CS FOR SENATE BILL NO. 218(FIN) "An Act relating to sex offenders and child kidnappers; relating to reporting of sex offenders and child kidnappers; relating to periodic polygraph examinations for sex offenders released on probation or parole; relating to sexual abuse of a minor; relating to the definitions of 'aggravated sex offense' and 'child kidnapping'; relating to penalties for failure to report child abuse or neglect; relating to sentencing for sex offenders and habitual criminals; and providing for an effective date." SENATOR CON BUNDE, SPONSOR, thanked the Committee and pointed out examples from weekend news articles from Anchorage recounting various sexual crimes, especially noting an incident when an perpetrator committed an assault hours after being release from prison. Her concluded that this was an indication of the need for longer prison sentences. 1:48:17 PM Co-Chair Chenault MOVED to ADOPT Work Draft #24-LS1307\U, Luckhaupt, 3/6/06, as the version of the bill before the Committee. There being NO OBJECTION, the motion was ADOPTED. Senator Bunde referred to SUSAN PARKS, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW to address the bill. Ms. Parks highlighted changes in the Committee Substitute. She noted changes in Section 1 and 2, referred to as the "peer group amendment". She stated that there was a concern about whether conduct between teenage peers hould be considered criminal. She explained that the changes specified the need for one of the teenagers to be 17 years of age or older, and for there to be four years' difference in ages to constitute a criminal act. 1:50:58 PM Ms. Parks also noted another major change to the bill contained in Section 8, page 7. She explained that the original bill mandated that there be probation for sex offenses. She pointed out that probation only carried weight if it pertained to suspended time, which enabled violators of probation to be punished. She stated that Section 8 required a certain amount of suspended time so that mandatory probation carried significance. She pointed out that there were amendments to the ranges that had been increased by 5 years to allow for required suspended time. 1:52:00 PM Ms. Parks also pointed out that on Page 6, line 11, the range of sentence was changed from "one to twelve years" to "two to twelve years". Representative Stoltze referred to a sentencing proceeding that reminded him of the truth in sentencing provisions, and asked about the actual provisions. 1:53:11 PM Ms. Parks emphasized that a prior sexual offense would guarantee a severe sentence for a subsequent offense, whereas a first time offender might receive a lighter sentence, such as four years, with the possibility of discretionary parole. Representative Stoltze noted that the offender to which he referenced in Wasilla had received a sentence of 99 years, being eligible for parole in 23 years. 1:54:20 PM Co-Chair Meyer MOVED to ADOPT Amendment #1. Page 3, lines 18-21 Delete subsection (b) Insert: (b) This statute does not apply if any of the circumstances or conduct establishing the offense relate to an attorney-client relationship with the sex offender or child kidnapper. The defendant may file notice pre-trial that subsection (b) applies. The notice merely requires that a good faith basis for its filing exist. The defendant may request a pre-trial ruling by the Judge, or may request a jury determination, or both. The State has the burden to prove beyond a reasonable doubt that sub- section (b) does not apply. Representative Stoltze OBJECTED. Co-Chair Meyer referred to Ms. Parks for discussion of the amendment. Ms. Parks explained that the amendment pertained to the "failure to report" provisions contained in Section 3 of the bill. She explained that the Public Defender's office raised concerns that the bill created an ethical dilemma for a defense attorney representing a client who should have been registered and was not registered. She stated that the language had been developed in cooperation with the Public Defender's office in order to mitigate the ethical issue. QUINLAN STEINER, DIRECTOR, OFFICE OF PUBLIC DEFENDER testified online, stating that he had worked with Ms. Parks on the language to remedy the ethical dilemma. Representative Stolze WITHDREW his OBJECTION. There being no further objection, the Amendment was ADOPTED. Representative Kerttula MOVED to WITHDRAW Amendments #2 and #3. Representative Kerttula then MOVED to ADOPT Amendment #4, 24-LS1307\U.2, Luckhaupt, 3/7/06. 1:57:38 PM Representative Hawker OBJECTED. Representative Kerttula explained that her amendments did not indicate a lack of support or respect for the sponsors, but rather pertained to the complicated nature of the legislation. She thanked the sponsors for changing the crime of omission and for extending statutory rape. Representative Kerttula specified that Amendment #4 pertained to sentencing for Class A and Class B felonies. She conceded that these were serious crimes that should carry serious penalties, however pointed out that if the sentences were increased to this degree it would generate commensurate costs. She proposed bringing the sentences within a range that allowed for a more gradual impact. Senator Bunde agreed that the bill would generate a cost. He discussed the merits of the costs as compared to the quality of safety in society. He also pointed out that large sentences, as well as incarcerating offenders for a long and costly period, also served as a deterrent. He concluded that the societal cost therefore balanced the financial costs. 2:01:19 PM REPRESENTATIVE NEUMAN (Co-Sponsor) emphasized that, particularly for victims age 13 or younger, the cost of rehabilitation lasted a lifetime. He referred to discussions on the cost of such rehabilitation, and estimated it at $45,000 per victim. He also noted that there were 518 reported victims, resenting only 16 percent of sexual crimes committed that were actually reported. He also reminded the Committee about the rate of recidivism due to the inability to rehabilitate offenders. He also recalled discussions with Commissioner Tandeske, confirming that these offenders also committed other types of crimes. He concluded that all of these costs should be considered in the entire picture. 2:03:47 PM SENATOR GUESS (CO-SPONSOR) spoke in opposition to the amendment, but welcomed the discussion of the issues. She referred to previously passed bills (Sen. French), and testimony by administration stating that the bill did not pertain as much to sentences as to compliance with a court case. She emphasized that the bill sponsors did not contemplate appropriate sentence ranges. She noted that the Legislature discussed such policy issues at length. She pointed out that Senator French's bill did not address first time offenders or the sentencing structure. 2:05:34 PM Senator Guess also referred to the third section of the amendment that reduced probation requirements. She pointed out that probation stipulations allowed for the best use of the polygraph in helping prevent offenders from recurrence. She stated her opinion that it was wrong to reduce sentences and probation on a policy basis. She agreed with Representative Neuman that the societal cost of sexual crimes was significant, if somewhat unknown, and concluded that it outweighed any other costs. Representative Hawker MAINTINED his OBJECTION. Representative Kerttula concurred with the Sponsors' addition of probation to the Committee Substitute, and explained that her amendment was an effort to bring the sentencing down into a somewhat reduced range with commensurate probation periods. She stated that this was the most difficult of her proposed amendments. Responding to a question by Co-Chair Chenault, Senator Guess clarified an earlier observation that sexual offenders responded well to the structured environment of incarceration. She referred to Senator French's bill, and a supporting document confirming that sexual offenders often received "good time", which under the current amendment would be eight years. Representative Bunde noted that sex offenders often sought vulnerable victims. 2:09:19 PM A roll call vote was taken on the motion. IN FAVOR: Moses, Kertulla OPPOSED: Stoltze, Hawker, Holm, Joule, Kelly, Meyer, Chenault The Amendment FAILED on a vote of 7 to 2. Representative Kerttula MOVED to ADOPT Amendment #5, 24- LS1307\U.1, Luckhaupt, 3/7/06. Representative Stoltze OBJECTED. Representative Kerttula explained that the amendment pertained to Class C Felonies. While she conceded that these offenses could indicate serious behavior, she noted that it could also include less serious behavior such as touching. She stated her belief that the maximum sentences were often disproportionate to the less serious crimes. She also noted that the Amendment contained a commensurate reduction of probationary periods. 2:11:02 PM Representative Stoltze referred to comments made in the Senate Judiciary Committee regarding the issue of incidental touch, and asked how often instances of this nature were prosecuted. SUSAN PARKS, DEPUTY ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW referred to case examples and stated that in 2004, of over 100 case that were charged with touching offenses, only 40 times did they receive the most serious offense, and usually when accompanied by a more serious charge. She noted a case in Anchorage when a young girl had received touches over an eight year period, that eventually developed into more serious conduct, and concluded that this was often the case. She also noted that touching offenses were often prosecuted when offenders had been interrupted or fought off. She noted several cases of touching offenses in various serious circumstances and concluded that these could be potentially serious offenses. 2:15:16 PM Representative Stoltze concluded that the touching offenses in a situation of an accidental or "barroom grope" were rarely prosecuted. Ms. Parks responded that those types of cases were not usually charged. Representative Neuman referred to the first section of the amendment, deleting the numbers "99" and "20", and pointed out that the bill language actually stated "not more than 99/20". He also referred to lines 22 to 23 of the amendment proposing to delete "99" and insert "9 to 20", and pointed out that these sentences pertained to a third felony conviction. 2:17:10 PM Responding to a comment by Co-Chair Meyer, Senator Guess stated that the Sponsors were opposed to the amendment. Senator Guess noted that at the third degree level, a wide variety of conducts were included. She noted a recent study about the problem of rape in prisons, as well as about incest. She concluded that there were serious crimes included in this range. She explained that a wider range of sentences at this level of offense was to give courts flexibility. 2:18:44 PM Representative Kerttula expressed that while she appreciated the benefit of flexibility, she maintained concern over the large range of offenses in the bill. She proposed breaking the bill apart, and separating the lesser offenses from much more serious behaviors. She also commented that, along with flexibility, an amount of discretion remained to the courts. She noted that low level thefts were also included within the same level and therefore subject to the same sentencing structure. A roll call vote was taken on the motion. IN FAVOR: Moses, Kertulla OPPOSED: Stoltze, Hawker, Holm, Joule, Kelly, Chenault, Meyer The motion FAILED on a vote of 2 to 7. Representative Kerttula MOVED to ADOPT Amendment #6. Representative Hawker OBJECTED. Representative Kerttula commented that in her experience as a defense attorney she had dealt with offenders who were well aware of sentencing ranges. She stated her concern that such knowledge of sentences might induce an offender to murder a victim of a sexual assault in an attempt to obtain a lighter sentence. Representative Hawker strongly maintained his objection, expressing his concern for victims of sexual assaults who serve a "life sentence" of suffering. 2:23:51 PM Representative Neuman stressed that the majority of crimes referred to by the amendments were committed against persons under the age of thirteen. He also noted that the perpetrators often carried firearms, thereby justifying the higher sentences. Representative Bunde pointed out that in any of the sentences, a single mitigating circumstance could reduce the sentence by as much as half. He noted that courts and juries could exercise a certain amount of discretion in these circumstances. He mentioned that other states had substantially increased penalties for sexual predators. He also pointed out that offenders often moved from state to state, and was concerned that Alaska could become a prime destination for sexual predators if our sentences were lower. Representative Kerttula clarified that her amendments did not address repeat offenses, and only pertained to the lower end of the offenses. She proposed that the lower end of the sentence should be lower than that for murder in the second degree. Representative Bunde stated that research showed that by the time a perpetrator was arrested and tried they often had committed a number of unreported offenses. A roll call vote was taken on the motion. IN FAVOR: Kertulla OPPOSED: Hawker, Holm, Joule, Kelly, Moses, Stoltze, Meyer, Chenault The motion FAILED on a vote of 1 to 8. 2:27:26 PM Representative Bunde departed the meeting and stated that he was opposed to any amendments. Representative Kerttula MOVED to ADOPT Amendment #7 (24- LS1307\U.4, Luckhaupt, 3/7/06). Representative Hawker OBJECTED. Representative Kerttula explained that the amendment dealt with the failure to report sexual offenders or child kidnappers. She noted that this section of the bill had been amended to address ethical considerations for defense attorneys. 2:29:08 PM Representative Kerttula suggested that the standard should be one of "knowingly" disregarding requirements rather than "recklessly". She noted that in an earlier discussion Ms. Parks had referred to other legislation that employs such duel standards. Representative Kerttula proposed that the current standards in the bill would make it confusing and more difficult to prosecute. Senator Guess stated that she was opposed to the amendment, and confirmed their belief that the duel standards would not cause confusion. 2:30:25 PM Ms. Parks stated her belief that changing the mental state to "recklessly" would make it more difficult to prosecute the cases. She noted that certain offenses contain both a "reckless" and "knowing" terminology. She pointed out that "recklessly" was a difficult standard to meet, since it requires that the offender is aware of and consciously disregards a substantial risk, constituting a gross deviation from a reasonable standard of conduct. She expressed concern that those who wish to remain ignorant of circumstantial evidence can simply claim to "not know", whereas it can be proven that a person acted in reckless disregard of the evidence. 2:32:15 PM Representative Stoltze asked how it would affect a family situation. Ms. Parks confirmed that the concern would be that individuals would choose not to confirm suspicions. 2:32:45 PM Representative Hawker observed that use of the "reckless" standard had been adequately defended. He questioned, however, the double standard "and knowlingly". Representative Hawker asked whether, if an individual was unaware of location of a perpetrator, their knowing could be proven. 2:34:02 PM Representative Neuman stated his opinion that the standards were a policy decision. He questioned whether if an individual knew of incest in a family, or a sexual molester, and purposefully did not bring these facts forward, or even witnessed an act while under the influence of a substance, they would bear some measure of guilt. He observed that the victims should be given first consideration, along with our responsibility to society. He suggested that there should be a greater aptitude toward societal responsibility. Representative Hawker commented that in the construction of statute, they were obligated to protect the innocent, as well as provide a vehicle to prosecute the guilty. He expressed concern that with the current bill, the statute might prosecute the innocent. 2:36:50 PM Senator Guess acknowledged Representative Hawker's observation as valid, and conceded that language might be changed to protect an individual who failed to report the location of a sex offender due to their lack of knowledge. 2:37:58 PM Representative Hawker asked if it was the chairman's intention to report the bill out of Committee, and suggested that the language could be remedied during discussion of other amendments. Co-Chair Meyer recommended that the amendment be withdrawn. Representative Kerttula WITHDREW Amendment #7. Co-Chair Meyer stated that the bill would be HELD. He requested that updated fiscal notes be prepared for the next hearing to take into account any bill changes. 2:39:08 PM Representative Kerttula requested that the remainder of her amendments (#8-10) be withdrawn in order for further consideration before the next hearing. 2:39:38 PM CS SB 218 (FIN) was HELD in Committee for further consideration. 2:40:18 PM