HB 228-SEX OFFENDER REGISTRY; NOTICE TO VICTIMS  [Contains discussion of HB 49.]  4:06:17 PM CO-CHAIR KREISS-TOMKINS announced that the final order of business would be HOUSE BILL NO. 228, "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." 4:07:34 PM JOHN SKIDMORE, Deputy Attorney General, Criminal Division, Department of Law (DOL), on behalf of the House Rules Standing Committee, sponsor, by request of the governor, relayed that HB 228 is in response to the Alaska Supreme Court decision of June 2019, Doe v. Department of Public Safety. It held that offenders on the sex offender registry must be afforded the opportunity to be removed from the registry, if they can demonstrate that they no longer pose a danger to the public. The decision was based on the Alaska State Constitution's "Right of Privacy" provision [Article I, Section 22], and stated that the state's sex offender registry, without affording an offender the opportunity to be removed, is unconstitutional. The decision discussed an offender on the registry being denied housing, employment, and living in a certain community. MR. SKIDMORE explained that HB 228 would provide the legislature with an opportunity to provide guidance to practitioners and the courts about the burden of proof that an offender must produce to establish that he/she is no longer a danger - "beyond a reasonable doubt," "clear and convincing evidence," or "probable cause." He posed the following questions: What sort of prior convictions or other factors might influence the decision about whether an individual is dangerous? How long must an offender be on the registry before he/she is able to apply to be removed from the registry? If an offender is denied, can he/she reapply to be removed? If so, how frequently and what sort of factors would determine whether the offender could reapply?" MR. SKIDMORE stated that there are two components to the registry: the law enforcement registry, which is used for law enforcement purposes, and the information posted online for the public to view. Under current law, a smaller subset of the information provided to law enforcement is posted online. All the concepts that the Alaska Supreme Court found that violate the Alaska State Constitution are based on the public registry. Another very significant question is, "When an individual has the opportunity to be removed from the registry, is that simply an opportunity to not have their information published to the public, or does that mean that they never have to provide any information to law enforcement, once they've met that burden?" He maintained that these are all questions that need to be answered and are best answered by the legislature. He said that HB 228 would afford the legislature the opportunity to discuss these issues and provide guidance on policy. MR. SKIDMORE noted that HB 228 would also bring Alaska's registry into closer alignment with the federal government and other states. He relayed that the proposed legislation accomplishes this in two ways: First, it creates three tiers of registry for evaluating different types of offenses instead of two tiers of registry. Second, there is additional information that Alaska does not currently require that would be helpful for law enforcement. An example is international travel information. When an individual from another country travels to the U.S., the U.S. State Department asks the other country to advise it if the individual has been convicted or held responsible in that other country for a sex offense. The U.S. government wants to monitor the sex offender who is coming to the U.S. Likewise, other countries want that information on U.S. citizens that travel. This information is valuable for law enforcement but is never posted on a public registry. 4:14:01 PM CO-CHAIR KREISS-TOMKINS asked what would happen if the legislature took no action. MR. SKIDMORE answered that all the questions that he posed are under litigation in the superior court. If the legislature does not act, then the courts would have to continue to legislate "from the bench" to answer the questions. He stated that if decisions are made on a case by case basis, then each superior court judge would make decisions independently on each case. There is no controlling guidance from one superior court to another. The only way judges would be bound and uniformity brought to the process is if there was a conflict in the lower courts and the case was heard by the court of appeals or the Alaska Supreme Court. In that case, one of them would have to legislate from the bench and provide guidance. He said that another option would be for the Alaska Court System to adopt rules to answer the questions - again resulting in the judicial branch legislating and providing policy guidance instead of the legislature. He added that if the legislature does not act, there would be two outcomes: 1) increased litigation and expense, and 2) a lack of guidance resulting in continued confusion and cases handled in different manners. He added that if the legislature were to decide that it doesn't agree with the courts, it would have no ability to reverse the decisions. 4:17:54 PM REPRESENTATIVE HOPKINS asked how a minor - in the case of a 14- year-old sending a nude photograph through a [cell] phone - would be treated under the tiered system and be removed from a sex registry. MR. SKIDMORE replied that in Alaska, minors are not required to register for sex offenses; therefore, they would not be impacted under HB 228 or current law. REPRESENTATIVE VANCE referred to the chart from DOL, entitled "Sex Offender Registration" and included in the committee packet, and asked how the benchmarks for the tiers were chosen: registration with the Department of Public Safety (DPS) for 10 years under Tier I, 15 years under Tier II, and Life under Tier III; eligible for removal from the online registry at 5 years under Tier I, 10 years under Tier II, and 15 years under Tier III. MR. SKIDMORE answered that the tiers in the chart are those used by the federal government and by most states in the country. Alaska is following other states for a uniform approach nationwide. The tier system and the time frames are in line with what other states are doing. REPRESENTATIVE VANCE asked whether there is data showing that a sex offender or kidnapper is unlikely to reoffend after a certain number of years to support the schedule in the chart. MR. SKIDMORE acknowledged that he is not aware of studies on that issue. Most of the states in the country have statutory provisions like what the Alaska Supreme Court is requiring the legislature to enact - a way for individuals to be removed from the registry if they can demonstrate that they no longer pose a danger. 4:21:10 PM REPRESENTATIVE VANCE asked Mr. Skidmore to elucidate on "Class A Misdemeanor Sex Offense: Sexual Abuse of a Minor 4" under Tier 1. MR. SKIDMORE responded that misdemeanor sex offences are the least serious of the sex offenses. Sex offenses are characterized by sexual penetration and sexual contact; and misdemeanors relate to sexual contact, as defined under AS 11.41.427(a)(1)-(5), which read in part: (a) An offender commits the crime of sexual assault in the fourth degree if (1) while employed in a state correctional facility or other placement designated by the commissioner of corrections for the custody and care of prisoners, the offender engages in sexual contact with a person who the offender knows is committed to the custody of the Department of Corrections to serve a term of imprisonment or period of temporary commitment; (2) the offender engages in sexual contact with a person 18 or 19 years of age who the offender knows is committed to the custody of the Department of Health and Social Services under AS 47.10 or AS 47.12 and the offender is the legal guardian of the person; MR. SKIDMORE pointed out that the sexual contact cited involves someone older and not sexual abuse of a minor. REPRESENTATIVE VANCE asked what the legal effects would be for the state, if it chose to increase the time frames [for being on the online registry] under the tiers. MR. SKIDMORE answered that he does not know at what point the court would conclude that the length of time someone is on the registry is longer than what the court considers due process required under the Alaska State Constitution. He offered that the courts have indicated that someone needs to be afforded the opportunity to be removed from the registry. The proposed legislation would set a clear and convincing evidence burden of proof to show that the person is not a danger; that is, looking at subsequent convictions, other assessments, and whatever DOL considers would give the greatest assurance that someone removed from the registry would not be a danger. He added that under HB 228, the individual would only be removed from the public registry but would still be required to report to law enforcement. 4:25:38 PM KACI SCHROEDER, Assistant Attorney General, Criminal Division, Department of Law (DOL), on behalf of the House Rules Committee, sponsor, by request of the governor, paraphrased from the sectional analysis for HB 228, which read: 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. 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. 4:28:33 PM 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. 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. 4:30:33 PM REPRESENTATIVE HOPKINS referred to Section 8(a)(3), on page 9, line 29 - page 10, line 11, of HB 228, and asked whether an offender convicted of any of the crimes listed under subparagraphs (A)-(G) would never be removed from the offender registry. MS. SCHROEDER answered, "That's correct. Those are disqualifying offenses." CO-CHAIR KREISS-TOMKINS asked whether the standards were consistent with the Alaska Supreme Court ruling. MS. SCHROEDER replied that the supreme court was not very prescriptive regarding the standards; DOL looked to other states to develop a list that the department thought would work in Alaska. MS. SCHROEDER continued to paraphrase from the sectional analysis, which read: 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. 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. 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. 4:35:47 PM CO-CHAIR KREISS-TOMKINS asked why the legislature did not make the requirement [for an out-of-state sex offender to register in Alaska] retroactive at the time HB 49 was passed. 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. 4:36:54 PM REPRESENTATIVE HOPKINS asked whether sex offenders from out of state, who must register in Alaska, would be subject to Alaska's requirements for removal from the registry or those in the state in which they were convicted. MR. SKIDMORE answered that an individual from out of state would be required to register for the same length of time that he/she is required to register in the state of conviction. To afford the person the opportunity to be removed from Alaska's registry, DOL would need to determine the appropriate tier. MR. SKIDMORE, in response to Representative Kreiss-Tomkins's question, said that DOL wanted to keep the law as narrow as possible in dealing with out-of-state sex offenders so that if there was a legal challenge, it would be a "clean" legal challenge. He explained that applying the law retroactively is a different legal concept - one that DOL wanted to keep separate. He added that the case that prompted introduction of HB 228 had two components: One component was whether Alaska sex offender registration may be imposed on sex offenders who have moved to Alaska. At the time HB 49 was moving through the legislature, there was litigation in the Alaska Supreme Court addressing such issues. That portion of the opinion was decided in Alaska's favor. The second component was that the court's opinion led DOL to believe that applying the law retroactively would be legal. CO-CHAIR KREISS-TOMKINS stated that HB 228 would be held over.