Legislature(2021 - 2022)BUTROVICH 205
03/16/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB115 | |
| SB161 | |
| SB189 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 189 | TELECONFERENCED | |
| += | SB 115 | TELECONFERENCED | |
| += | SB 161 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 189-CRIME OF SEX/HUMAN TRAFFICKING
1:52:24 PM
CHAIR HOLLAND reconvened the meeting and announced the
consideration of "An Act relating to sex trafficking;
establishing the crime of patron of a victim of sex trafficking;
relating to the crime of human trafficking; relating to
sentencing for sex trafficking and patron of a victim of sex
trafficking; establishing the process for a vacatur of judgment
for a conviction of prostitution; and providing for an effective
date."
[SB 189 was previously heard on 2/28/22, 3/2/22, 3/4/22, 3/7/22,
and 3/9/22. Public testimony was opened and closed on 3/4/22.]
1:52:43 PM
CHAIR HOLLAND moved to adopt the committee substitute (CS) for
SB 189, work order 32-GS2029\B, as the working document. He
stated his intention to withdraw the CS after the committee
discussed it.
1:53:04 PM
SENATOR MYERS objected for discussion purposes.
1:53:17 PM
ED KING, Staff, Senator Roger Holland, Alaska State Legislature,
Juneau, Alaska, stated that Version B represents a significant
restructuring of the bill.
1:53:24 PM
MR. KING reviewed the summary of changes from Version A to
Version B that read as follows:
SUMMARY OF CHANGES
(VERSION A TO VERSION B)
I. The bill was redrafted to conform with
legislative drafting guidelines. This resulted in
several technical and conforming changes
throughout the bill.
II. Version B leaves the sex trafficking statues in
11.66 and amends the current law. This change in
drafting required conforming changes throughout
the bill.
III. There were five clarifying changes to the
vacation of judgment process. The bill now:
a. Explicitly states that the petition is granted
if no action is taken (page 20, lines 28-29)
b. Clarifies that the petitioner is not entitled
to a jury trial (page 21, line 4)
c. Directs the court to remove a case from court
view within 30 days, only if there are no felony
charges involved (page 21, lines 20 and 25)
d. Clarifies that the petitioner is entitled to a
public defender (page 22, lines 28 and 31)
e. Delays the effective date for the vacation of
judgment process to give the court system time to
develop forms and procedures (page 28, line 23)
1:54:40 PM
CHAIR HOLLAND asked Mr. Skidmore to address keeping sex
trafficking in AS 11.66 versus moving it to AS 11.41.
1:55:02 PM
JOHN SKIDMORE, Deputy Attorney General, Office of the Attorney
General, Criminal Division, Department of Law, Anchorage,
Alaska, stated that AS 11.41 relates to crimes against a person
and AS 11.66 is characterized as crimes against public decency.
He related that when the statutes were initially adopted in
1978, they related to promoting prostitution. He said the crime
of prostitution is seen as infringing on public decency.
However, the state changed the crime title from promoting
prostitution to sex trafficking in 2007. A Loyola Marymount
University article studying sex trafficking in 2019 said that it
was only in 2013 that the country began to recognize the harms
or ills associated with human trafficking or sex trafficking.
1:56:32 PM
MR. SKIDMORE reminded members of his opening remarks that
characterized sex trafficking as modern-day slavery. It is
someone subjugating another human being to be a sex slave.
MR. SKIDMORE asked members to consider the legislature's
statutes in the last 50 years and whether the legislature treats
crimes against a person in AS 11.41 differently than they treat
other crimes in Title 11. He offered his view that the answer is
yes. He provided examples, including that AS 12.30.055 relates
to a petition to revoke probation pertaining to supervised
felons who have violated their probation, and AS 12 provides the
right to bail, except for AS 11.41 offenses relating to crimes
against a person.
MR. SKIDMORE referred to protections provided to victims in AS
12.45.042, which says the ability to compel those mental exams
is limited and cannot be done to a victim of an AS 11.41 crime.
The defense cannot compel a mental examination to determine if
the victim has some mental ailment that somehow contributed to
the crime.
1:58:26 PM
MR. SKIDMORE referred to AS 11.45.066, which states that if a
victim is under the age of 16, they are entitled to a guardian
ad litem, who can ask the court to have the victim testify by
closed-circuit television. This exception is not available to
any victims of crimes outside AS 11.41. He referred to AS
12.61.010 (15) and AS 12.61.120, which protect the release of a
victim's address and phone number and applies to an 11.41 crime.
He referred to investigations in AS 12.50.201 that allow law
enforcement authority to temporarily detain witnesses when it
relates to AS 11.41 crimes. He added they only need reasonable
suspicion to detain witnesses.
1:59:29 PM
MR. SKIDMORE detailed sentencing issues, including AS 12.55.011,
where a victim or a defendant can recommend to the judge what
they think the sentence should be at the time of sentencing
except for a crime listed in AS 11.41 because it is a crime
against a person.
MR. SKIDMORE provided another example, such that AS
12.55.027(g)(1) allows electronic monitoring credit to be
applied if the person had electronic monitoring pretrial for
crimes except those that fall under AS 11. AS 12.55.127, allows
for concurrent sentencing for two crimes but not for crimes
under AS 11.41; those sentences must be consecutive.
2:00:22 PM
MR. SKIDMORE emphasized that the legislature has made policy
decisions throughout the criminal statutes that committing a
crime against a person is fundamentally different from the other
types of crimes. He suggested that the committee must decide if
sex trafficking is a crime against public decency, such as
prostitution, or if sex trafficking is a crime that targets the
most vulnerable people, including runaway youths, addicts, and
the homeless.
2:01:06 PM
MR. SKIDMORE referred to the elements of the crimes. He pointed
out that those engaged in sex trafficking are not people engaged
in commercial sexual conduct because they chose to do so but
because they were either forced to or were minors influenced by
someone much older than them to engage in commercial sexual
conduct. He opined that the way sex trafficking happens
indicates that this crime is a crime against a person, not
against society or decency. He acknowledged that sex trafficking
does violate those things, but it also harms the victim of sex
trafficking. Therefore, the administration finds it is more
appropriately categorized as an AS 11.41 crime.
2:02:00 PM
MR. SKIDMORE highlighted that the legislature, as the policy-
making body, must decide how to characterize and classify that
criminal conduct. He suggested that if the legislature
determines that sex trafficking is a crime against a person, it
should carry additional safeguards or penalties that the
legislature has decided should apply to AS 11.41 crimes.
2:02:49 PM
SENATOR MYERS commented that he tended to agree with Mr.
Skidmore's opening remarks that sex trafficking is modern-day
slavery. He said if sex trafficking is not a crime against a
person, he wasn't sure what would be categorized as one.
2:03:15 PM
SENATOR KIEHL asked whether the crime of prostitution includes
buying and selling sex and those crimes are separate from sex
trafficking. He wondered whether he suggested moving
prostitution to AS 11.41 or leaving it in AS 11.66.
MR. SKIDMORE answered that prostitution is considered a crime of
public decency and is not a crime against a person in the same
manner as sex trafficking.
2:04:06 PM
SENATOR HUGHES commented that he made an excellent case for sex
trafficking to fall under AS 11.41.
2:04:30 PM
CHAIR HOLLAND related his understanding that the department had
some resistance to moving sex trafficking from one section of
statutes to a different one. He asked whether other statutes
were relocated in Alaska law based on some new interpretation.
MR. SKIDMORE responded that he did not know. He offered that the
drafting manual indicates that statutes should not be moved
unless there was a substantive change to the underlying statute.
He stated that the revisor of statutes could determine where
statutes are appropriately placed. He surmised that the
administration did not present any rationale to support
including sex trafficking in AS 11.41 rather than classifying it
in AS 11.66. Although he disagreed, he understood that arguments
could be made that there were similarities between them.
However, he opined that this makes significant, substantive
changes, but he acknowledged someone could make an opposite
argument. He admitted that the Department of Law did not clarify
why locating sex trafficking in AS 11.66 had other implications.
2:06:45 PM
SENATOR HUGHES wondered if it was included in AS 11.66 because
the perception years ago was that the people involved in
prostitution were as guilty as those running the business. Since
then, the perception has changed, and people recognize that
perhaps most prostitutes are being coerced.
2:07:56 PM
MR. SKIDMORE referred to case law from Johnson v. State in 1972.
He related that the Alaska Supreme Court in 1972 found that
prostitutes couldn't be trusted, and that corroboration was
necessary because people engaging in prostitution had
physiological problems or other issues that made them
untrustworthy. He related that the case says, in prostitution,
there is "no injured female" within the meaning of that phrase
used in another Alaska statute. It noted that courts have also
recognized that motives such as overt malice might lead to
unfounded allegations of sexual misbehavior. Psychological
motives may cause even mature complainants to bring false
charges. He offered his belief that prostitution is about public
decency. He wondered who in their right mind would sell
themselves.
MR. SKIDMORE highlighted that the crime of sex trafficking has
only begun to be understood in the last 15 years. He noted that
prostitution remains in AS 11.66, but modern-day sex slavery is
a crime against a person, so sex trafficking should remain in AS
11.41 crimes against a person.
2:10:41 PM
SENATOR HUGHES asked if she misused the term "prostitute."
MR. SKIDMORE offered his view that a prostitute was someone who
willingly engages in that unlawful sexual conduct but has not
been compelled or forced into it in some manner. He noted that a
victim of sex trafficking was defined in statute.
2:11:16 PM
CHAIR HOLLAND withdrew his motion to adopt the committee
substitute (CS) for SB 189, so Version A was before the
committee.
2:11:30 PM
CHAIR HOLLAND asked if there were any constitutional issues with
vacating a judgment infringing on the governor's power to
pardon.
MR. SKIDMORE stated that under the Alaska Constitution the
legislature is the branch of government that enacts laws, the
executive branch enforces the laws, and the governor has the
ability to pardon or grant clemency. The power of pardoning or
granting clemency is when the government acknowledges that the
person committed a crime and is guilty of that crime, but the
governor shows mercy for some other reason. The legislature can
decide when to decriminalize certain conduct or provide defenses
for criminal conduct. The legislature can determine if any
category of crimes should be adjusted. It does not violate the
separation of powers because the governor does this
individually, even if a group was selected for clemency.
2:13:40 PM
MR. SKIDMORE related that SB 189 allows a person convicted of
prostitution to prove their defense and vacate the crime. Alaska
does not have case law because it is a relatively new state, but
California addressed this in homicide cases. He referred to
People v Lambro, a 2019 case that concluded it would not violate
the clemency power of the governor for the legislature to create
a defense, authorize a defense, or lower a mens rea in a crime,
thus allowing the crime to be vacated based on their change in
the law. Alaska's post-conviction relief in AS 12.72.010(7) is
similar because it indicates a person can petition to have their
crime removed from their record if there is a significant change
in the law. The challenge for post-conviction release is that it
is currently limited to within two years of the conviction.
Although he does not suggest lifting the two-year limitation, it
illustrates that the legislature has the power to make the
changes proposed. The Department of Law offers a different
method for the same concept since vacating the conviction would
infringe on clemency powers, so it is not a constitutional
concern.
2:16:03 PM
SENATOR KIEHL agreed with the conclusion, but not the reasoning.
He pointed out that there is group clemency, including Christmas
clemencies that occurred in Alaska and nationally with President
Lincoln's amnesties. One difference being discussed here is that
the governor's clemency power does not apply to municipal
convictions. However, this vacatur of judgment would allow the
Alaska Court System to vacate a conviction under a municipal
code, which is a material substantive difference. He referred to
art III, sec. 21 and stated that the governor's clemency powers
are broad but do not include vacating a judgment. He argued that
pardon, commutation and reprieve are not the same. Thus, this is
a different type of remedy. He argued that this isn't impinging
on or usurping the governor's executive clemency powers.
2:17:53 PM
CHAIR HOLLAND asked whether he saw any equal treatment issues
that arise from vacating a prostitution charge, but not other
similarly situated misdemeanors stemming from being a victim of
sex trafficking.
MR. SKIDMORE answered no. He explained that the individuals are
not similarly situated when charged for different crimes. The
legislature can decide whether to apply this to prostitution or
other crimes. Those crimes would be differently situated because
they have committed different crimes.
2:18:39 PM
CHAIR HOLLAND wondered if a person engaging in prostitution in
their own home without involving any other sex worker could
result in a conviction for sex trafficking and forfeiture of
their home.
MR. SKIDMORE answered no. The Department of Law drafted the bill
relating to sex trafficking of another person, not themselves.
He indicated that the legislature debated this topic when
considering Senate Bill 91. He recalled only one instance where
a law enforcement officer filed a complaint against a person for
"sex trafficking" herself, but the Department of Law dismissed
the case. However, it is possible someone might try to reach
that conclusion if the language is not carefully crafted.
2:20:07 PM
SENATOR HUGHES recalled that the legislature could make a policy
call to consider allowing other crimes to be vacated. She
wondered if sex trafficked victims committed other offenses
related to prostitution. Suppose a sex trafficked victim took
drugs with a client and was arrested for that crime or committed
shoplifting because they were told they needed to improve how
they dress. She envisioned that these were the types of crimes
tied to sex trafficking.
MR. SKIDMORE was unsure how frequently convictions for that type
of conduct occur. He agreed that those circumstances could
arise. Criminal conduct could occur since drugs are often traded
or provided to victims to get them addicted and later withheld
from them. He referred to the crime of coercion, noting that the
threat of an accusation or crime can coerce someone to engage in
sex trafficking or human trafficking. Sex traffickers can
identify their target, develop a relationship with them, and
encourage them to steal. Once the victim has stolen something,
the sex trafficker can coerce them into committing other crimes
by threatening to report them for theft. He characterized this
as a policy decision for the legislature.
2:23:27 PM
CHAIR HOLLAND asked whether a person could enter an invalid
petition and have judgement on another crime vacated because a
prosecutor did not object.
2:23:47 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, Alaska, offered her belief that he was
speaking to Section 34 of the committee substitute (CS) for SB
189.
2:24:10 PM
At ease
2:24:35 PM
CHAIR HOLLAND reconvened the meeting.
2:24:40 PM
MS. MEADE referred to page 20, Version B, to Sec. 12.72.100, the
vacation of judgment of conviction for prostitution. She
referred to lines 28-29 and said that if the prosecuting
attorney did not file a response or does not oppose the
petition, the court shall grant the vacation of judgment. She
said that this should never happen. The preceding sentence [in
subsection (b) reads, "The prosecuting authority shall file a
response within 45 days ...." She suggested that this would
cover the rare circumstance where no response was received. She
understood his question related to the situation where the
person's record is fundamentally flawed or does not allege any
facts. She envisioned that the department's implementation plan
would be to create a form that requires certain information to
be submitted. She surmised that if the person did not fill out
the form, they would be presenting something insubstantial to
the court. If so, the language on line 29 would require the
court to grant the petition. She suggested the committee
consider amending the language to say that the court may grant
the petition without further proceedings, which would avoid
taking up the court's time when no one opposes the relief. It
would encourage the court to seek additional information if
necessary.
2:26:49 PM
SENATOR MYERS pointed out that [subsection (b), lines 27-28
state, "The prosecuting authority shall file a response within
45 days after service of the petition." He suggested the
committee amend the language to state that they have 45 days if
the prosecuting authority wants to file a response.
MS. MEADE said that language was okay with her. She did not
anticipate there would be many responses even if the language
read "shall." She envisioned that the city prosecutor and the
district attorney's offices were busy, so it was unlikely that
they would prioritize opposing a B misdemeanor that happened 20
years ago.
2:28:10 PM
CHAIR HOLLAND recalled that about 66 of 1,000 prostitution
convictions involved another charge. He asked whether she had
figures on how many of those 66 cases involved a felony.
MS. MEADE directed attention to page 21, lines 19-20, of Version
B, which read, "... AS 11.66.100(a)(1) or a similar municipal
ordinance if the person was not convicted of a felony charge in
that case; and." She related that she checked CourtView, and
there were about 65 cases with other charges dating back to
2004. She highlighted that fewer than 10 cases involved the
crime of prostitution plus a felony. She interpreted this
language to mean these cases would not be removed from CourtView
but the person could petition for vacating judgment for some
other reason.
MS. MEADE clarified that the Alaska Court System would not
remove the cases from someone's record, but they could remove
them from CourtView. She explained that vacating a judgment
differs from removing a conviction from CourtView. It may seem
confusing, but thus far, in Alaska law, there are no provisions
for vacating judgments.
2:30:49 PM
CHAIR HOLLAND held SB 189 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 161 - Response to Senate Judiciary Questions 3-14-22.pdf |
SJUD 3/16/2022 1:30:00 PM |
SB 161 |
| CS for SB 189 (SJUD).pdf |
SJUD 3/16/2022 1:30:00 PM |
SB 189 |
| SB 189 Summary of Changes (SJUD).pdf |
SJUD 3/16/2022 1:30:00 PM |
SB 189 |
| 3.11.2022 SB 189 Senate Judiciary Committee ANJC CITC.pdf |
SJUD 3/16/2022 1:30:00 PM |
SB 189 |
| SB 161 SJUD Amendment A.1.pdf |
SJUD 3/16/2022 1:30:00 PM |
SB 161 |