Legislature(1995 - 1996)
03/08/1995 01:59 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE March 8, 1995 1:59 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams Senator Johnny Ellis NO MEMBERS ABSENT COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 27(FIN) am "An Act directing the Department of Public Safety to establish and maintain a deoxyribonucleic acid (DNA) identification registration system and requiring DNA registration by persons convicted of a felony crime against a person and of minors 16 years of age or older who are adjudicated a delinquent for an act that would be a felony crime against a person if committed by an adult; and providing for an effective date." CS FOR HOUSE BILL NO. 26(JUD) "An Act amending Rule 15, Alaska Rules of Criminal Procedure, relating to depositions." SENATE BILL NO. 67 "An Act relating to the crime of unlawful evasion." SENATE BILL NO. 7 "An Act relating to bail after conviction for various felonies if the defendant has certain previous felony convictions." NO PREVIOUS SENATE COMMITTEE ACTION WITNESS REGISTER Richard Vitale Legislative Aide to Rep. Parnell Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Testified for sponsor of HB 27 and HB 26 Representative Sean Parnell Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Sponsor of HB 27 and HB 26 Dr. Mary Walkenshaw Scientific Crime Detection Laboratory 5500 E. Tudor Rd. Anchorage, AK 99507-1221 POSITION STATEMENT: Answered questions on HB 27 George Taft, Chief Scientific Crime Detection Laboratory 5500 E. Tudor Rd. Anchorage, AK 99507-1221 POSITION STATEMENT: Answered questions on HB 27 Jay Miller Federal Bureau of Investigation Washington, D.C. POSITION STATEMENT: Answered questions on HB 27 Jayne Andreen, Executive Director Council on Domestic Violence & Sexual Assault Department of Public Safety P.O. Box 111200 Juneau, Alaska 99811-1200 POSITION STATEMENT: Supports HB 26, HB 27, and SB 7 Lauree Hugonin Alaska Network on Domestic Violence & Sexual Assault 130 Seward, Room 501 Juneau, Alaska 99801 POSITION STATEMENT: Supports HB 27 and HB 26 Senator Judy Salo Alaska State Capitol Juneau, Alaska 99811 POSITION STATEMENT: Sponsor of SB 7 Gerald Bailey Gastineau Human Services 5577 Aisek Juneau, Alaska 99801 POSITION STATEMENT: Supports SB 67 Pete Roberts 145 W. 6th Anchorage, AK 99501 POSITION STATEMENT: Supports SB 67 Catherine Petkoff Allvest, Inc. 600 Barrow St. Anchorage, AK 99501 POSITION STATEMENT: Supports SB 67 Alan Tesche 1032 G St. Anchorage, AK 99501 POSITION STATEMENT: Supports SB 67 ACTION NARRATIVE TAPE 95-11, SIDE A Number 001 SJUD - 3/8/95 HB 27 DNA TESTING OF VIOLENT OFFENDERS CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:59 p.m. The first order of business was CSHB 27 (FIN)am. RICHARD VITALE, legislative aide to Representative Parnell, explained HB 27 allows for the collection of samples for DNA testing. Both the sponsor and the Department of Law feel this is an important procedure used in investigations for the conviction of repeat sexual and violent offenders. Collection of samples will be an important tool to be used at a later date. SENATOR ELLIS asked at what point in the process the DNA sample is taken. MR. VITALE replied the sample is taken upon conviction, by the Department of Corrections when the offender enters the correctional facility, and billed through the Department of Public Safety. SENATOR ELLIS questioned who will be responsible for maintaining the records, and for how long. MR. VITALE replied the blood sample will be stored by the Anchorage Crime Lab. DR. WALKENSHAW, Anchorage Crime Lab, clarified the blood samples would be dried and stored indefinitely. Currently samples are stored in a walk-in freezer and are not destroyed. SENATOR ELLIS asked if the samples deteriorate appreciably over time, and whether the test results could be recorded and filed in lieu of keeping the actual sample in storage. DR. WALKENSHAW stated the samples are maintained because new testing methodologies are evolving. SENATOR ADAMS noted a recent newspaper article disclosed that evidence had recently been mishandled or misplaced by the Anchorage Crime Lab. He asked what the penalty is for violating the confidentiality provisions included in CSHB 27(Fin)am. Number 087 GEORGE TAFT, Director of the Anchorage Crime Lab, stated the situation reported in the Anchorage newspaper is currently under investigation, and they will be able to answer the question regarding confidentiality after the investigation is complete. SENATOR TAYLOR commented the committee is unable to wait for the conclusion of the audit, and asked Mr. Taft for recommendations regarding the types of penalties for violation of confidentiality. Number 106 MR. TAFT replied the specimen storage is done under strict supervision and the specimens or evidence would be kept confidential. DEAN GUANELI, Department of Law, commented that in any storage procedure, property can get lost, but no one's rights would be violated. The specimen simply would not be available for analysis. SENATOR TAYLOR questioned the breach of confidentiality violation. MR. GUANELI stated under Title 11, misuse of confidential information is a class A misdemeanor. Number 134 SENATOR ADAMS stated the fiscal note reflects the cost of sample collection only. There is no cost included for testing or anything else. He asked what the registration system will cost once this system is used in prosecuting crimes. MR. GUANELI responded testing is becoming less expensive due to new technology. The Crime Lab is only collecting samples at this time because the law enforcement community as a whole has not really focussed on a specific type of testing as the standard one to be used nationally. Processing the samples at a later date will enable the Crime Lab to use newer technology at a lower cost. Number 158 SENATOR ADAMS noted the cost of any type of testing is not included in the fiscal note. He asked if the testing would only be done on samples from sex offenders. MR. VITALE replied the sponsor felt it would be inappropriate to attach a fiscal note to the bill to reflect something the Crime Lab is not required to do. The Crime Lab does not feel prepared to type samples at this time because the rapid changes in technology. The Crime Lab is currently estimating $50 to $75 for each sample typing. SENATOR ADAMS commented new state programs cost money and he expressed concern that two fiscal notes were not included. MR. VITALE explained the Crime Lab is not required to start typing the samples, and when they are prepared to begin testing, they will have to request funds from the legislature and they will know the costs. Number 187 JAY MILLER, Federal Bureau of Investigation (FBI), testified via teleconference from Washington, D.C. He discussed the FBI CODIS program, which is a DNA index system that attempts to standardize software that can be made available to state and local crime laboratories who are trying to implement their statewide databases. To date, 32 states have passed DNA database legislation. All of those states are confronted with the problem of storing DNA typing results in a standard format, and exchanging information. The FBI provides IBM PC software to crime laboratories that want to use the standard procedures. If the crime laboratories' data meets quality assurance standards, it is used in a FBI clearinghouse which exchanges records among states. The two principle purposes of the DNA database are: to link serial sex offenses where the offenders are unknown; and to match evidence from a sexual assault against a previous offender's file for identification. CODIS provides investigative leads for law enforcement agencies who are trying to link serial sex offenses to each other through genetic material, or to identify suspects sooner than would otherwise be possible through conventional police investigative methods. He stated HB 27 is consistent with some of the better laws passed in other states in recent years. Number 270 LAUREE HUGONIN, representing the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), testified in support of HB 27 for the following reasons. Keeping a DNA database will help law enforcement agencies quickly apprehend sex offenders; and, DNA is proving to be a very adequate identifier which will help in the prosecution of sex offenders. She commented it is important to begin collecting samples now as it will broaden the pool of available samples. Waiting to collect samples until better technology is developed would result in the loss of samples from many offenders. JAYNE ANDREEN, Director of the Council on Domestic Violence and Sexual Assault, testified in support of HB 27. She stated that sexual assault continues to be one of the most under-reported crimes in both the United States and Alaska. In Alaska, the reporting rate is twice what the national rate is, yet a very small percentage of cases reported result in a conviction. In 1992, 570 rapes were reported. Most victims were examined, but the forensic evidence collected is not usable unless there are samples available to compare the evidence to. The Council believes a DNA databank will provide law enforcement agencies and the Crime Lab the ability to compare evidence collected with alleged offenders and suspects and it will increase the ability to obtain convictions. She noted once that process is used, more victims are likely to report sexual assault cases, because physical evidence will exist to obtain a conviction. Number 319 SENATOR ADAMS made a motion to adopt the following amendment (#1). On page 1, following line 7, insert a new bill section to read: "Section 1. AS 22.20 is amended by adding a new section to read: ARTICLE 4. JUDICIAL COUNCIL. Sec. 22.20.200. DNA EVIDENCE INFORMATION. The judicial council shall periodically review and distribute information relevant to the technical, legal, and scientific use of deoxyribonucleic acid (DNA) profiles in criminal proceedings to (1) judges and magistrates; (2) the Department of Law; (3) the Public Defender Agency; (4) the office of public advocacy." On page 1, line 8: delete "Section 1," insert "Sec.2" and renumber the following bill sections accordingly. On page 4, line 1, delete "sec.1" and insert "sec. 2." SENATOR TAYLOR objected for the purpose of hearing feedback from the Department of Law. MR. VITALE responded the same amendment was opposed by the sponsor when it was previously offered, since the amendment would be adding to the judicial council's responsibilities which are already spelled out in law. Number 334 SENATOR ADAMS commented that the amendment sends some direction to the judicial council to review information, and it does no harm. MR. VITALE stated the judicial council currently has that right. DEAN GUANELI stated, from the standpoint of the Department of Law, the issue is a policy call by the Legislature. He noted the judicial council may not have expertise in scientific matters; they research legal matters: court and sentencing procedures; and sentencing trends. He suggested getting direct testimony from the judicial council. Number 350 SENATOR GREEN questioned the purpose of the amendment. SENATOR ADAMS stated he feels the judicial council needs to review the information on DNA testing periodically since in order to stay knowledgeable about a quickly evolving field. SENATOR ELLIS noted the amendment could be potentially beneficial and can do no harm. He added the Legislature is unable to keep up with this issue from year to year to keep up with changing trends. SENATOR ADAMS suggested holding the bill in order to get comments from the judicial council. SENATOR TAYLOR commented he is opposed to adding extra burdens to the judicial council, but it may be wise to have some agency provide a form of objective distribution of information. He thought judges and magistrates would be well briefed on the subject as the science evolves, as well as the Department of Law and the Public Defender Agency. He requested Senator Adams to withdraw the amendment until Representative Parnell could speak to the issue. SENATOR ADAMS agreed and withdrew the amendment. SENATOR ADAMS discussed a second amendment to delete "and of minors 16 years of age or older who are adjudicated a delinquent for an act that would be a felony crime against a person if committee by an adult." He questioned the rationale for including this large group of teenagers. DEAN GUANELI explained the rationale was to create as large a database as possible of those offenders who might be starting off at an early age at becoming repeat sexual offenders. He added Senator Adams is correct about the juvenile waiver bill passed last year for offenders 16 and 17 years old who commit rapes. The bill would require sample collections be taken from juveniles who have committed lesser levels of sexual offense or when the prosecutor has decided the juvenile system would be effective. Number 400 SENATOR ADAMS asked for the Department of Law's position. MR. GUANELI replied the Administration has not taken a position on this piece of legislation. MR. VITALE stated the sponsor is opposed to the amendment because of the nature of the crime and because of the high recidivism rate among juveniles. SENATOR MILLER objected to the second amendment. A roll call vote was taken with the following result: Senators Taylor, Green and Miller voted "nay," and Senators Adams and Ellis voted "yea." The committee took up amendment number 1. MR. VITALE relayed the following comments on the amendment prepared by Representative Parnell, who was unable to be in attendance. The amendment would add another layer to the government, and should not be added just because it would do no harm. Additionally, the amendment does not specify that any other type of judicial review will happen on other types of evidence, therefore the amendment would elevate DNA evidence to a higher level of importance than other evidence used in court cases. SENATOR ADAMS moved amendment number 1. SENATOR TAYLOR objected for the purpose of discussion. SENATOR MILLER commented he opposed the amendment when it was presented to the House Finance Committee because it adds a task to the judicial council but does not do anything meaningful. He felt the Department of Public Safety and the Division of Legislative Budget and Audit should be the agencies monitoring the program. He added he did not have a strong objection to the amendment, but did not feel it adds anything to the bill. SENATOR ADAMS asked if anyone discussed the amendment with the judicial council. SENATOR MILLER answered the judicial council did not object to the amendment; they are mandated to provide a broad range of tasks so this is within the scope of their authority. It is something Bill Cotten said he was willing to do but he did not say what it might cost. SENATOR ADAMS stated there was no fiscal note reflecting the cost of testing the samples. SENATOR TAYLOR asked if further objection was maintained to the amendment. There being no further objection, amendment number 1 was adopted. SENATOR GREEN moved CSHB 27 am out of committee with individual recommendations. There being no objection, the motion carried. SJUD - 3/8/95 HB 26 DEPOSITIONS IN CRIMINAL CASES REPRESENTATIVE PARNELL, sponsor of HB 26, explained under current law, a motion must be filed with the court to take a deposition of another person in criminal cases. In practice, this provides another attempt to interview witnesses and victims, particularly victims of sexual assault, and provide another opportunity for harassment of those victims. In most cases, the victim has already given a tape recorded statement to the police, as well as a tape recorded and transcribed statement to the grand jury, both of which are available to the defense. CSHB 26(Jud) attempts to incorporate portions of the federal court rule which states that depositions in criminal cases can only be taken under exceptional circumstances or when the witness will be unavailable for trial. The exceptional circumstances test is in use in all 50 states and all federal courts. SENATOR ADAMS discussed a bill reviewed in committee last week which attempted to change Rule 16. The Supreme Court undertook a review of the court rule. He asked if a similar review had been undertaken on Rule 15. REPRESENTATIVE PARNELL commented that the court reviewed Rule 16 because it was a court committee recommendation, but he did not believe the same recommendations was made for Rule 15. MR. GUANELI confirmed that there was no court recommendation to review Rule 15. SENATOR ADAMS noted the phrase "clear and convincing evidence" on page 1, line 7, requires a higher standard of proof than the language "beyond a reasonable doubt." He questioned why a higher standard of proof would be used. REPRESENTATIVE PARNELL explained that the standard of proof "beyond a reasonable doubt" refers to the standard under which a person is convicted. The "clear and convincing evidence" standard relates to what must be shown upon this motion. CSHB 26(Jud) requires either party to show clear and convincing evidence that exceptional circumstances exist. This narrows the scope under which depositions can be taken. SENATOR TAYLOR asked if the Public Defender Agency is opposed to CSHB 26(Jud) and whether Mr. Guaneli was aware of abuses to Rule 15 in Alaska. MR. GUANELI stated there are specific judges in specific locations who grant depositions, particularly in rape cases, in almost every case. That kind of practice is limited but does occur and causes great concern to victims in those cases. He discussed the revictimization of the victim when they must make another deposition in front of the offender with no judge present. Defendants have the right to be present at all critical court proceedings. The American Bar Association (ABA) recommends that in criminal depositions, the offender not have a right to be present, but that does not hold in Alaska. He added the Public Defender Agency does not feel it would affect that many cases which is why they are not actively opposing the bill. SENATOR TAYLOR felt the lack of opposition speaks highly of the candor of the Public Defender Agency. SENATOR ELLIS asked how many victims are involved. MR. GUANELI believed 15 to 20 victims per year are affected. LAUREE HUGONIN stated ANDVSA supports CSHB 26(Jud). ANDVSA does not believe it places an undue burden on the defense and it will protect victims that already make their testimony available in several ways. She urged the committee's support of CSHB 26(Jud). SENATOR GREEN moved CSHB 26(Jud) out of committee with individual recommendations. There being no objection, the motion carried. SJUD - 3/8/95 SB 67 UNLAWFUL EVASIONS CLASS A MISDEMEANOR SENATOR ELLIS, sponsor of SB 67, explained the bill is companion legislation to a bill introduced by Representative Brown in response to concerns of people running half-way houses and people living in the vicinity of half-way houses. Currently there is a two-tiered penalty approach to people who are guilty of unlawful evasion, or walking away from a half-way house facility. Felons who walk away are charged with a class A misdemeanor, and misdemeanor offenders in half-way houses are charged with a class B misdemeanor for the same offense. SB 67 changes the offense to a class A misdemeanor for all offenders and carries a maximum one year prison sentence, and a maximum $5,000 fine. The class B misdemeanor conviction is not providing enough incentive to prevent people from walking away from half-way houses, and is not a priority among prosecutors. The misdemeanor offenders are drunk drivers or drug abusers, and documented cases show these people have committed serious offenses after unlawful evasion. SENATOR TAYLOR announced Ruth Moulton, who was planning to testify via teleconference from Fairbanks, supports SB 67. TAPE 95-11, SIDE B CATHERINE PETKOFF, representing AllVest Incorporated (ABI), a residential center with over 400 residents, testified in support of SB 67. She stated AVI houses both felons and misdemeanants, and after housing thousands of offenders since 1985, AVI strongly believes appropriate sanctions are necessary to prevent residents from walking away from the resident program. She explained the conditions classifying a "walk-away" and provided statistics on the number of walkaways in the last four years. She stated misdemeanant offenders are more likely to violate program rules as they consider the minimum sanctions as an acceptable consequence. She added 26 offenders have walked away from residential facilities between October 1, 1994 to February 28, 1995; 11 were misdemeanants. She noted these programs are not only cost effective for incarcerating offenders, but also offer the opportunity for successful transition from institutional living by allowing residents to gain employment, develop community support services, and return something to the community through the participation in work service prior to their release. In these programs, residents only gain privileges after they have demonstrated responsible behavior and accept responsibility for their actions. PETE ROBERTS testified via teleconference in support of SB 67. He asked whether offenders would no longer be required to honor the provisions of parole, for example restitution, after they recommit. He asked if the offender may be trading the consequences of walking away for the consequences of a previous crime. SENATOR TAYLOR did not believe so, and commented the second offense would most likely draw attention to the fact that the conditions of the first offense had not been met. MR. ROBERTS recounted a situation in which arson was committed on his vehicle, as well as others. The offender is required to pay restitution. The prison official handling the case stated that if the offender committed a new crime upon release, the new sentence would overrule the conditions of parole. SENATOR TAYLOR doubted that would be the case. ALAN TESCE testified in support of SB 67. He explained he lives three-quarters of a mile of 98 percent of all of the half-way houses in Anchorage. He noted with the increased concentration of half-way house beds in the downtown area, he expects the number of walk-aways to rise. He felt passage of SB 67 would act as a deterrent. He discussed testimony before a South [indisc.] Community Council. The providers of half-way houses do not have any responsibility to the state or neighborhoods for criminal actions or any other actions committed by walk-aways once the operator of the half-way house has notified the police. SENATOR TAYLOR responded the restriction on the ability to file a civil suit against a half-way house for negligence is known as tort reform. Number 493 GERALD BAILEY, Program Director of Gastineau Human Services (GHS), testified in support of SB 67. He pointed out that GHS has been holding misdemeanants at their facilities since 1991. Misdemeanants are more likely to walk away than felons; one reason being that the sanctions are not as restrictive for misdemeanants. The City and Borough of Juneau changed a city ordinance at GHS's request to strengthen the charges; this has had a significant impact in decreasing the number of walk-aways. SENATOR ADAMS moved SB 67 out of committee with individual recommendations. SENATOR TAYLOR objected to make the following comment, "In my previous experience and life as a judge, when you sentenced somebody to a halfway house, you were kind of giving them a break and hoping they would learn something from it. To have people walk away, and there to be no teeth, and there to be a system that was so hidebound with paperwork that you could never get an officer to go and start looking for them to bring them back was always very frustrating, so I really applaud the sponsor for bringing this forward. I remove any objection I have, and wish the bill well, and it moves from committee." SB 67 was moved out of committee with individual recommendations. SJUD-3/8/95 SB 7 NO BAIL FOR FELONS W/PREVIOUS CONVICTIONS Number 468 SENATOR SALO, sponsor of SB 7, stated an identical measure (SB 228) passed the Senate last year with 19 - 0 vote, and received all "do pass" recommendations in both the Senate and House. SB 7 adds to the list of crimes and circumstances for which bail is not allowed. It prevents a person's release on bail either before sentencing or pending appeal, if the person has been previously convicted of sexual assault in the second and third degrees, and/or stalking in the first degree. SENATOR SALO noted additional information on SB 7 is included in committee packets, including information on the perpetrator who was the impetus for the legislation. She noted that perpetrator was convicted of an assault he committed while on $5,000 bail. She commented that although infrequent, such low incidence situations should be prevented from occurring in the future. Number 446 SENATOR ADAMS noted the perpetrator had been convicted of three rape charges and auto theft, and asked why he was able to get bail when in Alaska. SENATOR SALO replied the only thing in current law that prevents bail from being issued is either an unclassified or a class A felony conviction. The perpetrator's previous crimes were class B felonies. SB 7 would add those offenses to the list. SENATOR TAYLOR clarified there are two standards the court must look to, aside from the classification formula, when allowing bail: is the person going to flee the jurisdiction of the court; and is this person going to be a risk to others. Often that decision is based on the premise the defendant is innocent until proven guilty. There being no further testimony on SB 7, SENATOR GREEN moved SB 7 out of committee with individual recommendations. There being no objection, the motion carried. SENATOR TAYLOR adjourned the meeting at 3:04 p.m.