Legislature(2011 - 2012)HOUSE FINANCE 519
04/13/2012 09:00 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB160 | |
| SCR24 | |
| SB91 | |
| SB19 | |
| SB23 | |
| SB210 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SCR 24 | TELECONFERENCED | |
| + | SB 91 | TELECONFERENCED | |
| + | SB 182 | TELECONFERENCED | |
| + | SB 83 | TELECONFERENCED | |
| += | SB 23 | TELECONFERENCED | |
| + | SB 25 | TELECONFERENCED | |
| += | SB 119 | TELECONFERENCED | |
| + | SB 210 | TELECONFERENCED | |
| + | SB 160 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 19 | TELECONFERENCED | |
CS FOR SENATE BILL NO. 210(FIN)
"An Act relating to crimes against children; and
providing for an effective date."
AMY SALTZMAN, STAFF, SENATOR LESIL MCGUIRE, remarked on
some changes that were made in the House Judiciary
Committee. She highlighted Sections 1 through 4.
Section 1 amends the crime of Assault in the 3rd
Degree under AS 11.41.220(a) (1) (C) and 11.41.220(a)
(3) by changing the age of the victim from under 10 to
under 12 years old. AS 11.41.220(a)(1)(C) currently
prohibits a person (18 years or older) from recklessly
causing physical injury to a child under 10 years of
age that would cause a reasonable person to seek
medical care, or causes physical injury on two or more
occasions. The bill would change the victim's age to
less than 12 years old.
Section 2 amends the definition of "serious physical
injury" in for purposes of the law prohibiting assault
in the 1st, 2nd, 3rd, and 4th degrees and for reckless
endangerment. It does so by expanding the definition
of serious physical injury as it applies to injury to
victims under 12 years old. It adds the following:
Physical injury to a person under 12 years of age that
causes A) Serious disfigurement; B) Serious impairment
of health, by extensive bruising or other injury that
would cause a reasonable person to seek medical
treatment from a health care professional in the form
of diagnosis or treatment; or C) Serious impediment of
blood circulation or breathing. This broadened
definition will allow for increased criminal liability
for crimes committed on children under the age of 12.
This change recognizes a child's faster ability to
heal from serious injuries that may not be included in
the current definition of serious physical injury.
Section 3 amends the crime of endangering the welfare
of a child in the first degree by adding the
prohibition of recklessly failing to provide adequate
amounts of food or liquids to a child, causing
protracted impairment to a child's health. This change
will increase criminal liability for offenders that
harm children by withholding food or liquids.
Section 4 would adopt a class C felony for the crime
of endangering the welfare of a child in the first
degree by recklessly withholding adequate amounts of
food or liquids to a child.
7:28:48 PM
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
looked at Sections 5 through 18.
Sections 5 - 7 amend the law (AS 12.47.040 and
12.47.060) addressing procedures for persons found to
be guilty of a crime but mentally ill, by clarifying
that the decision that the person is guilty but
mentally ill must be made by the jury, by proof
beyond a reasonable doubt, unless the defendant waives
this requirement. Under AS 12.47.050(d), a person
incarcerated and found guilty but mentally ill and
still receiving treatment for a mental illness, is not
eligible for parole release or furlough. For this
reason, Blakely v. Washington, 542 U.S. 296 (2004)
(Blakely) requires the decision relating to whether a
person is guilty but mentally ill to be made by the
jury by proof beyond a reasonable doubt.
Section 8 amends AS 12.55.025(i), addressing
sentencing procedures, to clarify that while the
burden of proof in sentencing proceedings is generally
by a preponderance of evidence, under AS 12.55 there
are numerous statutes that specify a different burden
of proof.
Section 9 and 10 provides that when a defendant enters
into a plea agreement that calls for a specific term
of probation or a specific term of suspended
incarceration, the court, in a probation revocation
proceeding, cannot unilaterally terminate or reduce
those terms, except by the amount of incarceration
time imposed for the offense that is the basis of the
probation violation.
When a court imposes sentence for a probation
violation in these cases, the court is not obligated
to impose the full amount of remaining suspended time,
but rather must consider the nature of the probation
violation in light of applicable sentencing law and
impose an appropriate sentence, subject to the caveat
that its authority to impose an appropriate sentence
does not include the authority to terminate or reduce
the term of probation or the suspended term of
imprisonment.
7:33:42 PM
Representative Neuman looked at page 4, lines 4 and 5. He
relayed a story about children who were abused by their
grandparents. The children chose to live in a van and in
the yard outside of their house, because they were so
afraid of their grandparents. He wondered if this bill
would "cover" this kind of instance. Ms. Carpeneti replied
that it would depend on the facts of the case. In order to
prove a crime under SB 210, there would need to be proof
that the grandparents consciously disregarded the children,
and ignored the harm that their conduct had inflicted on
the children. It would also depend on their culpable mental
state.
Representative Neuman looked at Section 6, pertaining to
insanity. He felt that people who allowed their
grandchildren to sleep outside should be considered
mentally ill.
7:37:35 PM
Ms. Carpeneti replied that this bill does not address the
affirmative defense of insanity. She stressed that the
facts needed to be evaluated for each individual case. She
stated that many cases had been brought to her attention,
and felt that many of the people involved in the case had
shocking behavior, especially pertaining to children.
Representative Neuman referred to another bill that he was
working on that addressed some of the same issues. He
remarked than some people who abuse children "feel" their
behavior is appropriate, so therefore should be considered
"insane." He wondered how the court determined if someone
was "insane."
Ms. Carpeneti reiterated that insanity was not addressed in
the legislation, but offered to read the Alaska statute
that addressed the insanity issue.
Co-Chair Thomas asked them to speak about the issue after
the meeting. He stressed that the focus should be on the
subjects in SB 210.
Representative Gara was comfortable with most of the bill,
but asked about Section 10. He asked for verification that
the provision only applied to plea agreements. Ms.
Carpeneti responded in the affirmative.
Representative Gara surmised that the plea agreement was
one-year time-served in jail and four years of probation.
If the defendant commits a probation violation, the
provision states that the probation period must remain the
same as was agreed during the original plea agreement. The
court could not intervene during the probation violation
hearing to reduce the length of probation below what was
agreed at the initial plea agreement. Ms. Carpeneti agreed.
Representative Gara concluded that the provision did not
grant the court authority to add more probation or
sentencing time, other than the jail time accrued for
violating the probation. Ms. Carpeneti replied in the
affirmative. She elaborated that the provision did not
allow the court reduce the suspended time that was original
agreed upon, except to the extent that the court may
sentence as a result of the probation violation.
Representative Guttenberg wondered about the replacement of
the words "jury" and "court" with the words "fact finder."
He wondered if that change was substantive or technical.
Ms. Carpeneti responded that the change was technical,
because the law required that the jury find certain find
factual matters in sentencing. Often, a defendant will
waive the jury determination of a particular fact.
Representative Doogan referred to lines 4 and 5 on page 4.
He stated that there were several elements to the bill: the
behavior must be reckless; and the restriction of food or
liquids should be considered "adequate." He felt that the
pay-off in the section was resulting in protracting
impairment of the child's health; which implies that one
could be reckless with a child and restrict nutrition, but
if that behavior did not result in a protracted impairment
of the child's health the caregiver could not be
prosecuted. Ms. Carpeneti replied in the affirmative. She
stated that there was another law that addressed "failure
to provide support" that was more general. The purpose of
raising the conduct to this level in the occasion where
there was a result in harm to the child was to distinguish
from the current law. There was also a concern regarding
the possible issue of parents sending their children to bed
without dinner, or similar circumstance. She stressed that
it was a class C felony, and therefore "serious behavior."
7:44:16 PM
Representative Doogan asked how long the abuse had to occur
to be considered "protracted impairment of the child's
health." Ms. Carpeneti replied that word "protracted" was
part of the definition of "serious physical injury." It was
not a new term for criminal law, but agreed to provide
further case law that may be instructive.
Representative Doogan assumed it would not be illegal for a
caregiver to send a child to bed without dinner. Ms.
Carpeneti agreed.
Representative Neuman asked whether there were ways to
strengthen the legislation. Ms. Carpeneti replied that
there were many discussions regarding the child protection
provisions. She remarked that the terms "physical serious
injury" and "serious physical injury" had been a part of
Alaska state law since 1978. The Child Protection Task
Force had recommended changes, those suggestions were
carefully considered. There was an issue regarding how
quickly children heal, so sometimes a very serious injury
to a child may not be protracted. She pointed out that the
Department of Law had worked with the bill sponsor and the
House Judiciary Committee, examining the issue with the
public defender and the American Civil Liberties Union. The
vocabulary in the bill was a compromise.
7:47:26 PM
Representative Neuman felt that the issue should be
reexamined in the future.
Co-Chair Thomas made a comparison between someone who is
texting while driving, and the issues in SB 210. Ms.
Carpeneti replied that SB 210 addressed assault issues.
Co-Chair Thomas thought maybe the texting penalties had
been too light. Ms. Carpeneti responded that the texting
law containing graduating penalties, so if someone is
killed as a result of texting, that person is subject to
prosecution for a class A felony.
Ms. Carpeneti discussed Sections 11 through 18.
Sections 11 and 12 amend AS 12.55.125 (sentences of
imprisonment for felony convictions) to clarify that
factual findings (1) that result in a mandatory term
of imprisonment of 99 years for conviction of murder
in the first degree; (2) result in a term that would
preclude a defendant from being awarded good time
under AS 33.20.010(a) - for example, a person
sentenced under the "three strikes" law; or (3) would
increase the presumptive sentencing range - for
example, a person convicted of a class A felony who
possessed a firearm - must be made by a jury by proof
beyond a reasonable doubt, unless the defendant waives
this requirement.
Section 13 provides that if one aggravating factor has
been established, either by the court or the jury as
required by law, additional aggravating factors may
then be determined by the court by clear and
convincing evidence rather than by the jury. The
finding of one aggravating factor authorizes the court
to sentence an individual up to the maximum term
provided by law. An additional aggravating factor
cannot increase the maximum term anymore; thus the
Blakely decision does not require that additional
factors to be decided by a jury by proof beyond a
reasonable doubt.
Sections 14 and 15 make conforming amendments to the
changes described in Sections 9 and 10.
Sections 16 and 17 describe the indirect court rule
changes and the applicability provisions.
Section 18 would adopt a task force to study the
crimes of human trafficking, promoting prostitution
(sex trafficking). It would require that the task
force prepare a report describing the number of these
cases reported to law enforcement in the state since
2007, the number of cases prosecuted under Alaska law,
the number of cases investigated by local and federal
law enforcement agencies, and the services available
to victims of human trafficking.
Ms. Saltzman explained that the task force would consist of
representatives from the Department of Law, the Department
of Public Safety, the Department of Health and Social
Services, and two members appointed by the governor
representing non-governmental health and social service
agencies that provide services to victims of human
trafficking. The task force would report to the legislature
on January 15, 2013, and would provide the following
information: the number of human trafficking cases reported
to the state and local law enforcement agencies since 2007;
the number of human trafficking cases prosecuted under
Alaska state law; the number of human trafficking cases
state and local law enforcement agencies have investigated
in cooperation with the federal law enforcement agencies;
and the services that are currently available in the state
for victims of human trafficking, including services
provided by state agencies, federal agencies, non-
governmental agencies, and other assistance related to safe
housing and legal services. She remarked that there was
separate legislation on human trafficking, and noted that
the addition of the task force in SB 210 was to greatly
inform the legislature in order to help the victims.
Ms. Carpeneti furthered that the House Judiciary Committee
had amended the task force provision to become a "fact
finding" task force, for human trafficking and sex
trafficking.
Vice-chair Fairclough hoped that the task force would work
with the Immigration Project and other agencies to examine
the human trafficking issues. She relayed a story about a
man who had been convicted of sex trafficking.
7:55:16 PM
Co-Chair Thomas CLOSED public testimony.
Vice-chair Fairclough discussed the fiscal notes:
Department of Corrections indeterminate, Department of
Administration zero, Court System indeterminate, Department
of Administration indeterminate; Department of Public
Safety zero, Department of Law indeterminate, Department of
Administration indeterminate. She discussed the possibility
of zeroing out the fiscal notes.
Co-Chair Stoltze was content with the indeterminate fiscal
note.
Representative Doogan wondered if there was financing for
the task force. He did not see the cost anywhere in the
fiscal notes.
Ms. Carpeneti replied that the duty was assigned to the
Department of Law. She explained that the task force was
intended for fact gathering. She remarked that a few
thousand dollars were usually used for travel for the
members of the task force.
Co-Chair Stoltze surmised that travel was probably included
in the Department of Law's budget.
7:59:57 PM
Representative Neuman felt it was appropriate to zero out
the fiscal notes, because the Department of Law should be
creating task forces on their own. He called it "a part of
(their) job."
Vice-chair Fairclough opposed the idea of zeroing out the
fiscal note. She elaborated there were back-up documents to
explain why the fiscal notes were indeterminate.
Representative Edgmon agreed with Vice-chair Fairclough.
Representative Doogan understood why the fiscal notes were
indeterminate. The law was being changed in a way that
should cost more money. He did not believe it was a "blank
check", to continually request indeterminate notes. As long
as the bill did what it was intended, he did not care about
the cost.
Co-Chair Thomas had closed public testimony earlier.
8:05:29 PM
Representative Gara wondered if he could ask a question to
the public defender. Co-Chair Thomas replied that the
public defender was unavailable.
Vice-chair Fairclough MOVED to report CSSB 210(JUD) out of
committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered
CSSB 210(JUD) was REPORTED out of committee with a "do
pass" recommendation and with one new indeterminate fiscal
note from Department of Corrections and four previously
published indeterminate notes: FN1 (DOA), FN2 (DOL), FN4
(DOA), FN5 (CRT); and two previously published zero notes:
FN3 (DPS), FN6 (DOA).