Legislature(1999 - 2000)
03/20/2000 01:40 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
March 20, 2000
1:40 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
Senator Dave Donley
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 259(FIN)
"An Act relating to eligibility to be represented by the public
defender before and during the probable cause and temporary
placement hearing that is held after the state takes emergency
custody of a child."
-MOVED CSHB 259(FIN) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 67(JUD) am
"An Act relating to release of certain persons alleged to have
committed certain sexual offenses."
-MOVED SCS CSHB 67(JUD)am OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 180(FIN) am
"An Act relating to the manufacture, use, display, or delivery of
controlled substances while children are present."
-MOVED CSHB 180(FIN)am OUT OF COMMITTEE
SENATE BILL NO. 259
"An Act relating to criminal impersonation."
-MOVED CSSB 259(JUD)am OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
HB 259 - No previous action to report.
HB 67 - See Judiciary Committee minutes dated 3/1/00.
HB 180 - No previous action to report
SB 259 - See Judiciary Committee minutes dated 2/21/00
and 3/3/00.
WITNESS REGISTER
Representative John Coghill
Alaska State Capitol
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 259
Mr. Blair McCune
Public Defender
900 West 5th Avenue, #200
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 259 and SB 259
Ms. Anne Carpeneti
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on SB 259 and HB 67
Mr. Conor Sullivan
Staff of Representative Cowdery
State Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Read Sponsor Statement for HB 180
Representative Norman Rokeberg
Alaska State Capitol
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 67
Ms. Candace Brower
Department of Corrections
PO Box 112000
Juneau, Alaska 99811-2000
POSITION STATEMENT: Testified on HB 67
Lieutenant David Ray Hudson
Department of Public Safety
700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Testified on SB 259
Mr. Jim Pound
Staff to Senator Taylor
State Capitol Building
Juneau, Alaska 99801
POSITION STATEMENT: Introduced SB 259
ACTION NARRATIVE
TAPE 00-14, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 p.m. Present were Senator Torgerson, Senator Halford
and Chairman Taylor. The first order of business to come before
the committee was HB 259.
HB 259-PUBLIC DEFENDER CHILDREN'S PROCEEDINGS
REPRESENTATIVE JOHN COGHILL, sponsor of HB 259, stated that under
Alaska statute AS 47.10.142 there is a mandated 48 hour hearing.
At this point, under current law, people do not qualify for
assistance from a public defender until indigence is determined.
This bill was introduced because once there is a determination a
child needs aid, people need to know what is going on in the court
room. SB 259 is an attempt to get counsel for people and apprise
the family of what the value of the court hearing is. SB 259
states that if there is a determination the parent or guardian can
pay, the court will assess them then. It is a matter of due
process, making sure people have good representation or, at least,
an understanding of what is happening in the courtroom.
SENATOR TORGERSON asked how there can be zero impact with the
Public Defender Agency representing children before they go through
the formal process. Senator Torgerson commented it appears the
bill was amended to take out this concern.
Number 330
REPRESENTATIVE COGHILL agreed, and said a "may" provision was added
to give them some latitude. He read testimony that was given by
the Public Defender Agency in the House State Affairs Committee,
"however in predicting the lack of any fiscal impact we are making
the following assumptions: First, we assume the bill will be
amended so we do not represent non-indigent people." Because of
this, a provision was added:
Continued representation of the person by the Public Defender
Agency after the hearing is held under AS 47.10.142(d) is
contingent on satisfaction of the eligibility requirements (a)
- (d) of this section, and it further states, If a person who
was represented by the Public Defender Agency at public
expense without a court order in connection with a hearing
held under AS 47.10.142(d) is not determined to be eligible
for court-appointed counsel at public expense under applicable
laws and court rules, the court shall assess against the
represented person the cost to the Public Defender Agency of
providing the representation.
REPRESENTATIVE COGHILL said that if there is an indigent
determination people will be able to continue on, and if there is
proof they are not indigent the court can assess costs back to the
parent or guardian. This bill simply allows the public defender to
get involved in a case earlier than normal.
Number 526
MR. BLAIR MCCUNE, Deputy Director for the Public Defender Agency
(PD), responded the PD has done a lot of work with Representative
Coghill in making sure this legislation will not impact them. Mr.
McCune has gone through the fiscal note and set out some of the
assumptions that will show no additional cost for the PD.
Number 581
SENATOR TORGERSON wondered if the bill is setting up procedure,
even though the word "may" is used, that any time there is an
emergency the PD will be called.
MR. MCCUNE responded the PD will only be involved if there is an
actual court proceeding.
SENATOR TORGERSON asked if the PD will be responding to every case
before a determination is made as to whether or not the parents
have the means to pay for the proceeding.
MR. MCCUNE commented that the PD has limited responses and an
immediate response cannot be made in every case. The "may be
represented" gives them some leeway in delaying if there are no
lawyers available.
SENATOR TORGERSON said the PD's office will probably be back next
year asking for a supplemental because the case load has gone up.
He sees no fiscal restraint on the bill. There is no determination
as to whether or not the PD should be involved in every case as
long as it meets the criteria of emergency removal. Senator
Torgerson responded he will not be supporting the bill because it
leaves a wide open fiscal note.
Number 779
MR. MCCUNE noted that eventually the PD is appointed in the
majority of these cases, and it is felt that early involvement will
allow them to do a better job for the client and enable the system
respond better.
Number 818
CHAIRMAN TAYLOR asked if problems in past cases could have been
avoided with earlier involvement from the PD, and is there in fact
a cost savings to the department from early intervention.
MR. MCCUNE responded that the actions in the early stages of a case
are to take an intake call, get a general idea of what is
happening, ask the secretary on the court run to pick up a copy of
the petition so they can make sure they know what the parent is
saying is accurate, then they can refer them for substance abuse
assessments. This is not a lot of work but it is work the PD will
eventually do, and he feels comfortable assuring the committee
there will be no fiscal impact.
SENATOR HALFORD moved CSHB 259(FIN) out of committee with
individual recommendations. There being no objection, the motion
carried.
HB 180-DRUGS WHERE MINORS ARE PRESENT
MR. CONOR SULLIVAN, staff to Representative Cowdery, read the
following statement:
House Bill 180, relating to drugs in the presence of a minor,
prohibits an adult from knowingly "allowing, aiding, inducing,
causing or encouraging" a minor to "enter or remain" in the
"immediate physical presence of the use, manufacture, delivery
or display" of drugs. This crime would be punishable as
contributing to the delinquency of a minor, which is a class
A misdemeanor.
To explain further, House Bill 180 adds to the current law
that forbids an adult to encourage or aid a child to break the
law. The added prohibition forbids knowingly allowing a child
to be in the physical presence of controlled substances. This
merely tightens the expectations placed on adults and sends a
clearer message that children and drugs don't mix.
This bill also expands the area in which the co-presence of
children and drugs is unallowable. By replacing the phrase in
the same room in a building with the phrase in the immediate
physical presence of children are protected in outdoor
situations like a yard, campsite or a park bench.
The other change is where the term sale is changed to
manufacture, use, display or delivery, in order to encourage
uniformity of application, and to expand the prohibitions from
merely selling.
House Bill 180 sends a strong message that penalty provisions
for mixing children and drugs are getting stiffer.
CHAIRMAN TAYLOR asked if this bill is an expansion or re-definition
of the "drug free school zone."
MR. SULLIVAN responded no.
Number 1125
SENATOR HALFORD moved CSHB 180(FIN)am out of committee with
individual recommendations. There being no objection, the motion
carried.
HB 67-BAIL HEARING FOR SEX OFFENDERS
CHAIRMAN TAYLOR commented was a previous hearing on HB 67 and a
committee substitute is a result of that hearing.
REPRESENTATIVE ROKEBERG said he appreciates what the Judiciary
Committee has done to put more teeth into the bill. He has worked
with the Department of Corrections so there will not be a fiscal
note requiring expenditure by the state. He agrees with the
committee substitute (version M) and has come up with a proposed
amendment which adds additional language on whether or not the
sentencing for an appeal should be for a greater period. In other
words, time served will not be applicable.
Number 1277
CHAIRMAN TAYLOR asked if the same thing is not accomplished with
section 2 of the committee substitute as with the amendment, which
adds a paragraph saying people will not be released on bail either
before sentencing or pending appeal after conviction.
REPRESENTATIVE ROKEBERG said he has no objection to this. He asked
if this is in light of the amendment.
CHAIRMAN TAYLOR responded it looks like the amendment accomplishes
the same thing as section 2.
Number 1326
REPRESENTATIVE ROKEBERG explained that the amendment gives the
court some discretion--this is mandating language under the CS.
The amendment tries to give the judge some discretion if he thinks
the sentence being imposed is shorter than the time spent waiting
for the sentence to be imposed.
SENATOR HALFORD noted that the amendment says, "unless the court
finds it likely that if not released on bail," and he suggested
the amendment say, "unless the court finds that." Senator Halford
said this needs to be a real finding by adding "unless the court
finds that if not released on bail the person will remain in
custody...."
REPRESENTATIVE ROKEBERG said he has no authorship in the amendment,
this will be in an initial arraignment hearing or bail hearing
where it would be the most likely time for this to come up. This
is why the first section of the bill makes sure notice is given
and the participants in the crime will not have an opportunity to
speak to the judge.
CHAIRMAN TAYLOR responded that this does not happen in this
legislation. This is not for the first hearing, it is before
sentencing or pending appeal after conviction.
REPRESENTATIVE ROKEBERG said he stands corrected, he has no problem
with changing the language.
Number 1437
SENATOR ELLIS asked how this bill will work in small town Alaska.
It does not look like the CS clarifies this in anyway. Did the
committee decided not to address this concern?
CHAIRMAN TAYLOR said he could not remember coming up with anything
that worked in a small community. The primary thrust of the bill
had been one of notification so that the victim, at least, had a
chance to say he was living in a small community--maybe this should
be taken into consideration prior to conviction or sentencing. The
main issue of this legislation is to address people who have been
convicted and are still walking around because they filed an appeal
or are just awaiting sentence. The Chairman does not remember
addressing this topic with a drafter.
Number 1535
SENATOR ELLIS addressed section 1(b)(2), that the person reside in
a place where the person is not likely to come into contact with
the alleged victim of the offense; and. Is this making a public
policy that encourages sex offenders to leave rural communities and
go to the city?
REPRESENTATIVE ROKEBERG noted that section 1 (b), The court may
impose any of the following conditions on a person charged with an
offense under AS 11.41.410-11.41.438 or 11.41.450 - 11.41.458,
"may", is discretionary, which gives the judge the ability to take
this under consideration. These points of view are not mandated,
this is to remind the judge to look at these types of things. This
is something the judge certainly will take into consideration.
Number 1535
SENATOR ELLIS asked if the definition of indecent exposure
distinguishes between a prank activity and other activity.
SENATOR TORGERSON stated he thinks 11.41.458 deals with this issue.
He asked if this is not dealt with now with restraining orders and
other things. Does "may" do anything different than what is
already in law. Senator Torgerson noted that section c seems to be
the only section not being repeated by existing law.
Number 1725
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law (DOL), said DOL is concern about the addition of
section 2. Section 2 makes it mandatory that a person may not be
released on bail pending sentencing or pending appeal in all cases
involving sexual assault and abuse--this also covers first time
indecencies. With first time indecencies, without a presumptive
sentence, the concern is people will be put in jail and not
released until after their sentence is decided. The problem is
that the Department of Corrections will not give a person treatment
for sexual offenses until their appeal has been decided. HB 67
mandates that a person go to jail, and that person will probably be
released without there being time for treatment. This is a real
concern of DOL.
SENATOR HALFORD asked what the minimum time required is for sex
offender treatment.
Someone from the audience responded 18 months.
MS. CARPENETI said the average time for first time class B
offenders is about two years, maybe a little more, allowing time
for treatment.
Number 1826
SENATOR HALFORD noted that under the Rokeberg amendment language,
if a person is not released on bail they will remain in custody
more than they would otherwise remain in custody. He asked if this
doesn't solve the problem.
MS. CARPENETI responded it may solve the problem for sentences, but
it does not solve the problem for appeals because the sentencing
judge has no idea how long it will take the appellate court to rule
on a particular case. The average time for deciding an appeal is
about two years. This is about the time a person will be serving
for a B felony and it is more time than for a class C felony.
SENATOR HALFORD asked what the lowest degree pled back for a rape
case is?
MS. CARPENETI answered it is an unclassified felony, if rape can be
proved.
Number 1972
SENATOR HALFORD commented the first part of the bill deals with
"before a conviction" and the second part of the bill deals with
"after a jury has found a person guilty of an offense." He said
"then they will be walking around while it is appealed for two
years."
MS. CARPENETI suggested that conditions of release be considered
for this legislation, which will put a few more teeth in DOL's
ability to deal with people who violate their conditions of
release. In the big picture, this would be a better approach than
mandating people go to jail. She is less concerned with pending
sentencing than pending appeal because it is an unknown.
SENATOR HALFORD stated this is already what the law does with
unclassified and class A felons.
MS. CARPENETI agreed, but she said "these people serve a lot more
time."
Number 1972
SENATOR HALFORD noted that HB 67 is only upgrading what is already
done to a lower class of crime.
MS. CARPENETI agreed.
SENATOR HALFORD said he would go along with the language in
Representative Rokeberg's bill, but he noted there is a lot of
difference between section 1 and 2.
Number 2065
SENATOR TORGERSON asked if the language in this bill will give the
court the authority to actually relocate someone.
MS. CARPENETI responded she does not think the court can order
someone out of town.
Number 2108
SENATOR HALFORD indicated the court can order someone out of town
as a condition of bail--it is done all the time. Senator Halford
said "the condition of bail can be third party custodian and if a
person does not have one they stay in jail."
MS. CARPENETI agreed, the court can have a person stay in jail, but
whether or not they can order a person to move out of town would
probably depend on the circumstances.
SENATOR TORGERSON asked if this is only a condition of bail.
CHAIRMAN TAYLOR answered it is release before trial.
Number 2126
MS. CARPENETI said there are options available that give DOL more
ability to deal with people who violate conditions of release.
Presently if a person is released pending sentencing, appeal, or
pending trial and they break a condition of release, DOL can put
them back in jail but it is on the original charge, so they will
get credit for time served on the original charge. HB 67 provides
for another offense of violating the conditions of release--which
ups the stakes and gives DOL the ability to charge the person with
another offense. The court can, at this point, order a person
incarcerated pending sentencing and pending appeal--they do not
have to let them out.
SENATOR HALFORD suggested that the language on line 24 in the CS be
replaced with the language in amendment 1-LS0197\M.1 (Luckhaupt,
3/2/00), with the exception that it not include on line 2 of the
amendment the words "it likely."
(3) a crime under AS 11.41.410 - 11.41.438 or 11.41.450 -
11.41.458, unless the court finds that, if not released on bail,
the person will remain in custody before
(A) sentencing for a greater period than the
term of imprisonment the person is likely to be sentenced
to serve: or
(B) appeal for a greater period than the tem
of imprisonment the person was sentenced to serve.
REPRESENTATIVE ROKEBERG commented that the only thing he would be
concerned with is the fiscal impact on the appeal process.
CHAIRMAN TAYLOR asked if the bill, as amended, impact the fiscal
note previously submitted by DOC.
Due to a tape malfunction, the following testimony was not
recorded.
MS. CANDACE BROWER, Department of Corrections, responded that the
amendment has taken care of some of the problems and she is not
sure what the fiscal impact will be. She commented that she will
working on a new fiscal note.
MS. BROWER also testified that some offenders can receive
relatively short sentences and receive some sex offender pre-
treatment or pre-release treatment at the Lemon Creek Correctional
Center. If an offender is on appeal status, he is precluded from
treatment because he must admit his offense in order to receive
treatment. If the person is unable to make bail, pending appeal,
they will most likely be released without treatment.
SENATOR HALFORD moved SCS CSHB 67(JUD)am, version M. There being
no objection, the motion carried.
SB 259-THEFT OF IDENTITY
MR. JIM POUND, staff of Senator Taylor, stated that SB 259 is an
expansion of the previous bill and incorporates some of the federal
language regarding civil matters. The current statute only covers
fraud, and this bill lays out felony and misdemeanor status for
different violations. SB 259 will also include hacking and
monetary gain from acts of fraud as a crime.
SENATOR HALFORD moved to adopt CSSB 259. With no objection, CSSB
259 was adopted.
MS. CARPENETI went through the work draft for CSSB 259 and laid out
the following changes:
On pages one and two, the term "aural" refers to hearing.
The last line of page four and top of page five, (d) Deceptive
business practices is a class C felony if the person uses the
internet or a computer network to commit the offense. In this
subsection, "Internet" means the combination of computer systems or
networks that make up the international network for interactive
communications services, including remote logins, file transfer,
electronic mail, and news groups, raises a class A misdemeanor to
a class C felony. DOL was concerned the previous bill was too
broad and the purpose of the new language is to raise the penalty
and include the internet.
On page five, lines 13 and 16, the words "or misleading" were
removed because it was too hard to define. The language now reads,
introduces false information into a computer, computer system,...
Page 6, Sec. 14. AS 11.56.800(a), provides for a class A
misdemeanor and covers traffic offenses. This is in reference to
a person stealing someone's identification (ID) and then being
caught driving with false ID--this would not be criminal
impersonation.
LIEUTENANT DAVID RAY HUDSON, Department of Corrections (DOC),
Division of Public Safety, said DOC supports the effort to
strengthen cyber crime and criminal impersonation. He said the
fiscal note attached to this bill addresses technological crimes
with theft of ID both statewide and nationwide.
MR. BLAIR MCCUNE said the public defender is still concerned with
the breadth of "access device" on page six, section 16. In section
6, a class B felony is a very strong penalty for the type of crime,
and he is glad "misleading" has been taken out of section 11.
SENATOR TORGERSON asked about "international network" on page five,
line 2. Will this be a crime if the network is not international
and does it apply to local networks?
MS. CARPENETI responded, to her knowledge, all computer networks
are international and it does apply to local networks. This
section raises the penalty from a class A misdemeanor to a class C
felony.
SENATOR TORGERSON said he is still concerned with section 11
because it is hard to interpret. The language on lines 12 through
15 is too broad based--"this sort of thing happens all the time in
campaigns."
MS. CARPENETI stated that section 11, lines 12 through 15, is
current law, and SB 259 adds "financial reputation" to the current
wording.
SENATOR TORGERSON moved CSSB 256 (JUD), version K, from committee
with individual recommendations. With no objection, the motion
carried.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 2:56 p.m.
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