Legislature(2007 - 2008)
05/09/2007 02:45 PM Senate JUD
| Audio | Topic |
|---|---|
| Start | |
| HB90 | |
| SB95 | |
| HB118 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 90(FIN)-CRIMES/CRIM PROCEDURE/SENTENCING
2:46:01 PM
CHAIR FRENCH announced the consideration of HB 90, and noted
that CSHB 90(FIN) was before the committee.
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law (DOL), said the bill was introduced by
Representative Samuels with a bail provision intended to fine-
tune a statute that was passed last year to avoid serial bail
hearings. In addition, it fine tunes other legislation that has
been passed in the last 4 or 5 years.
She explained that section 1 of CSHB 90(FIN) creates a new
crime: violation by a sex offender of condition of probation or
parole. The reason is when SB 218 was adopted last session where
someone who has been released on parole or probation will run
out of "time hanging over their heads" to enforce their
conditions of probation or parole - like taking periodic
polygraphs and making sure they don't move into another area.
This bill adds an enforcement mechanism for felony sex offenders
who are on probation or parole who do not abide by the
conditions of parole that are considered to be important in
order to safeguard the public and to at least try to delay re-
offense.
CHAIR FRENCH said the bill isn't adding to their sentence or a
new condition to probation.
MS. CARPENETI agreed, and said the bill only applies to sex
offenders with no time remaining on their original sentence.
2:48:53 PM
She explained that section 2 improves the definition of the
crime of the sending of indecent electronic material. Section 3
is a conforming section, regarding the forfeiture of equipment
like computers. Section 4 is a provision for cold-case
prosecutor funding. This would be helpful for pressing charges
although there is a statute of limitations. Section 5 limits
serial bail hearings by requiring a person to provide as much
information as possible at the initial hearing.
2:50:38 PM
MS. CARPENETI said that section 6 puts standards for when a
judge can award time against a sentence for a period of time
spent in a treatment program into statute. This would make
sentencing more uniform across the state. The three basic
requirements for credits are that the court must order a person
to a program, treatment programs must meet certain standards,
and credit is only issued for days the program director
approves.
CHAIR FRENCH asked if the bill is in any way related to
electronic monitoring or home arrest.
MS. CARPENETI replied that it is not.
2:52:25 PM
MS. CARPENETI explained that section 7 provides fix-it elements
needed in response to SB 218 that adopted mandatory minimum
terms of 15 years of probation for felony sex offenders; but
current statute sets out 10 years maximum probation for all
crimes. This would allow the court to impose the 15 years
mandatory minimum or more for sex offender probation.
Section 8 adds language regarding sex-offense registration for
electronic distribution of illicit materials to a minor. Section
9 addresses applications for post-conviction relief. She
explained that the state over the past 10 or 12 years has made
good progress in eliminating lawsuits filed by prisoners by
adopting a limit of one post-conviction application after a
conviction is upheld on direct appeal. She explained that the
courts have held that fairness requires a person to be able to
bring a second application for post conviction relief so that a
person can litigate a claim when his or her attorney's first
petition was not effective. This section provides that the
person in the second application has to file within a year of
the final decision on the first one.
Section 10 provides that a person may not be awarded good time
by the Department of Corrections (DOC) when in a treatment
program, in a private residence or under electronic monitoring.
CHAIR FRENCH said that a person who is sentenced to 20 days in
jail has to do 20 days of treatment or 20 days of home arrest or
20 days of electronic monitoring. The person does not the one-
third deduction that he or she would get in a correction
facility.
MS. CARPENETI agreed and added that Ms. Griffin has testified
that there are no treatment programs that DOC sends a person to
that isn't in connection with probation and parole. So you
wouldn't be getting good time for that anyway; this is not a
change in current practice.
2:55:27 PM
SENATOR MCGUIRE noted that in the past the reason for using
electronic monitoring was to cut costs. She asked if that was
the goal for the policy.
MS. CARPENETI explained that good time awards have always been a
tool to encourage good behavior in jail. It doesn't apply to
someone who has been released to serve a part of his or her
sentence at home under electronic monitoring.
CHAIR FRENCH noted that Senator Therriault had joined the
committee.
2:56:19 PM
CHAIR FRENCH asked about the applicability of section 11.
MS. CARPENETI replied it applies to sentences imposed on or
after the effective date of the act. It could apply to crimes
committed before that date, but only to sentences imposed
afterwards. Section 9, the section on limitation on post-
conviction relief applications, applies to persons who are in
jail and were convicted before, on, or after the affected date.
2:57:50 PM
CHAIR FRENCH moved Amendment 1, which was offered in the House.
AMENDMENT 1
Offered in the House to CSHB 90(FIN)
Page 3, line 28:
Delete "(A)"
Page 3, lines 29 - 30:
Delete all material
SENATOR WIELECHOWSKI objected.
CHAIR FRENCH said that the amendment removes a reference to
information the defendant knew about but did not present in a
previous bail hearing. The reference could present a series of
conflicts. He noted that the amendment is supported by the
sponsors.
SENATOR WIELECHOWSKI removed his objection.
SENATOR THERRIAULT suggested it should be a conceptual amendment
to accommodate grammar and drafting.
CHAIR FRENCH read the amendment.
SENATOR THERRIAULT said he had no objection.
CHAIR FRENCH, seeing no further objection, announced that
Amendment 1 is adopted.
SENATOR WIELECHOWSKI moved Amendment 2.
25-LS0331\O.1
Luckhaupt
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSHB 90(FIN)
Page 3, line 15, following "age":
Insert ";
(6) kidnapping"
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI explained that the amendment would make the
statute of limitations for kidnapping unlimited.
CHAIR FRENCH removed his objection and announced that without
further objection Amendment 2 is adopted.
At ease from 3:01:18 PM to 3:01:38 PM.
SENATOR WIELECHOWSKI moved Amendment 3.
25-LS0331\O.3
Luckhaupt
AMENDMENT 3
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSHB 90(FIN)
Page 1, line 5, following "time;":
Insert "relating to DNA samples collected for
inclusion in the DNA identification registration
system;"
Page 6, following line 23:
Insert a new bill section to read:
"* Sec. 11. AS 44.41.035 is amended by adding a new
subsection to read:
(q) The department shall process each sample
collected and include the identification data
resulting from the testing of the sample in the
identification registration system within 90 days
after receiving the sample."
Renumber the following bill sections accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI explained that the amendment would help
find people earlier by requiring DNA samples to be processed
within 90 days.
3:02:51 PM
SHARON FOSTER, representing herself, said that this amendment
gives law enforcement the tools it needs to fight crimes and
keep offenders from committing more crimes. If DNA can be taken
upon arrest and processed within 90 days, it would help. She
commented on a personal tie to the matter, and said that the
state needs to set standards and ensure the information is in
place within 60 days. It's costly and heartbreaking to not do
so.
3:08:59 PM
SENATOR MCGUIRE said she supports both amendments and she thinks
there is a real problem that needs to be addressed. There are
2,000 DNA buccal swabs that are not yet in the data base and she
was calling on the commissioner of the Department of Public
Safety (DPS) to take action. She said it could happen in two
ways. First, there needs to be better education to municipal
police officers about how to process the swabs in a timely
manner. Second, the backlog needs to be addressed with another
full time criminalist position in the crime lab.
3:11:35 PM
CHAIR FRENCH added that Senator Bunde allowed his bill to be
folded into the current one. He removed his objection.
3:12:11 PM
LAUREN RICE, Legislative Liaison, Department of Public Safety
(DPS), stated support for the amendment. The department wants
the 90-day limit. Addressing Senator McGuire's comments, she
said DPS knows about the federal grants and should the
amendments pass, the DPS fiscal note will include four lab
technicians. To make sure there is a smooth transition in
implementation, she asked that this particular section have a
2009 effective date. Even if she started recruiting for this
position now, the department would need at least six months for
training followed with some supervision. Although DPS wants the
effective date of the collection to be immediate, they want the
90-day requirement for processing to be two years out. Also, on
line 8 following "shall" DPS would like the language "make every
effort to" to be inserted. The concern is that if a lab
technician is unavailable or if a critical piece of equipment is
broken, there would be problems if the processing took longer
than 90 days.
CHAIR FRENCH thanked her and said the suggestions would be
incorporated into a Senate CS.
3:15:08 PM
MS. CARPENETI suggested that the 90-day limitation apply to
samples taken from individuals and not from a crime scene.
CHAIR FRENCH asked her to work with Senator Wielechowski on the
language. He removed his objection and seeing no further
objection, announced that Amendment 3 is adopted.
3:16:14 PM
SENATOR WIELECHOWSKI moved Amendment 4.
25-LS0331\O.4
Luckhaupt
AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSHB 90(FIN)
Page 1, line 5, following "time;":
Insert "relating to DNA samples from persons
charged with certain offenses;"
Page 6, following line 23:
Insert new bill sections to read:
"* Sec. 11. AS 44.41.035(b) is amended to read:
(b) The Department of Public Safety shall
collect for inclusion into the DNA registration system
a blood sample, oral sample, or both, from (1) a
person convicted in this state of a crime against a
person or a felony under AS 11 or AS 28.35 or a law or
ordinance with elements similar to a crime against a
person or a felony under AS 11 or AS 28.35, (2) a
minor 16 years of age or older, adjudicated as a
delinquent in this state for an act that would be a
crime against a person or a felony under AS 11 or
AS 28.35 if committed by an adult or for an act that
would violate a law or ordinance with elements similar
to a crime against a person or a felony under AS 11 or
AS 28.35 if committed by an adult, (3) a voluntary
donor, (4) an anonymous DNA donor for use in forensic
validation, forensic protocol development, quality
control, or population or statistical data bases,
[AND] (5) a person required to register as a sex
offender or child kidnapper under AS 12.63, and (6) a
person charged in a criminal complaint, indictment,
presentment, or information with a crime against a
person or a felony under AS 11 or AS 28.35, or a law
or ordinance with elements similar to a crime against
a person or a felony under AS 11 or AS 28.35. The
department also may collect for inclusion into the DNA
registration system a blood sample, oral sample, or
tissue sample from crime scene evidence or from
unidentified human remains. The DNA identification
registration system consists of the blood, oral, or
tissue samples drawn under this section, any DNA or
other blood grouping tests done on those samples, and
the identification data related to the samples or
tests. Blood samples, oral samples, and tissue samples
not subject to testing under this section, and test or
identification data related to those samples, may not
be entered into, or made a part of, the DNA
identification registration system.
* Sec. 12. AS 44.41.035(i) is amended to read:
(i) The Department of Public Safety shall, upon
receipt of a court order, destroy the material in the
system relating to a person. The court shall issue the
order if the person's DNA was included in the system
under
(1) (b)(1) or (2) of this section and the
court [IT] determines that
(A) [(1)] the conviction or adjudication
that subjected the person to having a sample taken
under this section is reversed; and
(B) [(2)] the person
(i) [(A)] is not retried or readjudicated
for the crime; or
(ii) [(B)] after retrial, is acquitted of
the crime or, after readjudication for the crime, is
not found to be a delinquent; or
(2) (b)(6) of this section and the court
determines that the criminal complaint, indictment,
presentment, or information has been dismissed.
* Sec. 13. AS 44.41.035(l) is amended to read:
(l) The Department of Public Safety may not
include in the DNA registration system a blood sample,
oral sample, or tissue sample of the victim of a
crime, unless that person would otherwise be included
under (b)(1) - (6) [(b)(1) - (5)] of this section."
Renumber the following bill sections accordingly.
CHAIR FRENCH objected for discussion purposes.
SENATOR WIELECHOWSKI explained that the amendment tracks a bill
that was filed by Senator Bunde with minor differences. It
requires that DNA samples be taken from a person charged in a
criminal complaint, indictment, presentment, or if there is
information with a crime against a person or a felony under AS
11 or AS 28.35 or ordinances with similar elements. The goal is
to get immediate DNA samples from those who are indicted for
felonies. There is a provision that the information is to be
destroyed if a person upon court order has been adjudicated to
be not guilty. This is a safety valve to protect civil rights.
3:17:33 PM
MS. RICE asked the committee to change the word "charged" to
"arrested". Currently the DPS computer system is set up with an
interface for arrestees, but not for individuals who are
charged. This would allow implementation without a computer
system overhaul.
MS. CARPENETI said there are two ways to look at the matter. A
criminal complaint means that usually somebody has reviewed the
evidence and elements of the offense and filed a charge. It's
one step removed from an arrest. The practical problem with a
criminal charge is that DPS doesn't know when a person has been
charged. "If you peg it to a charge, they may be summoned into
court; they may never be arrested. They come into court, they
answer the charges. There's nobody there to take it and if there
were, there would be chain-of-custody problems with the evidence
itself." She said she supports the DPS suggestion. The
alternative would require setting up a new system for gathering
buccal swabs from people who are charged and not arrested. Then
there would need to be a system for getting the swabs to the
police in a way that would be upheld in court.
3:19:43 PM
CHAIR FRENCH said it's clearly easiest to give the swab to the
police officer who is arresting someone. The aim is the arrest.
If the charges are later dismissed, it's likely that will happen
before the sample is processed and the person wouldn't have his
or her DNA analyzed. He questioned how to rewrite the amendment
to achieve the goal.
SENATOR WIELECHOWSKI said changing "charged" to "arrested" will
solve one problem and he'd be happy to work with DPS on other
areas of concern.
CHAIR FRENCH said further change is needed because it reads
strangely.
3:22:00 PM
SENATOR BUNDE, sponsor of SB 33, agreed with Senator
Wielechowski that the swab should be done at the time of arrest.
He referred the committee to the CS for SB 33, which includes
st
the term "arrest". He described the buccal swab as the 21
century version of fingerprinting. It's not a huge step to go
from the fingerprint to the DNA sample, he said.
CHAIR FRENCH said the difference is that in a security breach if
his finger print gets out into the world it's one thing, but if
his DNA gets out, he and his family could suffer adverse
consequences for medical insurance, for instance. That is a
concern.
SENATOR BUNDE explained that this type of DNA testing does not
get into medical history. It's just enough for identification.
CHAIR FRENCH removed his objection and announced that with no
further objection Amendment 4 is adopted.
3:24:35 PM
SENATOR BUNDE offered his CS to help draft the new CS.
MS. FOSTER added that federal money has already been allocated
to Alaska to deal with the backlog, but the only issue now is
that people at the crime lab are not allowed to work overtime.
If they had the opportunity to use those funds for overtime, the
backlog could be dealt with quickly.
CHAIR FRENCH thanked her and closed public testimony. He said
that a CS would be prepared.
3:26:20 PM
SENATOR THERRIAULT asked why language on lines 25 and 26, page
2, was deleted.
MS. CARPENETI explained that the acts described in AS
11.41.455(a) (1)- (7) are similar to the acts described in
paragraphs (A)(B)(C)(D)(E) and (F). It clarifies that it's a
violation for an adult to send illicit pictures of him or
herself to another adult or a minor.
CHAIR FRENCH said the list in AS 11.41.455(a) (1)-(7) is the
same list they was just enumerated in the bill.
MS. CARPENETI added that there is no substantive change, but the
way Section 455 is draft now, one could argue that it only
applies to depictions of children doing these particular acts.
3:28:35 PM
CHAIR FRENCH set HB 90 aside.
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