Legislature(2009 - 2010)BELTZ 105 (TSBldg)
01/25/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB98 | |
| SB222 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 222 | TELECONFERENCED | |
| + | HB 98 | TELECONFERENCED | |
SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING
1:42:55 PM
CHAIR FRENCH announced the consideration of SB 222.
DANIEL SULLIVAN, Attorney General, Alaska Department of Law,
thanked the committee for expeditiously hearing SB 222 and for
the spirit of cooperation that the members have displayed. He
reported that sexual assault and domestic violence has been the
number one focus in the criminal division since he was appointed
to the office last June. Over the course of the last several
months DOL has worked on initiatives with the Governor and the
Department of Public Safety to provide a foundation for a
sustained, comprehensive approach to addressing this epidemic in
Alaska. SB 222 is part of that approach.
1:50:25 PM
ATTORNEY GENERAL SULLIVAN highlighted 5 key elements in SB 222.
1. It would prohibit suspended imposition of sentences for
people convicted of human trafficking and possession or
distribution of child pornography.
2. It would make it against the law not only to possess child
pornography but also to access it on a computer with the
intention of viewing it. A recent ruling by the Alaska
Court of Appeals held that current law does not prohibit
viewing child pornography on a computer.
3. The courts could prohibit sex offenders from using a
computer or communicating with children under age 16.
4. It provides enhanced sentencing with regard to providing
aggravating factors when the defendant had knowledge that
the victim was impaired due to having consumed drugs or
alcohol.
5. A person who was required to register as a sex offender in
another state would be required to register as a sex
offender in Alaska if they were to move to this state.
He emphasized that the ideas in this and similar bills come from
DOL's front-line prosecutors like Mr. Svobodny who look for
loopholes in the law and for areas where the law can be
strengthened to better protect Alaskans and bring criminals to
justice. These are very committed and outstanding public
servants, he said.
ATTORNEY GENERAL SULLIVAN concluded that SB 222 is part of a
broad, comprehensive, and sustained strategy. It is the
continuation of a very positive collaboration with this
committee to decrease the epidemic of sexual assault and
domestic violence in this state, to keep Alaskans safe, and to
bring criminals to justice.
1:56:06 PM
CHAIR FRENCH thanked Attorney General Sullivan and recognized
Commissioner Masters.
JOSEPH MASTERS, Commissioner, Department of Public Safety, said
he would highlight the numbers related to the sexual assault and
domestic violence epidemic in Alaska.
· Alaska is number 1 in the nation for victimization of women
and children and it has been for many years.
· Women in Alaska are 2.5 times more likely to be raped than
women in any other state.
· Women in Anchorage are 2.8 times more likely to
be raped.
· Women in Fairbanks are nearly 5 times more likely
to be raped.
· Alaska Native women in this state have even
higher rates of victimization.
· Children in Alaska are 6 times more likely to be sexually
abused according to national statistics.
COMMISSIONER SCHMIDT said he uses national statistics because
there are no state statistics of victimization. We're working on
that, he said. SB 222 focuses on offender accountability and
gives state troopers additional tools to target offenders and
hold them accountable for their actions.
1:59:48 PM
CHAIR FRENCH said he's aware that DPS has been working to get a
victimization survey done and he too is interested in that. I
hope we get that funded this year because there's always a gap
between what's reported to the police and what's actually
happening, he said.
SENATOR MCGUIRE added that if there is a single topic that
legislators would like the attorney general to address, it's
this one. It's a relief that the administration is focused on
this complex and sensitive issue. Thank you, she said.
RICHARD SVOBODNY, Deputy Attorney General, Criminal Division,
Department of Law, reported that he's been in contact with a
number of state experts in procedures used in criminal
prosecutions and many have said that Alaska laws on sexual
assault and domestic violence are the best they've seen in the
country. However, that doesn't mean that they couldn't use some
"tweaks," he said.
Sections 1 and 2 of the bill propose to remove reference to
discretionary parole from AS 11.56.759(a) and (c). He asked if
Mr. Stark could join him to explain the problems that this 2007
statutory change has been causing the State Board of Parole.
2:05:49 PM
MICHAEL STARK, Member, State Board of Parole, said he has served
on the board for nine years. Previously he worked in the
attorney general's office for 27 years, 22 years as lead council
to DOC and 15 years as council to the parole board. Currently he
is serving on the board as a member, not an attorney.
MR. STARK explained that probation is when the court sentences
somebody and suspends part of the sentence. For example, if
somebody is given a six-year sentence with two years suspended,
they will serve four years after which they are released and on
probation for up to ten years for non-sex offenses and up to 25
years for sex offenses. That person is under supervision during
probation and could be returned to custody to serve the two year
suspended portion of their sentence if they are out of
compliance with their probation conditions.
MR. STARK continued to explain that there are two kinds of
parole - mandatory and discretionary. With a few exceptions,
offenders serving more than a two year sentence receive
mandatory parole after serving two-thirds of their sentence.
They serve the last third on the street as a mandatory parolee.
If, at sentencing, the court had suspended part of his or her
sentence, he or she would be on the street as a mandatory
parolee also on probation. Parole typically, but not always,
expires before probation. Discretionary parole, on the other
hand, comes about as a result of a discretionary decision by the
parole board, and not as a matter of law. Discretionary parolees
are less common and typically do far better out on the street.
MR. STARK said that when the criminal statute AS 11.56.759 was
adopted it was intended to deal with the long period of
probation supervision, particularly for sex offenders. The
statute created a new misdemeanor offense, with up to one year
in jail, for probationers and parolees who violate their
probation or parole. The fairly serious unintended consequence
is that attorneys are telling their clients not to talk to their
probation and parole officers and not to say anything when they
go before the parole board because they could potentially be
prosecuted. Because of the Fifth Amendment we don't know what
these people are doing and the result is increased risk to the
public, he said.
2:12:02 PM
SENATOR WIELECHOWSKI asked what the consequences are if a
parolee is non-compliant.
MR. STARK replied the parolee could be returned to custody.
SENATOR WIELECHOWSKI asked what the parole board could do if
someone exercised their Fifth Amendment right in response to a
question from the parole board.
MR. STARK replied it has the authority to revoke good time
without going through the court, but that might not always be
the best solution. Because of the potential for being charged
with a new crime, attorneys are advising their clients not to
talk. The result is that sex offenders no longer communicate
with the parole board the way they did at one time.
SENATOR WIELECHOWSKI asked if he's missing something because it
sounds as though the parole board could just revoke if someone
isn't cooperating.
MR. STARK replied that's always an option, but it's expensive
and in the long term may not best serve the public if the person
really doesn't present a risk.
2:16:06 PM
CHAIR FRENCH summarized that the proposed change is to address
Fifth Amendment issues that arise due to the fact that parolees
could be charged with new crimes as a result of violating the
conditions of their probation or parole. He asked how striking
"parole" fixes the problem.
MR. STARK replied it won't totally cure the problem because
people could still be prosecuted on the probation level, but it
will help quite a bit. This addresses the problem the board
often sees.
CHAIR FRENCH asked if the board is trying to preserve some sense
of flexibility in dealing with parolees.
MR. STARK said yes and to serve their primary duty which is to
protect the public while working with the offender to
rehabilitate him or herself.
CHAIR FRENCH summarized that because many violations go straight
to the parole board, and because violating a condition of parole
has become a substantive crime in its own right, public
defenders are advising their clients not to cooperate with their
parole officers.
MR. STARK replied that's been happening since July 1, 2007 when
the law changed.
2:19:12 PM
SENATOR EGAN asked if someone who appears before the parole
board is always represented by council.
MR. STARK replied they can waive that right, but more often than
not they are represented.
CHAIR FRENCH asked Mr. Steiner his view on Sections 1 and 2.
2:19:52 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration, Anchorage, said he agrees that
striking the language would, in some situations, remove the
potential for someone to make a Fifth Amendment claim.
CHAIR FRENCH asked if he's aware that public defenders have been
advising parolees not to answer questions for fear of future
prosecution.
MR. STEINER replied, "I'm aware that after discussions with
clients some of our attorneys will, in fact, advise their
clients that they have Fifth Amendment claims with respect to
certain questions."
SENATOR WIELECHOWSKI asked, if this law were changed, if
parolees would still potentially be incarcerated for admitting
to crimes in discussions with their parole or probation
officers.
MR. STEINER replied there is that potential. He continued:
If you were to admit a specific conduct that could be
charged under this statute, then you would have a
Fifth Amendment claim. Broadly speaking, admitting
criminal conduct could potentially subject you to a
criminal charge. But this just deals with the
particular statute of committing a violation of your
parole or probation.
MR. STARK said he absolutely supports prosecuting someone who
admits to committing a crime. This is about someone that stops
talking altogether because of the potential of being charged for
admitting to non-criminal behavior like violating curfew or
taking a drink. It's the innocent, non-criminal behavior that
they are no longer communicating that is key to being able to
supervise them on the street, he said.
2:23:16 PM
SENATOR WIELECHOWSKI pointed out that it's a crime if someone
violates curfew or has contact with children when they aren't
supposed to.
MR. STARK clarified that it's a violation of parole and the
person could be returned to prison, but it's not a crime in and
of itself.
SENATOR WIELECHOWSKI asked if he's saying that under this law,
once a person makes that admission it's a crime for which they
could potentially be prosecuted.
MR. STARK restated that it potentially subjects the person to
prosecution under this statute and the proposal is to remove
parole so it doesn't cover that kind of behavior for parolees.
SENATOR WIELECHOWSKI asked if making this change removes the
potential for criminal violation, but the person could still
have their parole or probation revoked.
MR. STARK said yes, and it would increase the ability to monitor
these people when they're on the street.
CHAIR FRENCH remarked that when someone violates probation they
go back to jail for a probation violation and now it's a
subsequent stand-alone crime.
MR. SVOBODNY explained that in 2006 penalties were substantially
increased for sex offenses including the ability to put someone
on probation up to 25 years. What was envisioned is what happens
if someone receives a 50-year sentence for a sex offense; 10
years are suspended and the person is put on probation for 25
years. The person either flat times the sentence or gets out on
probation and gets revoked so he or she has served the total 50-
year sentence yet they still have 25 years probation that didn't
go away under the 2006 change in law. The question is what
sanction keeps the person in sex offender treatment.
CHAIR FRENCH observed that this is aimed at the folks that have
no more suspended time hanging over their heads.
MR. SVOBODNY agreed.
CHAIR FRENCH added that most parolees have suspended time in
addition to their parole time. A flat 6-year sentence for a sex
crime is rare; a 10 year sentence with 4 years suspended is more
likely.
MR. SVOBODNY agreed.
CHAIR FRENCH found no further questions on Sections 1 and 2.
2:26:18 PM
DEREK DEGRAAF, Sergeant, Technical Crimes Unit, Alaska Bureau of
Investigation, Alaska State Troopers, Department of Public
Safety, said the unit he supervises is part of the Alaska
Internet Crimes against Children Task Force. This unit also
processes most of the evidence seized statewide from electronic
devices like computers, cell phones, and digital cameras.
CHAIR FRENCH asked Mr. Svobodny to tell the committee what the
relevant bill sections do and Sergeant DeGraaf can explain how
it will work on the ground.
MR. SVOBODNY directed attention to page 3, line 20, Sections 5,
6, and 7. Recently the Alaska Court of Appeals decided Worden v.
State where a person was convicted of having child pornography
in their computer cache memory. The question was did the person
only view child pornography on their computer or did they do
something to store it. According to the court, "cache memory"
did not indicate that the person had exercised some type of
dominion or control over the child pornography. This brought to
light that the Alaska statute for possession of child
pornography on a computer requires more than simple viewing; it
requires exercising some type of dominion or control.
The proposed changes track federal law where it is illegal to
possess child pornography and to view child pornography on a
computer. The bill also allows for an affirmative defense if a
person unintentionally downloads child pornography, less than
three times.
2:29:50 PM
SENATOR WIELECHOWSKI asked if opening child pornography in an
email would constitute knowingly possessing.
MR. SVOBODNY replied that would be neither. Furthermore, Section
7 provides an affirmative defense if the child pornography is
destroyed.
SENATOR WIELECHOWSKI reviewed Section 7 and observed that you
lose that protection if the email with child pornography is
opened more than three times.
MR. SVOBODNY restated that this is modeled on federal law. He is
not aware that there is anything magic about the number three,
but at some point it's no longer an accident.
2:31:37 PM
SENATOR WIELECHOWSKI said he understands the intent, but he
wants to make sure that innocent people are protected if they
get viruses on their computers that contain pornography. He
asked if this bill contains adequate protections for that
circumstance.
MR. SVOBODNY suggested that Sergeant DeGraaf provide his
perspective, but in this state a complete forensic analysis is
done before anyone is prosecuted.
2:32:54 PM
SERGEANT DEGRAAF reported that in law enforcement the most
common scenario is that someone purposefully downloaded peer-to-
peer file sharing software like LimeWire. This is the number one
way that child pornography is shared throughout the world. Law
enforcement can download the child pornography from these
individuals, which gives probable cause for an interview and
potentially to seize their computers. An example of the other
scenario is when a student tells a school councilor that their
mom's boyfriend has been showing them horrible photos and movies
on the computer. Law enforcement can then interview the child
and visit the home to develop probable cause.
SERGEANT DEGRAAF related that his unit investigates cases of
child pornography that involve file sharing pictures or movies
that are sexually explicit and involve prepubescent children. As
a forensic computer examiner it is fairly easy to figure out
whether someone was purposefully searching, logging into
websites, or paying for online memberships to download child
pornography, he said.
The loophole that currently exists allows someone to view child
pornography through their browser so long as they don't
purposefully save the images to their hard drive. We've had to
walk away from some of those cases here in Alaska, he said.
Whether those individuals are more or less dangerous than those
who save the images is not for me to say, he said, but studies
show that 20-80 percent of people that collect these images or
movies will offend or already have offended on a child. This
bill gives the law more teeth.
2:37:56 PM
SENATOR MCGUIRE asked if the law that allows the seizure of hard
drives in these cases needs to be expanded.
SERGEANT DEGRAAF replied they have had no problem seizing
computers; the technology they use is the very best that's
available.
SENATOR COGHILL asked if the issue with caching is that when
someone views an image it is loaded onto their computer without
their purposefully saving it.
SERGEANT DEGRAAF said that's correct.
SENATOR COGHILL recalled that a cybercrime presentation several
years ago highlighted that resources to investigate Internet
crimes in Alaska were inadequate. He asked if the situation has
improved.
SERGEANT DEGRAAF said that House legislation several years ago
provided funding for a cybercrime investigator and a technician.
The positions were filled and as a result the cybercrime unit
has been able to double the cases it pursues. Certainly they
could do more with increased resources, but the Flint Waters
training and technology that's been implemented has been very
successful.
2:41:42 PM
SENATOR COGHILL described the Flint Waters demonstration as the
most sobering that he's seen in his tenure in the Legislature.
CHAIR FRENCH reviewed page 3, line 22, and asked how confident
they can be that the courts will interpret "accesses" as
intended.
SERGEANT DEGRAAF replied this is the best language so far; it's
also the language that the federal government adopted.
CHAIR FRENCH asked if in his area of expertise "accesses" means
looked at on a computer.
SERGEANT DEGRAAF said yes.
2:44:38 PM
SENATOR WIELECHOWSKI asked about replacing "accesses with
"views."
MR. SVOBODNY pointed out that the Ninth Circuit Court of Appeals
likes the word accesses in this case.
SERGEANT DEGRAAF restated that this language models federal
language and although it could change in the future, it's the
best right now.
CHAIR FRENCH mused that you must prove "knowing" and it may be
easier to prove that someone accessed the site than that they
viewed it.
SERGEANT DEGRAAF related that both Microsoft and Apple operating
systems use "access date" in their file attributes. Access
doesn't necessarily mean viewed; it means it was pulled into a
program to be viewed, manipulated, sent or emailed.
CHAIR FRENCH said the committee may insert "or viewed."
SENATOR WIELECHOWSKI added that people who regularly stand
around and watch as someone else accesses child pornography
aren't prosecutable under this bill.
SERGEANT DEGRAAF said the two words "knowingly accesses"
together is the strongest language that's available right now.
2:48:51 PM
SENATOR COGHILL asked if "access" covers something running in
the background without your knowledge, or if someone could
access your computer while you're online.
SERGEANT DEGRAAF acknowledged that is a possibility, but the
occurrence is rare. A thorough forensic examination would
uncover what was going on.
2:51:11 PM
MR. SVOBODNY suggested the committee review Sections 8-10
starting on page 4, line 12. Subsequent to the Flint Waters
demonstration the Legislature made it a crime to send child
pornography to a child over the Internet.
CHAIR FRENCH called a point of order; Section 8 does not refer
to child pornography.
MR. SVOBODNY agreed. The Legislature made it a crime to send
adult pornography to children by computer, but they forgot about
distribution of pornography to children using any other means.
This bill would clarify that it is illegal to distribute
pornography to a child by any means.
CHAIR FRENCH asked if that isn't covered by contributing to the
delinquency of a minor.
MR. SVOBODNY replied it might be, but this is substantially more
dangerous conduct than contributing to the delinquency of a
minor.
CHAIR FRENCH observed that this statute [AS 11.61.128(a)] is
aimed at the real world more than cyber world. It's grooming
children for sex offenses by showing them pornography.
MR. SVOBODNY surmised that it happens more in Sergeant DeGraaf's
world.
2:54:16 PM
SENATOR WIELECHOWSKI noted that page 3, line 15, specifically
references "a person, being 18 years of age or older" and asked
if Alaska law addresses a 17-year-old sending a lewd depiction
to another 17-year-old.
MR. SVOBODNY said he'd look at that issue again, but he recalls
that DOL prevailed in the past when it argued that juveniles who
were offenders were covered under the sexual abuse of a minor
statutes.
CHAIR FRENCH asked if it's true that it's never been a crime in
Alaska to groom a child by showing them pornography.
MR. SVOBODNY said he believes that's correct.
CHAIR FRENCH asked if the level of offense is a class C felony.
MR. SVOBODNY agreed it is a class C felony; page 8, line 1,
makes a change in criminal Rule 16. The proposed language
matches federal law and further restricts the distribution of
child pornography by disallowing any duplication of the
prohibited material. This does not mean the defense is denied
access to or use of the material. His concern is that in
providing discovery to the defense attorney that the DVD or CD
might wind up being viewed by many other people. That might or
might not have happened with child pornography, but other types
of disturbing pictures have been widely distributed. "When we're
dealing with child pornography, we want to control distribution
as much as possible," he said.
2:59:06 PM
CHAIR FRENCH asked Mr. Steiner his view on this point.
MR. STEINER said the public defender agency doesn't disclose
those types of images and they don't provide copies to clients.
On occasion they need to be viewed by a client or a defense
expert and generally there are agreements with the state to
transfer that material to an expert. He agreed with Mr. Svobodny
that the PDA tends not take possession of the material unless
there is a case-specific reason. He pointed out that an issue
that might come up is the expense related to the discovery
limitation. In cases covered by AS 41.04.55 the PDA has to fly
experts and their equipment to wherever the state wants them to
work, which can be relatively expensive. Also, these experts
tend to be from out of state.
CHAIR FRENCH thanked Sergeant DeGraaf for his work and help. He
held SB 222 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 98 Info.pdf |
SJUD 1/25/2010 1:30:00 PM |
HB 98 |