Legislature(1993 - 1994)

02/02/1994 02:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   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.                        
                                                                               
                                                                               

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