Legislature(2001 - 2002)

02/28/2001 01:45 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     ALASKA STATE LEGISLATURE                                                                                   
                    SENATE JUDICIARY COMMITTEE                                                                                
                         February 28, 2001                                                                                      
                             1:45 p.m.                                                                                          
MEMBERS PRESENT                                                                                                               
Senator Robin Taylor, Chair                                                                                                     
Senator Dave Donley, Vice Chair                                                                                                 
Senator Gene Therriault                                                                                                         
Senator Johnny Ellis                                                                                                            
MEMBERS ABSENT                                                                                                                
Senator John Cowdery                                                                                                            
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 99                                                                                                              
"An Act relating to the DNA identification registration system."                                                                
     MOVED SB 99 OUT OF COMMITTEE                                                                                               
SENATE BILL NO. 105                                                                                                             
"An Act  relating to victims'  rights; relating  to establishing  an                                                            
office of victims'  rights; relating  to compensation of  victims of                                                            
violent  crimes;  relating  to  eligibility  for  a  permanent  fund                                                            
dividend  for persons  convicted  of  and incarcerated  for  certain                                                            
offenses; relating  to notice of appropriations concerning  victims'                                                            
rights; amending  Rule 16, Alaska Rules of Criminal  Procedure, Rule                                                            
9,  Alaska  Delinquency  Rules,   and  Rule  501,  Alaska  Rules  of                                                            
Evidence; and providing for an effective date."                                                                                 
     MOVED CSSB 105 (JUD) OUT OF COMMITTEE                                                                                      
PREVIOUS COMMITTEE ACTION                                                                                                     
No previous action.                                                                                                             
WITNESS REGISTER                                                                                                              
Senator Rick Halford                                                                                                            
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Sponsor of SB 99                                                                                         
Ms. Laurie Hugonin                                                                                                              
Alaska Network On Domestic Violence &                                                                                           
  Sexual Assault                                                                                                                
130 Seward, Room 209                                                                                                            
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Testified on SB 99 and SB 105                                                                            
Mr. Del Smith                                                                                                                   
Deputy Commissioner                                                                                                             
Department of Public Safety                                                                                                     
PO Box 111200                                                                                                                   
Juneau, AK  99811-1200                                                                                                          
POSITION STATEMENT:  Supports SB 99                                                                                           
Ms. Leanne Strickland                                                                                                           
Scientific Crime Detection Laboratory                                                                                           
Department of Public Safety                                                                                                     
5500 East Tudor Road                                                                                                            
Anchorage, AK 99507-1221                                                                                                        
POSITION STATEMENT:  Testified on SB 99                                                                                       
Mr. Robert Buttcane                                                                                                             
Legislative & Administrative Liaison                                                                                            
Division of Juvenile Justice                                                                                                    
Department of Health &                                                                                                          
  Social Services                                                                                                               
PO Box 110601                                                                                                                   
Juneau, AK  99801-0601                                                                                                          
POSITION STATEMENT:  Testified on SB 99 and SB 105                                                                            
Ms. Julie Lucky                                                                                                                 
Staff to Senator Halford                                                                                                        
Alaska State Capitol                                                                                                            
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT:  Testified on SB 99 and SB 105                                                                            
Mr. Dean Guaneli                                                                                                                
Chief Assistant Attorney General                                                                                                
Legal Services Section                                                                                                          
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Testified on SB 105                                                                                      
Ms. Charlotte Phelps                                                                                                            
Victims for Justice                                                                                                             
921 West 6th Avenue                                                                                                             
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified on SB 105                                                                                      
Ms. Candace Brower                                                                                                              
Program Coordinator                                                                                                             
Department of Corrections                                                                                                       
240 Main Street, Suite 700                                                                                                      
Juneau, Alaska 99801                                                                                                            
POSITION STATEMENT:  Testified on SB 105                                                                                      
ACTION NARRATIVE                                                                                                              
TAPE 01-6, SIDE A                                                                                                             
Number 001                                                                                                                      
CHAIRMAN ROBIN TAYLOR called  the Senate Judiciary Committee meeting                                                          
to order at 1:45 p.m.   Chairman Taylor announced the first order of                                                            
business would be SB 99.                                                                                                        
                SB 99-DNA REGISTRATION OF BURGLARS                                                                          
SENATOR RICK HALFORD, sponsor  of SB 99, said SB 99 adds burglary to                                                            
the  list of  crimes from  which  DNA samples  are  taken for  later                                                            
comparison to samples in  the DNA databank.  In states where samples                                                            
are taken, DNA evidence has proven to be very effective.                                                                        
SENATOR  DONLEY said he  supports SB  99, but  he is concerned  that                                                            
some juvenile  criminals have to commit  four or five crimes  before                                                            
they are ever  adjudicated as a delinquent.   He wondered  about the                                                            
people working  in juvenile  justice as far  as their reluctance  to                                                            
adjudicate any one as a delinquent.                                                                                             
Number 259                                                                                                                      
MS. Laurie Hugonin,  Alaska Network on Domestic Violence  and Sexual                                                            
Assault  (ANDVSA),  said ANDVSA  supports  SB 99.   She  said it  is                                                            
important  that this group  of criminals  be captured because  often                                                            
times  burglars  are associated  with  sexual assaults.    SB 99  is                                                            
another step to providing evidence for crime solving.                                                                           
MR. DEL  SMITH, Deputy  Commissioner,  Department  of Public  Safety                                                            
(DPS), said  DPS supports  SB 99.   Mr. Smith  said SB 99  addresses                                                            
part of  a DNA bill from  last year that  failed to make it  through                                                            
the system.  Burglary  did not survive that legislation  but the use                                                            
of an oral swab  did.  Virginia and Florida do include  burglary for                                                            
DNA testing, and the statistics  show that people move from burglary                                                            
to more violent  crimes.  Some segments  of law enforcement  want to                                                            
collect DNA  samples from  all individuals  that are convicted,  New                                                            
York collects  DNA for every arrest, but there are  concerns because                                                            
of the discrimination ability of DNA.                                                                                           
MR.  SMITH  said DPS  believes  the  expansion  of burglary  to  the                                                            
database makes  sense, and Alaska's  crime lab has received  federal                                                            
funding to send convicted offender samples to the system.                                                                       
Number 572                                                                                                                      
SENATOR ELLIS asked for  the definition of "felony attempt to commit                                                            
MR. SMITH  said  this means  a person  has taken  substantial  steps                                                            
toward committing a crime,  such as trying to force the entry into a                                                            
residence, but the police  arrived in time to stop the completion of                                                            
the crime.                                                                                                                      
SENATOR ELLIS asked about  the limitations, safeguards, restrictions                                                            
for improper use, and disposal of a sample.                                                                                     
MR.  SMITH said  the original  statute  specifically  indicated  the                                                            
sample could only be used  for identification and registration.  The                                                            
samples that  are collected and maintained  are not useful  in tests                                                            
to discern  a disease.  The statute  specifically states  the sample                                                            
can only  be used for the  purposes of comparison  and for  criminal                                                            
prosecution.   Doing anything else with the sample  would be subject                                                            
for prosecution.    The sample  is stored  within the  crime lab,  a                                                            
secure  facility, and  has a bar  code for identification  so  if it                                                            
were to  get out of the  lab no one would  know the identify  of the                                                            
SENATOR ELLIS asked if  DPS would advocate for legislation to expand                                                            
the use of DNA sampling.                                                                                                        
MR SMITH said  he, personally, would  not advocate beyond  burglary.                                                            
Number 929                                                                                                                      
SENATOR THERRIAULT  asked  if the cotton  swabs are discarded  after                                                            
the test results have been run.                                                                                                 
MS. LEANNE  STRICKLAND  said she  works at  the state  crime lab  as                                                            
supervisor and  technical leader of the DNA section.   She said when                                                            
an oral  swab or known blood  sample have  been processed and  a DNA                                                            
profile is  obtained, that sample  is stored at the laboratory  in a                                                            
secured refrigerated area.                                                                                                      
Number 1188                                                                                                                     
SENATOR  DONLEY asked  if there  is data  showing how  many times  a                                                            
juvenile  offends before  being put  into a  delinquency  proceeding                                                            
concerning  burglaries,  violence,  first  degree arson,  or  crimes                                                            
against a person.                                                                                                               
MR. ROBERT  BUTTCANE, Division  of Juvenile  Justice, Department  of                                                            
Health and  Social Services  (DHSS), commented  he would be  able to                                                            
query the DHSS database for this information.                                                                                   
SENATOR  DONLEY  moved SB  99  with accompanying  fiscal  note  from                                                            
committee with individual recommendations.                                                                                      
SENATOR Ellis  objected.   The role was taken  with Senator  Donley,                                                            
Senator Therriault,  and Chairman Taylor voting yea.   Senator Ellis                                                            
voted nay, and SB 99 moved from committee.                                                                                      
Number 1330                                                                                                                     
              SB 105-VICTIMS' RIGHTS/ PRISONER'S PFD                                                                        
SENATOR  HALFORD said  this bill  went  through both  the house  and                                                            
senate  last  year.   SB  105  puts the  victims'  advocate  in  the                                                            
legislative branch  and is the implementation of the  constitutional                                                            
amendment.   An  attorney represents  the  State of  Alaska and  the                                                            
accused but  the victim usually  does not  have representation.   SB
105 tries to  provide help for the  victim in a professional  way so                                                            
he or she can maintain and defend their rights.                                                                                 
MS. JULIE  LUCKY, staff to  Senator Halford,  said there had  been a                                                            
question  on partially  exempt service  versus exempt  service.   On                                                            
page 4 of SB 105  the victims' advocate is put into  exempt service.                                                            
Section  6, which is  the listing  of all jobs  under the  partially                                                            
exempt service,  was not changed to conform to exempt  service.  The                                                            
office  was listed  as  exempt on  page 4  and partially  exempt  in                                                            
Section  6.  In  order to  make the  two conform,  an amendment  was                                                            
needed  for Section  6.  The  drafter preferred  that the  committee                                                            
pass a  conceptual amendment  because at that  time he was  not sure                                                            
what the line number would  be. The conceptual amendment on page 10,                                                            
line 13 will read:  Sec.  6. AS 39.25.110, and the line numbers will                                                            
change accordingly.                                                                                                             
SENATOR  DONLEY moved  to accept  the conceptual  amendment.   There                                                            
being no objection, conceptual amendment #1 passed.                                                                             
Number 1412                                                                                                                     
MS. LAURIE HUGONIN,  Alaska Network on Domestic Violence  and Sexual                                                            
Assault (ANDVSA),  said ANDVA appreciates the victims'  office being                                                            
put back  into the  legislative branch.   ANDVA  would like  to have                                                            
resources put toward the  beginning of interaction instead of toward                                                            
the complaint  side  at the end.   This  way it could  be seen  that                                                            
there were  enough victim witness  coordinators, enough information                                                             
so people would  know their rights as a victim, and  enough advocacy                                                            
groups to help victims through the process from the beginning.                                                                  
MS. HUGONIN said  it would be helpful to look at the  statutes where                                                            
victims  are given  the right  to speak  for themselves  in court  -                                                            
possibly  amending the statute  to allow someone  else to speak  for                                                            
CHAIRMAN TAYLOR asked her if ANDVA supports SB 105.                                                                             
MS. HUGONIN  said ANDVA  does not  oppose the bill  but it does  not                                                            
support  the bill  either.   ANDVA does  have concern  with how  the                                                            
resources would be directed.                                                                                                    
MR. DEAN GUANELI,  Criminal Division, Department of  Law (DOL), said                                                            
prosecutors have  recognized the need for treating  victims well for                                                            
a long  time.  Statistical  data show that  cases are sometimes  won                                                            
and lost  because victims  and witnesses do  not want to  cooperate.                                                            
Federal  funds have  allowed  the criminal  division  to create  the                                                            
victim witness assistance  program whereby paralegals are working to                                                            
provide help to  victims and witnesses through the  criminal justice                                                            
process.   In order  to win  cases,  victims and  witnesses need  to                                                            
help. With  the help of  federal funding  from the Violence  Against                                                            
Women's Act, DOL  has been able to provide training  for prosecutors                                                            
and paralegals every year.   DOL provides a number of brochures that                                                            
explain the  criminal justice process  and rights to crime  victims.                                                            
All of  the brochures are  translated into  Yupik and Inupiat.   DOL                                                            
provides  the victim with  a form that  he or she  is to sign.   The                                                            
form tells  them that if  they want to exercise  the rights  granted                                                            
under current  law they should not  talk to the defense attorney  or                                                            
the investigator.    After the  form is  signed it  is given to  the                                                            
defense attorney,  invoking the victims'  rights under current  law.                                                            
Defense attorneys do not  like this and have challenged the statutes                                                            
that  now exist  to  protect  victims  from defense  tactics.    DOL                                                            
believes there  are more resources that could be brought  to bear to                                                            
help all criminal  justice agencies  provide more direct  service to                                                            
victims.  The  governor has identified  a way to do this  in SB 107.                                                            
The efforts toward victim  restitution statutes have been in how the                                                            
courts go about setting  restitution and what presumptions they make                                                            
and who  bears the burden  of proof, but  little attention  has been                                                            
given to practical problems.   DOL proposes a more formal collection                                                            
system  within   DOL  so  the  collection  unit  can   also  collect                                                            
restitution for victims.   Another proposal is found in the criminal                                                            
division's  budget to fund a volunteer  coordinator position.   This                                                            
position has  been federally funded  but the funding is going  away.                                                            
The  position has  volunteers  working  in the  prosecution  offices                                                            
making  contacts with  victims,  issuing subpoenas,  and  collecting                                                            
information from victims.                                                                                                       
Number 2107                                                                                                                     
MR. ROBERT  BUTTCANE, Division  of Juvenile  Justice, Department  of                                                            
Health  and  Social  Services  (DHSS),  said  when  he  started  his                                                            
juvenile  probation career  there was a philosophy  that the  system                                                            
was offender focused.   With a change in the Alaska constitution and                                                            
enactment of other  legislation, the restorative justice  philosophy                                                            
has been adopted  by DHSS.  With this  philosophy, the concerns  and                                                            
needs of  the victim have  been elevated to  be equal to any  of the                                                            
concerns  for the offender.   There are four  parts of the  juvenile                                                            
justice system:  1) Prevent  repeated criminal behavior.  2) Restore                                                            
victims and  communities to wholeness.   3) Protect the public.   4)                                                            
Help the  young person to  develop competency  so they can  become a                                                            
productive  citizen.  One way to implement  this is to focus  energy                                                            
on the needs of  the victim.  DHSS worked to understand  victims and                                                            
apply the  rights that were  afforded them  in the constitution  and                                                            
statutes. The  biggest right, as it related to the  juvenile system,                                                            
was  notification   of  delinquency   proceedings,  which   prompted                                                            
questions   from  victims   about  the  juvenile   offender.     The                                                            
restorative justice  system was codified in the delinquency  chapter                                                            
and a number of  adjustment were made to the confidentially  section                                                            
related to  the juvenile system.   One was that DHSS was  authorized                                                            
by law  to share  information  with victims.   As  DHSS starting  to                                                            
share  this information  with victims,  the entire  system began  to                                                            
shift.   Offenders  started  to  see, when  the  victim  was in  the                                                            
courtroom,  that the crime  was no  longer nebulous,  it was  a real                                                            
person they  had impacted.   Because victims  do not understand  the                                                            
judicial process, DHSS  shares information with the offender and the                                                            
victim.  In the  beginning, courts were uncomfortable  with a victim                                                            
attending the  juvenile court proceeding,  but now the court  system                                                            
understands  that a victim  has the  right to be  in court when  the                                                            
juvenile  is there.  It  is becoming common  practice for courts  to                                                            
let  the  victim speak  at  hearings  and  arraignments,  having  an                                                            
incredible impact on the juvenile system.                                                                                       
TAPE 01-6, SIDE B                                                                                                             
MR. BUTTCANE  noted that  it was very beneficial  when victims  were                                                            
allowed into formal proceedings.   Alaska statutes have been changed                                                            
to allow  for victim  participation.   A  case may  not be  adjusted                                                            
until  deference  has  been  given  to  the  victim  in  regards  to                                                            
restitution satisfaction.                                                                                                       
MR. BUTTCANE  said SB 105 creates  an advocate who can advocate  for                                                            
victims.   This  concept  cannot  be argued  with,  but  it is  also                                                            
important for a victim to tell his or her story.                                                                                
MR.  BUTTCANE   said  DHSS  has  committed   some  of  its   federal                                                            
delinquency prevention  and intervention monies in support of victim                                                            
services.   DHSS  has  helped establish  victim  offender  mediation                                                            
programs in  Fairbanks, Anchorage,  and Juneau.  These programs  are                                                            
on  shaky grounds  because  there  has not  been enough  support  in                                                            
making  them work.    It takes  a great  deal  of human  energy  and                                                            
investment to keep victims' services going.                                                                                     
MR. BUTTCANE  added that when victims  are paid attention  to, he or                                                            
she  starts  to develop  trust,  understanding,   and appreciation.                                                             
Eventually  many victims are willing  to sit down with the  offender                                                            
and have  a face-to-face  dialogue or mediation.   This has  a great                                                            
impact  on the juvenile  offender,  more than  any program  offered.                                                            
From  this process,  victims  start to  heal.  DHSS  advocates  more                                                            
opportunities  for victims  to be  involved and  participate in  the                                                            
rehabilitative and restorative process.                                                                                         
Number 2109                                                                                                                     
MS.  CHARLOTTE  PHELPS,  Victims For  Justice  (VFJ),  speaking  via                                                            
teleconference  from Anchorage, noted  there are some aspects  of SB
105 that VFJ likes, particularly  the increase in awards for violent                                                            
crimes compensation.   Ms. Phelps said medical costs  have increased                                                            
a  lot  in  the last  few  years  and  it  is  gratifying  that  the                                                            
legislature is  increasing the maximum awards.  This  will go a long                                                            
way toward  helping victims  put their lives  back together  after a                                                            
violent crime.                                                                                                                  
MS. PHELPS  said as  long as the  funding for  the non-profits  that                                                            
provide  the  initial   support  -  crisis  intervention,   on-going                                                            
support,  and education  - is not  impacted, having  an advocate  to                                                            
investigate  violations of  victim rights seems  good but she  would                                                            
prefer the focus  to be on the front-end.  VFJ would  like some type                                                            
of reassurance  that establishing  this office would not  take funds                                                            
away  from  non-profit  organizations  that  provide  the  front-end                                                            
service.  VFJ  also feels it is important for victims  to tell their                                                            
own story.                                                                                                                      
MS. PHELPS  said VFJ does  not support SB  105 completely but  it is                                                            
also not against the bill.                                                                                                      
CHAIRMAN  TAYLOR said  SB 105 would  not interfere  with or  detract                                                            
from funds currently going  to non-profit organizations.  He said it                                                            
might be of value  to have a legislative funded position  that would                                                            
advocate to the legislature for the entirety of the program.                                                                    
Number 1862                                                                                                                     
MS.  CANDICE  BROWER, Legislative   Liaison for  the  Department  of                                                            
Corrections (DOC),  said DOC has come a long way in  terms of victim                                                            
services.   Prior  to  1996  the main  concern  for DOC  was  victim                                                            
notification.  There was  always a concern that when an offender was                                                            
released from  prison the victim may not be notified.   Victims were                                                            
given  an  opportunity  to  make  statements  through  pre-sentence                                                             
investigation  reports as well as  parole hearings.  Since  1996 DOC                                                            
has  provided approximately  1,355  hours  of training  to staff  on                                                            
victim related issues,  rights, and concerns.  In 1997 DOC was given                                                            
a grant  through the  National Institute  of Justice  (NIJ) and  the                                                            
Office of Victims of Crime  for a conference where approximately 300                                                            
people  attended  from  across  the  state.    The  agenda  included                                                            
Promising  Practices   and  Strategies  for  Victims'   Services  in                                                            
Corrections.   In  1999 a  committee  was established  to  implement                                                            
victim impact  class programs and since that time,  DOC has provided                                                            
victim  impact classes  for offenders  so  he or she  may learn  the                                                            
impact their crime  has had on the victim, the victim's  family, the                                                            
offender's  family, and the  community.   DOC has provided  training                                                            
for  various communities  and  formed  a statewide  victim  advisory                                                            
committee,  which includes many of  the agencies involved  in victim                                                            
services.    In 1998  SB  25  was passed  and  an  automated  victim                                                            
notification  system  was  implemented  through DOC.    In 1999  DOC                                                            
provided  training for the  Keeping Kids Safe  program in the  Bush.                                                            
This was  in conjunction  with  juvenile justice  and helped  people                                                            
become aware of sex offenders  in their community.  DOC has provided                                                            
Victim Information Notification  Everyday (VINE) training throughout                                                            
the state  since 1999.   One of  the most important  things  DOC has                                                            
done is  to help formulate  victim advisory  committees.  There  are                                                            
active committees  in Anchorage, Fairbanks,  Juneau, and  Bethel and                                                            
DOC is working on committees  in Kenai, Kodiak, and Mat-Su.  In 1999                                                            
DOC hired  a victim service  coordinator  with federal funding  from                                                            
the  Council on  Domestic  Violence  and  Sexual Assault,  and  that                                                            
person has hired a criminal justice technician to assist.                                                                       
MS. BROWER said DOC thinks  SB 105 is important.  DOC also thinks it                                                            
is important  to  reach victims  on the  front-end,  and it is  also                                                            
important to help victims seek restitution.                                                                                     
MS. JULIE  LUCKY,  staff to Senator  Halford,  said NIJ recommended                                                             
that   states  and   the  federal   government   create   compliance                                                            
enforcement  programs,  sometimes referred  to  as Victim  Ombudsman                                                            
Programs.   There was  also a study  from the  Office of Victims  of                                                            
Crime,  which  talked about  the  ombudsman  offices,  saying  these                                                            
offices can  get involved on the front-end.   This is why  the words                                                            
"advocacy"  and "investigations  afterwards"  were  used in SB  105.                                                            
Ombudsman offices have  been able to work with local groups and have                                                            
been also  been able  to get  in on the  front-end  to take care  of                                                            
problems before  they happen.  Ms.  Lucky said a stand-alone  agency                                                            
could be very  helpful in taking care of things before  a sentencing                                                            
MS. LUCKY said  the advocacy office in SB 105 does  have the freedom                                                            
to get in on  the front-end.  It can  also be very helpful  having a                                                            
neutral third  party for a  victim and to  have one office  to call.                                                            
SB 105 has  a section that allows  the victims' advocate  offices to                                                            
contract  out with  other agencies,  which would  be local  victims'                                                            
SENATOR THERRIAULT asked if there was a fiscal note for SB 105.                                                                 
MS. LUCKY responded there are three fiscal notes.                                                                               
CHAIRMAN  TAYLOR  said  there  was  a  zero  fiscal  note  from  the                                                            
Department  of  Revenue,  a  zero  fiscal  note  from  the  Attorney                                                            
General,  and  $47,000  going  to $45,000  from  the  Department  of                                                            
SENATOR DONLEY  moved CSSB 105 from committee with  the accompanying                                                            
fiscal notes  and with individual  recommendations.  There  being no                                                            
objection, CSSB 105 moved from committee.                                                                                       
There  being no  further  business  to come  before  the  committee,                                                            
CHAIRMAN TAYLOR adjourned the meeting at 2:56.                                                                                  

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