Legislature(2011 - 2012)CAPITOL 120

04/12/2012 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 1:30 p.m. Today --
+= SB 210 CRIMES AGAINST CHILDREN/ SUPPORT/CINA TELECONFERENCED
Moved HCS CSSB 210(JUD) Out of Committee
+ HB 355 APOC: MEMBERSHIP; USE OF REPORT INFO TELECONFERENCED
Moved CSHB 355(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
         SB 210 - CRIMES AGAINST CHILDREN/SUPPORT/CINA                                                                      
                                                                                                                                
1:43:57 PM                                                                                                                    
                                                                                                                                
VICE CHAIR  THOMPSON announced that  the first order  of business                                                               
would be  CS FOR SENATE  BILL NO.  210(FIN), "An Act  relating to                                                               
crimes against  children; and providing  for an  effective date."                                                               
[Left  pending from  the hearing  on  4/11/12 was  the motion  to                                                               
adopt  a  proposed  House committee  substitute  (HCS)  for  CSSB
210(FIN),  Version  27-LS1362\O,  Wayne,  4/10/12,  as  the  work                                                               
draft.]                                                                                                                         
                                                                                                                                
1:44:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG moved  to  adopt a  new proposed  House                                                               
committee substitute (HCS) for  CSSB 210(FIN), Version LS-1362\U,                                                               
Wayne, 4/12/12, as the working document.                                                                                        
                                                                                                                                
VICE CHAIR THOMPSON objected for discussion purposes.                                                                           
                                                                                                                                
1:44:50 PM                                                                                                                    
                                                                                                                                
AMY  SALTZMAN,   Staff,  Senator  Lesil  McGuire,   Alaska  State                                                               
Legislature,  on  behalf  of  the  sponsor  of  SB  210,  Senator                                                               
McGuire, explained  that no  change had been  made to  Section 1,                                                               
and  mentioned  that  there  would be  a  forthcoming  change  to                                                               
Section 2.                                                                                                                      
                                                                                                                                
1:46:59 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal  Division, Department  of Law  (DOL), concurred                                                               
that no changes  had been made to Section 1.   She then discussed                                                               
changes that would affect Section  2.  She indicated that adopted                                                               
into  Alaska's  assault law,  AS  11.41.255,  there would  be  an                                                               
addition  to  the  definition of  "serious  physical  injury"  to                                                               
address victims  that are  under 12 years  of age  whose injuries                                                               
result in serious disfigurement,  serious impairment of health by                                                               
extensive bruising or other injury  that would cause a reasonable                                                               
person  to seek  medical attention  for the  child from  a health                                                               
professional in  the form of  diagnosis or treatment,  or serious                                                               
impediment of blood circulation or breathing.                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG clarified  that the  new section  in AS                                                               
11.41.255 would apply only to  the term "serious physical injury"                                                               
in AS 11.41.200-250.                                                                                                            
                                                                                                                                
MS. CARPENETI  explained that  the rationale  for the  change was                                                               
that although  children can be seriously  injured, their injuries                                                               
may not be prolonged as they would be for an adult.                                                                             
                                                                                                                                
MS. CARPENETI directed  attention to Section 2 of  Version O, and                                                               
highlighted  the proposed  language:   "(4)  recklessly fails  to                                                           
provide adequate food  or liquids to a  child, causing protracted                                                           
impairment  of the  child's health."   She  explained that  under                                                           
Version  U, the  words "quantity  of" would  be inserted  between                                                           
"adequate" and  "food" to  clarify that  the provision  would not                                                       
apply to  parents who may  not be in  the position to  feed their                                                               
children healthful food.   She said Section 4 of  Version O would                                                               
be eliminated  from Version  U, because  of the  addition already                                                               
mentioned in Section  2, and Section 4 of Version  O would not be                                                               
in Version U.  She stated that Sections 5-12 are unchanged.                                                                     
                                                                                                                                
1:51:59 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI  said  that  subsection (i),  in  Section  13,  of                                                               
Version O  has been removed,  but the language in  subsection (j)                                                               
remains [now subsection  (i), in Section 14].   She said Sections                                                               
14-18 of Version O were  unchanged [now Sections 15-19 of Version                                                               
U].                                                                                                                             
                                                                                                                                
1:53:12 PM                                                                                                                    
                                                                                                                                
VICE CHAIR THOMPSON removed his  objection to the previous motion                                                               
made to  adopt a  new proposed  House committee  substitute (HCS)                                                               
for  CSSB 210(FIN),  Version LS-1362\U,  Wayne,  4/12/12, as  the                                                               
working document.   There being  no further objection,  Version U                                                               
was before the committee.                                                                                                       
                                                                                                                                
1:53:55 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI, in  response to  Representative Keller,  said the                                                               
term, "fact  finder", in Section 6,  page 4, line 24,  is used in                                                           
other places  in the proposed  bill language.   She said it  is a                                                               
term  used  to include  a  jury  or  a  judge, depending  on  the                                                               
situation.  In  response to a follow-up  question, she emphasized                                                               
that the  definition of "fact  finder" is clear  to practitioners                                                           
who would be using the sections  of language in which the term is                                                               
found.                                                                                                                          
                                                                                                                                
1:55:35 PM                                                                                                                    
                                                                                                                                
VICE  CHAIR  THOMPSON,  having   earlier  noted  that  Version  U                                                               
contained handwritten  suggestions for  change, made a  motion to                                                               
adopt   Conceptual   Amendment   1,  which   incorporates   those                                                               
handwritten changes  as follows:   on page  2, line  31, changing                                                               
the  heading; on  page 3,  lines 1-3,  deleting the  language; on                                                               
page 3, lines  4-5, adding language; on page 3,  line 6, deleting                                                               
part  of  the language;  and  on  page  4, lines  5-22,  deleting                                                               
Section 5.                                                                                                                      
                                                                                                                                
REPRESENTATIVE HOLMES objected for the purpose of discussion.                                                                   
                                                                                                                                
MS. CARPENETI  explained that a  working group had  discussed the                                                               
expansion of the definition of  "serious physical injury" being a                                                               
big  change to  Alaska law,  because the  current definition  has                                                               
been in  statute since  its application  in 1978.   She  said the                                                               
group concluded that it would be  best to limit the definition to                                                               
crimes  of  assault  in  the first,  second,  third,  and  fourth                                                               
degrees, and reckless endangerment.                                                                                             
                                                                                                                                
1:57:36 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI,  in  response  to   a  request  from  Vice  Chair                                                               
Thompson,  read the  language of  Conceptual  Amendment 1,  which                                                               
read in Version U, with the handwritten changes, as follows:                                                                    
                                                                                                                                
     *Sec.2. AS 11.41 is amended  by adding a new section to                                                                  
     read:                                                                                                                      
               Sec.    11.31.255.    Definitions.   In    AS                                                                  
     11.41.200-11.41.250,  "serious   physical  injury",  in                                                                    
     addition to  the definition in AS  11.81.900(b), if the                                                                    
     victim  is   under  12  years   of  age   includes  the                                                                    
     following:                                                                                                                 
                    (1) serious disfigurement;                                                                                  
                    (2) serious impairment of health by                                                                         
     extensive by  extensive bruising  or other  injury that                                                                    
        would cause a reasonable person to seek medical                                                                         
           attention for the child from a health care                                                                           
     professional in the form of diagnosis or treatment; or                                                                     
             (3) impediment of blood circulation or                                                                             
     breathing.                                                                                                                 
                                                                                                                                
1:58:40 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI,  in response  to Representative  Hawker, confirmed                                                               
that she had  added the word "serious",  preceding "impediment of                                                               
blood circulation  or breathing",  on page  3, line  9, paragraph                                                               
(3).  She explained that the  work group had agreed upon the need                                                               
to  add "serious"  before "impediment",  but had  not written  it                                                               
down.                                                                                                                           
                                                                                                                                
VICE CHAIR  THOMPSON said the  committee needed to  add "serious"                                                               
on line 9.                                                                                                                      
                                                                                                                                
1:59:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES  asked if subsection  (b), on page  3, line                                                               
10, should remain in the bill.                                                                                                  
                                                                                                                                
MS.  CARPENETI indicated  that subsection  (b)  should have  been                                                               
removed.                                                                                                                        
                                                                                                                                
VICE CHAIR THOMPSON announced, "And  so, the conceptual amendment                                                               
is corrected."                                                                                                                  
                                                                                                                                
REPRESENTATIVE HOLMES said, "Clarified."                                                                                        
                                                                                                                                
VICE CHAIR THOMPSON responded, "Yeah, clarified."                                                                               
                                                                                                                                
1:59:37 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI,  in response to Representative  Gruenberg, said AS                                                               
11.81.900(b) contains the definitions that  apply to all of Title                                                               
11.                                                                                                                             
                                                                                                                                
2:03:25 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI, in response to  Representative Gruenberg, said the                                                               
intent   is   for   the   definitions   [relating   to   "serious                                                               
disfigurement"  in  children  under  the  age of  12]  to  be  an                                                               
addition  to the  definitions found  in  AS 11.81.900(b)(56),  so                                                               
that it would  be clear that "serious  disfigurement" would apply                                                               
to a  victim under 12  years of age,  whereas a victim  over that                                                               
age  would fall  under  "serious  and protracted  disfigurement".                                                               
She reiterated that children heal faster.                                                                                       
                                                                                                                                
2:04:24 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LYNN  asked whether  there is  language addressing                                                               
the abuse of children whose parents tie them up.                                                                                
                                                                                                                                
MS. CARPENETI  said Section  3 talks about  the endangering  of a                                                               
child.   In  response to  a follow-up  question, she  offered her                                                               
understanding  that  the  situation described  by  Representative                                                               
Lynn would be considered an assault.                                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG ventured that a  child who has been tied                                                               
up may not  incur physical injury, but may  suffer mental injury.                                                               
He suggested an  amendment could be made  to Conceptual Amendment                                                               
1, to add "physical or mental" before "health".                                                                                 
                                                                                                                                
2:06:57 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI  said  such  conduct   is  already  covered  under                                                               
Alaska's kidnapping  statutes.   In response  to a  question, she                                                               
confirmed that a parent can kidnap his/her own child.                                                                           
                                                                                                                                
2:08:38 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES removed  her  objection to  the motion  to                                                               
adopt  Conceptual Amendment  1,  [as amended].    There being  no                                                               
further  objection, Conceptual  Amendment  1,  [as amended],  was                                                               
adopted.                                                                                                                        
                                                                                                                                
2:08:56 PM                                                                                                                    
                                                                                                                                
VICE   CHAIR  THOMPSON   made  a   motion  to   adopt  Conceptual                                                               
Amendment 2, as follows:                                                                                                        
                                                                                                                                
     Page 8, line 24:                                                                                                           
                                                                                                                                
          Delete "HUMAN TRAFFICKING TASK FORCE"                                                                                 
        Insert "HUMAN TRAFFICKING/PROMOTING PROSTITUTION                                                                        
     (SEX TRAFFICKING) TASK FORCE"                                                                                              
                                                                                                                                
REPRESENTATIVE KELLER objected.                                                                                                 
                                                                                                                                
2:10:10 PM                                                                                                                    
                                                                                                                                
MS.  CARPENETI   said  her  boss   suggested  that   since  human                                                               
trafficking provisions and  promoting prostitution provisions are                                                               
similar statutes, it would be  helpful to law enforcement and the                                                               
DOL  to have  a  study  that includes  both.    She relayed  that                                                               
yesterday  the  House  passed  a   bill  that  changed  the  term                                                               
"promoting  prostitution"  to  "sex trafficking",  and  explained                                                               
that   because   the  law   still   uses   the  term   "promoting                                                               
prostitution", both  terms are  included in  Conceptual Amendment                                                               
2.                                                                                                                              
                                                                                                                                
2:11:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER removed  his  objection.   There being  no                                                               
further objection, Conceptual Amendment 2 was adopted.                                                                          
                                                                                                                                
2:12:17 PM                                                                                                                    
                                                                                                                                
MS. CARPENETI, regarding  the task force language  of Section 19,                                                               
expressed  her   hope  that  the   committee  would   direct  the                                                               
Legislative Affairs Agency  to change all references  to the term                                                               
"human   trafficking"  to   "human   trafficking  and   promoting                                                               
prostitution".  She  recommended that language could  be added to                                                               
Conceptual Amendment 2 to that effect.                                                                                          
                                                                                                                                
VICE CHAIR THOMPSON  pointed out that Conceptual  Amendment 2 had                                                               
already been adopted.                                                                                                           
                                                                                                                                
2:13:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HAWKER recommended that  Vice Chair Thompson state                                                               
clearly for  the record  that the  intent inherent  in Conceptual                                                               
Amendment  2   was  that  those   specific  words   be  conformed                                                               
throughout Section 19.                                                                                                          
                                                                                                                                
VICE CHAIR  THOMPSON announced that  that wording has to  be used                                                               
consistently   throughout  Section   19,   and  that   Conceptual                                                               
Amendment 2 is the vehicle by which to make that happen.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG directed  attention to  Section 20,  on                                                               
page 10,  line 1,  and offered  his understanding  that it  is no                                                               
longer accurate  in mentioning  Section 19 and  would have  to be                                                               
renumbered.                                                                                                                     
                                                                                                                                
2:14:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES  noted that a disagreement  between the DOL                                                               
and the PDA  concerning Sections 10 and 11, on  page 5, lines 25,                                                               
through page 6, line 6, was still unsettled.                                                                                    
                                                                                                                                
2:16:22 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency (PDA),  Department of Administration (DOA),  said that the                                                               
conceptual   amendments   seem   consistent   with   discussions.                                                               
Regarding Sections 10 and 11, he  said under current law the full                                                               
amount  of suspended  time of  a sentence  can be  shortened, but                                                               
[Sections 10 and  11 of Version U] raise some  concern about "the                                                               
possibility of this becoming  an unreviewable sentence imposition                                                               
in the  sense that sentence time  is not subject to  appeal until                                                               
it's imposed,  and in  this case  the imposition  of it  would be                                                               
statutorily required."  He confirmed  that was the topic on which                                                               
the DOL and the PDA were unable to reach common ground.                                                                         
                                                                                                                                
2:18:36 PM                                                                                                                    
                                                                                                                                
JOSHUA DECKER, Staff Attorney, American  Civil Liberties Union of                                                               
Alaska  (ACLU   of  Alaska),  said  that   Jeffrey  Mittman,  the                                                               
executive  director  of  ACLU of  Alaska  had  submitted  written                                                               
testimony to the committee yesterday.   He said while ACLU thinks                                                               
the  changes  in Version  U  are  an  improvement, it  still  has                                                               
concern  that  modifying  the  definition  of  "serious  physical                                                               
injury" - even just within the  assault statutes - will result in                                                               
a lack of clarity under Alaska  law rather than simply enacting a                                                               
new  offense designed  to address  the committee's  concern about                                                               
serious physical injury  of minors.  He said  ACLU encourages the                                                               
committee  to  adopt  a new  offense  specifically  and  narrowly                                                               
tailored to that concern.                                                                                                       
                                                                                                                                
2:19:58 PM                                                                                                                    
                                                                                                                                
RICHARD  SVOBODNY,  Deputy   Attorney  General,  Central  Office,                                                               
Criminal  Division,  Department of  Law  (DOL),  said Section  10                                                               
addresses  conforming changes  related to  Section 11.   He  said                                                               
Section 11 is his  focus.  He related that 33 or  his 35 years in                                                               
law have been spent as a  prosecutor.  He said prosecutors try to                                                               
set goals,  do justice, be fair,  and protect the community.   He                                                               
said he  thinks Section 11 is  germane to those goals;  it is the                                                               
"a deal  is a deal" section,  where all the parties  have come to                                                               
an  agreement.   Mr. Svobodny  said typically,  in 95  percent of                                                               
cases, the  person on probation  messes up by  committing another                                                               
crime,  drinking,  or  not  going  to  mental  health  counseling                                                               
ordered  by  the  court,  for  example.   A  petition  to  revoke                                                               
probation  is filed  by a  probation officer.   In  a case  where                                                               
there  is  a  two-year  suspended sentence,  the  prosecutor  may                                                               
recommend that  the person be  given a  year and the  defense may                                                               
ask for six months or no jail  time.  Mr. Svobodny said the final                                                               
decision  is up  to the  judge, but  it is  not doing  justice to                                                               
break the original agreement and  do away with all the originally                                                               
agreed upon suspended time.                                                                                                     
                                                                                                                                
MR. SVOBODNY  said when he  was involved in plea  negotiations he                                                               
would consider a  case in terms of protecting the  victim and the                                                               
public.   He said  five years  with one  suspended may  be better                                                               
than two years with no  suspension, because the person would have                                                               
the supervision of  a probation officer and if  the person breaks                                                               
his/her parole, another  jury trial is not  necessary, there just                                                               
needs  to  be proof  to  the  court  by  a preponderance  of  the                                                               
evidence, from which  the judge can figure out what  is right for                                                               
the situation.   He opined  that the  decisions made in  the last                                                               
year  have  violated the  principles  of  fairness, justice,  and                                                               
protecting the community.                                                                                                       
                                                                                                                                
MR. SVOBODNY  said often  the period and  length of  probation is                                                               
determined  based upon  getting  the  victim paid.    If a  judge                                                               
terminates  [the  original  agreement]  because  the  person  has                                                               
violated the terms of probation, then  the victim will have to go                                                               
through  civil  court  for  restitution.   He  stated  that  when                                                               
everything  has  been bargained  for  up  front, the  person  who                                                               
violates his/her  probation should  not be  rewarded.   He opined                                                               
that Section 11 is good public policy.                                                                                          
                                                                                                                                
2:29:32 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  HOLMES said  she is  questioning who  should take                                                               
the lead  in terms  of probation  revocation and  proceedings and                                                               
whether  the judge  should have  more or  less flexibility.   She                                                               
said it  seems that tying the  hands of the judge  by saying that                                                               
he/she cannot make decisions unless  both sides agree gives a lot                                                               
of power to  the prosecutor.  She related that  because the issue                                                               
is complex,  her recommendation would  be to remove  [Sections 10                                                               
and 11] and address the issue further during the interim.                                                                       
                                                                                                                                
MR. SVOBODNY clarified  that no one is trying to  tie the judge's                                                               
hands with  regard to  whether or not  to impose  suspended time.                                                               
Using  his previous  example of  two years'  time or  five years'                                                               
time with  four years  suspended, he said  the judge  would still                                                               
have the discretion to impose from  nothing to up to two years in                                                               
jail - whatever he/she deems  is appropriate within, but not less                                                               
than, the originally bargained for range.                                                                                       
                                                                                                                                
2:34:52 PM                                                                                                                    
                                                                                                                                
MR.  SVOBODNY, in  response  to  Representative Lynn,  reiterated                                                               
that  he  supports  Section  11.   With  regard  to  the  concern                                                               
expressed by Mr. Steiner that [Sections  10 and 11] would limit a                                                               
defendant's  right to  appeal  a sentence,  he  pointed out  that                                                               
there  are  specific  provisions  of Alaska  law  addressing  the                                                               
appeal of sentences, and those laws are not being amended.                                                                      
                                                                                                                                
2:35:51 PM                                                                                                                    
                                                                                                                                
VICE CHAIR THOMPSON,  after ascertaining that no  one else wished                                                               
to testify, closed public testimony on SB 210.                                                                                  
                                                                                                                                
2:36:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE HOLMES  relayed that she still  wasn't comfortable                                                               
with Sections  10 and  11 of  SB 210,  but was  not at  this time                                                               
going to make a motion to delete them.                                                                                          
                                                                                                                                
VICE CHAIR  THOMPSON said  he would  like Sections  10 and  11 to                                                               
remain in the bill.                                                                                                             
                                                                                                                                
2:36:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER moved  to report the proposed  HCS for CSSB
210(FIN), Version  27-LS1362\U, Wayne,  4/12/12, as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying fiscal  notes.  There  being no objection,  HCS CSSB
210(JUD)  was   reported  from   the  House   Judiciary  Standing                                                               
Committee.                                                                                                                      

Document Name Date/Time Subjects
01 CSHB 355 (STA) version I.pdf HJUD 4/12/2012 1:00:00 PM
HSTA 4/10/2012 8:00:00 AM
HB 355
HCS CSSB210 ver O.pdf HJUD 4/12/2012 1:00:00 PM
SB 210
02 HB 355 Sponsor Statement -- FINAL.pdf HJUD 4/12/2012 1:00:00 PM
HSTA 4/10/2012 8:00:00 AM
HB 355
03 HB 355 - Sectional Analysis -- FINAL.pdf HJUD 4/12/2012 1:00:00 PM
HSTA 4/10/2012 8:00:00 AM
HB 355
04 HB 355 explanation of changes to CSHB 355.pdf HJUD 4/12/2012 1:00:00 PM
HSTA 4/10/2012 8:00:00 AM
HB 355
05 HB355-DOA-APOC-4-9-12.pdf HJUD 4/12/2012 1:00:00 PM
HSTA 4/10/2012 8:00:00 AM
HB 355
CSHB 355 (STA) Amendment for HJUD.pdf HJUD 4/12/2012 1:00:00 PM
HB 355
HB 355 Legislative Legal Memo.pdf HJUD 4/12/2012 1:00:00 PM
HB 355
HB 355 Regulation.pdf HJUD 4/12/2012 1:00:00 PM
HB 355
HB 355 Statute.pdf HJUD 4/12/2012 1:00:00 PM
HB 355
HB 355 APOC.pdf HJUD 4/12/2012 1:00:00 PM
HB 355
HCS CSSB210 ver U.pdf HJUD 4/12/2012 1:00:00 PM
SB 210
HCS CSSB 210 (JUD) version U Memo.pdf HJUD 4/12/2012 1:00:00 PM
SB 210
CS for SB 210 (JUD) Amendment for Version U.pdf HJUD 4/12/2012 1:00:00 PM
SB 210