Legislature(1993 - 1994)
02/02/1994 02:20 PM Senate JUD
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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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