Legislature(2009 - 2010)BUTROVICH 205
04/07/2010 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB303 | |
| HB386 | |
| SB222 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 222 | TELECONFERENCED | |
| + | SB 303 | TELECONFERENCED | |
| + | HB 386 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 292 | ||
| = | SB 249 | ||
SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING
9:11:40 AM
CHAIR FRENCH announced the consideration of SB 222.
At ease from 9:11 a.m. to 9:13 a.m.
SB 222 was heard previously and a committee substitute (CS),
labeled 26-GS2859\E, was adopted during the April 5, 2010
hearing. Chair French noted that he has three amendments that
are the result of negotiations between his office and the
Department of Law.
9:13:54 AM
CHAIR FRENCH moved Amendment 1, labeled 26-GS2859\E.1, and
objected to provide an explanation.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR FRENCH
CSSB 222(JUD), Draft Version "E"
Page 8, line 11:
Delete "associated with the account;"
Insert "and physical location associated with the
account; and"
Page 8, lines 12 - 13:
Delete all material.
Renumber the following paragraphs accordingly.
Page 8, line 15:
Delete ";"
Insert "."
Page 8, lines 16 - 19:
Delete all material.
CHAIR FRENCH explained that the amendment deals with the new
provision that gives subpoena power to the attorney general in
cases involving the use of an Internet service account in the
exploitation of children. Previous testimony indicated that
these administrative subpoenas might be challenged because of
the type of personal information they would collect. He read the
section with the amendment included and asked Ms. McLean if it
comports with her understanding of the amendment.
SUSAN MCLEAN, Director, Criminal Division, Department of Law
(DOL), said yes.
CHAIR FRENCH asked if the Department of Law supports the
amendment.
MS. MCLEAN answered yes.
CHAIR FRENCH removed his objection to Amendment 1.
SENATOR MCGUIRE asked Ms. McLean to provide the thought for
deleting a requirement to disclose "local and long distance
telephone connection records, including records of session times
and durations for the account."
MS. MCLEAN explained that DOL asked the Office of Special
Prosecutions and Appeals for an opinion on where within the
realm of personal privacy DOL could go without running afoul of
the statute or the Alaska Constitution. Their opinion was that
local and long distance telephone records, including records of
sessions and times and durations for the account, would include
unrelated personal telephone calls and that would present
difficulties if someone challenged on that ground. It was overly
broad.
9:18:03 AM
SENATOR MCGUIRE said she appreciates the prosecution's opinion
about what they can support, but she'd also like to hear from
the investigative unit to know if it might be a missing link not
to be able to associate the length of time someone is on the
Internet with a particular connection.
CHAIR FRENCH reminded the committee that this is just the first
step. This relates to the administrative subpoena that lets the
officer identify the suspect. A search warrant would have to be
obtained subsequent to that. He asked Sergeant DeGraaf to
provide his perspective.
DEREK DEGRAAF, Sergeant, Alaska State Troopers, Department of
Public Safety, said not having the record of the phone numbers
associated with the account won't affect their ability to do
their job. The primary information that they want is the name
and physical address that the IP address comes back to.
Obtaining a phone number or information about bank accounts is
secondary.
SERGEANT DEGRAAF explained that having those other records would
help determine who else may or may not be using the computer.
this would be helpful because they have to be able to put a
person behind the keyboard. Those secondary records can help
provide clarification, but if removing those items helps bring
everybody to the same page we'd go along with that and support
the bill with those items removed, he said.
9:21:29 AM
SENATOR WIELECHOWSKI pointed out that this section only applies
to the subpoena power of the attorney general and many people
would be rightly concerned about giving the attorney general
vast power to go ahead without any judicial review. An attorney
general is free to ask a court to issue a warrant for this
information, but to give the attorney general unfettered
subpoena power to get this information is what this amendment is
directed at. I support the amendment, he concluded.
CHAIR FRENCH said it's a balance because the attorney general
has to have a reasonable cause to believe that the Internet
service account has been used in the exploitation or attempted
exploitation of children. This is a good place to start and see
what kind of challenges we get. We'll stand those challenges,
we'll win them and go from there, he said.
Finding no further objection, he announced that Amendment 1 is
adopted.
9:22:59 AM
SENATOR FRENCH moved to adopt Amendment 2, labeled 26-
GS2859\E.2, and objected for discussion purposes.
AMENDMENT 2
OFFERED IN THE SENATE BY SENATOR FRENCH
CSSB 222(JUD), Draft Version "E"
Page 6, following line 30:
Insert a new bill section to read:
"* Sec. 16. AS 12.62.130 is amended to read:
Sec. 12.62.130. Reporting of uniform crime
information. A criminal justice agency shall submit to
the department, at the time, in the manner, and in the
form specified by the department, data regarding
crimes committed within that agency's jurisdiction. At
a minimum, the department shall require a criminal
justice agency to report each felony sex offense
committed in the agency's jurisdiction. The
department may withhold grant funding to a criminal
justice agency that fails to report data as required
by this section. The department shall compile, and
provide to the governor and the attorney general, an
annual report concerning the number and nature of
criminal offenses committed, the disposition of the
offenses, and any other data the commissioner finds
appropriate relating to the method, frequency, cause,
and prevention of crime. In this section, "sex
offense" has the meaning given in AS 12.63.100."
Renumber the following bill sections accordingly.
Page 9, lines 6 - 11:
Delete all material.
Renumber the following bill sections accordingly.
Page 9, line 31:
Delete "Sections 17 and 19"
Insert "Sections 18 and 19"
CHAIR FRENCH said this provision came about as a result of the
hearing last summer regarding reporting by smaller police
departments across the state of felony sex offenses committed in
their jurisdiction. Colonel Holloway reported that DPS wasn't
getting much data and therefore didn't know the actual level of
sex offense activity in these smaller areas. This provision
corrects that. He noted that his aide passed him a note that
said that this is a rewrite by the Department of Public Safety
of that earlier provision.
MS. MCLEAN said this rewrite moves the proposed mechanism for
insuring compliance from Title 44 to Title 12. The reason for
this is that AS 12.62.130 applies to what kind of criminal
justice information DPS is required to collect and it mandates
that the local agencies comply with the department's request.
This also puts the onus on local agencies to comply when they're
asked and it requires the sex offense language to be mandatory.
If the local agencies don't comply, they may lose grant funding
that they get through DPS.
CHAIR FRENCH removed his objection to Amendment 2. Finding no
further objection, he announced that Amendment 1 is adopted.
9:25:02 AM
SENATOR FRENCH moved to adopt Amendment 3, labeled 26-
GS2859\E.3, and objected for discussion purposes.
AMENDMENT 3
OFFERED IN THE SENATE SENATOR FRENCH
CSSB 222(JUD), Draft Version "E"
Page 1, line 2, following "pornography,":
Insert "failure to register as a sex offender,"
Page 2, following line 11:
Insert a new bill section to read:
"* Sec. 3. AS 11.56.840 is repealed and reenacted
to read:
Sec. 11.56.840. Failure to register as a sex
offender or child kidnapper in the second degree.
(a) A person commits the crime of failure to
register as a sex offender or child kidnapper in
the second degree if the person
(1) is required to register under
AS 12.63.010;
(2) knows that the person is required
to register under AS 12.63.010; and
(3) with criminal negligence fails to
(A) register;
(B) file written notice of
(i) change of residence;
(ii) change of mailing
address;
(iii) establishment of an
electronic or messaging address or any
change to an electronic or messaging
address; or
(iv) establishment of an
Internet communication identifier or
any change to an Internet communication
identifier;
(C) file the annual or quarterly
written verification; or
(D) supply accurate and complete
information required to be submitted under
this paragraph.
(b) In a prosecution for failure to
register as a sex offender in the second degree
under (a) of this section, it is an affirmative
defense that
(1) unforeseeable circumstances,
outside the control of the person, prevented the
person from registering under (a)(3)(A) of this
section or filing or supplying the written
notices, verification, and other information
required under (a)(3)(B) - (D) of this section;
and
(2) the person contacted the
Department of Public Safety orally and in writing
immediately upon being able to perform the
requirements described in this section.
(c) Failure to register as a sex offender
or child kidnapper in the second degree is a
class A misdemeanor."
Renumber the following bill sections accordingly.
Page 9, line 29:
Delete "Sections 1 - 16"
Insert "Sections 1 - 17"
Page 9, line 31:
Delete "Sections 17 and 19"
Insert "Sections 18 and 20"
CHAIR FRENCH said this amendment relates to what Ms. McLean has
repeatedly described as "the former Section 3." The CS removed
that section and this amendment puts it back in the bill. It
pertains to the mental state that the Department of Law has to
prove in order to convict a person of failure to register as a
sex offender. He related that after Ms. McLean testified
yesterday, he read the Moffitt case and concurs with her view
that removing that section would leave the state in a nearly
impossible position when trying to prove failure to appear under
the Moffitt decision.
He said he continues to believe that there has to be some mental
element, but this puts it as low as possible at criminal
negligence. This leaves DOL in the best position while still
maintaining some mental element regarding what they have to
prove about what's in the mind of the offender. He noted that
the same standard would be used in the failure to appear
provision of the bail bill.
MS. MCLEAN said DOL asked for this because it's very helpful to
have the Legislature specify mental states. She then clarified
that although she talked about the Moffitt case during the
previous hearing, the most recent decision is Solomon v. State.
That case was decided March 26 and it clearly said that the
mental state of negligence survives constitutional challenges.
SENATOR WIELECHOWSKI asked what the current standard is because
he thought it was a strict liability standard.
MS. MCLEAN said this was a compromise. She pointed out that DOL
has always felt that they could defend a strict liability
standard with regard to failure to register as a sex offender
and has always recognized that the mental state that they had to
prove is that the person knew that they were required to
register as a sex offender. This means showing some sort of
documentation that proves that the person had notice of their
duty to register, and having that notice they didn't do so. They
felt that was sufficient and there has never been a challenge to
sex offender registration on those grounds, she said. But given
the Moffitt decision, they're trying to have foresight about
possible challenges and they're saying that it exists because
there is no specified mental state in either of those [failure
to appear] statutes.
9:28:05 AM
CHAIR FRENCH clarified that Moffitt pertains to failure to
appear in court, but failure to appear and failure to register
are similar ideas.
SENATOR WIELECHOWSKI asked for a brief explanation of the
standard that the Moffitt court held.
MS. MCLEAN said it's an interesting intellectual pursuit because
the Alaska statutes say that if a statute doesn't specify a
mental state, the general rule is that the mental state is
knowing as to circumstances and reckless as to conduct. Up until
the Moffitt decision, DOL's understanding of failure to appear
was that the state had to prove that the person knew that they
had to appear and the state would do that by paperwork the
person signed or recordings of the judge telling the person they
had to appear. DOL believed that they satisfied the reckless
mental state by showing that the person was aware of the court
date and disregarded it. The Moffitt decision was a surprise
because it said the state had to disprove the excuses a person
might have for not appearing and that's not possible.
CHAIR FRENCH summarized that the Moffitt decision basically said
that the state had to prove that at some date after the
defendant walked out of court he or she formed a decision not to
go to court. "That just struck me as being impossible," he said.
SENATOR WIELECHOWSKI questioned what would be wrong with the
strict liability standard and if it would violate Moffitt to say
that a person who is court ordered to register as a sex offender
and does not do so is guilty of failing to register, regardless
of any reason or excuse.
CHAIR FRENCH said DOL likes that, but he was uncomfortable with
it because it leaves a little room - at criminal negligence or
below - for a series of horrific incidents that would leave a
person unable to register.
9:30:40 AM
SENATOR WIELECHOWSKI asked for the technical definition of
criminal negligence.
MS. MCLEAN provided the following:
The technical definition of criminal negligence is the
person was unaware of a fact of which the person would
have been aware and that the failure to be aware of it
was a gross deviation from the standard of conduct
that a reasonable person would observe in the
situation. And, if the reason you're not aware is
because you were intoxicated, you're aware.
SENATOR WIELECHOWSKI posed a hypothetical situation where a
person moved to a new community and forgot to register. Noting
that they're guilty under current law of strict liability, he
asked if that's criminal negligence.
MS. MCLEAN said no, that's strict liability. She reiterated that
strict liability is what DOL has been proving and that hasn't
been challenged, but after the Moffitt decision they became
concerned and wanted to codify what they believe the law is and
that's strict liability. This amendment was a compromise, she
said.
SENATOR WIELECHOWSKI asked if it would be criminal negligence if
a person were to move to another community and forget to
register.
MS. MCLEAN replied she believes it's clearly criminal
negligence, but just forgetting is an excuse under the Moffitt
standard and it's an excuse the state has to disprove as part of
its case.
SENATOR WIELECHOWSKI expressed discomfort with the amendment.
CHAIR FRENCH said he believes that failure to register as a sex
offender is something that should be punished, but he's a little
uncomfortable with strict liability. That being said, he would
accept the will of the committee.
9:33:09 AM
SENATOR COGHILL asked how strict liability would play out
practically. He observed that Alaska has the highest standard
for many laws, but there's discretion on application.
CHAIR FRENCH acknowledged that the Department of Law always has
discretion not to bring a charge, but strict liability basically
leaves you with absolutely no excuse whatsoever. It doesn't
matter if you've been in a debilitating car accident or your
mother was shot last night, under strict liability you're
guilty.
MS. MCLEAN pointed out that Section 3 in the original bill
provided that the excuse was an affirmative defense. That is
that the court has to listen to the defense and the jury gets to
decide. Strict liability says that you lose that defense and the
jury doesn't get to consider it.
She said that in the original bill and before DOL wrote in the
negligent mental state in this amendment, they said you have to
prove a mental state with regard to failure to register. The
mental state you have to prove is that the person knew they had
to register. We accept that burden; it's the same burden as
beyond a reasonable doubt, she said. If the person has an
excuse, their affirmative defense is to present their excuses
and then the burden shifts back to the state to disprove beyond
a reasonable doubt that the excuses are valid. That's how we
would want to do it and Senator French has another idea, she
said.
SENATOR WIELECHOWSKI said he needs to read Moffitt a little
more, but he's not comfortable with the amendment at this time.
At ease from 9:36 a.m. to 9:37 a.m.
9:37:10 AM
CHAIR FRENCH withdrew Amendment 3.
At ease from 9:37 a.m. to 9:38 a.m.
9:38:59 AM
CHAIR FRENCH moved to adopt conceptual Amendment 4.
CONCEPTUAL AMENDMENT 4
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 222(JUD), Draft Version "E"
Reinsert Section 3 of SB 222, Version "A"
Insert a new section that would be parallel to Section
21 as it appears in CSHB 298(JUD), Version "R" that
reads as follows:
The uncodified law of the State of Alaska is
amended by adding a new section to
read:
LEGISLATIVE STATEMENT CONCERNING CULPABLE
MENTAL STATE. In AS 11.56.840(a), as
repealed and reenacted by sec. 3 of this
Act, the only culpable mental state required
to be proven by the prosecution is the
"knowing" requirement in paragraph (2) of
that subsection. No other culpable mental
state needs to be proven for the other
elements of that offense.
CHAIR FRENCH announced that without objection, conceptual
Amendment 4 was adopted.
9:40:36 AM
SENATOR WIELECHOWSKI moved to report CS for SB 222, version E,
as amended, from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 222(JUD)
moved from the Senate Judiciary Standing Committee.
9:40:59 AM
There being no further business to come before the committee,
Chair French adjourned the meeting at 9:40 a.m.
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