Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/22/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB43 | |
| SB22 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 43 | TELECONFERENCED | |
| += | SB 22 | TELECONFERENCED | |
SB 22-CRIMES; VICTIMS; CHILD ABUSE AND NEGLECT
1:39:53 PM
CHAIR COGHILL announced the consideration of SB 22. [CS for SB
22, Version U, was before the committee.] He asked Ms. Carpeneti
to continue the sectional analysis.
1:42:00 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), continued the
sectional analysis of the work draft CSSB 22, Version U.
Section 20 clarifies that a person convicted for sex trafficking
is not eligible for suspended imposition of sentence (SIS). She
confirmed that these are felony offenses.
CHAIR COGHILL asked if suspended imposition of sentence is
conditional on the person doing certain things.
MS. CARPENETI said for that and for a young offender or a first
time, less serious offender.
CHAIR COGHILL summarized that Section 20 prohibits suspended
imposition of sentence for a person convicted of sex
trafficking.
MS. CARPENETI agreed and added that it was unlikely that a court
would give an SIS for a sex trafficking conviction, but this
clarifies that it will not happen.
1:43:26 PM
SENATOR DYSON said that doesn't mean while a person is awaiting
an appeal.
MS. CARPENETI responded that a person who has appealed his or
her sentence has already been sentenced, although it may be
stayed depending on the case and the judge's decision.
Section 21 adds a provision to the consecutive sentencing law
that is similar to other provisions in that law. It requires
that when a defendant is being sentenced for the crimes of
distribution of child pornography, possession of child
pornography, or distribution of indecent material to minors the
court must impose some (as little as one day) consecutive
incarceration to recognize each particular crime.
CHAIR COGHILL asked if this might create technical difficulties
in the case.
MS. CARPENETI replied she didn't believe so. This language was
similar to existing law and she was unaware of technical
problems that had arisen with existing law.
Sections 22 and 23 address the Collins v. State decision that
this bill intends to overturn.
CHAIR COGHILL asked if she had developed language that would
clarify the double negative in these sections.
MS. CARPENETI said no, but she would continue to try.
CHAIR COGHILL pointed out that paragraph (1) is stated in the
positive and paragraph (2) is stated in the negative.
MS. CARPENETI agreed and explained that it's because of the
language in the decision itself.
1:46:54 PM
CHAIR COGHILL summarized his understanding that to have a case
referred to a three-judge panel the first mitigator is an
extraordinary chance of rehabilitation, and the other is that
the defendant cannot have a history of unprosecuted,
undocumented, or undetected sexual offenses. He questioned the
use of no history and undetected in the same sentence.
MS. CARPENETI said that was part of the problem. She explained
that when the legislature adopted the presumptive sentencing
scheme it also adopted aggravators and mitigaters. One of the
aggravating factors is that the person has a history of prior
bad conduct that may or may not have been prosecuted. However,
the lack of prior bad acts was never a mitigating factor; it
just failed to be an aggravating factor. The problem with the
Collins decision is that it allows a defendant to say he does
not have any prior bad conduct, and the prosecution is then in
the position of having to disprove that negative. The data the
legislature had in 2006 when it increased the sentencing ranges
for sex felonies was that most sex offenders do have prior
offenses and they're generally not caught or reported until
they've had a number of victims.
CHAIR COGHILL said this overcomes the presumption of the
legislature.
MS. CARPENETI responded that it was DOL's position that the
Collins decision did that.
1:50:07 PM
SENATOR DYSON worried about the reliability of the evidence when
the crimes weren't reported and there was no prosecution.
MS. CARPENETI responded that the reason the legislature made the
existence of prior bad acts an aggravator is that they didn't
necessarily mean that the lack of evidence or reports should be
a mitigator. What the court should consider in those
circumstances is that it is a first-time offender.
1:50:32 PM
SENATOR MCGUIRE joined the committee.
SENATOR DYSON commented that part of the awkwardness is that
there's no proof.
CHAIR COGHILL stated that he still was not satisfied.
MS. CARPENETI reiterated that she would continue to work on the
language.
SENATOR DYSON cautioned that given the awkwardness of the
language, this legislature has the responsibility to make its
intent very clear.
1:52:52 PM
MS. CARPENETI said that she was told that legislative intent
could not be put in the substantive law, but a court that looked
at the discussion would probably understand that the
administration's intent was to go no further than overturning
Collins.
CHAIR COGHILL summarized his understanding of Sections 22 and
23.
1:53:52 PM
MS. CARPENETI said Section 24 is a conforming amendment that
corrects an error in the definition of sexual felony in Title
12. When the legislature in 2006 enacted heightened penalty
ranges for sex felonies, sex trafficking in the first degree and
online enticement of a minor were not included. Those terms are
used in AS 12.55.125(i) which adopts higher sentencing ranges
for most sex felonies, including sex trafficking in the first
degree and online enticement of a minor.
CHAIR COGHILL asked if there had been a problem.
MS. CARPENETI said not to her knowledge.
Section 25 is a conforming amendment that deals with people who
have to register as a sex offender after conviction for first
and second degree sex trafficking. She reminded the committee
that in 2012 the legislature changed the age of the victim for
first degree sex trafficking, which is an unclassified felony,
from 16 or 17 years of age to under 20 years of age. A person
who commits this unclassified felony should be required to
register as a sex offender like every other sex trafficker who
is convicted of this offense, she said.
SENATOR DYSON questioned why somebody who is convicted of
trafficking another person shouldn't always have to register as
a sex offender.
MS. CARPENETI responded that under current law, anybody
convicted of sex trafficking in the first and second degree does
have to register as a sex offender. What this is addressing is
that under current law, a person convicted of the unclassified
felony of sex trafficking an 18 or 19 year old would not have to
register as a sex offender.
Section 25 also adds to the sex offender registry those people
who are convicted of felony level prostitution, which is being a
patron of a child prostitute.
1:57:22 PM
Section 26 makes a conforming amendment to the warning on
domestic violence protective orders to let a person served with
an order know that certain violations of that protective order
may be a crime. The maximum fine for a class A misdemeanor was
raised several years ago from $5,000 to $10,000 and this updates
the warning to reflect the maximum fine.
Section 27 adds to the definition of victim counseling centers
to include victim counseling centers operated or contracted by a
branch of the armed forces of the United States. This expands
the evidentiary privilege for communications between a counselor
and a victim of domestic violence and sexual assault to include
services provided to victims connected with the military.
Section 28 adds the victims of sex trafficking in the first and
second degrees, human trafficking, and unlawful exploitation of
a minor to the persons who may be eligible to apply for violent
crimes compensation.
SENATOR DYSON asked who was responsible for collecting the funds
for court ordered restitution.
MS. CARPENETI replied that a victim can either undertake the
collection him or herself or ask the Department of Law
Collections and Support Section to assume that responsibility.
SENATOR DYSON said he wouldn't want to think that a victim who
is under the age of majority would have to undertake collection
on his or her own.
MS. CARPENETI offered to follow up to find out the exact
procedure, but her recollection was that the victim is given the
option of having DOL help with restitution.
2:01:27 PM
SENATOR DYSON reiterated his disapproval of placing the onus of
restitution on young victims. He asked if it's a consideration
at parole if a person did not pay the court ordered restitution.
MS. CARPENETI said she didn't know. She continued the sectional
analysis.
Section 29 would require the Alaska Judicial Council to include
information about a judge's compliance with sentencing
requirements under AS 12.55.025(a)(5) to recognize a victim's
rights and concerns.
CHAIR COGHILL said he liked the idea, but was concerned that the
information could be averaged and thus give an ambiguous
picture.
MS. CARPENETI said the purpose of this section and the court
rule amendments in [Sections 39 and 40] are to strengthen the
law that requires the judicial system to recognize the
constitutional rights of victims when imposing sentences. [The
court is required to include in the sentencing report
information about the financial, emotional, and medical effects
of the crime on the victim, and the victim's need for
restitution.]
CHAIR COGHILL stated support for the idea of compliance to help
victims, and reiterated his concern.
MS. CARPENETI said she would work with the court or judicial
council to make it more clear or workable.
CHAIR COGHILL highlighted that many laws and health and social
service resources are meant to help violators be held
accountable and get an opportunity, whereas many victims don't
have that opportunity. He reiterated concern that the compliance
reports might not show the real picture.
2:05:46 PM
MS. CARPENETI affirmed that was not the intention. She continued
the sectional analysis.
Section 30 provides that a person convicted of an unclassified
or class A sex felony is not eligible for mandatory parole, also
called good time. She provided examples. An unclassified sex
felony is sexual assault in the first degree and sexual abuse in
the first degree and sex trafficking in the first degree. Class
A sex felonies include the second conviction of unlawful
exploitation of a minor.
She informed the committee that current law provides that a
prisoner is not eligible for a good time deduction if the
prisoner has been sentenced to a mandatory 99-year term for
murder; or to a definite term on a three-strikes crime under AS
12.55.125(l); or for a sex felony when the prisoner has one or
more prior sex felony convictions. This proposal adds a first
conviction of an unclassified or a class A sex felony to the
list.
Sections 31-35 address the law regarding administrative
subpoenas. These amendments allow the attorney general to
designate either the head of the criminal division or the head
of the civil division to act in his or her place in deciding if
it is appropriate to issue an administrative subpoena.
SENATOR DYSON asked where it says the designee is restricted to
only the two deputy attorneys general.
MS. CARPENETI directed attention to the definition of "designee"
in Section 34 on page 17, lines 12-17.
Section 35 addresses reasonable efforts by the Department of Law
(DOL) in reuniting a child in need of aid (CINA) with a parent.
This gives the state discretion to ask for an excuse from using
reasonable efforts to reunite a child in need of aid with a
parent and it gives the court discretion to grant the request
when the parent has sexually abused that child or another child
of that parent or guardian, or the parent is registered or
required to register as a sex offender or child kidnapper.
2:10:05 PM
Section 36 adds athletic coaches to the list of persons who are
required to report to authorities if the coach has reasonable
cause to believe that a child has suffered harm from child abuse
or neglect.
Section 37 defines athletic coach to include both a paid and
volunteer leader or assistant in a sports team.
SENATOR MCGUIRE stated absolute support for adding athletic
coaches to the list of mandatory reporters, but questioned
whether the definition left anything out. She cautioned that
this will establish an expectation of safety for parents, so it
is imperative that there are no loopholes. Parents will assume
that their child's athletic coach will fall under this
definition. She asked about nonprofits like the Boys and Girls
Club.
MS. CARPENETI said she would give it thought, but there was also
concern that the definition was already too broad.
SENATOR MCGUIRE stated support for making the definition as
broad as possible, because it affects lives forever.
2:14:28 PM
SENATOR DYSON disagreed with including volunteers in the list of
mandatory reporters because they don't have professional
training and might not even know what to look for. Nevertheless,
they would potentially be subject to legal penalties.
SENATOR MCGUIRE said she would be surprised if the state were to
prosecute a volunteer under these circumstances. She opined that
it was more about sending a message.
CHAIR COGHILL read AS 47.17.020(a) to confirm that there is a
duty to report if there is reasonable cause to suspect abuse. He
surmised that this would change the training of volunteer
coaches.
SENATOR DYSON commented that there was both an upside and
downside to many of these policy calls.
SENATOR MCGUIRE opined that intervening early when a child is
being physically, emotionally, or sexually abused is critical to
saving a child's sole and ultimately their life. She stated
support for expanding mandatory reporting and reiterated that
the definition should be as broad as possible because of the
expectation of safety.
CHAIR COGHILL said the committee would deal with this section
again.
2:19:44 PM
MS. CARPENETI continued the sectional analysis. Section 38
amends Rule 16(b), Alaska Rules of Criminal Procedure. It adopts
a court rule that limits the publication of child pornography
that is required during the discovery process in a criminal
prosecution for unlawful exploitation of a minor. It requires
the court to arrange to send this material to an expert witness
out of state. She noted Mr. Steiner's suggestion to make the
same accommodation for sending the material to an expert witness
in the state.
Section 39 amends Rule 32.1(b)(1), Alaska Rules of Criminal
Procedure. It requires the court to accept a presentence report
only if it includes a victim impact statement or an explanation
of why the victim or victim's representative could not be
interviewed.
Section 40 amends Rule 32.2(a), Alaska Rules of Criminal
Procedure. It requires the court to take the victim impact
statement into account when preparing the sentencing report and
for other purposes.
Section 41 amends Rule 404(b)(2)(i), Alaska Rules of Evidence.
Prior bad acts generally are inadmissible in the prosecution of
a case, but there are three particular exceptions. One is for
domestic violence cases, one is for sexual assault, and another
is for acts of physical or sexual assault or abuse of a minor.
For some reason the latter exception has a 10 year look-back
limitation that the others do not.
CHAIR COGHILL asked if this had been a problem.
MS. CARPENETI responded that it probably had been because
district attorneys brought it forward.
Sections 42 and amend Rule 216(a) and (b), Alaska Rules of
Appellate Procedure. It allows the state the right to an
interlocutory appeal of a decision to the court of appeals.
CHAIR COGHILL highlighted that court rule changes require a two-
thirds vote of the body to pass as opposed to a majority vote to
pass the law itself.
MS. CARPENETI informed the committee that the court system has
committees made up of judges, prosecutors and defense attorneys
that examine proposed rule changes and make recommendations to
the supreme court.
2:25:12 PM
CHAIR COGHILL opened public testimony.
LAUREE MORTON, Executive Director, Council on Domestic Violence
and Sexual Assault, Department of Public Safety (DPS), Juneau,
AK, said her testimony would focus on the three-judge panel in
the context of the Collins case and the legislative intent in
2006 when the legislature extended the sentences for sex
offenders.
MS. MORTON disagreed with previous testimony by the ACLU that
sex offenders are the least likely class of offenders to
reoffend. She said the ACLU relied on a report from the Alaska
Judicial Council that looked at offenders released from custody
over a three-year period to determine recidivism rates. That
report found that 39 percent of sex offenders reoffend, which
was the lowest rate among the types of offenders in that study.
The problem is that sex offenders were compared to driving,
property, and drug offenders. These crimes generally are
committed in public and are easier to detect as opposed to sex
offenses that are more likely to be committed in private and are
less likely to be reported.
MS. MORTON cited some of the reports that the 24th Legislature
relied on when it increased the sentencing ranges for sex
felonies. The Alaska Department of Corrections in 2006 reported
that national statistics showed that 78.5 percent of sex
offenders had at least one prior arrest and averaged 4.5 prior
arrests. In Alaska, of the 927 sex offenders in custody in 2006,
93 percent had at least one prior arrest and the average number
of arrests per sex offender was 11.75.
2:29:09 PM
SENATOR DYSON asked if the prior arrest was for the same
category of crime.
MS. MORTON said yes. She continued that the 24th Legislature
also reviewed a study conducted in 2000 that reported that sex
offenders average 110 victims and 318 offenses before they enter
the system for the first time. Ms. Morton said that when she
looked to see if those statistics had changed, she found a study
that the National Council of Missing and Exploited Children
conducted in 2012, which reported that on average a predator
victimizes 117 children before that person enters the system.
She said she also found a study from 2004 called "Lifetime Sex
Offender Recidivism: A 25-year Follow-Up Study" that found that
3 of 5 sex offenders reoffended.
MS. MORTON asked the committee to weigh heavily, as it looks at
whether to overturn Collins as proposed in SB 22, that the
legislature in 2006 did a thorough job of looking and found that
many [sex] offenses are committed before the offender enters the
system.
CHAIR COGHILL asked if she understood that if this legislature
overturns Collins, it is saying that a factor for referring a
defendant to a three-judge panel is that the person has to have
an extraordinary chance of rehabilitation. The Collins decision
changed that to ordinary chance of rehabilitation.
MS. MORTON affirmed that she was speaking in support of
overturning Collins. She disagreed with the notion that sex
offenders don't reoffend or have the lowest recidivism rates.
2:32:04 PM
MS. MORTON stated support for amending the crime of sexual
assault in the third degree to prohibit probation and parole
officers from engaging in sexual conduct with a person on
probation or parole, similar to the prohibition for corrections
officers that passed several years ago. She said the concerns
that were raised during a previous hearing piqued her interest
in ethics standards for probation and parole officers. She found
three codes of conduct: [Federal Probation and Pretrial
Officers; The American Probation and Parole Association; and
Alaska Correctional, Probation and Parole Officer Code of Ethics
[in the Alaska Administrative Code]. Each of these codes
recognizes that probation and parole officers hold high public
trust in ensuring that offenders follow conditions of release
and know there are consequences if they reoffend. They also talk
about the responsibility to be above reproach in their actions.
The Alaska code of ethics for correctional officers even directs
probation and parole officers not to have undue familiarity with
probationers or parolees. She reiterated support for the
provision whenever the officer knows the person is on probation
or parole, regardless of whether there is direct supervision or
not. It's the position of authority that makes the contact
inappropriate.
MS. MORTON related that CDVSA held its quarterly meeting this
week and as part of the education component they watched the
documentary film "The Invisible War." It is about sexual assault
in the U.S. military. It features interviews from men and women
who speak about their experiences, the difficulty they have is
getting someone to believe them and take their report seriously.
People in positions of authority either ignore the reports or
punish the reporter.
She thanked the members for being cognizant of the issues and
their efforts to ensure that victims are taken care of as well
as possible.
SENATOR OLSON asked if she was concerned in Section 3 that the
language on page 4, line 13, talks about a person 18 or 19 years
of age as opposed to a specific age.
CHAIR COGHILL added that it was the proposed provision that
deals with a juvenile probation officer.
MS. MORTON replied that she was not bothered.
2:40:10 PM
TOM STENSON, Prison Rights Attorney, ACLU of Alaska, Anchorage,
AK, described the 2007 Alaska Judicial Council recidivism study
and report. The people convicted of felonies were grouped into
broad categories of violent offenders, sex offenders, property
offenders, drug offenders, and other offenders. The council
found that among those categories, sex offenders were the least
likely to reoffend. He affirmed that sex offenders were compared
to traffic offenders and property offenders, but pointed out
that they were also compared to violent offenders. He reasoned
that sex offenders were compared to these other categories
because there wasn't anybody else to compare them to within the
group of people who had committed felonies in Alaska. He
commented on the studies that Ms. Morton cited and maintained
that it was well documented that the recidivism rate among sex
offenders is lower than other groups. That was the only point
the ACLU was trying to make, he said.
MR. STENSON cited a 2011 Department of Justice study entitled
"Final Report on Sex Offenders, Recidivism and Collateral
Consequences." He read the following:
Sex offenders, the seemingly worst of worst among
criminal offenders today, are commonly albeit
incorrectly, assumed to be highly recidivistic, as
well as specialists, engaged in sex offending only.
Despite the fact that our legal responses to sex
offenders, primarily sex offender registration and
notification (SORN), are based on assumptions that
those who commit sex crimes have no control over their
sexual impulses and will repeat their crimes again,
relatively little research has found support for such
beliefs.
He highlighted that the study found comparable levels of
reoffending among sex offenders in the New Jersey cohort as the
judicial council found among the Alaska cohort. He opined that,
taken as a whole, sex offenders are less likely to reoffend than
other offenders. However, it is important to understand that
recidivism rates are generally high among people who have
committed serious felony crimes. He offered to provide more
citations.
SENATOR COGHILL asked Mr. Stenson and Ms. Morton to supply the
citations in writing.
2:44:28 PM
MR. STENSON addressed Sections 14 and 15 relating to examining a
witness in camera when there is a question of self-
incrimination. He reviewed the process the court follows and
highlighted that the bill does not state who is within the
sealing order. He observed that the bill seems to presuppose
that the DOL is going to be able to read the witness's
incriminating statement, which is not consonant with the way
that any recognized privilege is preserved.
CHAIR COGHILL asked if he agreed that the intention is only to
determine the credibility of the witness.
MR. STENSON said yes, but Section 17 also says that the judge
must make written findings of facts and conclusions in a sealed
written order. He argued that if the written order were
subsequently disclosed, that would destroy the privilege. He
opined that the only basis for claiming that this doesn't
violate the constitution, is the claim that the information will
never go beyond the judge's chambers. As currently written, the
statute does not provide that protection; it suggests that the
prosecution will be able to read the statement of fact from the
court.
CHAIR COGHILL suggested that he submit any further written
information for the committee to consider when it takes up
amendments.
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration (DOA) said he was available for questions now and
would be available on Monday.
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, Anchorage, AK,
said she wanted to comment on the record about two portions of
SB 22, Version U. She directed attention to Section 29, which
would have the Alaska Judicial Council evaluate judges who do
felony sentencing on their compliance with the statute that
requires consideration of victim information. She described the
current language as an improvement and something that the court
could work with. However, the information that the council would
provide could be incomplete and a little unfair, because the
majority of sentencings are done through Rule 11 plea
agreements. If the victim appears at the hearing, the judge asks
their thoughts about the plea agreement and if the victim elects
not to appear the judge asks the prosecutor what the victim
thinks about the plea agreement. The prosecutor relays that
information if he or she was able to contact the victim, but
sometimes the victim doesn't want to be involved. To have people
assess how well the judge considered the victim is difficult to
do in the situations that the victim declined to be involved.
When the victim does appear and makes their views known, it's
often not possible for the judge to do what the victim wants.
Sometimes that's because it's not allowed by law, and in other
situations the judge would have difficulty overturning a plea
agreement without knowing why the parties entered the agreement.
Based on these circumstances, it could be misleading to assess
whether a judge is complying with the victim information.
MS. MEADE reiterated that the current language was an
improvement, but it would be preferable to consider whether the
provision in Section 29 was needed at all.
2:53:58 PM
SENATOR DYSON asked if it would help to insert the phrase
"except if there was a plea bargain."
MS. MEADE agreed to think about it and provide a follow up
response, but it did sound like an improvement.
She said the second area she wanted to address was the judge's
determination whether a witness has a privilege against self-
incrimination and the subsequent right of appeal. She said the
Court System has no position on the constitutionality of Section
16 but does have procedural concerns with Section 17 regarding
the interlocutory right of appeal by the attorney general. She
highlighted that it was unusual to have an appeal in the middle
of a trial and the consequence was that it would cause a delay.
She said there was also the accompanying rule change to the
criminal rules saying that these would be expedited.
MS. MEADE referenced previous testimony and stated that the
court has definite definitions of "sealed." A sealed document
can only be seen by a judge and people with a court order to see
it. However, the provision is unclear about how the court would
handle it and how somebody would appeal or write a brief on
something they hadn't seen.
2:56:58 PM
CHAIR COGHILL said the conversation would continue on Monday.
[SB 22 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| Felony Theft bill.pdf |
SJUD 2/22/2013 1:30:00 PM |
SB 43 |
| Final Sectional for SB 43.docx |
SJUD 2/22/2013 1:30:00 PM SJUD 3/1/2013 1:30:00 PM |
SB 43 |
| Sponsor Statement Final.pdf |
SJUD 2/22/2013 1:30:00 PM |
Sponsor Statement SB 43 |
| ACLU Letter ofSupport 2013.pdf |
SJUD 2/22/2013 1:30:00 PM |
SB 43 Letter from ACLU in support |
| Fiscal Note Alaska Court.pdf |
SJUD 2/22/2013 1:30:00 PM |
Fiscal Note Alaska Courts |
| Fiscal Note DPA.pdf |
SJUD 2/22/2013 1:30:00 PM |
Fiscal Note DPA |
| Fiscal Note OPA.pdf |
SJUD 2/22/2013 1:30:00 PM |
Fiscal Note OPA |
| Letter from NFIB.pdf |
SJUD 2/22/2013 1:30:00 PM |
Letter from NFIB |