Legislature(2003 - 2004)
03/12/2003 01:04 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 49 - EXPAND DNA DATABASE Number 0608 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 49, "An Act relating to the DNA identification registration system; and providing for an effective date." Number 0572 REPRESENTATIVE ANDERSON moved to adopt the proposed committee substitute (CS) for HB 49, Version 23-LS0132\I, Luckhaupt, 3/3/03, as the work draft. There being no objection, Version I was before the committee. Number 0523 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), informed the committee that the AkCLU opposes HB 49 and urges the [legislature] to put an end to the progressive expansion of DNA (deoxyribonucleic acid) collection by the government. She pointed out that DNA collected from one person reveals personal information about that individual, much of which has nothing to do with the needs of law enforcement, as well as personal information about the individual's blood relatives. Unlike fingerprinting, which only reveals information that can be used for identification purposes, DNA gives the government control over a great deal of personal and private information about anyone related to the sample source. Therefore, expansion of governmental power to collect DNA from its citizens should not be taken lightly. MS. RUDINGER recalled the testimony of Chris Beheim, Director of the Scientific Crime Detection Laboratory ("Crime Lab") in the Department of Public Safety. She recalled that Mr. Beheim pointed out that DNA testing is becoming increasingly more common across the nation. At the same time, the scientific knowledge regarding the content of DNA is growing incredibly. She informed the committee that in 1988, the FBI opened a national database that gathers the DNA records from all 50 states and the federal government into the centralized system known as the Combined DNA Index System (CODIS). Initially, these DNA storehouses were created to house information about convicted sex offenders, who, it was argued, were especially prone to recidivism and typically left DNA evidence at the crime scene. Therefore, there was the promise at the time that only convicted sex offenders would be tested and the information obtained from these tests would be used by law enforcement strictly for identification purposes. However, it's often the case that information initially collected for one limited purpose is ultimately used for many other purposes, which has been the case with DNA testing. MS. RUDINGER pointed out that in less than a decade, law enforcement officials across the country have gone from advocating for collection of DNA only from convicted sex offenders, to wanting it from all violent offenders, then to wanting it from all burglars, and now to wanting it from all persons, including juvenile offenders, convicted of any [felony] crime. She pointed out that in many states, the DNA samples are maintained even when the conviction is overturned. She noted that in Louisiana, DNA is collected from everyone arrested for a felony crime. She informed the committee that former U.S. Attorney General Janet Reno asked the National Commission on the Future of DNA Evidence to review the possibility of taking DNA from arrestees across the country. The 1998 New York City police commissioner proposed the same idea, and Rudy Giuliani voiced his support for the aforementioned proposal as well as for taking DNA samples from all babies at birth. Number 0215 MS. RUDINGER said: The collection of DNA samples and the creation of DNA databanks have legitimate and vital medical, scientific, and forensic purposes; that can hardly be argued. Research can lead to treatment and even cures for many genetic diseases. DNA can prove that an individual was at the scene of a crime. It can also prove the innocence of a suspect, preventing terrible miscarriages of justice. DNA can even be used to correct wrongful convictions based on an erroneous identification, although law enforcement and prosecutors seem decidedly less enthusiastic about this use. But as we look at the good uses of DNA, it is equally clear there is tremendous potential for abuse. The vast amount of information to be gleaned, the incredible longevity of DNA samples, and the ease with which DNA databases can be shared and accessed raise grave privacy, equality, and due process [concerns]. Although DNA has been touted as a high-tech equivalent of fingerprints, this comparison is dangerously misleading. Where fingerprints can be used only for identification purposes, DNA samples can provide insight into [a] breathtaking wealth of singularly private information: information about a person's ethnicity, family relationships, family history, and the likelihood of getting ... some 4,000 different genetic diseases and conditions. This information belongs to the individual, not the government. Further, geneticists are constantly increasing the database of information that can be gleaned from DNA. Some geneticists even claim that there are genetic markers for criminal tendencies, sexual orientation, substance abuse. The possibilities are endless, and therefore the dangers are endless. Today the growing law enforcement databases raise the immediate specter of widespread discrimination. Given the overtargeting of Alaska Natives, African Americans, Latinos, and other minorities within the criminal justice system nationwide, the government will have the disproportionate power to track millions of people of color. Now the sponsors of HB 49 want the Alaska legislature to expand DNA sampling to include all convicted felons, including felony shoplifting, DWI, perjury, providing alcohol to minors, forgery, writing a bad check, as well as some misdemeanors. This will help identify more violent criminals in the future, proponents say. Claiming that this is a minor and necessary expansion of the present system, proponents are [asking, "Well, What's the harm?"] [The previous bracketed portion was not on tape, but was taken from the Gavel to Gavel recording on the Internet.] TAPE 03-20, SIDE A Number 0001 MS. RUDINGER continued: The harm is this: because genetic information pertains not only to the individual whose DNA is sampled, but to every person who shares in that person's bloodline, potential threats to genetic privacy posed by the collection of the DNA extend well beyond the millions of Americans whose samples are currently on file. Moreover, there is no requirement in House Bill 49 or in the Alaska Statutes or in federal law that the DNA sample - the drop of blood, the drop of saliva - ... from which the genetic information is taken, [will] ever be destroyed. It is precisely the availability of these samples laying around that sparks ingenious ideas about new ways to use the information contained in the samples, thus prompting new legislation authorizing ever-increasing numbers of permissible uses for Alaskans' DNA. At the last hearing, Representative Gara [asked] the AkCLU [to] take a look at the current restrictions in law. We've looked at those; they appear to limit the use of the DNA, they appear to make it clear that this is not a public record, but, as I just pointed out, there are always examples of the government finding neat new ways to use information once it becomes able to do so. For example, social security numbers were initially intended only for use as [a way to] track social security payments, and the law had very strict controls to prevent other uses, but now social security numbers are universal identifiers. There is a long and unfortunate history of government using personal information about its citizen in ways that we did not consent to, in ways that go beyond what the law initially allowed for. Number 0270 MS. RUDINGER added: Another example: census records created for general statistical purposes were used to round up innocent Japanese Americans and put them in internment camps during World War II. Bottom line, to sum up, your constituents throughout Alaska are concerned about the government's ever increasing control over their personal information, and their concerns cross party and ideological lines. The [AkCLU] fields inquiries virtually every week regarding the government's demand for personal information: social security numbers, background checks, DNA substance information, other genetic information; almost every week Alaskans voice concerns that government cannot be trusted to keep this information confidential or to limit its use to the initial purpose for which it was collected. And we agree. Your constituents are right. So, in conclusion, please keep in mind [that] this bill does not only affect the person from whom the DNA sample is taken. It affects their relatives, who are law- abiding citizens innocent of any crime, and the government's proposed justification for collecting DNA just doesn't fly. There needs to be a much tighter fix between means and ends. Number 0327 THERESA WILLIAMS, President, Parents of People (POP), after explaining that POP advocates for the rights of children as individuals and people, relayed an example of man who had been abusing his 15-year-old daughter for two years. That man "has plead out," and at this time does not have to register his DNA. Under HB 49, he would be required to provide a sample. She noted that this man has spent many years working around other children. She remarked that there are many individuals, just like this man, who have plead down and currently do not have to provide a DNA sample. She characterized the current situation as a loophole that needs to be corrected. She said that POP is in support of HB 49 because it will include all sex offenders in the group that must provide a DNA sample. Number 0550 LAUREE HUGONIN, Executive Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), said: We appreciate the sponsors' wanting to make more information available to law enforcement, to ease their investigations in being able to capture criminals. ... In trying to figure out what our concern was, I think what it came down to was more of practical nature with ... the possibility of so many more samples coming into the Crime Lab. We would appreciate some discussion on the record from the Crime Lab, talking about the ways in which they keep current with processing the samples, and the ways in which they keep current and intend to continue to keep current [with] processing rape exam kits. Our interest, of course, is in catching sex offenders. And when somebody goes through the additional trauma and invasion of a having a rape exam kit completed, we would want to know that there is an emphasis placed on processing those kits and getting information back to law enforcement as quickly as possible. That there is a commitment to making sure that you're looking at sex offender DNA first, before you go to the person who's written the bad check, and that they can keep current. We supported the original DNA databank; we supported adding burglars into the DNA database .... So, I think that's our problem: We want to hear that there's a mechanism in place to be able [to] handle these and handle them expeditiously and not have rape exam kits fall in the cracks, not have sex offender DNA not done because they have 50 other samples that came in ahead of that. We have supported the Crime Lab in trying to catch up on their backlog. A few years ago, for two years in a row, through the Violence Against Woman Act, we supplied funding to bring in a person to help catch the backlog up. So, our experience is that they do have backlogs, that they are slow, and we're concerned with the influx of ... [additional samples]. Number 0720 MS. HUGONIN continued: And, then, if I might make a quick comment on the work draft, I noticed on page 3, [lines] 2-5, you're giving the department permission to collect, for inclusion into the registration system, samples that are collected from crime scene evidence. And I have not had a chance to talk to the [ANDVSA] about this, but my feeling is that we would want to have some discussion about exactly what that means. If it's a sex offense, and it was committed against me, I'm the crime scene. So you're going to be collecting my DNA evidence, and I don't know how we feel about a victim's DNA being adding into the registry. I would think we would have a problem with that. So I realize that that was not part of the original bill, and would appreciate some discussion on that, and maybe some consideration of either better defining it or taking it out. ... So, thank you for the opportunity to testify; we appreciate the sponsor's intent and want to do what we can to help make it work, but we do have those practical concerns. CHAIR McGUIRE remarked: "Very good point, and we will have that discussion. I'm going to have [staff] do an amendment on that, that we can discuss, regarding the victim's DNA. I don't think that's the intent, but we should make it clear." REPRESENTATIVE GARA said he would like to echo one concern, which he acknowledged might be dealt with via a forthcoming amendment. He elaborated on his concern: Nationwide, law enforcement agencies collect rape kits, the rape kits they collect are from victims of a traumatic crime, and the rape kits require that the victim then undergo a pretty intrusive process to help law enforcement agencies ... maybe track the person who committed the rape. It's an intrusive process ... but, nationwide, ... law enforcement agencies are up to a year behind on processing these rape kits. And I guess I'm sympathetic to the proposal that we make sure that by adopting this law, we don't push back our time lag any further on processing rape kits. REPRESENTATIVE GARA opined that at some point, the legislature should do what it can to make sure that law enforcement agencies get caught up with its rape-kit processing. "It's a huge burden we put [victims] through, and the benefits should follow the burden pretty quickly," he added. MS. HUGONIN said that the ANDVSA also appreciates the inclusion of misdemeanor crimes against a person. Stalking is a misdemeanor crime, and that seems to be pretty closely aligned to sexual assault; if people are committed to stalking someone, they don't have a good end in mind. Therefore, as the committee discusses which crimes to include and which crimes to leave out, she asked that it remember that crimes against a person, if not limited to felonies, include stalkers. Number 0961 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), offered to explain the changes in Version I. She said that the first difference is that Version I includes legislative findings. The second difference is that Version I expands the crime of violating an order to submit to DNA testing to include the crime of failing to give a sample if one is required to do so because he/she is registered as a sex offender. She noted that this language can be found of page 2, line 12, of Version I. Also, the crime of violating an order to submit to DNA testing has been raised from a class A misdemeanor to a class C felony. Ms. Carpeneti also noted that the original version of HB 49 clarified that it also included a juvenile adjudicated as delinquent for an act that would have required DNA testing had the individual been an adult. MS. CARPENETI relayed that Version I also proposes making it a class C felony to knowingly, without authorization, possess or allow another person to possess a tissue sample or a blood or oral sample that is collected and stored at the Crime Lab. REPRESENTATIVE ANDERSON suggested that the latter should allay the concerns of the AkCLU with regard to the possibility that DNA samples will be abused. MS. CARPENETI confirmed that this new crime is intended to address the possibility of such abuse. The Crime Lab tests 14 loci on the DNA strand that addresses identification, and this testing provides what is known as a DNA fingerprint. The other material is saved because, if there is a hit or a match, the Crime Lab wants to be able to go back and confirm it. It is the keeping of these samples that raises concerns, but Version I would make it a class C felony to misuse the samples stored at the Crime Lab. She turned to [Section 5] of Version I and noted that it specifies what can be included in the databank. New to the list is the inclusion of DNA samples from those committing misdemeanor crimes against a person, such as stalking, fourth degree assault, and reckless endangerment. This list will also include samples from volunteers such as those with missing relatives, and samples taken from crime scene evidence, and from unidentified bodies or body parts. MS. CARPENETI assured members that in drafting the provision that allows for the inclusion of samples from crime scene evidence, the intent was that a crime scene would be a place rather than a person. She remarked that if there is any confusion on that point, it should be clarified with additional language, since there is no intention to include a victim's DNA. She also noted that Version I specifies that tissue samples can be included in the database; sometimes when collecting samples from body parts, for example, tissue samples have to be taken rather than blood or oral samples. Version I also specifies that samples can be taken from those who are currently in jail or a juvenile facility for the crimes listed in the bill, and from those who are on active probation or parole for those same crimes, as well as from those who are on interstate probation or parole for those same crimes. In conclusion, she confirmed that Version I includes many of the DOL's suggestions. CHAIR McGUIRE announced, at 3:07 p.m., that the committee would recess to a call of the chair. Number 1346 CHAIR McGUIRE called the meeting back to order at 4:45 p.m. Present were Representatives McGuire, Anderson, Samuels, Gara, Gruenberg, Holm, and Coghill. Number 1425 CHRIS BEHEIM, Director, Scientific Crime Detection Laboratory ("Crime Lab"), Department of Public Safety (DPS), addressing questions brought up earlier, said that expanding the DNA database will have no effect on the Crime Lab because it currently uses federal grant money to outsource all convicted offender samples. He said that he anticipates that this federal grant money will be available in the future for this purpose. With regard to Ms. Hugonin's concern regarding victims' DNA profiles, he said that entering a victim's DNA profile into the system is strictly prohibited by the National DNA Index System's (NDIS's) guidelines, as is the inclusion of "elimination samples" that are tested during the course of an investigation. He concluded by saying, "Those are two non-issues." Number 1516 JUANITA HENSLEY, Special Assistant, Office of the Commissioner, Department of Public Safety (DPS), relayed that the DPS has placed a priority on sexual-assault-kit DNA sampling, and feels very strongly about that issue. The commissioner, she added, is very committed to domestic violence and sexual assault issues. Even though DNA samples for convicted offenders are sent out, she explained, the DPS has a technician and criminologist on staff at the Crime Lab that handle all of the rape kits coming into the department. "So, we are working on making sure that ... any backlog that's there is caught up, and that it doesn't have a backlog," she added. REPRESENTATIVE GARA asked for an estimate of the time lag between when a rape kit is completed and when its results are available. MR. BEHEIM replied that there are many factors involved, depending on the nature of the case and its urgency. It takes a while to screen the case; if there are a lot of clothing items, for example, it can take several days just to go through those items. The DNA typing generally takes about three weeks. CHAIR McGUIRE closed public testimony on HB 49. Number 1677 The committee began discussion of Conceptual Amendment 1, which read [original punctuation provided but formatting changed]: Page 2, lines 20 and 22: Delete all material and insert: "tissue sample collected for inclusion in the DNA identification registration system. (b) In this section "DNA identification registration system" means the deoxyribonucleic acid identification registration system established under AS 44.41.035. (c) Unlawful use of DNA samples is a class C felony." Page 4, line 3: Delete "subsection" and insert "subsections" Page 4, after line 7: Insert the following: "(m) The Department of Public Safety may not include in the DNA registration system a blood sample, oral sample, or tissue sample of the victim of a crime, unless that person would otherwise be included under (b)(1)-(b)(5) of this section." REPRESENTATIVE GRUENBERG reported that during the recess, Ms. Carpeneti had brought up a technical point. He asked her to speak on that issue. MS. CARPENETI explained that she'd noticed what she believes to be a typographical error in Version I, which she'd discussed with [the committee aide]. She indicated she'd drafted an amendment [which became the first portion of Conceptual Amendment 1, relating to page 2, lines 20-22]. CHAIR McGUIRE, addressing the last portion of Conceptual Amendment 1, explained that she and Representative Samuels had a concern regarding victims. She offered her understanding that Ms. Carpeneti had worked with [Vanessa Tondini, the committee aide] during the recess and had come up with the language relating to page 4, line 3, and page 4, after line 7. MS. CARPENETI said the amendment to page 4 [line 3] just makes "subsections" plural. Reporting that she'd spoken with Ms. Hugonin about the provision [proposed on page 4, after line 7], who thought it was okay, she noted that Mr. Beheim had said it is a nonissue; she therefore questioned its necessity. CHAIR McGUIRE said she'd rather keep it in just to be 100 percent clear about the intent. She stated, "We do not want tissue, blood, oral sample, and so on from the victim of a crime; we don't want them to have to go through another process on top of all ... they've been through before." Number 1784 CHAIR McGUIRE [moved to adopt] Conceptual Amendment 1 [text provided previously]. She clarified that the intent [with regard to the insertion on page 4, after line 7] is to not include the victim's DNA in the database. MS. CARPENETI, after noting that she'd typed the amendment, suggested there should be a hyphen on the first line, rather than "and". Thus it would read "20-22". CHAIR McGUIRE acknowledged that as a friendly amendment. [It was treated as adopted.] Number 1833 CHAIR McGUIRE asked whether there was any objection to adopting Conceptual Amendment 1 [as amended]. There being no objection, it was so ordered. Number 1860 REPRESENTATIVE GARA moved to adopt [Conceptual] Amendment 2, which read [original punctuation provided but some formatting changed]: page 3, line 19, insert a new section: Sec.?. AS 44.41.035(f) is amended to read: (f) The DNA identification registration system is confidential, is not a public record under AS 40.25.110-40.25.140, and may be used only for (1) providing DNA or other blood grouping tests for identification analysis; (2) law enforcement purposes including criminal investigations and prosecutions; (3) exoneration of the wrongfully convicted; (4) statistical blind analysis; or (5)[4] There being no objection, [Conceptual] Amendment 2 was adopted. The committee took an at-ease from 4:54 p.m. to 4:59 p.m. Number 1929 REPRESENTATIVE GARA moved to rescind the committee's action in adopting [Conceptual] Amendment 2. CHAIR McGUIRE asked whether there was any objection. There being no objection, it was so ordered. Number 1938 REPRESENTATIVE GARA moved to adopt a new Conceptual Amendment 2, which would [read like Conceptual Amendment 2] except that "wrongfully convicted" would be replaced by "innocent" [in paragraph (3)]. REPRESENTATIVE GARA explained that Ms. Carpeneti had suggested using the phrase "exoneration of the innocent" to ensure that exoneration remains a purpose of this Act. He added, "We will want to exonerate people who haven't maybe yet [been] convicted; the point is to exonerate innocent people." CHAIR McGUIRE asked whether there was any objection to adoption of new Conceptual Amendment 2. There being no objection, Conceptual Amendment 2 was adopted. Number 1995 REPRESENTATIVE GARA moved to adopt Amendment 3, which read [original punctuation provided]: page 1, line 14, following "repeat offenders,": Insert "the exoneration of innocent persons," There being no objection, it was so ordered. The committee took an at-ease from 5:02 p.m. to 5:10 p.m. Number 2009 REPRESENTATIVE GRUENBERG moved to adopt new Amendment 4 [which had begun as a document labeled 23-LS0132\I.3, Luckhaupt, 3/7/03, but which had been crossed through in places, with some handwritten words inserted, before the copies were made]. New Amendment 4, with the handwritten changes, read: Page 1, line 6: Delete "FINDINGS." Insert "FINDINGS AND INTENT. (a)" Page 1, line 12, following "offenders;": Delete "and" Page 2, line 1, following "remains": Insert "; and (4) the federal government is paying most of the costs of the DNA identification registration system and will reimburse the state for most of the costs of the DNA identification registration system. (b) The legislature may reexamine the DNA identification registration system and its expansion by this Act if the federal government eliminates or reduces the level of funding it provides." Page 4, following line 24: Insert a new bill section to read: "* Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to read: INSTRUCTION TO COMMISSIONER OF PUBLIC SAFETY. The commissioner of public safety shall notify the president of the senate and the speaker of the house of representatives if, at any time after the effective date of sec. 1 of this Act, the federal government fails to [sic] the costs of the DNA identification registration system." Renumber the bill sections accordingly. REPRESENTATIVE GRUENBERG pointed out that the word "pay" had been eliminated [in the second to last line of the amendment before the renumbering], and that it should read "government fails to pay the costs of the DNA identification". [The addition of "pay" was treated as adopted.] Number 2087 CHAIR McGUIRE objected [to new Amendment 4] for discussion purposes. REPRESENTATIVE GRUENBERG explained that when legislation is largely dependent on federal funding, he believes it is a good policy for the legislature to be informed when the federal funding goes away. Therefore, this instructs the agency administering the program to provide a report notifying the presiding officers when the federal government reduces or eliminates the funding mechanism. He noted that it would provide in the findings that the legislature finds that the government is currently paying most of the costs of the program, and that there is intent stated that the legislature may - he emphasized the word "may" - reexamine the program if the federal government eliminates or reduces the level of funding in the future. He told members, "I strongly support the program; this is just sort of ... keeping track of federal money so we're not left with unfunded mandates that we know nothing about." Number 2149 CHAIR McGUIRE withdrew her objection. She asked whether there were any other objections. REPRESENTATIVE HOLM offered his understanding that [the DPS] had indicated [the federal government] pays all of the costs of DNA identification registration, with no charge whatsoever to the state. He highlighted the zero fiscal note. MS. HENSLEY explained that [the DPS] has a federal grant through NIJ [National Institute of Justice] that pays for the cost of all the samples it sends out, as well as a grant that pays for a criminologist to do rape kits for sexual assaults. She added: President Bush, yesterday, and [U.S.] Attorney General Ashcroft just announced that they have added another 232.6 million in federal funding for fiscal year '04, and then over the next five years adding another $1 billion for DNA. That's going to be given [in] grants to the states, and it's strictly for the DNA sampling and things of this nature. ... And it's over a five- year period. So we fully expect all this to be covered over a five-year period with the large expansion. REPRESENTATIVE GARA remarked: We anticipate that the funding will be available for the next few years, but at some point all of these federal mandates, and federal funds for federal mandates, tend to change. And we just don't know five years from now whether or not we'll receive the federal funding. And if that happens, if ... all of a sudden the federal funding disappears, it will be good for the legislature to be alerted, so that ... if we're faced with a decision of whether or not to fund the DNA database or to fund troopers on the streets, or to fund both, we can make that decision. So ... the amendment would just require that [the] DPS alert us, ... just in case we want to take action at that point. But ... it does nothing to take the law off the books or anything like that. It just deals with the problem of always-disappearing federal money. REPRESENTATIVE HOLM, noting that new Amendment 4 says "paying most of" [in paragraph (4)], offered a friendly amendment, to say "all" if it is all [of the costs]. REPRESENTATIVE SAMUELS objected for discussion purposes. CHAIR McGUIRE asked Ms. Hensley whether, indeed, [the federal government] pays all of the costs. MS. HENSLEY answered: It is only all of those samples that we have told the federal government we were going to send to the lab. What happens in these circumstances is, we ... get this grant given to the state. We tell the federal government how many samples we're going to send out. They tell us what labs ... they contracted with. We send the sample to the lab. Then the lab actually sends the bill to the federal government and they pay it. The state is not involved in any of the money transfers or anything like that, which is really great, and it's kind of unique under the circumstance. ... When the original law was passed ... several years ago, we did have a large fiscal note on it, but it was start-up cost. And we do have ongoing cost, but [it] pays for the sexual-assault kits, ... and we still have some federal grants for that as well. So we do have ongoing costs to the Crime Lab that's in our budget, and its ongoing cost, but it also pays for the criminologist to do other duties, other than just the ... DNA stuff. REPRESENTATIVE HOLM again expressed concern about the zero fiscal note because the amendment says "most" of the costs, which indicates to him that at some point there will be a fiscal note that isn't being identified at this point. He asked, "They'll pay for what you give them, but we don't know what else we may have with this law that will have costs to us?" He pointed out that these aren't all sexual offenses, and offered his understanding that if they aren't rape cases, [evidence] won't be sent to a lab for rape purposes; rather, there would be blood samples sent for DNA [determination]. He said they aren't the same, and asked whether that is correct. Number 2347 MS. HENSLEY replied: What we do is, in-house, take the rape kits, and we do the DNA sampling in-house on those rape kits. It's all of the other crimes ... where we get the DNA sampling ... from the convicted offender already that ... we contract out to the labs. This is not going to be any additional cost to us because the federal government has said, "Give us an estimation on the early basis [of] how many samples you're going to send to the lab." And if we need to adjust that, we certainly can, based on the number of cases that we're going to be sending to the lab. TAPE 03-20, SIDE B Number 2378 REPRESENTATIVE HOLM surmised, then, that those numbers are already in the general budget for rape kits. He said that the word "most" indicates, to him, that something else might come in and have to be funded. Therefore, he questioned why there isn't a fiscal note that addresses it. REPRESENTATIVE ANDERSON asked if it's true that currently the DNA program that Mr. Beheim directs is covered by federal grants and will be covered by federal grants for the next five years. He also asked if it's true that Representative Gruenberg's amendment says "if or when there is a reduction in the grant, so that the state has to pay for some of the DNA program, then the Department of Public Safety will notify the legislature." He said that's how he reads it. MS. HENSLEY said that is correct. Unless there are major changes to this legislation, Ms. Hensley didn't expect there to be any fiscal impact. REPRESENTATIVE SAMUELS asked, "Aren't we going to find this out once you look at the budget anyway?" He posed a situation in which eight years from now the commissioner doesn't tell. He asked if the commissioner would be punished. REPRESENTATIVE GRUENBERG agreed that it would appear somewhere in the budget. He suggested that there should be a mechanism by which the legislature is notified that the federal funding is going away. Furthermore, it should be done in advance of the budget. REPRESENTATIVE COGHILL pointed out that the aforementioned is done in many cases with repealers. He noted his objection to saying that the federal government is going to pay for a program that the legislature is willfully installing in statute. He expressed the need to take care when doing such. He said, "We're really surrendering ourselves, I think, at this point and I don't know if that's wise." REPRESENTATIVE GRUENBERG clarified that was not his intent and pointed out that the language uses "may". He explained that this is to ensure that the federal government realizes that [the state] isn't giving them a blank check. REPRESENTATIVE COGHILL acknowledged that the "may" language is utilized. However, there is a lot of other language that discusses what [the state] will or will not do. Therefore, Representative Coghill begged the committee to reconsider because he felt that it's not appropriate to place in statute. The language could be put in a letter of intent or the bill could include a sunset. He relayed his belief that this is a poor policy call. Number 2193 CHAIR McGUIRE commented that perhaps this conversation would be more appropriate in the House Finance Committee. She mentioned that she did like having advance notice when funding is running out for a program so that the legislature can plan for it. However, she said she also understood Representative Coghill's concern that there may be impacts that aren't known at this time. Therefore, she asked if Representative Gruenberg would be willing to offer this through a House Finance Committee member. REPRESENTATIVE GRUENBERG said he could. However, if the language of concern for Representative Coghill is subsection (b) of new Amendment 4 as amended, that language can be removed. Representative Gruenberg related his preference, if the committee is so inclined, to put in the language and point it out to the House Finance Committee so that it can determine whether to delete it or not. REPRESENTATIVE COGHILL said that would probably address his concern. REPRESENTATIVE COGHILL moved that the committee delete subsection (b) from new Amendment 4 as amended. [No objection was stated and the amendment to new Amendment 4 deleting subsection (b) was treated as adopted.] REPRESENTATIVE ANDERSON pointed out that the new Amendment 4, as amended, specifies in paragraph (4) "that the federal government is paying most of the costs" while the committee has said on record that the federal government is paying the cost. Therefore, he asked if the words "most of" should also be deleted. REPRESENTATIVE GRUENBERG noted his acceptance of Representative Anderson's suggestion. [Therefore, the amendment to new Amendment 4, as amended, to delete from paragraph (4) the words "most of" was treated as adopted.] CHAIR McGUIRE clarified, then, that new Amendment 4, as amended, would request that the federal government tell us when the money isn't available. Number 2078 REPRESENTATIVE GARA asked if there is any objection to also notifying the Minority leaders of each body. REPRESENTATIVE COGHILL remarked that leadership is usually trusted to handle procedural items correctly, adding that anything that is read across House Floor is available to all members. Therefore, he indicated, his inclination would be to leave the notification provision as is. REPRESENTATIVE ANDERSON noted his agreement. REPRESENTATIVE GARA withdrew his suggestion. CHAIR McGUIRE said that new Amendment 4, as amended, is before the committee. New Amendment 4, with the handwritten changes, as amended, read: Page 1, line 6: Delete "FINDINGS." Insert "FINDINGS AND INTENT. (a)" Page 1, line 12, following "offenders;": Delete "and" Page 2, line 1, following "remains": Insert "; and (4) the federal government is paying the costs of the DNA identification registration system and will reimburse the state for most of the costs of the DNA identification registration system. Page 4, following line 24: Insert a new bill section to read: "* Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to read: INSTRUCTION TO COMMISSIONER OF PUBLIC SAFETY. The commissioner of public safety shall notify the president of the senate and the speaker of the house of representatives if, at any time after the effective date of sec. 1 of this Act, the federal government fails to pay the costs of the DNA identification registration system." Renumber the bill sections accordingly. REPRESENTATIVE SAMUELS withdrew his objection. CHAIR McGUIRE noted that there were no further objections to adopting new Amendment 4, as amended. Therefore, Amendment 4, as amended, was adopted. Number 1973 REPRESENTATIVE HOLM said: I move that we adopt Amendment 5. That we remove under Section 7, line 21 and 22, [AS] 11.41.230 - Assault in the fourth degree, 11.41.330 - Custodial Interference in the second degree, 11.41.250 - Reckless Endangerment, and 11.41.270 - Stalking in the second degree. CHAIR McGUIRE objected for purposes of discussion. REPRESENTATIVE HOLM explained that he wanted to delete those statutes because of his concern that class A misdemeanors are treated as felonies. REPRESENTATIVE SAMUELS inquired as to how Amendment 5 would work for the Department of Public Safety and the Department of Law. MS. CARPENETI clarified that the only folks from whom there will be samples taken are those who are convicted. MS. HENSLEY relayed that the DPS would have difficulty with Amendment 5 because those [statutes deleted by Amendment 5] relate to crimes against a person. She relayed specific concern with the deletion of AS 11.41.230 and AS 11.41.270. MS. HUGONIN reminded members that the committee has previously heard legislation that allows for a civil remedy for victims of stalking because the criminal statute is so difficult to prove. She emphasized that it's difficult to even have someone charged with stalking in the second degree much less obtain a conviction. Therefore, when [such a conviction] happens, it's appropriate to have the DNA sample taken. Of the four statutes cited, Ms. Hugonin encouraged the committee to leave in [AS 11.41.270] stalking in the second degree. She explained that in order for stalking to rise to the first degree, there has to be some added elements such as the stalking occurring in violation of the protective order, or against a child under the age of 16. Therefore, stalkers should be included if the intent is to capture DNA from those persons most likely to repeat crimes or commit sex offenses. Number 1743 REPRESENTATIVE GARA said he appreciated and agreed with the intent behind Amendment 5. He recalled earlier discussion regarding the existence of some crimes, that if committed, have no bearing on whether the individual will commit a violent crime in the future. Therefore, he understood Amendment 5 to [delete] crimes that may have no bearing on whether someone would commit a violent crime in the future. However, Representative Gara announced that he didn't support Amendment 5 because the four crimes specified do have an aspect of violence or attempted violence. He relayed his belief that many people convicted of the crimes [being deleted by Amendment 5] are people with a propensity for violence. REPRESENTATIVE ANDERSON acknowledged that there is the question of how many samples should be taken and from which crimes. He recalled Mr. Beheim's testimony regarding taking DNA samples from folks who write bad checks. The statistics showed that 12 of the folks who wrote bad checks murdered someone. MR. BEHEIM specified that those statistics were from Virginia. The latest statistics show that 82 percent of the hits in the database would've been missed if it had been limited to violent offenses. In the case of forgery, statistics show that those who have committed forgery have committed other crimes including sexual assault and homicide. REPRESENTATIVE ANDERSON said that illustrates that those are white-collar crimes that don't suggest any propensity for violence. He indicated that he was in a quandary with regard to what to include or not to include. Number 1571 REPRESENTATIVE HOLM withdrew Amendment 5. However, he offered that if there are going to be laws that allow people to plea down such that there is no meaning [to the laws], then perhaps those laws should be reviewed. He emphasized that the penalty for a class A misdemeanor is completely different than a class C felony. REPRESENTATIVE GRUENBERG noted that he supports [DNA sampling] extended to felonies. He informed the committee that the following felonies that appear to be nonviolent include: issuing a bad check of $500 or more, third degree criminal mischief - that's $500 damage to property - forgery, falsifying business records, deceptive business practices, defrauding creditors, perjury, interference with official proceedings, misconduct by a juror, possession of gambling records, and third conviction for DWI. Representative Gruenberg announced that he supported the legislation as written. He expressed his desire for this committee to discuss and address the issues within its jurisdiction. REPRESENTATIVE GARA agreed with Representative Gruenberg that they should make sure that the legislation says what the committee wants before passing it out. Representative Gara noted his support of HB 49 as written. REPRESENTATIVE GARA highlighted that Representative Anderson narrowed the definition of the crimes that will result in someone being placed in the DNA database to all crimes against a person. Therefore, Representative Gara asked if the list read by Representative Gruenberg included crimes against a person. REPRESENTATIVE GRUENBERG replied no. MS. CARPENETI explained that the legislation includes all felonies in Title 11 and crimes against a person. The crimes against a person that are in Title 11 include those read by Representative [Gruenberg], some misdemeanors, and sex offenses. REPRESENTATIVE ANDERSON opined that Mr. Beheim has made the case, with the forgery example, that there is a need for DNA sampling to be taken for all felonies. Number 1334 REPRESENTATIVE GARA reiterated his support of the legislation as written. However, he said he disagrees with Representative Anderson's analysis of Mr. Beheim's statistics. Representative Gara said the statistics show that there are a certain number of people who committed nonviolent crimes that also committed violent crimes. He pointed out that Mr. Beheim provided no statistical analysis saying those who commit nonviolent crimes have any more propensity than anyone else to commit violent crimes in the future. He remarked that the statistics show [only] that if DNA from everyone in the world were taken, more crimes would be solved. REPRESENTATIVE COGHILL noted that he has struggled with this legislation. Representative Coghill turned to AS 44.41.035(b)(3), which in part says, "(3) a minor 16 years of age or older, adjudicated as a delinquent for an act that would be a crime against a person, a burglary, or a felony attempt to commit burglary, if committed by an adult." He asked if adjudication is the same as conviction. MS. CARPENETI answered that in the juvenile justice system, adjudication is similar to a conviction. REPRESENTATIVE COGHILL asked if that would be consistent for a crime against a person. MS. CARPENETI replied yes. REPRESENTATIVE COGHILL relayed his belief that the barrier has to be high, which he indicated was achieved through conviction. Representative Coghill said that this is an interesting path of how to identify people without it becoming problematic for an overzealous government. CHAIR McGUIRE said that she didn't disagree, but she pointed out that the legislature has the ability to change this if there are problems. REPRESENTATIVE HOLM remarked that this legislation carries a bit more gravity than most because this issue involves a database. The database doesn't have a way in which [it can be] stopped, similar to the situation with social security numbers. Therefore, he opined, personal protection should be upheld. Number 1071 REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB 49, Version 22-LS0132\I, Luckhaupt, 3/3/03, as amended, out of committee with individual recommendations and the accompanying zero fiscal note. There being no objection, CSHB 49(JUD) was reported from the House Judiciary Standing Committee.
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