Legislature(1997 - 1998)
04/20/1998 01:30 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
April 20, 1998
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Drue Pearce, Vice-Chairman
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 232
"An Act relating to electronic signatures, electronic records,
requirements for records, and the reproduction of public records."
- MOVED CSSB 232(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 399
"An Act relating to an optional exemption from, and deferral of
payment of, municipal taxes on deteriorated property, and defining
'deteriorated property' for purposes of the exemption or deferral;
and providing for an effective date."
- MOVED SCS CSHB 399(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 395(JUD)
"An Act relating to civil liability resulting from the use of a
defibrillator in providing emergency aid or emergency training."
- MOVED SCS CSHB 395(JUD) OUT OF COMMITTEE
SENATE BILL NO. 216
"An Act providing for the civil commitment of sexually violent
predators."
- MOVED CSSB 216(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 232 - See Labor and Commerce Committee minutes dated 3/31/98 and
Judiciary minutes dated 4/8/98.
HB 399 - See Labor and Commerce Committee minutes dated 4/18/98.
HB 395 - No previous action to record.
SB 216 - See Judicary minutes dated 4/3/98.
ACTION NARRATIVE
TAPE 98-37, SIDE A
Number 001
SB 232 - ELECTRONIC RECORDS; RECORD REQUIREMENTS
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:30 p.m. and noted the presence of Senators Miller,
Parnell and Taylor. He brought SB 232 before the committee as the
first order of business.
SENATOR PARNELL, prime sponsor of SB 232, directed attention to a
work draft committee substitute that incorporates the amendments
adopted at the previous hearing on the legislation. He then moved
adoption of CSSB 232(JUD), version "E," dated 4/17/98. Hearing no
objection, it was so ordered.
SENATOR PARNELL outlined the following two changes made in the
committee substitute:
(1) Page 1, line 9: the reference to AS 11.56.210 was put in to
tie it back to unsworn falsification; and
(2) Page 3, line 30: provides that the state agency may not act
as a certifying authority for electronic signature unless one of
the parties to the transaction is in state.
There being no further testimony on CSSB 232(JUD), CHAIRMAN TAYLOR
asked for the pleasure of the committee.
SENATOR PARNELL moved CSSB 232(JUD) pass out of committee with
individual recommendations. Hearing no objection, it was so
ordered.
HB 399 - EXEMPT/DEFERRAL DETERIORATED PROPTY TAX
CHAIRMAN TAYLOR recognized the presence of Representative Ryan, the
prime sponsor of HB 399, which was the next order of business
before the committee.
REPRESENTATIVE JOE RYAN, prime sponsor of HB 399, noted that the
incorrect committee substitute was placed in the packet passed out
of the House but it has since been replaced by the correct version.
Representative Ryan urged the committee to bring forward the Senate
Judiciary CS, which takes care of many of the concerns regarding
the renovation that must go forward so that people will not be able
to speculate. Representative Ryan noted that another concern was
that people would let their property deteriorate and take advantage
of the taxes. In 1986, the Fairbanks (indisc.) hotel was valued at
$2,341,555, while its value today is $38,910, and the mill rate on
the land only was 19.356, and 11.25 on the improvements.
Representative Ryan said that it would take a couple hundred years
to make up the value in the tax break for the loss of value of
property due to its deterioration.
REPRESENTATIVE RYAN explained that HB 399 basically gives the
municipality another tool to clean up deteriorated property so that
it is revitalized and back on the tax rolls where it can earn
income for the city and improve the neighborhood. He emphasized
that everything in this bill is strictly voluntary.
CHAIRMAN TAYLOR pointed out the significant modification in the CS.
He directed members to page 1, line 7, which adds, "after the day
substantial rehabilitation and renovation begins." He noted it
does the same thing on page 1, line 12, which says, "after the day
rehabilitation begins." He said the original bill received did not
contain a triggering date, and it could have allowed property to
lie fallow, should the city vote to do so. He asked whether this
change would modify the title.
REPRESENTATIVE RYAN said he would take responsibility for that.
SENATOR PARNELL made a motion to adopt as a working draft SCS HB
399(JUD), Version B, Cook, 4/20/98. There being no objection, it
was so ordered.
CHAIRMAN TAYLOR expressed appreciation to Representative Ryan, who
had to leave for a House floor session.
Number 143
MARK MARLOW (ph) came before the committee to testify. He pointed
out that the newly adopted work draft was unanimously endorsed by
the Anchorage Assembly.
CHAIRMAN TAYLOR expressed hope that this legislation will provide
cities an opportunity to enhance and improve some derelict property
and get it on the tax roll. He asked if anyone else wished to
testify; there was no response.
Number 150
SENATOR PARNELL made a motion to move SCS HB 399(JUD) from the
committee with individual recommendations. There being no
objection, SCS HB 399(JUD) moved from the Senate Judiciary
Committee.
CHAIRMAN TAYLOR announced the presence of Senators Ellis and
Pearce.
CSHB 395(JUD) - CIVIL LIABILITY FOR EMERGENCY AID
CHAIRMAN TAYLOR announced the committee would hear CSHB 395(JUD).
PATTI SWENSON, legislative assistant to Representative Con Bunde,
came forward to explain the new proposed CS on behalf of the
sponsor. She said the first section was added to explain the
purpose of the bill, and Section 2 is the "Good Samaritan" portion.
Removed from the original were subsections (f) and (g), with the
rest remaining the same. She said the sponsor had no objection to
the changes.
CHAIRMAN TAYLOR explained the changes delete the references to
provide immunity from any liability. For persons or organizations
involved in training or making automatic external defibrillators
(AEDs) available to others, those sections would have provided
blanket immunity regardless of what they may or may not have done.
SENATOR PARNELL asked the reason for the "purpose" section.
Number 201
MS. SWENSON said it was included to match and support the title.
As to whether another immunity bill would be required if a new
machine were invented the following year, she stated, "You could if
you want to."
SENATOR PARNELL made a motion to adopt proposed SCS CSHB 395(JUD),
Version L, Ford, 4/20/98, as a work draft. There being no
objection, it was so ordered. He asked whether there was further
testimony on the bill.
MS. SWENSON said there was none. She expressed her understanding
that everyone is aware that the bill expands the "Good Samaritan"
law and provides for use of a manual electronic cardiac
defibrillator in airplanes, office buildings, and anywhere else a
person is trained to use one. Next year, they plan to limit what
is available in airplanes and offices, so that people do not start
intravenous injections, for example.
Number 230
MARK JOHNSON, Chief, Community Health and Emergency Medical
Services, Division of Public Health, Department of Health and
Social Services (DHSS), came forward to testify in support of the
bill. He explained that under current law, defibrillation is
considered an advanced life support skill requiring certification
or licensing. However, the new computerized machines will not give
a shock to someone lacking a life-threatening cardiac dysrhythmia.
Therefore, the judgment previously required to interpret and make
decisions about cardiac dysrhythmia is no longer required with
these devices, which airlines and others are already starting to
use. The law needs to catch up with what is already happening.
This device is most successful for people with ventricular
fibrillation, which is about 60 percent of those suffering sudden
cardiac arrest. The American Heart Association chart based on
nationwide studies shows that if cardiopulmonary resuscitation
(CPR) is initiated within one minute of a witnessed cardiac arrest,
if defibrillation is performed with four minutes, and if advanced
cardiac life support (paramedic-level care) begins within six to
eight minutes, the survival/discharge-from-a-hospital rate is about
30 percent. In contrast, with no CPR and no ambulance arriving
withing ten minutes, survival drops to 0-to-2 percent. Mr. Johnson
stated he believes this will save lives.
Number 155
CHAIRMAN TAYLOR suggested this legislation essentially bars a
person from bringing a lawsuit for the improper or negligent use of
this equipment. He asked whether Mr. Johnson was aware of anyone
being sued for the misuse of one of these devices.
MR. JOHNSON said no. He pointed out that the legislation also
changes the current statutory definition of advanced life support
to address the manual defibrillation that paramedics, doctors and
advanced cardiac life support nurses perform. Under current law,
it is technically illegal, although there is a question as to
whether anyone would enforce it or sue. This bill makes it legal
for a properly trained person who is not a licensed or certified
health care provider to use an AED.
Number 272
SENATOR PARNELL made a motion to move SCS CSHB 395(JUD) from
committee with individual recommendations. There being no
objection, SCS CSHB 395(JUD) moved from the Senate Judiciary
Committee.
SB 216 - CIVIL COMMITMENT OF SEXUAL PREDATORS
CHAIRMAN TAYLOR next called upon Donald Stoltz to present SB 216 to
the committee.
DONALD W. (BILL) STOLTZ, legislative administrative assistant to
Senator Rick Halford, came forward to present the bill on behalf of
the sponsor, noting that during a previous hearing the committee
requested him to work with the bill drafters, the Department of
Law, and other agencies to address some of the concerns that had
arisen during testimony. He noted that the latest work draft was
0-LS1134\F, dated 4/13/98. The major changes to this version are
that it includes stepchildren, corrects a technical omission on the
last page by including the word "substantially" before "likely",
and, at the request of the Department of Law, develops the criteria
through regulation rather than in statute.
SENATOR MIKE MILLER made a motion to adopt Version F, Luckhaupt,
dated 4/13/98, as a work draft. There being no objection, it was
so ordered.
Number 305
MR. STOLTZ indicated the sponsor received fiscal notes since the
previous meeting that almost belie an intent to not make this work.
He said the bill allows quite a bit of discretion as to how these
people are screened. Conversations with the chief prosecutor
indicate she would probably take a slow, careful look at this in
developing perhaps one case over an extended period; it would be a
case she could likely win and for which she could lay good
groundwork and set a good precedent. Mr. Stoltz questioned the
validity of the fiscal notes, particularly the one from the Alaska
Psychiatric Institute (API). He characterized this civil
commitment statute as a specialized tool for the prosecutor,
adding, "And any workman knows you don't use every tool on every
single job." Mr. Stoltz said they are looking at an egregious
class of criminals. He emphasized the amount of discretion given
to the department when screening and implementing the bill, and
again questioned whether there would be runaway costs.
Number 324
SENATOR JOHNNY ELLIS referred to page 9, line 29, subsection (b),
which says, "suffers from a mental illness that makes the person
substantially likely to commit a sexually violent predatory
offense." Noting that the word "substantially" is new, he asked
Mr. Stoltz to explain its origin and meaning.
MR. STOLTZ replied that "substantially" had been omitted through an
oversight in the original draft. He suggested that the likelihood
to commit an offense would be determined through the screening
process of the Department of Corrections, the Department of Health
and Social Services, and the Department of Law, probably including
a psychiatric overview and other determinations by professionals in
the prosecution arm of law enforcement.
SENATOR ELLIS asked whether it is well known in the field that some
mental illnesses make a person substantially likely to commit these
kinds of offenses, whereas other mental illnesses do not.
CHAIRMAN TAYLOR suggested that "likely to commit" is far too broad
a standard to be measurable. He said he doesn't know that
"substantially" sufficiently narrows it but it has a significant
narrowing effect. In his reading of it, perhaps a person has a
greater than 50 percent chance of recidivism, as opposed to a 5 or
10 percent chance. He advised a stronger word or one with a
clearer definition may be appropriate.
SENATOR ELLIS responded that it goes to the sponsor's intent as to
how broad a net to cast. He referred to the definitions section,
beginning on page 8, and what goes into defining "predatory." He
specifically asked about subsection (i), which read in part, "is
related up to the fourth degree of consanguinity," and he asked the
lay person's term for that.
CHAIRMAN TAYLOR said it is a second cousin.
MR. STOLTZ said he would feel more comfortable if the drafter, Anne
Carpeneti, and Cynthia Cooper of the Department of Law formulated
this criteria. He emphasized the desire to have the screening done
by professionals, not in a political arena.
Number 378
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
said he and Director Barbara Brink had carefully looked over the
bill and put in the fiscal note some of the questions and problems
that might arise. He agreed with Mr. Stoltz that the prosecutors
would probably pick the first case carefully, noting that it will
involve quite a lot of litigation. He emphasized that this is a
major departure in Alaska, where criminal confinement is usually
based upon some act or conduct that occurred, rather than upon
predictions of future dangerousness; he said that is certainly a
concern about the bill. For example, do the mental health
professionals who will have to make this difficult determination
think they have enough knowledge to do so? He indicated his agency
has some real questions about that after reading the American
Psychiatric Association Task Force report and other documents.
MR. McCUNE said the premise of the bill is that there is a small
but extremely dangerous group of sexually violent predators who
don't have a mental disease or defect that would allow an
involuntary commitment. Although the Department of Law and others
had worked hard on these definitions, the definition of "sexually
violent offense" is still fairly broad. Mr. McCune referred to
page 9, 3(A) and (B), noting that it would include sexual contact.
Under (C), even a conviction for an attempt at sexual contact could
be a predicate for commitment if the person is also found, beyond
a reasonable doubt, to be substantially likely to engage in
predatory conduct in the future. He urged the committee to look
carefully at these sections, suggesting "violent predator" brings
something to mind that might not fit the definition.
MR. McCUNE next characterized definition (1) which refers to AS
12.47.090 as broad (page 8). Reading from that, he said it means
any mental condition that increases the propensity of the defendant
to be dangerous to the public peace and safety; however, it is not
required that the mental illness be sufficient to exclude criminal
responsibility or that it be the same one that the defendant
suffered at the time of the criminal conduct. Mr. McCune indicated
this is a bit of a circular definition, explaining, "You're looking
at somebody who might be dangerous because they might be dangerous,
as a result of a mental condition." He said he doesn't know
exactly what "mental condition" means, excludes or doesn't exclude;
this is not what is traditionally known as a mental illness or a
major mental illness in other statutes, in other contexts. Mr.
McCune stated the belief that this would have a fairly significant
impact. Referring to the introductory part of the bill, he pointed
out that these can involve a lifetime of commitment if someone is
not found treatable or cannot be certified as safe to be at large.
The resources that would go into this would be commensurate with
what is at stake for a person.
MR. McCUNE told members there are additional items, not included in
the fiscal note, that would be difficult to quantify. For example,
they would expect a lot more trials involving these listed cases,
as people would hesitate to plead "no contest" because of the
threat of a possible commitment hearing after serving jail time.
Number 441
CHAIRMAN TAYLOR asked whether Mr. McCune had checked on the actual
impact on the public defender agency in Washington State, which has
had similar legislation for some time. He expressed his own
understanding that there was no dramatic increase there, but rather
a handful of cases despite a population much larger than Alaska's.
MR. McCUNE answered that they had not checked with other states.
Although the Department of Law's figures indicate there would not
be many cases prosecuted, there would be quite a lot of public
pressure to bring a proceeding if someone likely to be released
from jail had committed one of the more serious offenses listed.
CHAIRMAN TAYLOR suggested Mr. McCune check on that before
explaining the fiscal note before the Senate Finance Committee. He
said he himself was more concerned with substantive, rather than
fiscal, aspects of the bill. He asked whether Mr. McCune had an
opportunity to check Washington State law; he believed a rather
famous case there went to the supreme court.
MR. McCUNE replied that he had reviewed that law, although he
couldn't recall the defendant's name. The Washington Supreme
Court, after years of litigation, had approved the law. As he
recalled, it then went to federal district court, where the judge
felt it was an ex post facto law; he believes it is now in the 9th
Circuit Court of Appeals. That was all before the Kansas v.
Hendricks case came out. Mr. McCune said he had looked over the
Kansas law and the Washington law, and he hadn't seen many
differences between them.
CHAIRMAN TAYLOR asked whether he meant differences between them and
the law currently before this committee.
MR. McCUNE stated his understanding that the proposed legislation
is essentially based on the Kansas law, suggesting Ms. Cooper and
Mr. Guaneli from the Department of Law could better explain the
origins.
RANDALL BURNS, Director, Alaska Psychiatric Institute (API),
Division of Mental Health and Developmental Disabilities,
Department of Health and Social Services (DHSS), noted via
teleconference that he and Dr. Osbeck (ph) were available to answer
questions. He pointed out that Karl Brimner, Northern Regional
Mental Health Services Coordinator, was at the meeting on behalf of
the division.
Number 483
WALTER MAJOROS, Executive Director, Alaska Mental Health Board,
came forward to testify. He reminded members that a staff person
from his agency had testified at the previous hearing. He said the
board's formal position is that issues regarding sexual predators
are more effectively addressed through the criminal system than
through the civil system; however, if an issue is addressed through
the civil system, various safeguards need to be in place. He would
address two of those safeguards, about which the board is still
very concerned even with the latest iteration of the bill.
MR. MAJOROS told members the first safeguard is where the treatment
will take place. There has been some broadening in terms of the
capability to send sexual predators outside the state of Alaska to
receive treatment, which he believes is good. However, the board's
concern is that the treatment not take place at API for a number of
reasons; to that end, they suggest that language be introduced to
disallow treatment at API. One reason, pointed out in the bill, is
that the profile of a sexual predator is very different from that
of someone who is truly mentally ill with a brain disorder.
Sexually violent predators have anti-social behavioral disorders
that require different treatment approaches than those used for
mental disorders.
MR. MAJOROS said second is the safety issue. Sexual predators need
to be physically separated from people who are more vulnerable, as
mentally ill people with brain disorders are, and the security
needs for sexual predators are much higher. Third, API has been
undergoing a process with the board, the division, the department,
and the Alaska Mental Health Trust Authority to further downsize.
Right now it has 79 beds; under the new plan, there will be 54
beds. Already the average length of stay has been reduced to a
very short period and people have to leave the institution to make
room for new people. If a new population were superimposed, those
with true mental illnesses may not be able to receive the services
or will be there for only a day or two; they would be put out in
the streets before being effectively stabilized and before being
able to be successful in the community. The board's strong
preference is that the bill disallow treatment of sexually violent
predators at API, for the integrity of the mental health system.
MR. MAJOROS next addressed funding, saying the board's position is
that this is a public safety issue. Public safety funds should be
earmarked for this, and they do not believe it is appropriate that
the funding for services to sexually violent predators come out of
the mental health system. Resources within the mental health
system need to be targeted for mentally ill persons with brain
disorders, as well as children with serious emotional disturbances.
There is a movement now to provide increasing services within the
community and away from institutionalization. However, if those
funds were used for this purpose, movement in the other direction
would occur. He pointed out that there are still many unmet needs
in the mental health system.
MR. MAJOROS told members sexually violent predators would be there
for a very long time. Although there might be a couple of people
the first year, after several years there would be an increasing
population that would, in turn, jeopardize more and more funding
from the public mental health system needed by people who have true
mental illnesses and children with serious emotional disturbances.
He concluded, "So, our two main points are: Please don't allow
treatment at API, and please fund this through public safety and
criminal justice resources, and not public mental health
resources."
Number 535
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault (CDVSA), Department of Public Safety, came forward
to testify in support of the bill, especially the tightening that
had occurred with the work draft. At the same time, the CDVSA
echoes the concerns expressed by the mental health community. She
reminded members that sexually violent predators don't share the
same problems and concerns of someone who is mentally ill in the
more traditional sense. She cautioned about being careful where
these offenders are placed and how they are treated, so as not to
put others at risk by placing them at API, for example.
MS. ANDREEN pointed out that sex offenders can never truly be cured
of their disorder or criminal behavior or violent tendencies; at
most, they can be taught to control those tendencies. However,
both in Alaska and elsewhere in the country, the correctional
system has been able to consistently identify a small percentage of
offenders who are so violent that the system doesn't want them
released. The CDVSA believes the current work draft is tightened
up enough to provide that safety net for the most severe offenders.
Number 549
ANNE D. CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, came forward to testify, agreeing with Mr.
McCune that this is a significant step in Alaska law. She said it
had been their concern all along to work with the sponsor to ensure
that the step is taken carefully and with a narrow focus. They had
worked with the sponsor to limit the definition of sexually violent
offenses to those that seem to be committed by people who are
dangerous or likely to repeat the offense, and perhaps it could be
looked at further to limit it more. It was the department's
suggestion to change "likely" to "substantially likely" in the
definition of "sexually violent predator."
MS. CARPENETI acknowledged these terms are hard to define. She
told members she interprets "likely" in terms of a civil case to be
"more likely than not," whereas "substantially likely" is
significantly higher. In order to prove a person is a sexually
violent predator, the state would have to prove beyond a reasonable
doubt, to a jury of 12 who would have to reach a unanimous finding,
that a person is substantially likely to commit these acts again.
MS. CARPENETI said she would go through Version F and explain some
of the changes they had suggested which had been incorporated in
the draft. She noted that the Department of Corrections will
generally be the agency with custody, although the Division of
Mental Health and Developmental Disabilities (Mental Health) would
have custody of people who had been found incompetent to be tried,
as well as others. Generally, the Department of Corrections will
be doing the initial screening of the group of people convicted of
sex offenses who are about to be released. On page 2, lines 14 -
17, a new provision provides that when the Department of
Corrections is looking at these people, the criteria will be
developed by Mental Health in consultation with the Department of
Law and the DHSS.
MS. CARPENTI advised members there was another amendment that the
Department of Law had requested be added, and that a conversation
with Mr. Stoltz had indicated there was no problem. She asked
whether it was in committee packets.
MR. STOLTZ indicated he had thought Ms. Carpeneti was going to
present it.
MS. CARPENETI explained they wanted to add a provision on page 2,
line 21, at the end of the line, to provide that the screening
standards of people referred from the agency with custody would be
developed by the department in consultation with the Department of
Law and the Department of Corrections. She indicated she had that
in writing.
CHAIRMAN TAYLOR said he would have copies run off to distribute to
committee members.
MS. CARPENETI told members that on page 3, line 29, there was one
other amendment they would suggest. She said after the probable
cause hearing a person would be given a formal evaluation by a
professional. She suggested eliminating "under regulations adopted
by the department" because this draft contains a general regulation
section therefore, she doesn't believe it needs to specifically
refer to regulations for this particular decision.
TAPE 98-37, SIDE B
Number 001
MS. CARPENETI specified that following the word "examination," the
words "assigned or retained by the department" would be added. She
said it may or may not be a person already employed by the state.
Throughout the original bill it refers to the person that the state
is petitioning to have civilly committed as being represented by
the Office of Public Advocacy. Ms. Carpeneti indicated Ms. Brink
had testified that the Public Defender Agency would probably be
representing these people; therefore, the Department of Law
requested that reference be eliminated. Ms. Carpeneti pointed out
that in other civil commitment procedures, the Public Defender
Agency represents the person that the state is seeking to have
civilly committed. Just one example could be found on page 4, line
8, of the work draft. In response to a question, she agreed that
it is not a new amendment, but rather a cleanup in the work draft.
CHAIRMAN TAYLOR referred members to the amendment suggested by Ms.
Carpeneti for page 2, line 21.
SENATOR ELLIS made a motion to adopt Amendment 1, which read:
Page 2, line 21:
Following "sexually violent predator." insert:
"The standards for screening persons referred under
(a) of this section shall be adopted by the
department in consultation with the departments of
law and corrections."
CHAIRMAN TAYLOR asked whether there was any objection. There being
none, Amendment 1 was adopted.
Number 030
SENATOR ELLIS offered as Amendment 2 the following: On page 3,
line 29, following "examination", the words "under regulations
adopted" would be replaced by "assigned or retained." There being
no objection, Amendment 2 was adopted.
Number 040
MS. CARPENETI next referred to page 8, lines 29-31. She stated,"I
believe this is an addition, duties of the department and their
regulations - it's a general regulation authority for the
Department of Health and Social Services."
CHAIRMAN TAYLOR suggested it is the same thing just added by
Amendment 1.
MS. CARPENETI agreed, then asked whether subsection (C) is new in
this draft. Hearing no response, she said she believes it may be
in the original bill. She noted that it is a statement that as
long as public officials are acting in good faith, they cannot be
found liable for their actions under this law.
CHAIRMAN TAYLOR said he had noted it earlier.
MS. CARPENETI again referred to page 8, lines 29-31. She said this
is not the Department of Law's language; she believes it was added
by legislative legal counsel. She told members that in talking
about fourth degree of consanguinity, she believes it refers to
first cousins, not second cousins, counting up to a common ancestor
and then counting down; it would include grandparents and
grandchildren, and she believes it would include great-
grandchildren.
CHAIRMAN TAYLOR stated there are two different ways to count it:
civil law and church law. He suggested Ms. Carpeneti was doing it
according to church law, which is the way most family trees are
traced.
MS. CARPENETI said she doesn't believe there are any additional
changes to the definitions section from the previous draft. She
said it does include the "substantially likely" that was supposed
to be in the prior draft but which was omitted through an
oversight.
SENATOR ELLIS asked Ms. Carpeneti to explain page 8, line 24,
subsection (b), which read in part, "individuals with whom a
relationship has been established or promoted for the primary
purpose of victimization".
MS. CARPENETI replied this is a common definition that other states
have in their statutory scheme for a predator. She said it is a
"grooming" activity, where a person establishes a trusting
relationship with an individual, such as a child.
SENATOR ELLIS suggested it would be a pedophile who obtains a job
at a day care center, for instance.
MS. CARPENETI agreed that would be a good example. Another example
would be making friends with children in one's neighborhood by
offering them candy and establishing trust in a number of ways,
getting them to feel comfortable enough to go into one's house or
into a situation where they can be victimized.
SENATOR ELLIS asked whether Ms. Carpeneti suggested adding the
language, "lives in the same household".
Number 068
MS. CARPENETI said yes. She explained, "It was our suggestion that
for the very serious family sexual abuse cases, we would want to be
able to have this tool available to us, because there have been in
the past, in our state, some very, very serious familial sexual
abuse cases."
SENATOR ELLIS asked for confirmation that the definition of "sexual
predator" doesn't rely on the number of victims.
MS. CARPENETI answered that generally there would be more than one
act, although the bill requires only one prior conviction.
SENATOR ELLIS asked whether someone could be a sexual predator even
if that person had preyed upon one person.
MS. CARPENETI replied that it is possible, but it is unlikely the
state would be able to prove, beyond a reasonable doubt, that a
person is substantially likely to do it again if there is only one
victim, with one conviction, and there isn't evidence of other
acts.
SENATOR ELLIS asked about the language, "lives in the same
household". He asked what would have to happen to make a sexual
predator of a member of one's own family.
MS. CARPENETI replied, "Well, their own family, it's just the
family relationship. But the 'lives in the same household' was to
address situations where people will establish relationships with
other people who have children, in order to make their children
available as victims. And it doesn't have to be a marriage
situation between the adults, but it could be a live-in situation.
And it doesn't have to be a formal adoption or assumption of the
child as a stepchild, but it is often a live-in relationship where
the child is then available as a victim for the predator."
Number 088
SENATOR ELLIS asked about the overlap between mentally ill people
and sexual predators. He further asked whether all sexual
predators are mentally ill.
MS. CARPENETI acknowledged it is a difficult issue. She advised
members that the U.S. Supreme Court decision in Kansas v. Hendricks
approved the Kansas procedure - which is based on the Washington
statute and upon which this is also based - on the fact that this
individual is mentally ill, although the Kansas statute may use a
different term besides "mentally ill." The decision turned on a
person who is dangerous because of past acts and, in addition,
suffers from another condition that makes him or her likely to
victimize people again.
MS. CARPENETI mentioned that different terms could be used. The
Department of Law had suggested "mentally ill" as defined in Title
12 because it is a broad definition. She said people in the mental
health field will suggest that there are better definitions. As
Senator Pearce said, this is perhaps a criminal law definition of
"mentally ill."
SENATOR ELLIS brought up the issue of people going to API and
crowding other people out for limited services. He said he was
trying to get a feel for how many people convicted under this would
appropriately go to API, and who should go to a forensic unit of a
regular prison, and who should go outside of Alaska for some sort
of high-security mental health treatment.
Number 114
KARL BRIMNER, Director, Division of Mental Health and Developmental
Disabilities, DHSS, stated, "I think an attempt at that would be to
say that those individuals who would be going to API are going to
API for mental illnesses, major mental illnesses that we consider
in terms of brain disorders, such as bipolar, schizophrenia, major
depression, and are usually going there because of a psychotic
episode. Very seldom will you find someone who falls into the
categories that we're talking about here today, with regards to
this bill, [is] psychotic, first of all. ... Secondly, they usually
do not experience a major mental illness, and if they do, they
probably would qualify under the existing Title 47, involuntary
commitment. This particular bill as I understand, it tries to
protect the public in terms of a behavior that exists that cannot
be controlled by this individual. They don't respond to treatment
very well. It's not traditional treatment that can be offered to
these people, that would be offered, say, for instance, in a
psychiatric hospital such as API. It takes a very specialized
treatment, and the success of that treatment is very limited,
unfortunately."
SENATOR ELLIS asked if people who commit serial sex crimes are not,
for the most part, mentally ill.
MR. BRIMNER replied, "Typically not, no. ... Not as we've discussed
it outside of criminal law. That's correct."
Number 146
CHAIRMAN TAYLOR emphasized that this legislation is not about a
criminal sanction but rather has to do with a civil commitment to
try to provide this individual with the very best the state has to
offer as treatment. He stated, "Now, the fact that we may not be
successful in a very high percentage of those cases is probably not
relevant, except to the extent that we all pray that we will be
more successful in the future. The important subject that I think
is crucial, at least from my perspective as chairman of this
committee, is that we focus upon the need to provide protection,
both for them and for society, from the acts that they carry out.
And attempting to decide how many angels can dance on the head of
a pin, whether it's criminal or whether it's more criminal or more
civil in nature, really does not address the issue. The issue is
one of whether or not this person is suffering from a problem,
whatever that problem might be, and whether or not they need
protection."
CHAIRMAN TAYLOR continued, "I often think of the situation, I
believe, that will occur. I believe our courts are, at best, an
attempt at times to prevent blood feuds. And hopefully we succeed
more often than we fail. But in this instance, where you have a
sexually violent predator who is preying upon the public, for the
sake of the predator, you have to hope that the police get there
first. In Alaska today, the opportunity for someone to take the
law in their own hands would be abundantly available. And as a
consequence, I think we need to remember that these people also
need some level of protection, just as our society does, and that's
why we have civil commitment available to us. My only concern at
this juncture is that we very carefully define the terms, and
that's what Senator Ellis was attempting to elicit, I believe, is
those terms under which people may fall within a given category.
And the debate about whether the -- the turf battle over whether or
not API is going to pay for it, or the Mental Health Trust is going
to pay for it, or the general fund budget of the state is going to
pay for it in some other fashion, is really kind of irrelevant.
The question is: Does this person need protection, and does
society need protection, and should we not give them the greatest
level of help and care that we can, to hopefully turn them around
and change them."
MS. CARPENETI stated the findings section in the bill says sexually
violent predators don't tend to respond to treatment that is
normally provided for mentally people, but they do suffer from a
mental illness, mental abnormality or mental condition that makes
them dangerous. She referred to the previous draft and said that
in order to withstand constitutional challenge, she believes these
people have to be treated. In addition, the bill provides that
they must be in a place separate from other mentally ill people and
separate from prisoners in a correctional facility.
CHAIRMAN TAYLOR restated that it is for the protection of
themselves and others. He expressed hope that a cure may be
forthcoming in the future, stating his belief that most of it is
caused by a mental imbalance caused by chemistry.
Number 178
SENATOR ELLIS asked Ms. Carpeneti whether it is more likely than
not that people who would be affected by this would have already
served time in a regular prison for these offenses, and that this
is a mechanism for the public to put these people away from the
public after release from their sentences.
MS. CARPENETI said she believes it will mainly apply to people who
are serving a sentence after conviction of an offense, and who are
getting close to their release date.
Number 191
SENATOR ELLIS asked whether it is not an option, then, for someone
charged with such a crime. He further asked whether there is any
ability to defer to this procedure in lieu of criminal prosecution.
MS. CARPENETI replied that she believes it depends on whether the
person has already been convicted of a sexually violent offense.
She explained, "If we could prove beyond a reasonable doubt that
this is a sexually violent predator, that option is available, but
it would be unlikely that we would not proceed with the criminal
prosecution."
SENATOR ELLIS asked whether a person could "self-elect" this track
- for example, when that person had been convicted previously, had
served time, had been released, and then committed another act -
rather than going to jail where there is no hope of treatment.
MS. CARPENETI replied that such a person might want to, but she
believes the state would proceed with a criminal prosecution if
there was evidence to convict the person. Then, at the end of the
sentence, the state would look at the possibility of civil
commitment.
SENATOR ELLIS asked whether it would not be attractive to be able
to say, "Okay, this fellow agrees, he's not going to contest this,
and we can civilly commit, based on the evidence, rather than
convicting him and putting him away for three years."
MS. CARPENETI answered that the bill before the committee doesn't
allow the state to put a person away indefinitely. The person has
a right to an annual examination by a psychiatrist, and the right
to petition the court for release. She said that involves another
procedure whereby the state has to prove, beyond a reasonable
doubt, that this person is still dangerous.
SENATOR ELLIS responded that if it is voluntarily, theoretically
that person wouldn't exercise those rights of review.
MS. CARPENETI said she couldn't imagine allowing a person to elect
that procedure if he or she has committed a crime that the state
would prosecute. Nothing addresses that issue in this bill. She
said she could ask her superiors, but that she believes they would
go ahead with the criminal prosecution and then look at the civil
commitment at the end of the sentence, because that is what this
bill does: It addresses end-of-sentence dangerousness and civil
commitment at that point.
SENATOR ELLIS asked whether there is any automatic review
envisioned for setting this process in motion.
MS. CARPENETI explained that the bill right now provides that the
agency with custody - and most of the time it will be the
Department of Corrections - three months before the person is about
to be released will review sex offenders and apply criteria adopted
in consultation with the DHSS, to do the initial screening to
decide who meets these criteria and refer to the DHSS for a more
in-depth screening procedure. After that screening is complete,
the Department of Law will be notified that this person meets the
screening standards of the DHSS. Even if they concur that the
standards have been met, the Department of Law will then review
each individual case. Ethically, the Department of Law cannot file
a petition unless it is believed a jury can be convinced, beyond a
reasonable doubt, that the person is a sexually violent predator.
She added that, in addition to screening standards, medical issues
and mental health issues, evidentiary issues needed to be looked
at.
SENATOR ELLIS asked how a relative of a victim, concerned community
council president or other member of the public would make his or
her views known.
MS. CARPENETI replied that she felt the Department of Law could be
contacted, adding that the victims of crimes are one of the major
groups of witnesses in Washington.
SENATOR ELLIS asked if victim notification was required under
victims' rights legislation prior to the release of the offender.
CHAIRMAN TAYLOR recalled a case in Miami, Florida, where a
prostitute with full-blown AIDS was still on the streets to support
her crack cocaine habit. The judge had given her maximum sentences
each time she was picked up so that he could hold her for 90 days;
however, he could not hold her longer. Chairman Taylor asked if
this type of person would fall under this definition.
MS. CARPENETI responded that she did not believe prostitution was
included in the definition of a sexually violent offense in this
particular bill.
CHAIRMAN TAYLOR questioned whether it would have to be either a
non-consensual act or an act that was based on some sort of
coercion.
MS. CARPENETI clarified that, for adult victims, the bill defines
"sexually violent offense" to be "sexual assault in the first
degree," and "contact without consent" to be "sexual assault in the
second degree." For child victims, she further added, this would
include sexual abuse of a minor in the first, second and third
degree.
CHAIRMAN TAYLOR added that consent is probably not given if the
person engaging in the activity does not fully understand the
consequences.
SENATOR ELLIS brought up the conceptual amendment proposed by Mr.
Majoros to disallow commitment for these offenders at API. He
stated that he was certain funding would be discussed in the
Finance Committee; however, he wanted to make sure Mr. Majoros knew
that he was heard on this matter.
Number 296
SENATOR RICK HALFORD expressed appreciation to the committee and
the Administration for consideration of this bill. He acknowledged
that it is a very expensive, difficult, complex and technical tool.
He further added that he would expect this to be used only in very
rare cases; broad application would be prohibitive to the rest of
our systems.
SENATOR HALFORD stated, "I think we know, with at least some of
these people, that they are going to reoffend. They say they are
going to reoffend. Everyone around them says they are going to
reoffend. Everyone in a professional relationship in any kind of
administrative capacity knows that they are going to reoffend. So,
their time is probably going to be spent in some kind of
confinement. The only difference that we can make is the number of
victims they contact. This is an effort so that, at least when the
very worst of them are well-known, documented and can go through
the process, we may be able to save some victims from a life-
destroying experience."
SENATOR HALFORD added that the fiscal note could entail a large
number of people or very small number of people; however, the bill
is not intended to be a mandatory Act on the part of the
Administration. These cases would come out of the system at the
rate that they decide to bring them out of the system. He felt
this tool would remain in inventory, be used very seldom, and be
very expensive when it is used. He again acknowledged the
difficulties involved in working this bill through, but stated, "I
don't want to see the newspaper articles that we have seen from
some other states where virtually everyone involved was able to
predict the outcome in every detail except the name of the next
victim."
Number 329
SENATOR ELLIS expressed appreciation for the sponsor's work and
intent, but questioned whether public pressure would be to cover
this application too broadly, to every sex offender nearing the end
of his or her sentence, without regard for resources or strains on
the system in other areas.
SENATOR HALFORD concurred that the standard of application is
incredibly high. He added that the standard of outcome would have
to be proven beyond a reasonable doubt to an entire jury, and that
it would be foolish to try this on anything but the very worst
cases.
Number 346
SENATOR ELLIS expressed concern that the public not be given false
hope. He has attended numerous community councils where the
emphasis is on "putting away" these sex offenders. He feels this
would be a tool in place, but feels its application would be more
limited.
Number 358
SENATOR HALFORD stated that he agreed with Senator Ellis. He
offered an analogy: "It's like the hypothetical -- coming up with
a new vaccine for a horrible disease. The only problem is that it
costs $10 million for each person treated. Should we announce it
or not?"
CHAIRMAN TAYLOR asked for further questions, discussion or
witnesses.
SENATOR MIKE MILLER moved to report the work draft, Version F, 0-
LS1134/F, Luckhaupt, 04-13-98, as amended, out of committee with
individual recommendations. There being no objection, CSSB
216(JUD) moved from the Senate Judiciary Committee.
CHAIRMAN TAYLOR announced his intent to bring up Senator Mackie's
bill on eminent domain in the near future, and that he would be
happy to entertain thoughts or ideas regarding this. He stated he
believed a hearing had already taken place on the "recollection of
the Attorney General bill," and that, depending on the outcome of
that hearing, he may bring that bill up in the near future as well.
CHAIRMAN TAYLOR adjourned the Senate Judiciary Committee meeting at
3:00 p.m.
| Document Name | Date/Time | Subjects |
|---|