01/19/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB200 | |
| SB218 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 200 | TELECONFERENCED | |
| *+ | SB 218 | TELECONFERENCED | |
| + | SB 10 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
January 19, 2006
8:54 a.m.
MEMBERS PRESENT
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator Hollis French
Senator Gretchen Guess
MEMBERS ABSENT
Senator Ralph Seekins, Chair
COMMITTEE CALENDAR
SENATE BILL NO. 200
"An Act relating to defense of self, other persons, and
property."
HEARD AND HELD
SENATE BILL NO. 218
"An Act relating to periodic polygraph examinations for sex
offenders released on probation or parole and to sentencing for
sex offenders and habitual criminals."
HEARD AND HELD
SENATE BILL NO. 10
"An Act relating to liability for destruction of property by
unemancipated minors; and providing for an effective date."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 200
SHORT TITLE: USE OF FORCE TO PROTECT SELF/HOME
SPONSOR(s): SENATOR(s) THERRIAULT
05/10/05 (S) READ THE FIRST TIME - REFERRALS
05/10/05 (S) JUD
01/19/06 (S) JUD AT 8:30 AM BUTROVICH 205
BILL: SB 218
SHORT TITLE: CRIMINAL SENTENCING AND POLYGRAPHS
SPONSOR(s): SENATOR(s) BUNDE
01/09/06 (S) PREFILE RELEASED 12/30/05
01/09/06 (S) READ THE FIRST TIME - REFERRALS
01/09/06 (S) JUD, FIN
01/19/06 (S) JUD AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
Senator Gene Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 200
Mr. Brian Judy
Alaska National Rifle Association
POSITION STATEMENT: Testified in support of SB 200
Senator Con Bunde
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 218
Ms. Anna Fairclough, Executive Director
Standing Together Against Rape
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 218
Ms. Susan Parkes, Deputy Attorney General
Criminal Division
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 200 and SB 218
Ms. Portia Parker, Deputy Commissioner
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 218
ACTION NARRATIVE
VICE-CHAIR CHARLIE HUGGINS called the Senate Judiciary Standing
Committee meeting to order at 8:54:20 AM. Present were Senators
Hollis French, Gene Therriault, Gretchen Guess, and Vice-Chair
Charlie Huggins.
8:55:05 AM
VICE-CHAIR CHARLIE HUGGINS announced that Senator Ralph Seekins
would not be in attendance today. He explained there was no
intent to move any bills heard but that introduction and
testimony would be held.
SB 200-USE OF FORCE TO PROTECT SELF/HOME
VICE-CHAIR CHARLIE HUGGINS announced SB 200 to be up for
consideration.
8:55:24 AM
SENATOR GENE THERRIAULT, bill sponsor, presented SB 200, which
he said was introduced at the end of session last year. A
similar law was enacted in Florida through overwhelming
bipartisan support. He expressed interest in hearing from the
Department of Law any concerns or comments they might have. SB
200 is not intended to promote undue force but to establish as a
baseline the right of a person to stand their ground wherever
they have a legal right to be and use whatever force necessary
to protect themselves or, in certain cases, others. It is not
the intent of the bill to cause lawlessness among the populace.
8:58:37 AM
VICE-CHAIR HUGGINS called the first witness.
8:59:38 AM
MR. BRIAN JUDY, representing the Alaska members of the National
Rifle Association, testified in support of SB 200, which he
believes is based on the "Castle Doctrine" from the Bible. It
basically says that a person's home is their castle and they
have every right to protect it. The principle of having no guilt
for injuring or killing an intruder is found in the Old
Testament in Exodus 22:2. Essentially people have a right to be
as safe in their homes as a king in his castle and may use all
manner of force including deadly force to protect the home and
its inhabitants from attack. He said under existing Alaska law
there is already a provision of no duty to retreat if a person
is on the premises, which the person owns, or leases. SB 200
would extend that to any place where the person has a right to
be.
9:01:27 AM
Under SB 200 a person does not have to retreat and can fight
using force against force. SB 200 would not give carte blanche
authority to shoot someone for a minor offense or attack.
Another component of SB 200 is the provision of immunity for
victims who have used lawful defensive force to prevent an
attack. Criminals and their families would be prohibited from
suing the victims for injuries incurred by the attacker. Mr.
Judy recommended adding "or another person" to Page 2 line 6
after the words "for self defense" as a possible amendment.
Also, in addition to removing the duty to retreat and providing
immunity from civil liability, provide an absolute presumption
that anyone who unlawfully and forcefully enters a person's
dwelling, residence, or occupied vehicle is there to do harm and
therefore any manner of force can be used against that person
without fear of prosecution or civil suit. He said the Florida
Times Union, a mainstream newspaper, is in full support of the
similar law that their Legislature recently passed.
9:05:36 AM
MR. JUDY closed by urging support for the bill.
VICE-CHAIR HUGGINS asked Mr. Judy whether there have been
instances where the new law in Florida has been invoked.
MR. JUDY said he has not heard of any. He said SB 200 would only
change what would happen after the fact. It would prevent law-
abiding citizens from being victims a second time.
SENATOR THERRIAULT asked about current legislative action around
the country since the Florida law passed.
9:07:27 AM
MR. JUDY stated that many sessions are just beginning now, such
as Alaska, but that many states are introducing similar
legislation.
9:08:46 AM
SENATOR GRETCHEN GUESS referred to Page 2 lines 9-15 and asked
whether a person would be liable for whatever damage occurred
while shooting towards a person who was shooting at them.
SENATOR THERRIAULT responded the bill would not remove the duty
to take care not to harm others while defending oneself against
an aggressor.
SENATOR HOLLIS FRENCH asked Mr. Judy to explain the places that
a person has a right to be.
SENATOR THERRIAULT explained obvious places such as a person's
own home or car. However, there are also ordinances where police
could exempt people from being in places they are normally
welcome but SB 200 would operate within the bounds of many other
laws.
9:12:05 AM
VICE-CHAIR HUGGINS aired the concerns of some of his
constituents in that they believe a degree of protection for
defending oneself is needed. He expressed support for the bill.
SENATOR THERRIAULT clarified a person would have no right to
harm a law enforcement officer in the course of duty.
SENATOR GUESS referred to Page 2 line 10 where "to a certainty"
was inserted. She asked for an explanation of the phrase.
SENATOR THERRIAULT deferred the question to the Department of
Law but said that it was a very high standard.
9:14:20 AM
VICE-CHAIR HUGGINS asked for a representative from the
Department of Law.
9:14:39 AM
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division,
Department of Law (DOL) said she met with Senator Therriault's
staff to address some concerns about the bill. "To a certainty"
was one of the issues discussed. The phrase is a higher standard
than what is currently the law. The concern is the prosecution
already has the obligation to disprove self-defense beyond a
reasonable doubt. Adding that phrase makes it an almost
impossible standard, however it is not defined and it would need
to be when giving instruction to jurors.
9:16:39 AM
SENATOR THERRIAULT asked Ms. Parkes to speak more about gang
scenarios and how the bill would affect that.
MS. PARKES said two years ago with the Governor's crime bill
they carved out areas where self-defense could not be used as an
excuse for violence. When engaged in a felony drug transaction
or when promoting a gang objective, self-defense cannot be
claimed. The DOL supports giving lawful rights to citizens to
defend their families however, she expressed concern that SB 200
would protect criminals as well.
9:18:31 AM
SENATOR FRENCH commented the right to self-defense pre-dates
government. He asked Ms. Parkes whether she has had
conversations with prosecution agencies in Florida to see
whether the new law was working as intended.
MS. PARKES responded the DOL intends to contact Florida to check
whether the law is working or if it has created problems.
SENATOR FRENCH said SB 200 is perceived by at least one high
profile criminal defense lawyer as an avenue to make it more
difficult for the state to prosecute gun crimes. It is currently
very difficult to get over the self-defense hurdle. The flip
side is that citizens should feel entitled to defend themselves.
He solicited examples from anyone in the room or online
instances of citizens having failed to defend themselves when
they should have and/or citizens being prosecuted for defending
themselves when they should not have been prosecuted.
9:21:49 AM
MS. PARKES commented currently a person has the right to use
deadly force in a public place or anywhere under a lot of
circumstances. That is already protected under current law. The
biggest concern is the innocent bystander issue that Senator
Guess raised. The law does not have the requirement that people
be a "good shot."
9:23:47 AM
VICE-CHAIR HUGGINS asked Ms. Parkes the impact of civil
liability in regards to the bill.
MS. PARKES informed the chairman that Section 1 gives immunity
if self-defense was properly used. The DOL has no concerns
regarding Section 1.
9:26:28 AM
MS. PARKES continued by noting much public support for people
who want to protect their homes and businesses. Therefore the
DOL is looking forward to working on the bill with Senator
Therriault's staff. Representative Coghill has drafted an
identical bill as well.
VICE-CHAIR HUGGINS asked for further testimony. Seeing none he
announced the committee would set SB 200 aside.
SB 218-CRIMINAL SENTENCING AND POLYGRAPHS
9:35:12 AM
VICE-CHAIR CHARLIE HUGGINS announced SB 218 to be up for
consideration.
SENATOR CON BUNDE, bill sponsor, introduced SB 218 with a short
summary of the bill. SB 218 would increase the minimum sentence
for the most egregious unclassified and Class A sexual felonies
to a minimum of 25 years. It proposes to restructure and
increase sentencing in Class C and Class B sexual offenses. It
would require periodic polygraph testing for repeat sexual
offenders who are on probation or parole and it would implement
changes in the sex offender registry.
Alaska has the reputation of having the highest per capita
sexual abuse rate in the nation. Reported cases are the tip of
the iceberg since many offenses go unreported. Current laws are
not working and serious changes must be made.
9:39:14 AM
SENATOR BUNDE advised the committee that the bill would be
expensive for the state but a necessary cost. The polygraph is
not admissible in court but other states have found it to work
well at reducing recidivism rates. He indicated a report in the
bill packet that shows treatment does not achieve the desired
results and does very little to reduce re-offending. He thanked
Senator Guess for her work on the bill.
9:42:17 AM
SENATOR GUESS moved to adopt a committee substitute (CS) for SB
218, version I. Hearing no objection, the motion carried.
SENATOR THERRIAULT asked for an explanation of the amendment
that accompanied the CS.
VICE-CHAIR HUGGINS ordered committee members to hold off on the
amendment process but asked Senator Guess to explain the
proposed amendment.
SENATOR GUESS explained the amendment in the packet would be
Amendment 1 at some point. It moves sexual assault of a minor 3
(SAM3) that has to do with sexual penetration to SAM2. It says
that in Alaska sexual assault of a minor with penetration will
be either a SAM1 or SAM2 offense. Also, an attempt at sexual
penetration of a minor would result in a SAM3 charge. Current
law says that an attempt would be a misdemeanor so the amendment
would deem anything that has to do with sexual penetration of a
minor to be an automatic felony.
9:44:34 AM
SENATOR THERRIAULT asked the outcome of a case that was pled
down.
SENATOR GUESS deferred to Ms. Parkes except to say there were
two areas: sexual penetration and sexual contact. The amendment
deals specifically with penetration, which has a definition in
statute. Sexual contact can be pled down to a misdemeanor.
9:45:50 AM
SENATOR BUNDE added the impact on the minor mentally and
physically is far more egregious than the punishment doled out
to the offender. SB 218 would prove that the state shows serious
concern for the victims.
VICE-CHAIR HUGGINS called Anna Fairclough to testify.
9:47:52 AM
MS. ANNA FAIRCLOUGH, Executive Director, Standing Together
Against Rape (STAR), testified their organization supports SB
218. Alaskans need to institute harsher and longer sentencing
for better protection of its citizens. She claimed that as men
age they become less likely to perpetrate so longer sentences
would serve to help eliminate re-offenses.
9:53:53 AM
SENATOR FRENCH commented the use of a polygraph exposes far more
victims than people are aware of. An Alaska Judicial Counsel
report of 2004 said 91 percent of sexual assault in the first
degree charges resulted in reduced charges. 79 percent of SAM1
and 83 percent of SAM2 cases ended up with reduced or dismissed
charges. He expressed concern regarding the pressure within the
system to reduce charges for expediency purposes.
9:57:35 AM
SENATOR BUNDE said that since all the sentences would be
ratcheted up, there would still be substantially more time
served even if the person were to plead down. However, he would
rather the perpetrator be prosecuted to the fullest extent.
SENATOR GUESS referred to page 5 section 6 and highlighted the
importance of the polygraph section as being a tool for
protecting the public.
SENATOR THERRIAULT agreed with the polygraph section of the bill
but expressed concern over the accompanying fiscal notes.
10:01:45 AM
VICE-CHAIR HUGGINS asked Senator Bunde whether the polygraph
responsibility would lie with the Department of Corrections.
SENATOR BUNDE said yes but that the offender would have to bear
some of the cost. He added that perpetrators are generally in a
state of denial and the polygraph would help stem the deceit.
VICE-CHAIR HUGGINS called for representatives from the
Department of Law (DOL) and the Department of Corrections (DOC)
to testify.
10:04:47 AM
MS. SUSAN PARKES, Deputy Attorney General, Criminal Division,
Department of Law (DOL) and MS. PORTIA PARKER, Deputy
Commissioner, Department of Corrections (DOC) introduced
themselves.
MS. PARKES advised the committee that the department fully
support the bill. It targets sex offenders and sends a message
throughout the state that this type of behavior will not be
tolerated. The DOL normally operates in a reactive mode in
response to re-offenders but the polygraph section would work as
an active, important, pro-active tool. The department
anticipates that there would be additional costs to the court
system.
Plea-bargaining would continue to occur simply because sex abuse
cases are difficult to prosecute. Often victims are found not
competent to testify, and sometimes parents plead not to put the
child on the stand. The system cannot allow every case to go to
trial. She said four percent of all felony cases go to trial yet
despite that, there is a backlog in the system. There has been a
bill introduced by the Governor to increase the number of
superior court judges around the state to deal specifically with
the criminal backlog.
10:09:42 AM
On the average there are approximately 300 felony trials waiting
for trial, and that includes homicide. Overall, despite plea-
bargaining, SB 218 would still put sex offenders behind bars and
once they are out they will be polygraphed. SB 218 also
recognizes that there are people who should never get out of
prison.
10:11:12 AM
SENATOR THERRIAULT asked Ms. Parkes whether the DOL has
considered just using the polygraph system to keep perpetrators
from re-offending rather than also upping sentencing, which adds
great costs to the state.
MS. PARKES said extending the sentences for repeat offenders is
appropriate. In terms of the new ranges, they are higher for
victims under 13 years of age, so that is a target area.
Testimony shows there would be more victims were the sentences
to remain lighter.
10:13:30 AM
MS. PARKER elaborated the US Department of Justice training
shows using the polygraph is best practices, yet even with the
best possible supervision, there are still re-offenders. The
polygraph provides more information and results in better
offender management and so it does allow for better supervision.
When the full model is implemented, offenders tend to be more
successful. Longer sentences should be dealt to repeat offenders
and/or psychopaths for the safety of the public.
10:17:17 AM
Relapse is always a risk with sex offenders. The best thing
about the polygraph is it gives a lot of information that can be
shared with the treatment provider and with the supervising
officer. It results in preventing crimes and provides for
quicker intervention.
10:19:12 AM
SENATOR THERRIAULT wondered whether it made more sense to impose
longer probation instead of longer sentences. He said since the
polygraph has been proven to work in keeping sex offenders on
the right path, would it be more cost effective to try longer
probation with polygraph. He also asked the experience of other
states that have used polygraph extensively.
MS. PARKER stated there was success when used with treatment and
supervision with the polygraph. What offenders say is it is like
having a constant leash. The polygraph test is usually given
quarterly. Other states have lifetime probation for certain
level sex offenders depending on risk. Incarceration is the only
way to make sure the offenders are not out causing more victims.
10:22:55 AM
SENATOR THERRIAULT asked whether Alaska was obligated under the
Interstate Compact Act to accept sex offenders from other
states.
MS. PARKER said due to the Interstate Compact Guidelines
interstate travel is easier for sex offenders. However, under
certain conditions Alaska has the ability to disallow sex
offenders from entering the state.
SENATOR THERRIAULT asked whether Alaska would be able to impose
a polygraph on someone who was convicted on a sex offense under
a jurisdiction that did not have the polygraph testing.
MS. PARKER said absolutely.
10:24:08 AM
SENATOR FRENCH asked Ms. Parker whether polygraph testing could
be instituted for the people who were already in prison serving
their sentences for a sex abuse crime.
MS. PARKER informed members there is a current project for sex
offenders on parole to get a special condition added that allows
for the polygraph but they currently are limited to the number
of offenders they can polygraph due to a shortage of examiners.
The DOC is specifically asking to add the polygraph for high-
risk offenders as a condition of their parole.
10:26:29 AM
SENATOR FRENCH asked whether probation officers would be trained
to administer polygraphs and how the examiners would cover the
state.
MS. PARKER advised that the DOC does not currently have
corrections officers run polygraphs. They use a sex offender
specific provider. Colorado first started in 1989 by requiring
that all sex offenders be subject to polygraph testing as a
condition to parole and they went from using two to using 33
polygraph examiners. She recommended that Alaska have more than
one provider in the case of disputes. The contractor would
travel to remote locations. There are providers who desire to
come to Alaska but have not yet as there currently is not enough
work.
10:29:54 AM
SENATOR FRENCH asked whether the DOL expects a court challenge
to the law regarding extended sentences. He expressed concern
that the proposed sentence ranges are stiffer than murder in the
second degree.
MS. PARKES admitted that is a concern, which has been discussed.
The bill proposes a dramatic jump on the sentence range. She
encouraged the Legislature to put on the record the findings
behind why the changes are being made. A letter of intent or
appropriate justification would be in order to pro-actively
address any such challenges.
10:32:02 AM
SENATOR GUESS mentioned she and Senator Bunde were aware of the
findings requested by the DOL.
SENATOR THERRIAULT asked whether a letter of intent would be
enough or whether findings were necessary.
MS. PARKES stated actual findings would give the basis and the
facts the Legislature relied to reach their conclusion.
SENATOR GUESS asked whether a polygraph could be added to
probation conditions for people who were currently in prison.
10:34:45 AM
MS. PARKES responded people who have already been sentenced with
conditions already set by a judge probably could not have
additional conditions added.
MS. PARKER added with parole there is no supervision unless the
person already has probation.
SENATOR THERRIAULT mentioned one of the fiscal notes was signed
by the director of the Office of Public Advocacy and asked
whether that was a technical issue.
Vice-Chair Huggins held SB 218 in committee.
There being no further business to come before the committee,
Vice-Chair Huggins adjourned the meeting at 10:36:55 AM.
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