Legislature(1997 - 1998)
05/06/1998 03:28 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS CHAIRMAN GREEN announced the first item of business would be CS for SB No. 216(JUD), "An Act providing for the civil commitment of sexually violent predators." CHAIRMAN GREEN called on the spokesperson from the sponsor of the bill's office. Number 0080 BILL STOLTZE, Legislative Administrative Assistant to Senator Rick Halford, Alaska State Legislature, stated SB 216 allows for the confinement of sexual predators, a certain class of the most heinous offenders. The confinement is allowed after they have served their sentence. The recent ruling from the Supreme Court of the United States (Kansas v. Hendricks) indicated that if the states meets certain test, it is an allowable non-(indisc.) procedure. The concerns were ex post-facto, double jeopardy, and due process. The court ruled that the Kansas statute met the requirements through (indisc.). The legal department crafted a statute (indisc.) the Kansas statute which has met the test in the highest court. Cynthia Cooper from the Department of Law prepared a chart which outlines the screening phases. Number 0252 CHAIRMAN GREEN noted that this has a significant fiscal impact, according to the fiscal notes. He asked Mr. Stoltze whether he or the Senator has anything to say about that impact. Number 0279 MR. STOLTZE replied it is an expensive tool. It would not be used in every case. Initial conversations with the Department of Law indicated a more modest fiscal note. It is an expensive tool and would be used as much as could be afforded. Number 0329 CHAIRMAN GREEN stated it is not uncommon that when the Administration submits a high fiscal note it is not in tune with that particular piece of legislation. He asked Mr. Stoltze whether the committee will hear from the Administration. Number 0357 MR. STOLTZE replied the Administration is prepared to defend the fiscal notes. Number 0376 REPRESENTATIVE CON BUNDE stated it is his understanding that pedophiles will be pedophiles their entire life. They are born with it. It is beyond exercising self-control. They are not "curable." He asked Mr. Stoltze whether that is correct. Number 0414 MR. STOLTZE replied he is not an expert on that. Personally, he believes that it is not cured by hand-holding encounter groups. There is a very high percentage level of repeat offenses. Senator Halford is trying to stress that the individuals who continue to perpetrate these crimes will be confined at some point. Therefore, he wants to slow down the stream of victims and suffering that follows. Number 0468 CHAIRMAN GREEN stated that this would apply to people who have served their sentence and then incarcerated additionally on a supposition - the punishment before the crime. He asked Mr. Stoltze whether he recalls how that was addressed in the Supreme Court of the United States. Number 0500 MR. STOLTZE replied "incarceration" is the wrong term. The correct term is "confinement." Justice Clarence Thomas specified that it was not double jeopardy or ex post-facto punishment. Justice Thomas indicated, "The state may take measures to restrict the freedom of the dangerously mentally ill. This Kansas statute is a legitimate non-punitive governmental objective and has been historically so regarded....The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment or that the state has disenvowed any punitive intent, limited confinement to a small segment of particularly dangerous individuals, provided strict procedural safeguards, directed that confined person be segregated from the general prison population and afforded the same status as others who have been civilly committed recommended treatment if such is possible, and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent." Number 0594 REPRESENTATIVE ETHAN BERKOWITZ stated he has heard concern that the current civil commitment language in Title 47 might be inadequate to respond to this problem. Number 0613 MR. STOLTZE replied this is a whole other type of civil commitment than a commitment int Title 47. He would rather have Anne Carpeneti from the Department of Law elaborate on that later. Number 0639 REPRESENTATIVE BERKOWITZ asked Mr. Stoltze whether he knows if there have been any instances where Title 47 has been used in Alaska to hold a sexual predator or anyone who is likely to commit a crime against another individual. Number 0653 MR. STOLTZE deferred to Anne Carpeneti from the Department of Law to answer the question. Number 0664 REPRESENTATIVE JEANNETTE JAMES asked Mr. Stoltze whether he would liken this confinement to the type of confinement that the state used to have with mental institutions for the criminally insane. Number 0695 MR. STOLTZE replied there is a different type of statute that covers the guilty but mentally ill criminals. Some are confined to the Alaska Psychiatric Hospital. It isn't actually a warehouse. It is a small number of people. Number 0728 REPRESENTATIVE NORMAN ROKEBERG asked Mr. Stoltze what the sponsor's opinion is of the fiscal note and objection to the $12 million to house these people. MR. STOLTZE replied Senator Halford's reaction is that it is an expensive tool. Prosecutors would use it only as often as they could afford to use it. Senator Halford didn't say so directly, but by inference they were excessive. They reflected a broader application than the intent of the legislation. Number 0774 REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether the testimony has indicated any relationship between actual cases and instances in the state where this would have been beneficial to have, or is it based on perspective only. Number 0793 MR. STOLTZE replied, he believes, as written the procedure starts for those people who are currently incarcerated. Through the news media he has seen a few good candidates for it. REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there has been any evidence that the situation should have been in hand before. Number 0838 MR. STOLTZE replied not in proceedings, but talking with individuals he has heard of cases anecdotally. He cited Mr. Rodriguez (ph) as an example. Number 0890 REPRESENTATIVE BERKOWITZ stated the bill applies to sexually violent predators and someone who suffers from a mental illness. According to AS 47.30.705, anyone who is suffering from a mental illness and is likely to cause serious harm to himself or others, can be taken into custody. It seems to sweep up the concern that this bill addresses. Number 0988 REPRESENTATIVE ERIC CROFT stated if it can be done now and do all the things that the front part of the bill talks about... Number 1010 MR. STOLTZE stated Representative Croft is right on the point. The statute does not meet the guidelines that Justice Thomas laid out in his majority opinion without the safeguards in place and the due process procedures outlined in the bill. Number 1029 REPRESENTATIVE BERKOWITZ stated there is a whole section in the statute about commitment proceeding rights, notification, court orders, and additional commitments. They seem fairly extensive. Number 1049 REPRESENTATIVE BUNDE stated violent serial rapists are judged insane. They are judged criminal. It seems that psycho predators or the insane are one of the criteria. REPRESENTATIVE BERKOWITZ noted that it says "and." REPRESENTATIVE JAMES stated in trying to associate what is in statute with what the bill is trying to accomplish, she noted that this happens while they are under control as opposed to finding them on the street when considering them dangerous to themselves or others, such as a mental person in statute. She believes that the bill tends to address the people who are called "sexually violent predators" who are currently incarcerated for their crime and whether or not they should be let go as opposed to whether or not they should be brought in. Number 1147 CHAIRMAN GREEN stated the testimony is getting into the nuances. He suggested hearing from a legal expert. Number 1188 ANNE CARPENETI, Assistant Attorney General, Legal Services Section - Juneau, Civil Division, Department of Law, noted that the person who should describe civil commitments is Karl Brimner who works for the Division of Mental Health and Developmental Disabilities. He knows about the mental health commitments in Title 47. The findings in the bill set out clearly that it is dealing with a different sort of mental illness than what Title 47 is dealing with. It uses a different definition of mental illness from the statute. It uses a definition in Title 12 rather than in Title 47. The bill is aimed at people who suffer from mental illnesses dealing with sexual deviation who are not treatable compared to people who suffer from mental illnesses in other contexts. In other contexts, the approach is for treatment in a short time. Treatment for sexually violent predators takes a long time. Number 1285 KARL BRIMNER, Northern Regional Mental Health Services Coordinator, Northern Regional Office, Division of Mental Health and Developmental Disabilities, Department of Health and Social Services, stated Title 47's involuntary commitment law is primarily used for purposes of individuals who are mentally ill and psychotic, and who are dangerous to themselves or others at that immediate time. That is how the judges rule on it. It is used for a short period of time for stabilization to get the individual back into the community to receive services. The individuals being discussed in the bill usually require treatment for long periods of time, and they don't respond to treatment well. Number 1344 CHAIRMAN GREEN stated that pedophiles appear normal. He wondered whether pedophiles go through cycles so that they test alright at one particular time then when back out do something bad. He asked whether the state would incur any liability by having something like this in statute and letting somebody out who comites a reoffense. Number 1390 MS. CARPENETI replied there is an immunity section in the bill. If a decision to release somebody is made in good faith, the state, agencies of the state, employees of agencies of the state, and officials cannot be sued. Number 1404 CHAIRMAN GREEN stated the decision could be in good faith, but according to the testimony they are almost incurable. The chance of them going back into society is almost nil, but according to the tests they should be let go. MS. CARPENETI replied Mr. Brimner can answer the testing provision. When looking at and evaluating people who qualify as sexually violent predators, a test includes their past and history of abuse also. The state would be able to introduce evidence of their past in a trial as well. Number 1455 CHAIRMAN GREEN asked Ms. Carpeneti whether that would mean there is no light at the end of a tunnel for a sexually violent predator because his past is pretty jaded. MS. CARPENETI replied, "I don't think so." The state has to offer treatment in good faith under the bill to withstand constitutional muster. There are methods of treating sexually violent predators. It takes a long time and focuses on not necessarily changing their predilections, but curbing their actions. Number 1491 REPRESENTATIVE BUNDE stated the commitment under Title 47 often involves medication as well as psychological treatment. He asked Mr. Brimner whether there is medical treatment for sexual predators, other than castration. MR. BRIMNER replied there is some medication used. It is not a full-proof method, however. He has seen success with individuals who are not as dangerous as the individuals that the bill talks about. Sometimes medication can be helpful when there is a good prognosis, when there isn't resistance, and when there is a willingness to change. Number 1552 CHAIRMAN GREEN wondered whether the bill would cover female offenders as well. MS. CARPENETI replied, "Yes." CHAIRMAN GREEN asked whether the tests and procedures would be the same for female offenders. MR. BRIMNER replied the assessment tools would be for either sex. The psychological dynamic is usually a personality disorder which can be either male or female. Number 1602 REPRESENTATIVE ROKEBERG asked whether there have been any findings or rulings by the federal courts that castration or other types of methods like that are cruel and unusual punishment. MS. CARPENETI replied she doesn't know whether that procedure is allowed in the country. She would be happy to find out. REPRESENTATIVE ROKEBERG wondered whether chemical or other methods available would be cheaper than going the route of hard-bed facilities to accommodate the populations. Number 1668 MR. BRIMNER stated chemical castration to eliminate the sexual urge does not necessarily take care of the problem. It is often an issue of power, not sex. It is the desire of an individual to have power over someone else and to hurt that person which is often sexually, as well as physically. There are isolated cases where it can be helpful though. Number 1712 REPRESENTATIVE BUNDE noted that there has been cases where inmates have requested chemical castration in an attempt to control themselves. They are usually pedophiles. It is often said that rape is not a sexual crime, but a crime of violence. Chemical castration may not be the answer. CHAIRMAN GREEN asked, if there is another part of the testosterone, would that mean there is a different manifestation of the anger. MR. BRIMNER replied, "Certainly." An individual may lash out in a much more violent manner. CHAIRMAN GREEN stated these are the things that somebody would have to look at before a predator could pass muster, if the bill is enacted. MS. CARPENETI noted after there is a finding that a person is a sexually violent predator, the court must decide if that person can be safely placed in a noncustodial setting. She is sure that chemical castration would be one of the things looked at to keep that person safe from other people. The finding would have to be made before that person could be sent to an institution. Number 1800 MS. CARPENETI stated there are two other issues that the department would like to consider as conceptual amendments today. The bill was modeled after the Kansas statute that was just upheld by the Supreme Court of the United States. It is based on the Constitution of the United States. However, she does not know whether the state courts would uphold it based on the state constitution. At any rate, the bill has some provisions dealing with the representation of the person who the state is seeking to commit and how that person obtains experts to examine them and to testify on their own behalf. The department thinks it would be a lot cleaner to make it clear that the person would be represented by counsel, which is constitutionally required, or represented by a public defender who can then make the determination if an expert should be retained. She referred to page 4, line 11; page 6, line 14; and page 7, lines 20-21. CHAIRMAN GREEN asked Ms. Carpeneti whether it would abrogate the court's authority. MS. CARPENETI replied in other civil commitment and criminal cases the person's lawyer makes the decision to obtain an expert witness, not the judge. It would put the judge in an awkward position to decide what expert to appoint to assist a person. CHAIRMAN GREEN asked Ms. Carpeneti whether there would be a problem with a conflict of interest for an attorney to bring in witnesses on his clients behalf rather than on an impartial basis. MS. CARPENETI replied civil commitment proceedings are adversarial proceedings in general. Number 2057 REPRESENTATIVE BUNDE made a motion to adopt Amendment 1 and conceptually the same amendment to page 6, line 14; and page 7, line 20. Amendment 1 reads as follows: TO: CSSB 216(JUD) Page 4, line 11: Delete "to assist" Insert "under AS 18.85 to represent" Page 4, lines 15 - 20: Delete "If the person is indigent, the court, upon the person's request, shall determine if the services are necessary and the compensation for those services is reasonable. If the court determines that the services are necessary and the compensation for the services is reasonable, the court and the person's counsel shall assist the person in obtaining an expert or professional to perform an examination or participate in the trial on the person's behalf." CHAIRMAN GREEN objected for discussion purposes. REPRESENTATIVE BUNDE asked Ms. Carpeneti to explain AS 18.85. MS. CARPENETI replied it addresses the powers and authorities of the public defenders. Number 2102 CHAIRMAN GREEN asked Ms. Carpeneti whether the court would still exercises the authority. MS. CARPENETI replied the court would appoint an attorney for representation. CHAIRMAN GREEN asked Ms. Carpeneti whether the court would help find an expert. MS. CARPENETI replied the court would probably not be in a position to help in a particular case. It would probably be the attorney who determines the best expert. CHAIRMAN GREEN noted that the amendment says, "the court and the person's counsel shall assist the person in obtaining an expert or professional..." MS. CARPENETI noted that language is to be deleted. CHAIRMAN GREEN removed his objection. CHAIRMAN GREEN asked whether there is any further objection to the motion to adopt Amendment 1. There being no objection, the motion was so adopted. Number 2170 MS. CARPENETI referred to page 5, subsection (c) and explained the Kansas and Washington statutes that were approved by the Supreme Court provide for two separate hearings - one to determine whether the act was committed, and one to determine whether the person should be committed. Kansas has already moved to amend its procedure to allow the factual finding to be determined in conjunction with the commitment hearing to eliminate two separate proceedings. An amendment to address this issue has not been drafted. It would be a conceptual amendment. REPRESENTATIVE JAMES noted that is a true conceptual amendment. CHAIRMAN GREEN announced he has some problems with that. MS. CARPENETI explained the person cannot be tried for the acts because he is not in a mental state to be subject to a criminal trial. On the other hand, he may be in a position to be released in order to proceed under a civil commitment. CHAIRMAN GREEN stated he is concerned about the tremendous fiscal impact. Number 2261 REPRESENTATIVE BUNDE suggested waiting for an actual amendment since the votes are not here to pass the bill out of the committee anyway. CHAIRMAN GREEN asked Ms. Carpeneti whether she could provide the amendment in writing. MS. CARPENETI replied, "Yes." In terms of the fiscal note, the amendment would probably streamline the procedure. She noted that this situation comes up rarely. It is not found very often that a person is found to be incompetent to be tried for a criminal charge. In the circumstances where that person is found to be incompetent, it would streamline the procedure to avoid two separate hearings. CHAIRMAN GREEN noted, in theory, it should reduce the fiscal note. MS. CARPENETI replied she doesn't want to give any false hopes because it doesn't happen very often. Number 2313 ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services, referred to the flowchart illustrating the three phases - screening, court proceedings, and appeal and annual review. This is truly a different population of persons who are not being served or treated by the department as mental health clients. These persons would not be criminals. They would be civilly committed. This is creating a brand new system to deal with a brand new type of thing. The department feels strongly that, if this is the road the state wants to walk down, it would be very expenses. The fiscal notes are not inflated or exaggerated. They represent the cost of creating a brand new system to deal with a new population. Number 2418 REPRESENTATIVE JAMES asked whether there is any provision in law that would allow for the confinement of this type of person. MS. CARPENETI replied, "I don't believe so." This type of person would not qualify under the civil commitment statute as imminently dangerous to himself or others. REPRESENTATIVE JAMES asked Ms. Carpeneti whether the difference is tomorrow, three weeks, two months, or a year. MS. CARPENETI replied, "I believe so." In reference to the fiscal note, the number was chosen based on conversations with the state of Washington, which has a similar statutory procedure... TAPE 98-85, SIDE B Number 0000 MS. CARPENETI continued. The state of Washington has not lost a single one that has been filed. The statute was adopted it 1990. It is not being used frivolously. It turns out to be about 2 percent of the sexual offenders released from the prisons. Number 0024 REPRESENTATIVE JAMES asked Ms. Carpeneti what would be 2 percent in numbers for Alaska. MS. CARPENETI replied 160 sex offenders are expected to be released this calendar year. Two percent is about three and a half to four. Number 0043 MR. LINDSTROM stated it has been suggested that this is just a tool in a toolbox, and that there is discretion associated with it. This is true to a point, but if the Department of Corrections refers someone to the Department of Health and Social Services believing that the provisions in the bill are appropriate and the Department of Law believes that there is evidence to go to court and make it stick, what basis would the state have not to proceed. "I don't think the public or you or anyone else would accept the fact that we only had money to do this for three people and the fourth person coming down the pipe who meets all of these criteria and we all believe is a threat that we are simply going to say we're out of money this year and I'm afraid we're not gonna go forward. I don't think you would stand for that. I don't think the public would stand for it, and I don't think the professionals in this system could stand for it." Number 0103 CHAIRMAN GREEN asked Mr. Lindstrom whether there is a plateau associated with the fiscal notes. MR. LINDSTROM replied the Department of Health and Social Services' fiscal note is based on the assumption of five persons actually going to trial and the state prevailing in four of the five cases. This is very long treatment and the department expects the population to grow by another four each year. The evidence so far in other states is that people do not graduate from the program readily. CHAIRMAN GREEN asked Mr. Lindstrom what he sees as the alternative to something like this at the risk of putting these people out into society. MR. LINDSTROM replied, in the absence of this type of system, the odds are that these types of people would probably be put back into corrections. Number 0181 MR. STOLTZE stated, according to the sponsor, the alternative is to wait for a new stream of victims and trials with criminal proceedings. "We don't find that a real palatable alternative," he declared. Number 0189 REPRESENTATIVE JAMES stated when more cases come up they are not tried because there isn't any money. A supplemental is requested, for example. She believes that someplace down the line there would be this money spent and other money not spent. It might not be this year or next year, but over a long period of time it appears that this approach would have a cost savings. Number 0234 REPRESENTATIVE BERKOWITZ stated, if these people are without a reasonable doubt going to recommit a crime later own, it becomes a question of pay now or pay later. Number 0248 MR. LINDSTROM stated he does not know how to make that type of comparison. The department is assuming that these individuals would be sent out of state for treatment. The one place that would be willing to accept these folks costs $400 a day - about one-half the cost of acute care treatment in a psychiatric hospital setting. Obviously, if the bill passes, there would have to be discussions in the future on whether to continue to contract or provide instate facilities. Number 0300 REPRESENTATIVE CROFT asked what is the recidivism rate for sex offenders. Number 0310 BRUCE RICHARDS, Program Coordinator, Office of the Commissioner, Department of Corrections, stated he believes the last recidivism study was based on how long people were in treatment. He doesn't have the information in front of him, however. He could get some information on the sex offender treatment program, which shows those who do not participate in treatment versus those who participate in treatment in prison. There is a significant difference in time between the next reoffense. Number 0349 REPRESENTATIVE CROFT asked Mr. Richards the magnitude of the difference. Is it between 1 and 5 percent, or 33 and 50 percent? MR. RICHARDS replied he wouldn't even venture to guess. CHAIRMAN GREEN asked Mr. Richards whether he could provide that information. MR. RICHARD replied in the affirmative. REPRESENTATIVE CROFT asked whether there was a deduction based on recidivism estimates incorporated into the fiscal notes. MS. CARPENETI stated she would find that out for the Department of Law. Number 0395 MR. STOLTZE stated, as an editorial, that this is part of the Administration that is chided as a group for not passing intervention programs. Number 0404 REPRESENTATIVE BRIAN PORTER suggested to the departments to consider the recidivism rates. The small percentage of folks that would return has to be based on the expectation of committing another crime. There has got to be an offset, otherwise this whole theory doesn't work. Number 0431 MS. CARPENETI noted that the treatment under this scheme would be a lot less expensive than psychiatric care, but it still is a lot more expensive than time in jail. Number 0444 REPRESENTATIVE PORTER stated, "I'm assuming that we would have the good track record that we have and convict 99 percent of these guys again, and they would be back anyway. So all of that should be part of the fiscal analysis." Number 0453 REPRESENTATIVE CROFT stated there would be the cost of a trial, but there would be a lower cost of incarceration because they would be placed in a facility as ordinary criminals at $100 a day. It wound not come to anything near to a wash, but it is appropriate to have some sort of an offset. CHAIRMAN GREEN noted that it is a policy call. Number 0485 REPRESENTATIVE ROKEBERG stated there is a University of Alaska Anchorage (UAA) study and wondered whether there is another study on the efficacy of the sex offender in terms of the education program. Are they two separate studies? he asked. MR. RICHARDS replied that was the study done by the university. REPRESENTATIVE ROKEBERG stated they are one in the same. REPRESENTATIVE ROKEBERG asked Mr. Richards whether the study tried to categorize prisoners as violent. MR. RICHARDS replied, "Yes." Number 0536 REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti what would be the size of the jury, 6 or 12. MS. CARPENETI replied she is assuming that the size of the jury would be 12. Number 0549 REPRESENTATIVE ROKEBERG said, if there is a correlation between the success rate of people who offend violently and the program, it would be interesting to see. It would be interesting to see if they would be categorized as a violent sexual offender under the criteria used in the study and whether or not they would offend less by going through the program. Number 0587 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, pointed out that sexual offenders are all violent offenders. Sexual assault by its very nature is a violent offense. Sex is merely the tool used to perpetuate the violence. Sex offenders cannot be rehabilitated. At the very best, they can learn to control their offenses. The council wants to acknowledge that since a very small percentage of sex offenders have a high predatory level that extensive incarceration or commitment is in the best interest of the public's safety, while acknowledging that there is a very high potential for all sex offenders to reoffend. The council supports the bill. Ideally, the council would like to see all sex offenders have long enough terms so that they cannot be a threat to the public at any point in the future. However, the council realizes that is not going to happen. This bill is one avenue to help raise the safety level for the general public. In addition, it is important to segregate these offenders from the general mental health populations because they would move from a criminal to a civil process. Mental health patients are even more vulnerable to sexual assault than the general public. There needs to be clear separation between the two. Number 0671 REPRESENTATIVE BERKOWITZ asked Ms. Andreen whether there was any attempt to make a sexual assault predator an aggravator with a mandatory addition of probation or parole time, if not jail time. MS. ANDREEN replied the council was not actively involved in the negotiations. REPRESENTATIVE BERKOWITZ stated the reason that he asked is because consolidating everything at the initial fact-finding stage speeds everything up and spares the expense of subsequent proceedings. Number 0745 MR. STOLTZE stated the Department of Law has testified that the people were sentenced for shorter periods of time until the philosophical change of the legislature towards more stringent laws. He understands Representative Berkowitz's point, but there isn't an avenue to address it under the title. Number 0776 CHAIRMAN GREEN noted that a pedophile, a threat to society, would go from a $100 bed to a $400 bed at the end of his incarceration. He wondered whether that is strange. MR. STOLTZE replied the alternative is letting him out. CHAIRMAN GREEN asked why is the next phase a $400 or $800 a day bed. Why not keep him in a cheaper facility? MR. STOLTZE replied the procedure kicks in towards the end of his sentence. It is about the time that he is ready to be spewed out into society. According to the Supreme Court decision, there has to be some treatment and hope for rehabilitation. CHAIRMAN GREEN stated on the one hand he is incorrigible. On the other hand there has to be some reasonable assurance for hope of rehabilitation. MR. STOLTZE stated the desire of the sponsor is limited by what would be allowed by the court. This is the only mechanism to... CHAIRMAN GREEN interjected to keep him off the street. Number 0875 REPRESENTATIVE JAMES stated she doesn't know how long the original term is, but it seems backwards. Why is a person in the correctional system without getting any treatment? Why don't we go right into it? she asked. It does not seem sensible to keep a person then put him into treatment when he is about to get out. Number 0915 MR. STOLTZE noted that Hendricks refused treatment for his confinement. CHAIRMAN GREEN asked Mr. Stoltze, if the bill passes, would those who refuse treatment stay in the slammer. MR. STOLTZE replied it is an involuntary commitment. He understands the queasiness, but it is the only path to walk on. REPRESENTATIVE BERKOWITZ stated it is not the only path. The bill loads the program at the back end instead of the front end. The proceedings could be initiated at the point of incarceration. Why not put a person through these proceeding at the get-go and see if he is a sexually violent predator? If he washes out, he is gone forever. If he passes out, then the state doesn't have to keep him in for perpetuity. There is no reason to wait for a person to serve his period of incarceration then make a determination of civil commitment. REPRESENTATIVE JAMES noted that is her point also. Number 1041 MS. CARPENETI stated the problem is we don't know how a person would do at that point in jail by participating in a sex offender treatment program. REPRESENTATIVE BERKOWITZ stated if these are sexually violent predators, according to the definition, they are going to be diagnosable when convicted. Certainly, if after going through their period of incarceration as sexually violent predators, they must have started out as sexually violent predators. Why not start them out at the beginning of the sentence, instead of the end of the sentence? he asked. MS. CARPENETI replied, "You might not come to that conclusion that they are mentally ill under this definition and suffer from--that they are mentally ill and sexually violent predators, until they have served their sentence in jail and gone through the treatment programs available in the jail." If there is a proceeding at the same time of conviction, there may be a lot of time and resources wasted. Number 1074 MS. ANDREEN stated the best would be to have both options available. There are times when corrections would not know until it has had someone for a while. The standard presumptive sentence for first degree sexual abuse is eight years, which means six and one-third years with good behavior. Sometimes it takes that amount of time to really understand. Sex offenders are incredibly manipulative. She cited a story of a sex offender in Homer. Number 1183 CHAIRMAN GREEN stated on one hand these types of criminals are incurrable, and asked why does the state need to wait six and one- half years before determining that they are this type of criminal. They were arrested for being that type of criminal. Are there those who do this type of crime just once or do they do it for life? he asked. MS. ANDREEN replied according to studies the average number of victims is around 40 before being convicted. It is a pattern. It is something that would be repeated. CHAIRMAN GREEN stated he is really confused why the state needs six and one-half years to determine that this type of person would spend the rest of his life incarcerated. MS. CARPENETI noted that the person is serving a criminal sentence. CHAIRMAN GREEN stated if the state knows someone is an "A" type and convicts him to an "A" facility, and asked why the state doesn't help him up front instead of waiting six and one-half years. MS. CARPENETI asked what would be the advantage of doing it at the beginning of a sentence. CHAIRMAN GREEN stated, if the state has him for six and one-half years in the slammer and knows he would not be corrected, why not keep him in the slammer instead of sending him to an "A" type facility that costs four to eight times as much. Representative James and Berkowitz suggested treating the person earlier while in jail, instead of waiting for his sentence to end. MS. CARPENETI replied a lot of people respond to giving this type of person a longer criminal sentence because it would be less expensive and more practical. The state is now getting longer sentences for people who commit these types of crimes, especially for their second and third times, compared to a decade ago. It is a prospective procedure, however. MS. CARPENETI further replied that there are treatment programs available in the prisons for sex offenders. She suggested hearing from Bruce Richards. He is able to give statistics on how well the state is doing and what is available. Number 1420 CHAIRMAN GREEN said, "We have heard that this person when it does finally come time to either he is on the street or in treatment, that he no longer is under the corrections department. He now is in a different department." MS. CARPENETI noted that he would be in the custody of the Department of Health and Social Services. CHAIRMAN GREEN stated, "And, that's the only way we can pass the Kansas type extension is so go to that method rather than to say okay he's a danger then we'll leave him in the slammer." MS. CARPENETI replied that is correct. MR. STOLTZE noted that it would be using a selective tool very unselectively. If it is applied universally, it is trying to determine a very broad class. Number 1470 REPRESENTATIVE BUNDE noted that there are treatment programs within the correctional facilities. They are voluntary while some folks are treatable and some are not. "We ought not to lose site of what the purpose is at the end for the civil commitment." It isn't to treat them; they are beyond treatment. It is to keep them off of the street. What is the price of keeping children safe? he asked. The treatment is just eyewash. It is just to keep them locked up. CHAIRMAN GREEN stated it seems that there ought to be a reasonable degree of assurance. MS. CARPENETI stated it is true that these people are very difficult to treat, but it is not true that they are hopeless. Number 1579 REPRESENTATIVE BERKOWITZ referred to page 3, line 10, and called it the most important part of the section. It may determine whether a person is a sexually violent predator prior to conviction or during the period of incarceration. Waiting to the end of a person's conviction is postponing a decision that should have been made earlier. He said, let's attack the problem when it is discovered. Let's not wait until it has festered. MS. CARPENETI asked Representative Berkowitz whether he is envisioning a separate hearing after a conviction on whether or not the person is a sexually violent predator. REPRESENTATIVE BERKOWITZ stated this is a civil commitment. Why does the fact of incarceration matter? he asked. MS. CARPENETI replied it matters to the extent that the person has committed a crime and is serving a sentence for another reason apart from his treatment. REPRESENTATIVE BERKOWITZ replied a civil commitment is a prospective, not a punitive measure. "We're not saying we're civilly committing you because you have done something bad. We're saying we're civilly committing you because we think you're going to do something bad." Once the state determines that it is going to commit someone, the current factor of his conviction for a crime is irrelevant. "If you see someone walking down the street who you believe is a sexually violent predator and they're not convicted, what are we doing about them? Nothing. So, who are we really protecting?" MS. CARPENETI replied she would like to deal with a sexually violent predator walking down the street too. She is dealing more with realities. There is a person and the state knows his history, how he has done in jail, and how he has responded to treatment. Then, there is the concern about letting him out. She would want to know more information whether the individual walking down the street unincarcerated and uncharged is a sexually violent predator. REPRESENTATIVE BERKOWITZ replied, "But, here when say they've gone through a treatment program while they're in, and the treatment program, say it's a first offense, is usually five and two-thirds. And, so you know, at three years to say we're not doing it or we've walked out of the program twice or whatever has happened. Why are we waiting to the end of the five and two-thirds? Why aren't we just grabbing them after three and saying ok this a sexually violent predator. Let's pop him now." MS. CARPENETI replied we are requiring him to serve his sentence as part of a criminal conviction. He violated the law and victimized a person. He ought to go to jail for it and serve his sentence. If he hasn't taken advantage or been able to be rehabilitated in jail, then he should be looked at again. MR. STOLTZE stated the concern is not of the individual, but society. Society is concerned when a person is about to be released. REPRESENTATIVE BERKOWITZ asked why is the state wasting resources to try to rehabilitate them while incarcerated, if they are incorrigible. Why not put those scarce resources where they can do some good? MR. STOLTZE replied he is not sure what side of the issue Representative Berkowitz is on. REPRESENTATIVE BERKOWITZ replied he is taking his argument and using it in response. "First, as Representative James says either these folks are treatable, in which case let's go get them off the get-go. And then you say that they're not treatable. And, I'm saying that if they aren't treatable let's find out so we don't waste the resources in prison and give--put those resources to someone else. But, let's find out as soon as possible. That's the most efficient use of our resources." MR. STOLTZE replied it is impossible to prove whether or not that they are untreatable. We have to go on substantial likelihood. He doesn't think that resources are being wasted because they serve as a public purpose. It is keeping them off of the streets - the higher threshold of a public purpose. Number 1950 REPRESENTATIVE BERKOWITZ replied he is not saying let these guys out. He is saying when they are incarcerated a determination should be made quickly. Would they be amenable to treatment? If the answer is yes, let's give them treatment. If they wash out of the treatment, then let's run them through the sexually violent predator petition. If they run out in the middle of their sentence, let's do it then. Let's not wait until the end of their sentence. Let's not try to put them through a program again. On the other hand, if a sexually violent petition is given at the beginning of a sentence, and it is determined that they are not amenable to rehabilitation, let's not waste resources trying to rehabilitate them. Let's put them towards an individual who deserves to be or can be rehabilitated. Number 2006 MR. STOLTZE stated that might be interpreted to be (indisc.) by the courts. REPRESENTATIVE JAMES stated it seems that in order to meet the criteria established in the court case the money has to be spent for the expensive program whether it works or not. CHAIRMAN GREEN stated, "If you're gonna keep them off the streets." REPRESENTATIVE JAMES stated it seems that in order to meet the requirement we have to send them away for this expensive treatment. CHAIRMAN GREEN asked whether we can continue to have them incarcerated, not necessarily in the slammer, even though there are treatments offered there, but something less than the $400 or $800 type of confinement, which we know isn't going to work anyway. MS. CARPENETI stated it might be hard when a person is convicted to make a determination as to whether or not he is treatable. The bill requires the court, after a person is found to be a sexually violent predator, to determine whether a less restrictive alternative would be safe for the public. CHAIRMAN GREEN asked whether the state of Kansas keeps them in a prison type of environment with medical treatment, or does it actually change departments and keep them strictly as medical patients. MS. CARPENETI replied they cannot be housed with other prisoners. This bill requires that they be housed in a secure facility apart from other people who are serving criminal sentences and apart from people who are being treated for a mental illness. MR. STOLTZE stated, for example, it could actually be within a walled parameter of a correctional facility, but administered by corrections. We offered to contract out because we don't know what type of facility would be needed. We figured it would be better to judge how many people we are going to have then determine what type of facility to build. It could be within Spring Creek or Lemon Creek, for example. It would have to be administered to meet the restrictions provided by in the Supreme Court decision. It could not be administered by the Department of Corrections as spelled out in statute. But, we are not that far along. We don't want to get into legislation for building facilities. Number 2375 WALTER MAJOROS, Executive Director, Alaska Mental Health Board. He is also a prior director of a sex offender treatment program in Juneau, and a prior division director for the Department of Corrections. The board is concerned about the impact of the bill on persons with mental illnesses within the mental health system. It commends the sponsor and the legislature for their concern of protecting the public from sexually violent predators. It is a very serious issue that deserves debate and consideration. The first point from the board's perspective... TAPE 98-86, SIDE A Number 0000 MR. MAJOROS continued. Sexually violent predators have antisocial behavioral disorders or personality disorders that require a very different type of treatment. The criminal justice system is set up for long-term confinement of individuals who are likely to commit violent crimes. The civil system is set up for short-duration treatment needs for people with mental illnesses. There are several mechanisms within the criminal and public safety system now, including sentencing laws, good-time provisions, victim notifications, rigorous prosecutions, sex offender registrations, paroles, probation conditions and intensive supervision - all appropriate mechanisms to address sexually violent predators. The board encourages the committee members to consider and enhance those options to protect the public's safety. The board is also concerned about safeguards for persons with mental illnesses within the public mental health system. One area is to narrowly define the population so that the law only applies to the most dangerous and violent offender. The board is also concerned that the facilities and treatment programs are separate from those for the mentally ill. The board is also concerned about ensuring that the integrity of the mission of the public mental health system is not jeopardized. Lastly, the board is concerned about the treatment approaches. It is important to recognize the significant philosophical difference between criminal offenders and the treatable mentally ill. The board is concerned that resources are not diverted away from treating people with mental illnesses to treating people who are sex offenders. The board asks that the funding be separate and not come from the existing funding for the public mental health system. He has submitted a proposed amendment to achieve a safeguard. It would disallow the treatment of sexually violent predators at Alaska Psychiatric Hospital. The fiscal notes prepared by the Administration already assume that the people would not receive treatment at the Alaska Psychiatric Hospital, and contract it out, but there is nothing to prohibit that treatment from happening at the Alaska Psychiatric Hospital. The board is concerned about taking treatments away from the mentally ill patients. The Alaska Psychiatric Hospital is being downsized within the next couple of years from 79 to 54 beds. Every bed would become precious. He has discussed the issue with Senator Halford, and the mental health industry feels very strongly about it. He has also discussed it with the commissioner of the Department of Health and Social Services. Number 0394 CHAIRMAN GREEN made a motion to adopt Amendment 2. There being no objection, it was so adopted. [AMENDMENT 2 WAS NOT PROVIDED] Number 0440 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference in Anchorage. The agency has submitted a fiscal note that includes the history of this type of law. It is important to point out that this would be the first time in Alaska where people would be confined based on a prediction that they might commit criminal offenses in the future. That type of determination is a real slippery slope and not favored in the law because it potentially violates the right to liberty and due process. He also noted that a task force report from the American Psychiatric Association indicated that these types of determinations should not be made because it distorts the traditional civil commitment process. In addition, the pressure to have commitments of more than five a year might be strong. The definition of mentally ill in the bill is very broad. It means any mental conditions that increases the propensity of (indisc.) to be dangerous to the public's safety. Historically, in 1982 the legislature really changed the not guilty by reasons of insanity laws to make it difficult for that type of defense. The statute referred to in the bill talks about mental illness for people who get out of a commitment. And, the mental health commitment to the Alaska Psychiatric Hospital in Title 47 means an organic or mental disturbance. There are three different definitions of mental illness in statute. The one chosen is the broadest one available. He mentioned that it would be very hard to qualify an attempt to have sexual contact with another person as a sexually violent crime given the types mentioned in statute. In addition, according to the UAA study, over 90 percent of the people who went through treatment did not pass or complete it. There have only been a handful of people who have successfully completed a program over the years. It is not something that is offered routinely in jail. He suggested that the legislature look at funding for that, given the comments made by Representatives James and Berkowitz. It is a very expensive program according to other public defenders in other states because it is a civil trial rather than a criminal trial and experts need to be hired. The agency agrees with the amendment offered by Ms. Carpeneti. The expense of the experts was taken into account in the fiscal note. He lastly noted that it would be in the superior court so the jury size would be 12. Number 0995 CHAIRMAN GREEN stated a 2-percent review would put about three or four people into this category each year. He asked Mr. McCune whether 2 percent is reasonable when dealing with sexual predators. Could it be 50 percent? MR. McCUNE replied that is the agency's fear. The agency used the Department of Law's figure of 2 percent. It is a slippery slope for psychologists and psychiatrists to guarantee someone's safety. Number 1070 REPRESENTATIVE ROKEBERG asked Mr. McCune whether he would use Article I, Section 12, of the state constitution to attack this type of law. MR. McCUNE replied it is a civil law, therefore, it would not apply. In Kansas v. Hendricks due process, ex post-facto, and double jeopardy were attacked. The state would have to argue the purpose of the law. It is likely to lose if it is found to be a law that is to just lock people up. Number 1205 CHAIRMAN GREEN stated, in reference to the jury size, that parties could stipulate to a jury size of less than 12. There could be a smaller jury. MR. McCUNE replied a person faced with a potential lifetime commitment would want a big jury. CHAIRMAN GREEN announced that there are only two members left of the committee. The bill will be put aside at this time. CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS Number 1427 CHAIRMAN GREEN announced the committee would take up SB 216 again in order to consider an amendment suggested earlier by the Department of Law. CHAIRMAN GREEN announced Amendment 3 is before the committee. It reads as follows: "(c) If the state files a petition under AS 47.30.816 - 47.30.824 to commit a person who has been charged with a sexually violent offense and been found incompetent to be tried for the offense, the trier of fact, in conjunction with the commitment proceeding, will make a determination beyond a reasonable doubt, whether the person committed the offense charged. The finding that the person committed the offense may not be used for any other purpose than for consideration of commitment. If the trier of fact finds that the person committed the offense, the trier of fact may proceed to determine whether the person is a sexually violent predator under this section." Number 1463 MR. STOLTZE stated the amendment is the language proposed by the Department of Law. It deletes the current subsection (c) and replaces it with a new subsection on page 5, lines 6 - 24. REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there is a House Finance Committee referral. MR. STOLTZE replied, "Yes." Number 1562 REPRESENTATIVE JAMES made a motion to adopt Amendment 3. There being no objection, it was so adopted. Number 1634 REPRESENTATIVE ROKEBERG referred to the study provided to the committee members from the Department of Corrections and asked what it means in terms of Title 47 and the bill. Would it lower the numbers? Number 1706 MR. RICHARDS replied the study was conducted anticipating a proposed bill during the interim by Representative Joe Ryan. It was a broader bill. Number 1725 REPRESENTATIVE ROKEBERG asked Mr. Richards whether the numbers would be fewer than what is in the study. MR. RICHARDS replied, "Correct." REPRESENTATIVE ROKEBERG asked Mr. Richards whether he has provided the study to the sponsor of the bill. MR. RICHARDS replied he has testified on it at the various committee hearings on the numbers. He is not sure whether it has been provided to the sponsor. REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether he has ever seen the study before. MR. STOLTZE replied that he has heard the references, but he has not seen the document. Number 1747 REPRESENTATIVE ROKEBERG asked Mr. Richards to provide a nutshell analysis of the study. Number 1754 MR. RICHARDS replied the study was done to evaluate the sex offender treatment program at the Highland Mountain Correctional Center to find out its effectiveness. He is not an expert on the analysis of the study, but in a nutshell it says the treatment is effective for those who participate in the program. The longer one stays in the program there is a longer period of time before a reoffense. Number 1796 REPRESENTATIVE ROKEBERG stated this exposes the potential for a higher fiscal note. He also mentioned his concerns of the timing of bringing a civil commitment into a criminal type of activity. Nevertheless, he would vote to move the bill out of the committee. Number 1823 CHAIRMAN GREEN stated that he shares the same concern regarding the fiscal note. REPRESENTATIVE ROKEBERG stated it is a problem for the House Finance Committee. CHAIRMAN GREEN agreed. Number 1830 REPRESENTATIVE JAMES stated that she was surprised and encouraged about the findings in the study. Those who were in treatment longer tended to last longer in the community without reoffense. Those who completed all stages of treatment to the advanced stage had a zero reoffense rate for sexual offenses, including rapists. The study supports the concern of waiting for a person's term to be just about up before determining whether the person is a sexually violent predator. It seems that chances of not being committed as a predator would be better by going through treatment up to the advanced stages. Number 1881 REPRESENTATIVE BUNDE made a motion to move CSSB 216(JUD), as amended, from the committee with individual recommendations. REPRESENTATIVE BUNDE noted that the committee had asked for information on the recidivism rate. It got some information from the study, but no information on the recidivism rate. It would be very difficult to fund the bill given the fact that the sponsor of the bill is putting a limit on how much money could be spent from the constitutional budget reserve. It might be difficult to have it both ways. He noted he would support to move the bill out of the committee. CHAIRMAN GREEN stated the bill sounds great if the state can afford it. But, the state can not afford it either. It is something that would have to be reviewed in the next committee of referral. CHAIRMAN GREEN asked whether there is any objection to the motion to move the bill out of the committee. There being no objection, HCS CSSB 216(JUD) was so moved from the House Judiciary Standing Committee.
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