Legislature(1999 - 2000)
03/22/1999 01:08 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 3(RLS) - CRIMES OF MURDER & CHILD MURDERS
CHAIRMAN-DESIGNEE GREEN announced the next order of business is
CSSB 3(RLS), "An Act relating to the crimes of murder, solicitation
to commit murder in the first degree, conspiracy to commit murder
in the first degree, manslaughter, and criminally negligent
homicide; relating to homicides of children; relating to
registration as a sex offender or child kidnapper; relating to the
crime of interference with custody of a child or incompetent
person; and providing for an effective date."
Number 0330
REPRESENTATIVE ROKEBERG made a motion to adopt the proposed House
committee substitute for CSSB 3, Version 1-LS0028\H, Luckhaupt,
3/9/99 as a working document. There being no objection, it was so
adopted.
REPRESENTATIVE ROKEBERG explained the proposed House committee
substitute raises the offenses to felonies and deletes misdemeanors
under AS 11.41 - page 3, lines 20-22.
Number 0418
REPRESENTATIVE CROFT asked whether the sponsor agrees with the
changes.
Number 0432
JULI LUCKY, Researcher for Senator Rick Halford, Alaska State
Legislature, stated the sponsor agrees with the changes made to the
proposed House committee substitute.
Number 0518
REPRESENTATIVE ROKEBERG made a motion to consider Amendment 1
[1-LS0028\H.2, Luckhaupt, 3/12/99]. There being no objection, it
was before the committee. It reads as follows:
Page 3, line 20:
Delete "AS 11.41"
Insert "AS 11.41.100 - 11.41.300 or 11.41.410 -
11.41.458"
Page 3, line 22:
Delete "AS 11.41"
Insert "AS 11.41.100 - 11.41.300 or 11.41.410 -
11.41.458"
REPRESENTATIVE ROKEBERG explained the amendment excludes the crimes
of custodial interference in the first and second degrees. The
sponsor is lukewarm on the idea, so he thought it should be
discussed by the committee.
Number 0588
REPRESENTATIVE CROFT stated "it" was already limited to a felony
and now this amendment takes out custodial interference as well.
REPRESENTATIVE ROKEBERG stated custodial interference in the first
and second degrees is still a felony.
REPRESENTATIVE CROFT stated all of the misdemeanors have already
been taken out and this amendment would take out a couple of the
felonious custodial interferences.
Number 0616
REPRESENTATIVE ROKEBERG stated "we" didn't want to delete Section
5 because it is an important fix for the Department of Law. He
said, "I guess my concern was, if you have--if you have a case that
come up with the DWI plus custodial interference makes you into--or
the--you have a death on a DWI death, it raises it to second-degree
murder. And that's where I..."
Number 0659
REPRESENTATIVE MURKOWSKI asked Representative Rokeberg, if her
husband takes her kids to Turkey for six years and goes underground
with them, whether it would still be considered a felony.
REPRESENTATIVE ROKEBERG replied not under the intent of SB 3.
Number 0711
MS. LUCKY stated the amendment would take out felony custodial
interference, as well as robbery in the first degree, robbery in
the second degree, extortion, and coercion. She is not sure
whether that is the intent of the sponsor of the amendment.
REPRESENTATIVE ROKEBERG stated, if that's the case, it is a
drafter's mistake.
MS. LUCKY further stated the proposed House committee substitute
took out custodial interference as a misdemeanor (custodial
interference in the second degree), but left in custodial
interference in the first degree - kidnapping one's own child and
going underground, for example. A felonious custodial interference
in the first degree is usually charged to get a warrant for
extradition. Criminal negligence is not only drunken driving, but
shaken baby syndrome, abusing a child until its death, and starving
a baby. This is exactly the type of person this bill is trying to
get - a history of abuse against children, acting recklessly
towards children, taking a child against an order, or kidnapping a
child across state lines, and then through criminal negligence kill
another child through shaken baby syndrome or abuse. That's the
type of person the bill is looking for. It is her understanding
that somebody who takes a child on vacation would not be charged
with felonious custodial interference. If somebody accidentally
killed that child through drunken driving, that would not fit into
the fact-pattern of this section of the bill. The sponsor believes
that taking out custodial interference waters down this section of
the bill. The sponsor is also concerned about the other sections
that the amendment deals with that are obviously a drafting error.
Number 0891
CHAIRMAN-DESIGNEE GREEN asked Representative Rokeberg which of the
numbers he didn't want in the amendment.
REPRESENTATIVE ROKEBERG replied the amendment was intended for AS
11.41.320 and 11.41.330.
MS. LUCKY noted that AS 11.41.330 would have already been taken out
of the bill with the misdemeanor change. The only substantive
custodial interference change would be in AS 11.41.320. The
sponsor would want to include the following felony offenses: AS
11.41.500, 11.41.510, 11.41.520 and 11.41.520.
Number 0943
REPRESENTATIVE ROKEBERG withdrew his amendment.
Number 0978
REPRESENTATIVE KERTTULA made a motion to consider Amendment 2 from
the attorney general's office.
REPRESENTATIVE ROKEBERG objected.
CHAIRMAN-DESIGNEE GREEN called on Anne Carpeneti from the
Department of Law to explain the amendment.
Number 1003
ANNE D. CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, stated the
amendment would avoid costly litigation in the future. It defines
"conviction" to include a person convicted of a sex offense then
given a suspended imposition of sentence (SIS) for that conviction
for the purposes of sex offender registration. In 1994, when the
legislature adopted the sex offender registration Law, it went back
to 1980 to gather those who were convicted of a sex offense and
required them to register for 15 years after their depravation of
parole was finished. The Department of Public Safety defined
conviction in regulation to include those convicted of a sex
offense and given an SIS, but in 1988 the legislature changed the
law to forbid a court from giving an SIS to a person convicted of
a sex offense. Looking back at the sentences imposed in the late
1970's and 1980's the courts gave SIS's to those convicted of a
first-degree sexual assault, first-degree sexual abuse of a minor,
and less serious offenses. An SIS was originally designed and
practically imposed on people who have been convicted of less
serious offenses, but the legislature found that sex offenders have
a higher rate of recidivism. The amendment is being offered
because two people have convinced the courts that they shouldn't
have to register and two other judges have found that they should
have to register under similar circumstances. It would be helpful
to set it straight.
Number 1204
CHAIRMAN-DESIGNEE GREEN asked Ms. Carpeneti whether the amendment
would prevent the problem in the future or is it retroactive.
MS. CARPENETI replied it would define conviction to exclude SIS
for all those who were given SIS's in the past. It is not really
necessary for the future because the law prohibits the use of SIS's
now.
Number 1225
REPRESENTATIVE CROFT stated they should have to register. He is
uncomfortable with avoiding litigation, however.
Number 1236
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it includes all
levels of sex offenders, and what is the time period for the SIS's.
MS. CARPENETI replied the sex offender registration law applied to
people who were convicted or still under legal obligations prior to
and after 1984. If a person was free of any legal obligation and
condition before 1984, that person did not have to register.
Number 1282
REPRESENTATIVE ROKEBERG wondered whether there is a distinction
between class A, B or C felonies. These people are being swept up
in one big net. He asked Ms. Carpeneti whether it is correct that
an SIS is not on a record after a certain period of time, if there
is no wrong doing.
MS. CARPENETI replied correct.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether a person who
has already reached that person's agreed upon SIS terms would be
stuck on the sex offender registry after the fact.
MS. CARPENETI replied that person should have already been
registered. There isn't a distinction between the different
felonies and how many people were given SIS's during that period of
time. There were at least 200 people given SIS's between 1984 and
1988. Some of whom were convicted of two sex offenses and given
SIS's. One of whom was convicted of three sex offenses and given
an SIS for all three. Some of them were first-degree sexual abuses
of a minor and second-degree sexual assaults.
Number 1360
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether or not at that
time there were certain terms and conditions put on an SIS, and if
they were not met that person would go back to jail.
MS. CARPENETI replied yes. Usually, a judge imposes conditions of
jail time, for example.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there would be
an instance where the full force of a conviction would have been
met and agreed to by both the state and individual that would get
trapped in this net.
MS. CARPENETI reiterated that they should have been registered this
whole time, according to the law as the Department of Law
interprets it.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, isn't that the point
of the amendment? Is there a split in the cases?
MS. CARPENETI replied two people have convinced the courts that
they should not have to register.
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, because they paid
their debt to society?
MS. CARPENETI replied there were a variety of reasons.
REPRESENTATIVE ROKEBERG stated he is concerned about an inequity.
He said, "It seems to me that it's who they're going to throw this
net out and capture--get if they've already in essence have
completed their debt to society and all of a sudden because of the
retrospective aspect of the law, they're being asked to do
something and then they've already completed their routine in which
their actual offense is lifted off the record, if that's if--if I'm
not mistaken."
Number 1475
CHAIRMAN-DESIGNEE GREEN stated the intent is to get those people
anyway. They slipped through because of a couple of liberal
judges.
Number 1487
REPRESENTATIVE JAMES stated she wants to get everybody on this list
who ought to be on it. But, she finds it difficult to make
legislation to change court cases. She asked Ms. Carpeneti whether
anything will happen to those four cases.
MS. CARPENETI replied they are on appeal.
REPRESENTATIVE JAMES asked Ms. Carpeneti, if the law is changed
with this amendment, will it affect their appeal.
MS. CARPENETI replied, "I hope so." She hopes that the court will
be instructed to see the clarification in the law to require people
who were convicted in the 1980's and who were given an SIS to be
registered.
REPRESENTATIVE JAMES asked Ms. Carpeneti to explain how the
amendment is a clarification as opposed to a change in the law.
MS. CARPENETI replied when the sex offender registration law was
passed in 1994, the legislature gave the Department of Public
Safety the authority to adopt regulations to implement it. As part
of the regulations, the definition of conviction included every
finding of guilt that was not turned over by a court including
pleas, and findings of guilt by a court or jury. This amendment
takes that definition and puts it in statute. It also includes an
intent section to clarify the confusion evident by the judges that
made those decisions.
Number 1608
REPRESENTATIVE KERTTULA noted that the person is still convicted.
For every change of plea that she has done, the person understood
that he/she was convicted, that they had an opportunity under the
SIS to go back, but the conviction still stood.
CHAIRMAN-DESIGNEE GREEN stated that person wouldn't be registered.
REPRESENTATIVE KERTTULA replied at this point the courts are split.
The amendment is to clarify the conviction.
Number 1656
REPRESENTATIVE CROFT stated AS 12.63.020 says if it's not an
aggravated sex offense, it is only 15 years from the date of
conviction. If it's an aggravated sex offense, it is a lifetime
obligation, and in that case that person is caught in the net. If
a person is clean for 15 years, then that person can drop of the
list.
MS. CARPENETI stated, if a person does not check in with the
Department of Public Safety or a police department every year to
update information in the registry, then that person doesn't get
credit for that year.
REPRESENTATIVE CROFT stated if a court has determined that they
don't have to, then they wouldn't be charged for...
MS. CARPENETI said correct.
Number 1740
REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what constitutes an
SIS. Would a conviction be removed from the books upon completion
of the conditions?
MS. CARPENETI replied when a SIS is imposed a person has to fulfill
the obligations that a court has imposed, but a conviction really
isn't removed from every single aspect. "12.55.085 specifically
provides that you cannot get an SIS if you have a prior conviction
and it also provides that convictions in terms of that section of
whether--so whether or not you have a prior conviction includes
conviction where you were given an SIS. So, if you're convicted of
a theft as a young person and were given an SIS and provided--did
everything you were suppose to do and got your conviction off the
record, and ten years later if you committed another theft, under
the law of SIS's the court could go back--has to go back and look
at that. And, you can't get another one because conviction for
purposes of law of SIS does not include an SIS provision."
Number 1851
REPRESENTATIVE ROKEBERG noted that Megan's Law has withstood
constitutional tests at the U.S. Supreme Court level, but many
states have a two tier system where the severity of a sex offense
is balance with the crime and the length time on a registry.
Alaska doesn't have that. Therefore, a sex offender convicted of
assault in the fourth degree is in the same boat of a sex offender
that committed assault in the first degree. He takes exception to
that as a matter of public policy. He asked Ms. Carpeneti whether
there would be a distinction in terms of severity when that net is
thrown back out. He also asked Mr. Carpeneti whether the net would
be thrown back over offenders who have completed their conditions.
In addition, a person in that case would have to say that he/she
has never been convicted, but that he/she is on a sex offender
registry when completing a job application, for example. It is a
weird set of circumstances.
Number 1920
MS. CARPENETI replied Alaska does have a two tier sex offender
registration program. People convicted of an aggravated sexual
assault and kidnapping are required to register for life, even if
it a first offense. People convicted of sexual abuse of a minor in
the first degree, and people convicted twice of any sexual offense
also have to register for life. People convicted of other sexual
offenses have to register for 15 years. In addition, she has never
believed that a person can answer truthfully about a conviction on
a job application, even if through an SIS that conviction has been
set aside.
Number 1990
REPRESENTATIVE ROKEBERG asked whether the sponsor has any objection
to this amendment since it piggybacks SB 62.
MS. LUCKY replied the sponsor does not have an objection to the
amendment.
Number 2038
REPRESENTATIVE ROKEBERG withdrew his objection.
CHAIRMAN-DESIGNEE GREEN asked whether there is further objection.
There being none, Amendment 2 was so adopted.
Number 2062
REPRESENTATIVE ROKEBERG made a motion to move the proposed House
committee substitute for CSSB 3, as amended, from the committee
with individual recommendations and the attached fiscal note(s).
There being no objection, HCS CSSB 3(JUD) was so moved from the
House Judiciary Standing Committee.
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