Legislature(2019 - 2020)BUTROVICH 205
02/13/2020 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB170 | |
| SB168 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 170 | TELECONFERENCED | |
| *+ | SB 168 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 168-SEX OFFENDER REGISTRY; NOTICE TO VICTIMS
3:52:32 PM
CHAIR REVAK reconvened the meeting and announced the
consideration of SENATE BILL NO. 168, "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."
3:53:51 PM
JOHN SKIDMORE, Deputy Attorney General, Criminal Division,
Department of Law (DOL), Anchorage, Alaska, explained that SB
168 is the result of a June 2019 Alaska Supreme Court ruling.
The court held that anyone placed on the Alaska Sex Offender
Registry must have an opportunity to have their name removed or
the registry would violate the Constitution of the State of
Alaska. The court specifically found it to be a due process
violation because of the privacy implications. The opinion talks
about the problems someone should not have to face if they are
no longer a danger. Registries in states that allow removal
address this issue quite uniformly, he said. The general concept
is that a person may be removed from the registry after a
certain amount of time and after meeting certain requirements.
Those generally focus on the number and type of convictions the
individual may have received since they had to register and
whether the individual is assessed as a continuing danger. When
the Alaska court said there needed to be a way to protect an
individual's privacy, SB 168 was drafted.
MR. SKIDMORE said SB 168 talks about how someone can file a
petition to have their information removed from the public
registry, but that is very different from the initial
requirement to register because much of that information is for
law enforcement purposes and not intended to be public. He noted
that the Supreme Court opinion focused on the problem that
certain information that was required to be provided to law
enforcement was subsequently published on the Internet. He said
it is an important distinction in the bill.
MR. SKIDMORE said DOL decided to take this opportunity to align
Alaska's registry more closely with federal requirements and
what other states do with regard to the tiered framework and the
type of information that must be reported. Alaska law provides a
two-tier registry system, one for 15 years and the other for
life. SB 168 seeks to shift to a three-tier framework. The
required information would be expanded to include reporting an
individual's passport when sex offenders intend to leave the
country. He said the state and U.S. have a vested interest in
knowing when sex offenders from other countries want to come to
the U.S. and vice versa. None of this information is ever
published on the internet, but it is the type of information
that law enforcement needs to do an effective job, he said.
4:00:16 PM
SENATOR KAWASAKI asked what will happen if the state does
nothing.
MR. SKIDMORE replied the Supreme Court looked at invalidating
the entire law but chose not to. The opinion commented as
follows:
The legislature would almost certainly reenact a
modified law that is narrower in scope, including
providing for hearings for those who claim they do not
pose a likelihood of reoffending. And the amended Act
could provide useful details.
The opinion describes those details but says the court would not
completely invalidate the law because it could create chaos. But
both footnote 133 and the dissent say the type of details should
be policy decisions from the legislature. The case this revolves
around is under litigation and there is considerable back and
forth about how to determine when somebody is dangerous and how
long somebody must be required to register.
Responding to the question, he said the courts would try to sort
it out if the legislature did nothing. He described that as a
messy alternative involving substantial litigation that might
result in something neither the Alaska public nor the
legislature would like. That is the reason for the bill, he
said.
SENATOR KAWASAKI asked if the bill narrows the scope of the
Alaska Sex Offender Registration Act enough that the court would
find it credible if it is challenged in the future.
MR. SKIDMORE answered yes; the Department of Law believes this
is the right approach. It is responsive to the Alaska Supreme
Court's concerns and is similar to what most other states have
done.
4:04:07 PM
SENATOR KAWASAKI asked if the new requirements for personal
information might result in future litigation.
MR. SKIDMORE replied he can imagine it will be challenged but he
is confident that the courts will uphold gathering the sort of
information that has been described, just as it has been in
other states. This is the sort of information that is very
important to law enforcement but would never be placed on a
public registry.
4:05:21 PM
SENATOR WILSON recalled a bill from last year and asked who has
access to the unpublished database.
MR. SKIDMORE replied the only bill he is familiar with dealt
with the concept of an out-of-state offender coming to Alaska,
which is a completely separate issue. Responding to the
question, he explained that anyone can access the public
registry, but only law enforcement would be able to access the
additional information called for in the bill.
SENATOR WILSON asked if somebody could request the additional
information about someone on the registry through the Freedom of
Information Act.
MR. SKIDMORE replied he did not believe that requests for the
non-public information would be allowed because the information
is for law enforcement purposes, which is an express exception
to the Alaska Public Records Act.
4:07:32 PM
CHAIR REVAK asked what the idea is behind the provision allowing
a registrant to reapply for removal after a denial.
MR. SKIDMORE replied the rationale is that if someone is denied,
the court's determination two years later may be different. For
example, a person may have been determined a danger two years
earlier, but not now.
4:10:02 PM
At ease
4:10:23 PM
CHAIR REVAK reconvened the meeting and asked Ms. Schroeder to
walk through the sectional analysis.
4:10:50 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law (DOL), Juneau, Alaska, delivered the sectional
analysis for SB 168 speaking to the following prepared document:
Summary: This legislation is in response to Doe v.
Department of Public Safety, 2019 WL 2480282 (Alaska
2019) in which the court held that Alaska's sex
offender registry is overbroad because it imposes
lengthy registration requirements on all persons
convicted of registerable sex offenses without
affording them a hearing in which they might show that
they are no longer dangerous and, therefore, should
not be required to continue to register. The
legislation breaks sex offenders and child kidnappers
into three different tiers depending on the offense
that the offender has been convicted of. It also
establishes a procedure which allows sex offenders and
child kidnappers to be removed from a registry that is
published on the internet. In essence, a sex offender
or child kidnapper must have been unconditionally
discharged for a period of 5, 10, or 15 years
depending on which tier the offender falls into. They
must have completed all required treatment programs
and not have been convicted of a disqualifying offense
since being convicted of the underlying sex offense or
child kidnapping. If they are able to satisfy these
criteria, they may petition the court for removal from
a registry that is published on the Internet. If the
petition is granted they must continue to register
with the Department of Public Safety, however, their
information will not be made available on the
Internet.
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.
4:13:20 PM
SENATOR KAWASAKI asked who collects the information and where it
goes if a sex offender left the state or country.
MS. SCHROEDER replied DPS collects the information. She
continued:
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.
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.
4:16:50 PM
SENATOR KAWASAKI asked why misconduct involving weapons was
added.
MS. SCHROEDER replied it includes a host of dangerous behavior.
CHAIR REVAK asked if this section only relates to these
offenses.
MS. SCHROEDER explained that this section says that a sex
offender or child kidnapper must not have been convicted of any
related crime in order to petition to be removed from the
registry.
CHAIR REVAK asked what tier that would be.
MS. SCHROEDER replied these are disqualifying offenses for all
tiers.
MS. SCHROEDER continued to describe Section 8:
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.
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.
4:20:06 PM
CHAIR REVAK asked the cost of the risk assessment.
MS. SCHROEDER replied it would be the offender's responsibility
unless the court finds the person indigent. In that case, the
Department of Corrections would pick up some, if not all, of the
cost. She suggested that Adam Rutherford could quote the costs.
She continued the sectional analysis for SB 168.
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.
MS. SCHROEDER summarized that a tier I sex offense will be a
class A misdemeanor sex offense or possession of child
pornography. A tier II sex offense or child kidnapping will be B
and C felony sex offenses. Tier III sex offenses are child
kidnapping, which are the unclassified or class A felony sex
offenses under sexual assault in the first degree and sexual
abuse of a minor in the first degree.
CHAIR REVAK said it appears that any kind of child kidnapping
would be tier III.
MS. SCHROEDER replied the bill is drafted to be tier III if the
victim is under age 13 at the time of the offense. She noted
that it is likely the Department of Law will ask for changes
here.
CHAIR REVAK referenced the letter from the Department of Law
that says child kidnappers would never be removed from the
registry in certain circumstances. He asked if that was correct.
MS. SCHROEDER replied that letter refers to a kidnapping related
to a victim who was 13 years of age or younger. Kidnapping
somebody between age 13 and age 18 would be under tier II.
She continued.
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.
4:25:26 PM
SENATOR COGHILL asked if there will be legal challenges to
Section 16.
MS. SCHROEDER deferred to Mr. Skidmore.
4:25:58 PM
MR. SKIDMORE said he would not be surprised if someone tried to
challenge the provision, but the Department of Law analysis is
that the law supports it. This does not violate ex post facto by
enlarging the time of registration. It tries to provide full
faith and credit to what other states have required for
registration. Alaska is taking a more conservative approach than
some states, he said.
MS. SCHROEDER continued:
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.
4:29:08 PM
SENATOR COGHILL offered his understanding that this is about
removing the name from the public view, but there is no
expungement.
MS. SCHROEDER confirmed there is no expungement and highlighted
that, as Mr. Skidmore said, the issue of how somebody would be
removed from any registry is under litigation now.
SENATOR COGHILL commented that is something to keep in mind.
4:30:28 PM
KATHRYNE MONFREDA, Director, Division of Statewide Services,
Department of Public Safety (DPS), Anchorage, Alaska, introduced
herself and advised that DSS manages the sex offender registry
for the Department of Public Safety (DPS).
SENATOR KAWASAKI referred to Section 3, which will require the
Department of Corrections (DOC) to capture information such as
mailing address, school address, telephone numbers, Social
Security number, passport information, and job title, and to
Section 4 which requires a person who is leaving the state to
notify the department within seven days and 21 days in advance
if they are headed out of the country. He questioned how that
information will be captured and kept and if there are penalties
for not providing the required notification.
MS. MONFREDA replied all forms will be modified to accept the
new fields and are available on the division's website for
offenders to fill out and return via mail, in person, or fax.
The division processes the information. She noted that the U.S.
Marshal's Service created the form for out-of-state/country
travel; those are processed when the offenders return the form.
She explained that the division asked for the mailing address to
be required so they can notify offenders of their status and
when to register.
CHAIR REVAK summarized that the bill addresses the state's non-
compliance with the right to privacy, such that certain sex
offenders have the right to apply to be removed from the public
registry.
MS. SCHROEDER answered yes; the court has said the state must
provide an opportunity to be removed from the Alaska Sex
Offender Registry.
CHAIR REVAK observed that some of the fiscal notes identify
3,428 sex offenders on the state sex offender registry. He asked
if she could break down the numbers in each of the three tiers.
MS. SCHROEDER replied the bill asks the Department of Public
Safety (DPS) to do that.
CHAIR REVAK asked Ms. Monfreda to respond.
MS. MONFREDA replied the department has not analyzed the number
of registrants that would be in each of the tiers. Current data
shows that 2,700 offenders are 15-year registrants, 1,782 of
which are in registering status or are in non-compliance. Those
would be evaluated first. It is likely that the lifetime
registrants would fall into tier III, but they will also be
reevaluated.
CHAIR REVAK observed that the fiscal notes seem to expect that
all 3,428 offenders would be removed from the registry at some
point, but the bill says tier III offenders cannot apply for
removal. He asked if tier III offenders would be subtracted from
that calculation.
MS. MONFREDA said she believes that tier III offenders could
apply for removal 15 years after unconditional discharge.
MS. SCHROEDER clarified that there is a distinction between the
Internet registry and the sex offender registry itself that
would not be public. The tier III offenders would continue to be
required to register for life but 15 years after unconditional
release they could apply to get off the public Internet
registry.
4:36:48 PM
CHAIR REVAK stated he would hold SB 168 for future
consideration. He encouraged anyone interested to submit
testimony on the bill to [email protected].