02/13/2020 03:30 PM Senate STATE AFFAIRS
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ALASKA STATE LEGISLATURE SENATE STATE AFFAIRS STANDING COMMITTEE February 13, 2020 3:31 p.m. MEMBERS PRESENT Senator Joshua Revak, Chair Senator Mia Costello Senator David Wilson Senator Scott Kawasaki Senator John Coghill, Vice Chair MEMBERS ABSENT All members present COMMITTEE CALENDAR SENATE BILL NO. 170 "An Act naming the Vietnam Helicopter Pilots' Memorial Bridge." - MOVED SB 170 OUT OF COMMITTEE SENATE BILL NO. 168 "An Act relating to notice provided to victims regarding petitions for removal from a registry that is published on the Internet; relating to the duration of the duty to register as a sex offender or child kidnapper; relating to petitions for removal from a registry that is published on the Internet; relating to the definitions of 'tier I sex offense,' 'tier II sex offense or child kidnapping,' and 'tier III sex offense or child kidnapping'; amending the definition of 'sex offense'; relating to the jurisdiction of the Court of Appeals; establishing Rule 35.3, Alaska Rules of Criminal Procedure; and providing for an effective date." - HEARD & HELD PREVIOUS COMMITTEE ACTION BILL: SB 170 SHORT TITLE: NAMING VIETNAM HELI. PILOTS' MEM. BRIDGE SPONSOR(s): SENATOR(s) REVAK 01/31/20 (S) READ THE FIRST TIME - REFERRALS
01/31/20 (S) STA 02/13/20 (S) STA AT 3:30 PM BUTROVICH 205 BILL: SB 168 SHORT TITLE: SEX OFFENDER REGISTRY; NOTICE TO VICTIMS SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/27/20 (S) READ THE FIRST TIME - REFERRALS
01/27/20 (S) STA, JUD, FIN 02/13/20 (S) STA AT 3:30 PM BUTROVICH 205 WITNESS REGISTER DARREN NAPOLI, Legislative Intern Senator Joshua Revak Alaska State Legislature Juneau, Alaska POSITION STATEMENT: Introduced SB 170 on behalf of the sponsor. MIKE LESMANN, Legislative Liaison Department of Transportation and Public Facilities (DOTPF) Juneau, Alaska POSITION STATEMENT: Provided supporting testimony for SB 170. LYNN KILE, representing self Anchorage, Alaska POSITION STATEMENT: Testified in support of SB 170. ERVIN PETTY, Associate Member Vietnam Helicopter Pilots Association-Alaska Chapter Eagle River, Alaska POSITION STATEMENT: Testified in support of SB 170. JOHN SKIDMORE, Deputy Attorney General Criminal Division Department of Law (DOL) Anchorage, Alaska POSITION STATEMENT: Introduced SB 168. KACI SCHROEDER, Assistant Attorney General Criminal Division Department of Law (DOL) Juneau, Alaska POSITION STATEMENT: Delivered the sectional analysis for SB 168. KATHRYNE MONFREDA, Director Division of Statewide Services Department of Public Safety (DPS) Anchorage, Alaska POSITION STATEMENT: Answered questions related to SB 168. ACTION NARRATIVE 3:31:16 PM CHAIR JOSHUA REVAK called the Senate State Affairs Standing Committee meeting to order at 3:31 p.m. Present at the call to order were Senators Costello, Kawasaki, Wilson, Coghill, and Chair Revak. SB 170-NAMING VIETNAM HELI. PILOTS' MEM. BRIDGE 3:32:22 PM CHAIR REVAK announced the consideration of SENATE BILL NO. 170, "An Act naming the Vietnam Helicopter Pilots' Memorial Bridge." Speaking as the sponsor, Senator Revak relayed that Vietnam was a helicopter war and federal legislation has passed to place a memorial in Arlington National Cemetery to honor these helicopter pilots and their crews. CHAIR REVAK invited Darren Napoli to introduce the bill. 3:33:19 PM DARREN NAPOLI, Legislative Intern, Senator Joshua Revak, Alaska State Legislature, Juneau, Alaska, introduced SB 170 by reading the following sponsor statement: Helicopter pilots played a pivotal role in the Vietnam War, so much so that the engagement is often remembered as the "Helicopter War". This nickname was well deserved with the helicopter pilots spearheading the efforts of not only securing land in South Vietnam, but also in the casualty evacuation efforts, saving countless lives during the war. With over forty percent of helicopters in Vietnam being destroyed through the course of the War, these brave soldiers put their lives in danger every time they flew, which they did over two million times. The Huey pilots proved early on that they and their helicopters would be central to conducting a campaign in the jungles of Vietnam, but no one knew just how crucial their efforts would be. On February 9th, 1965, the 52nd Combat Aviation battalion successfully lifted 262 troops out of Phu My and brought them to safety while taking heavy enemy fire. On April 19th, 1965, the 119th Aviation Company attempted a similar lift with 420 troops in Phu Cat, however, they received intense enemy ground fire bringing down two armed UH-1Bs, killing all on board, along with a crew member of another UH-1B. On December 29th, 1965, just a few days before New Years', two helicopter pilots, once again, extracted fallen soldiers from a crashed aircraft. They did so while under extremely hazardous conditions as the enemy tried everything they could to bring down the rescue crew. These are just a few examples of the countless missions accomplished by the thousands of Vietnam helicopter pilots over the nineteen years of war. These particular examples occurred in 1965, that same year, Bridge 1124 was built to span the Matanuska river and connect the Mat-Su valley to Anchorage. It is only fitting then that we allow Bridge 1124, a bridge built in the midst of the Vietnam War, along with its neighboring Bridge 1889, to carry a name in honor of the thousands of helicopter pilots that laid down their lives for their country. These courageous men ask for little in return for their immeasurable efforts put forth in Vietnam. The least we, as the State of Alaska, can do for them is to rename the 1124 & 1889 bridges at mile 30.4 on the Glenn Highway in their honor. Such a gesture would forever memorialize and honor the thousands of helicopter pilots that lost their lives and the thousands more who put their life on the line each day to save their fellow soldiers. 3:36:14 PM MR. NAPOLI said it is fitting that bridges 1124 and 1889 are renamed in memoriam to Vietnam helicopter pilots because these bridges have a perfect view of Gold Star Peak, which is a memorial to veterans and the families of those who have fallen in service. The bridges are also close to Reflections Lake that has hiking trails and a view of Gold Star Peak. He directed attention to the map in members' packets. SENATOR COGHILL commented that this is a fitting way to honor people and it serves as a reminder. 3:38:32 PM MIKE LESMANN, Legislative Liaison, Department of Transportation and Public Facilities (DOTPF), Juneau, Alaska, related that the department not only employs quite a few veterans it also has a special page on its internal website that captures the history of each veteran who provides the information. CHAIR REVAK asked if it is possible for individual groups to raise money for the bridge signs. MR. LESSMAN answered yes, that is a possibility. SENATOR WILSON asked if the bridges were already named either the Knik Bridge or the Matanuska Bridge in honor or a fallen officer. MR. LESSMAN said the Knik River may have the James Bondsteel Bridge. The Matanuska River has a name place sign that identifies the river. 3:41:34 PM LYNN KILE, representing self, Anchorage, Alaska, said he is president of the Vietnam Helicopter Pilots Association, (VHPA) Alaska Chapter and a Vietnam helicopter pilot with 22 years of Army service. He said he would highlight several points from his written testimony that may be in the packets. MR. KILE reported that the Alaska Chapter of VHPA is part of a nation chapter of over 16,500 pilots. There are 82 members in Alaska, although the national database shows 323 Vietnam helicopter pilots reside in Alaska. He pointed out that this is an all-inclusive organization that has associate memberships for flight crews and pilots. An estimated 40,000 pilots flew 11,800 helicopters in Vietnam. Over 4,800 pilots and 5,000 helicopters were lost in that conflict. He said the helicopter contributed to changing the battlefield; soldiers were moved quickly and medivacs increased survival rates to over 82 percent. He said this request for a small historic landmark to contribute to the legacy of a job well done is well deserved. The Alaska Chapter of the Vietnam Helicopter Pilots Association is supportive of SB 170, as written. 3:45:17 PM ERVIN PETTY, Associate Member, Vietnam Helicopter Pilots Association, Alaska Chapter, Eagle River, Alaska, said he is retired from the U.S. Air Force after 23 years in the Aerospace Rescue and Recovery Service, Pararescue, and also served in Vietnam. He said he was not a pilot but is pleased to see this recognition. CHAIR REVAK thanked Mr. Petty and Mr. Kile for their service during the Vietnam conflict. He shared the following statistics: about 12,000 U.S. military helicopters spent 7.5 million hours flying over Vietnam in 2 million missions. In total, 5,086 helicopters or 42 percent were destroyed by enemy fire, and 2002 pilots and 2704 crew chiefs and gunners were killed. 3:47:46 PM CHAIR REVAK opened and closed public testimony on SB 170. 3:48:21 PM At ease 3:48:51 PM CHAIR REVAK reconvened the meeting and asked if there were questions. SENATOR COSTELLO thanked Senator Revak for introducing the bill and providing the supporting documents. She said she looks forward to seeing the sign on the bridge; it will be a reminder of the sacrifices individuals make in the service of the country. CHAIR REVAK reiterated his appreciation. 3:50:00 PM SENATOR WILSON moved to report SB 170 from committee with individual recommendations and attached fiscal note(s). There being no objection, SB 170 was reported from the Senate Labor and Commerce Standing Committee. 3:50:30 PM At ease SB 168-SEX OFFENDER REGISTRY; NOTICE TO VICTIMS 3:52:32 PM CHAIR REVAK reconvened the meeting and announced the consideration of SENATE BILL NO. 168, "An Act relating to notice provided to victims regarding petitions for removal from a registry that is published on the Internet; relating to the duration of the duty to register as a sex offender or child kidnapper; relating to petitions for removal from a registry that is published on the Internet; relating to the definitions of 'tier I sex offense,' 'tier II sex offense or child kidnapping,' and 'tier III sex offense or child kidnapping'; amending the definition of 'sex offense'; relating to the jurisdiction of the Court of Appeals; establishing Rule 35.3, Alaska Rules of Criminal Procedure; and providing for an effective date." 3:53:51 PM JOHN SKIDMORE, Deputy Attorney General, Criminal Division, Department of Law (DOL), Anchorage, Alaska, explained that SB 168 is the result of a June 2019 Alaska Supreme Court ruling. The court held that anyone placed on the Alaska Sex Offender Registry must have an opportunity to have their name removed or the registry would violate the Constitution of the State of Alaska. The court specifically found it to be a due process violation because of the privacy implications. The opinion talks about the problems someone should not have to face if they are no longer a danger. Registries in states that allow removal address this issue quite uniformly, he said. The general concept is that a person may be removed from the registry after a certain amount of time and after meeting certain requirements. Those generally focus on the number and type of convictions the individual may have received since they had to register and whether the individual is assessed as a continuing danger. When the Alaska court said there needed to be a way to protect an individual's privacy, SB 168 was drafted. MR. SKIDMORE said SB 168 talks about how someone can file a petition to have their information removed from the public registry, but that is very different from the initial requirement to register because much of that information is for law enforcement purposes and not intended to be public. He noted that the Supreme Court opinion focused on the problem that certain information that was required to be provided to law enforcement was subsequently published on the Internet. He said it is an important distinction in the bill. MR. SKIDMORE said DOL decided to take this opportunity to align Alaska's registry more closely with federal requirements and what other states do with regard to the tiered framework and the type of information that must be reported. Alaska law provides a two-tier registry system, one for 15 years and the other for life. SB 168 seeks to shift to a three-tier framework. The required information would be expanded to include reporting an individual's passport when sex offenders intend to leave the country. He said the state and U.S. have a vested interest in knowing when sex offenders from other countries want to come to the U.S. and vice versa. None of this information is ever published on the internet, but it is the type of information that law enforcement needs to do an effective job, he said. 4:00:16 PM SENATOR KAWASAKI asked what will happen if the state does nothing. MR. SKIDMORE replied the Supreme Court looked at invalidating the entire law but chose not to. The opinion commented as follows: The legislature would almost certainly reenact a modified law that is narrower in scope, including providing for hearings for those who claim they do not pose a likelihood of reoffending. And the amended Act could provide useful details. The opinion describes those details but says the court would not completely invalidate the law because it could create chaos. But both footnote 133 and the dissent say the type of details should be policy decisions from the legislature. The case this revolves around is under litigation and there is considerable back and forth about how to determine when somebody is dangerous and how long somebody must be required to register. Responding to the question, he said the courts would try to sort it out if the legislature did nothing. He described that as a messy alternative involving substantial litigation that might result in something neither the Alaska public nor the legislature would like. That is the reason for the bill, he said. SENATOR KAWASAKI asked if the bill narrows the scope of the Alaska Sex Offender Registration Act enough that the court would find it credible if it is challenged in the future. MR. SKIDMORE answered yes; the Department of Law believes this is the right approach. It is responsive to the Alaska Supreme Court's concerns and is similar to what most other states have done. 4:04:07 PM SENATOR KAWASAKI asked if the new requirements for personal information might result in future litigation. MR. SKIDMORE replied he can imagine it will be challenged but he is confident that the courts will uphold gathering the sort of information that has been described, just as it has been in other states. This is the sort of information that is very important to law enforcement but would never be placed on a public registry. 4:05:21 PM SENATOR WILSON recalled a bill from last year and asked who has access to the unpublished database. MR. SKIDMORE replied the only bill he is familiar with dealt with the concept of an out-of-state offender coming to Alaska, which is a completely separate issue. Responding to the question, he explained that anyone can access the public registry, but only law enforcement would be able to access the additional information called for in the bill. SENATOR WILSON asked if somebody could request the additional information about someone on the registry through the Freedom of Information Act. MR. SKIDMORE replied he did not believe that requests for the non-public information would be allowed because the information is for law enforcement purposes, which is an express exception to the Alaska Public Records Act. 4:07:32 PM CHAIR REVAK asked what the idea is behind the provision allowing a registrant to reapply for removal after a denial. MR. SKIDMORE replied the rationale is that if someone is denied, the court's determination two years later may be different. For example, a person may have been determined a danger two years earlier, but not now. 4:10:02 PM At ease 4:10:23 PM CHAIR REVAK reconvened the meeting and asked Ms. Schroeder to walk through the sectional analysis. 4:10:50 PM KACI SCHROEDER, Assistant Attorney General, Criminal Division, Department of Law (DOL), Juneau, Alaska, delivered the sectional analysis for SB 168 speaking to the following prepared document: Summary: This legislation is in response to Doe v. Department of Public Safety, 2019 WL 2480282 (Alaska 2019) in which the court held that Alaska's sex offender registry is overbroad because it imposes lengthy registration requirements on all persons convicted of registerable sex offenses without affording them a hearing in which they might show that they are no longer dangerous and, therefore, should not be required to continue to register. The legislation breaks sex offenders and child kidnappers into three different tiers depending on the offense that the offender has been convicted of. It also establishes a procedure which allows sex offenders and child kidnappers to be removed from a registry that is published on the internet. In essence, a sex offender or child kidnapper must have been unconditionally discharged for a period of 5, 10, or 15 years depending on which tier the offender falls into. They must have completed all required treatment programs and not have been convicted of a disqualifying offense since being convicted of the underlying sex offense or child kidnapping. If they are able to satisfy these criteria, they may petition the court for removal from a registry that is published on the Internet. If the petition is granted they must continue to register with the Department of Public Safety, however, their information will not be made available on the Internet. Sections 1 and 2 require a victim to be notified of the filing of a petition for removal from a registry that is published on the Internet and of their right to participate in the subsequent hearing. Sections 3, 4, and 5 add to the list of information that a sex offender or child kidnapper must provide to the Department of Public Safety upon registering to include such things as if they intend to leave the state or intend to travel internationally. 4:13:20 PM SENATOR KAWASAKI asked who collects the information and where it goes if a sex offender left the state or country. MS. SCHROEDER replied DPS collects the information. She continued: Section 6 of the bill creates a third tier of sex offenders and child kidnappers. The tier will determine the length of the registration period. Tier I offenders will need to register for 10 years after unconditional discharge, tier II offenders will need to register for 15 years after unconditional discharge, and tier III offenders will need to register for life after unconditional discharge. Section 7 of the bill clarifies that the period of registration is tolled if the sex offender or child kidnapper is not in compliance with the registration requirements or is incarcerated. The period tolled would be equal to the amount of time that the person was out of compliance or was incarcerated. Section 8 outlines the criteria that must be satisfied before a sex offender or child kidnapper may be removed from an Internet registry. The sex offender or child kidnapper must have (1) successfully completed all treatment programs ordered by the court or required by the parole board; (2) within the previous year, been assessed as low-risk by a treatment provider approved by the Department of Corrections under AS 44.28.020; (3) since being convicted of the offense for which the person is registering, has not been convicted of an offense, attempt, solicitation, or conspiracy to commit any of the following offenses: (i) a crime against a person under AS 11.41; (ii) a violation by sex offender of condition of probation under AS 11.56.759; (iii) sending an explicit image of a minor under AS 11.61.116; (iv) cruelty to animals under AS 11.61.140; (v) misconduct involving weapons under AS 11.61.190 11.61.250; (vi) a sex offense or child kidnapping as defined in AS 12.63.100; or (vii) a crime of domestic violence under AS 18.66.990. 4:16:50 PM SENATOR KAWASAKI asked why misconduct involving weapons was added. MS. SCHROEDER replied it includes a host of dangerous behavior. CHAIR REVAK asked if this section only relates to these offenses. MS. SCHROEDER explained that this section says that a sex offender or child kidnapper must not have been convicted of any related crime in order to petition to be removed from the registry. CHAIR REVAK asked what tier that would be. MS. SCHROEDER replied these are disqualifying offenses for all tiers. MS. SCHROEDER continued to describe Section 8: In addition, the person must not have been convicted of failure to register as a sex offender or child kidnapper for the previous 15 years for a tier III offender, 10 years for a tier II offender, or five years for a tier I offender. These time periods must not include the period prior to unconditional discharge. The court must find by clear and convincing evidence that (1) the registration and compliance requirements outlined in statute have been satisfied; (2) the sex offender or child kidnapper is unlikely to commit another sex offense or child kidnapping; and (3) continued registration on a registry that is published on the Internet is not necessary for the protection of the public. Even if the person's information is removed from an Internet registry, the person must still register with the Department of Public Safety for law enforcement purposes. This section also requires the Department of Corrections to pay for the risk assessments required under this section if the court determines that the person petitioning for removal from a registry that is published on the Internet is indigent. Finally, this section makes clear that the court must allow the victim of the offense which required the sex offender or child kidnapper to register to submit comments to the court about whether the person should be removed from the registry that is published on the Internet. 4:20:06 PM CHAIR REVAK asked the cost of the risk assessment. MS. SCHROEDER replied it would be the offender's responsibility unless the court finds the person indigent. In that case, the Department of Corrections would pick up some, if not all, of the cost. She suggested that Adam Rutherford could quote the costs. She continued the sectional analysis for SB 168. Section 9 of the bill makes sexual conduct with animals a registerable sex offense. Section 10 of the bill defines "registry that is published on the Internet" and "tier I," "tier II," and "tier III" sex offenses. MS. SCHROEDER summarized that a tier I sex offense will be a class A misdemeanor sex offense or possession of child pornography. A tier II sex offense or child kidnapping will be B and C felony sex offenses. Tier III sex offenses are child kidnapping, which are the unclassified or class A felony sex offenses under sexual assault in the first degree and sexual abuse of a minor in the first degree. CHAIR REVAK said it appears that any kind of child kidnapping would be tier III. MS. SCHROEDER replied the bill is drafted to be tier III if the victim is under age 13 at the time of the offense. She noted that it is likely the Department of Law will ask for changes here. CHAIR REVAK referenced the letter from the Department of Law that says child kidnappers would never be removed from the registry in certain circumstances. He asked if that was correct. MS. SCHROEDER replied that letter refers to a kidnapping related to a victim who was 13 years of age or younger. Kidnapping somebody between age 13 and age 18 would be under tier II. She continued. Section 11 is a conforming change. Section 12 of the bill allows the public defender to represent an indigent person in their petition for removal from an Internet registry. Section 13 gives the Court of Appeals jurisdiction to hear appeals regarding removal from an Internet registry. Section 14 requires the Department of Corrections adopt standards for the administration of risk assessments for sex offenders and child kidnappers. Section 15 establishes a court rule which mirrors the requirements in section 8 of the bill. Section 16 amends the applicability of the requirements for an out-of-state sex offender to register in Alaska when that person is present in the state (ch.4 FSSLA 2016 (HB 49)) to apply to offenses committed before, on, or after July 9, 2019. 4:25:26 PM SENATOR COGHILL asked if there will be legal challenges to Section 16. MS. SCHROEDER deferred to Mr. Skidmore. 4:25:58 PM MR. SKIDMORE said he would not be surprised if someone tried to challenge the provision, but the Department of Law analysis is that the law supports it. This does not violate ex post facto by enlarging the time of registration. It tries to provide full faith and credit to what other states have required for registration. Alaska is taking a more conservative approach than some states, he said. MS. SCHROEDER continued: Section 17 repeals AS 12.63.100(1), the definition of aggravated sex offense under AS 11.41.100(a)(3) or similar law of another jurisdiction since the bill moves from the aggravated sex offense classification to the tier system established in section 6. Section 18 is the applicability section. Most of the bill is retroactive and will apply to sex offenders and child kidnappers who have already been convicted and are on the registry. Section 19 is the conditional effect section for the court rule. Section 20 establishes the effective date of the bill as July 1, 2020. 4:29:08 PM SENATOR COGHILL offered his understanding that this is about removing the name from the public view, but there is no expungement. MS. SCHROEDER confirmed there is no expungement and highlighted that, as Mr. Skidmore said, the issue of how somebody would be removed from any registry is under litigation now. SENATOR COGHILL commented that is something to keep in mind. 4:30:28 PM KATHRYNE MONFREDA, Director, Division of Statewide Services, Department of Public Safety (DPS), Anchorage, Alaska, introduced herself and advised that DSS manages the sex offender registry for the Department of Public Safety (DPS). SENATOR KAWASAKI referred to Section 3, which will require the Department of Corrections (DOC) to capture information such as mailing address, school address, telephone numbers, Social Security number, passport information, and job title, and to Section 4 which requires a person who is leaving the state to notify the department within seven days and 21 days in advance if they are headed out of the country. He questioned how that information will be captured and kept and if there are penalties for not providing the required notification. MS. MONFREDA replied all forms will be modified to accept the new fields and are available on the division's website for offenders to fill out and return via mail, in person, or fax. The division processes the information. She noted that the U.S. Marshal's Service created the form for out-of-state/country travel; those are processed when the offenders return the form. She explained that the division asked for the mailing address to be required so they can notify offenders of their status and when to register. CHAIR REVAK summarized that the bill addresses the state's non- compliance with the right to privacy, such that certain sex offenders have the right to apply to be removed from the public registry. MS. SCHROEDER answered yes; the court has said the state must provide an opportunity to be removed from the Alaska Sex Offender Registry. CHAIR REVAK observed that some of the fiscal notes identify 3,428 sex offenders on the state sex offender registry. He asked if she could break down the numbers in each of the three tiers. MS. SCHROEDER replied the bill asks the Department of Public Safety (DPS) to do that. CHAIR REVAK asked Ms. Monfreda to respond. MS. MONFREDA replied the department has not analyzed the number of registrants that would be in each of the tiers. Current data shows that 2,700 offenders are 15-year registrants, 1,782 of which are in registering status or are in non-compliance. Those would be evaluated first. It is likely that the lifetime registrants would fall into tier III, but they will also be reevaluated. CHAIR REVAK observed that the fiscal notes seem to expect that all 3,428 offenders would be removed from the registry at some point, but the bill says tier III offenders cannot apply for removal. He asked if tier III offenders would be subtracted from that calculation. MS. MONFREDA said she believes that tier III offenders could apply for removal 15 years after unconditional discharge. MS. SCHROEDER clarified that there is a distinction between the Internet registry and the sex offender registry itself that would not be public. The tier III offenders would continue to be required to register for life but 15 years after unconditional release they could apply to get off the public Internet registry. 4:36:48 PM CHAIR REVAK stated he would hold SB 168 for future consideration. He encouraged anyone interested to submit testimony on the bill to firstname.lastname@example.org. 4:37:47 PM There being no further business to come before the committee, Chair Revak adjourned the Senate State Affairs Standing Committee meeting at 4:37 p.m.