REPRESENTATIVE BRICE said, in talking to SENATOR STEVENS' office, a precise proposal has not been issued, and he again mentioned the presidential task force on welfare reform that is meeting to formulate recommendations. SENATOR HALFORD referred to the end of the Resolve Clause .... "as long as the amount of their income does not exceed the state's standard of need," to wonder whether it could be changed to reflect dissatisfaction with the "standard of need" provision. He thinks the gap on the incentive side should be changed, and he suggested someone from the department could explain his proposed change. CURTIS LOMAS, representing the Division of Public Assistance, addressed SENATOR HALFORD'S question about the gap and admitted difficulty in calculating AFDC benefit payments, but he did agree with SENATOR HALFORD'S understanding of the income threshold for eligibility for the program. He continued to explain eligibility for the program, benefits, and the calculation for the needs standard. He explained the state calculated the gap as the difference between the standard of need and the maximum payment level the state has in effect. He also explained HB 67 last year, for the first time, created a small gap in the State of Alaska - $25 for a family of two. TAPE 93-4, SIDE B Number 001 MR. LOMAS continued to describe the computation of the gap and the disregards involved. He said the payment gap was only one way to provide incentives for people to earn money, and he explained the specific disregards. SENATOR HALFORD said he called all of the disregards the gap, what you can do without losing payments and medical. MR. CURTIS pointed out the 100-hour rule was a regulation the Department of Health and Social Services has the authority to repeal or modify, and he said the payment gap was imbedded in federal statute and requires congressional action to change. He suggested the committee keep their focus specifically on the 100- hour rule. SENATOR HALFORD questioned the State's part in the standard of need, and MR. LOMAS reiterated the State did not have the authority to modify those time limited disregards. SENATOR HALFORD asked for a motion to move the bill. SENATOR LITTLE moved to pass HOUSE JOINT RESOLUTION NO. 36 (REPEAL 100 HOUR RULE FOR AFDC PROGRAM) from committee with individual recommendations. Without objections, so ordered. SENATOR HALFORD introduced SB 24 (EXTEND MAXIMUM PERIOD OF PROBATION) and invited the sponsor, SENATOR DAVE DONLEY, to testify on his bill. SENATOR DONLEY explained SB 24 would change the maximum period of probation a court may order for a criminal offense from five years to ten years, is part of the Governor's anti-crime package, and supported by the Departments of Law, Public Safety, the Alaska Association of Chiefs of Police, and the Network on Domestic Violence and Sexual Assault. He said it was also a recommendation of the Sentencing Commission and further explained it would increase the protection to the public from the type of offenders who need supervision to prevent their recidivism. SENATOR JACKO asked why there was no fiscal note to keep these people on probation for a longer time. SENATOR DONLEY answered the fiscal notes only extend for five years, so it wouldn't make an impact until the sixth year. SENATOR JACKO pressed for an actually fiscal implication, but SENATOR DONLEY said it was difficult to project at this time, since it was hard to determine how often it would be utilized by judges. He said it was an option. SENATOR JACKO asked if the cost of probation for five years could be extrapolated to 10 years. SENATOR DONLEY answered the legislature sets the budget for the probation officers, but unfortunately, it is not broken out per case. He suggested it would vary at different times. SENATOR DONLEY suggested there might be some cases where there would be a saving if a judge, in fashioning other than mandatory sentences may want to fashion a flexible sentence - using more probation rather than actual jail time. He referred to the Position Paper to describe the difficulty in estimating the cost. SENATOR JACKO noted the bill next would be going to the Finance Committee, and an answer might be found in committee, which he thought was important. SENATOR HALFORD asked MARGO KNUTH, from the Department of Law, to testify on the bill. She said the department does support the bill, and she addressed the cost question by asked how much would be saved by the system if one sex offender was prevented from re- offending, which results usually in substantial incarceration time. MS. KNUTH noted two types of cases where the judges want the flexibility of longer probation time, the first being the sex offender cases, because there is a high rate of recidivism. She explained the extra probation time could keep the sex offenders in treatment programs. The second area of crime for added probation is when a lot of restitution is owed to the victim, and MS. KNUTH explained how restitution could be made part of probation. Number 069 SENATOR JACKO contended extra probation would put more people under the watchful eyes of the government and incur costs. MS. KNUTH believed it might save money by preventing recidivism. SENATOR HALFORD invited further debate on SB 24 and asked for the will of the committee. SENATOR JACKO asked if the legislation would provide less than five years of probation, and SENATOR DONLEY explained it was up to the judges for the award for probation, with a current maximum of five years. He said it would have no effect on any minimum decided by the judge, and they had a general discussion on the use of may rather than shall in the drafting. Number 090 SENATOR LITTLE moved to pass SENATE BILL NO. 24 (EXTEND MAXIMUM PERIOD OF PROBATION) from committee with individual recommendations. Without objections, so ordered. There being no further business to come before the committee, the meeting was adjourned at 3:20 p.m. by SENATOR HALFORD.