Legislature(1997 - 1998)
04/29/1997 01:05 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
April 29, 1997
1:05 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 234
"An Act relating to assistance for abortions under the general
relief program; and relating to financial responsibility for the
costs of abortions."
- MOVED OUT OF COMMITTEE
SENATE BILL NO. 63
"An Act providing for automatic waiver of juvenile jurisdiction and
prosecution of minors as adults for certain violations of laws by
minors who use deadly weapons to commit offenses that are crimes
against a person, and relating to the sealing of the records of
those minors."
- MOVED OUT OF COMMITTEE
CS FOR SENATE BILL NO. 70(JUD)
"An Act relating to the discharge of firearms at or in the
direction of buildings and dwellings."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 16
"An Act relating to delinquent minors, to the taking of action
based on the alleged criminal misconduct of certain minors, to the
services to be provided to the victims of criminal misconduct of
minors, and to agency records involving minors alleged to be
delinquent based on their criminal misconduct; and amending Rule 19
and repealing Rules 6, 7, 11(a), 12(a), and 21(f), Alaska
Delinquency Rules."
- BILL POSTPONED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 234
SHORT TITLE: ABORTIONS UNDER GENERAL RELIEF PROGRAM
SPONSOR(S): REPRESENTATIVE(S) MARTIN, Green, Kohring, Kott, Dyson,
Sanders, Kelly
JRN-DATE JRN-PG ACTION
04/04/97 990 (H) READ THE FIRST TIME - REFERRAL(S)
04/04/97 990 (H) JUDICIARY, FINANCE
04/07/97 1019 (H) COSPONSOR(S): DYSON
04/08/97 1030 (H) COSPONSOR(S): SANDERS
04/09/97 1047 (H) COSPONSOR(S): KELLY
04/23/97 (H) JUD AT 1:00 PM CAPITOL 120
04/23/97 (H) MINUTE(JUD)
04/25/97 (H) JUD AT 8:30 AM CAPITOL 120
04/25/97 (H) MINUTE(JUD)
04/25/97 (H) MINUTE(JUD)
04/29/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 63
SHORT TITLE: DEADLY WEAPON OFFENSES BY JUVENILES
SPONSOR(S): SENATOR(S) DONLEY, Halford, Phillips, Leman, Pearce,
Kelly, Green, Sharp; REPRESENTATIVE(S) Rokeberg
JRN-DATE JRN-PG ACTION
01/27/97 138 (S) READ THE FIRST TIME - REFERRAL(S)
01/27/97 139 (S) JUD, FIN
01/29/97 163 (S) COSPONSOR(S): PHILLIPS
03/24/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
03/24/97 (S) MINUTE(JUD)
03/26/97 (S) MINUTE(JUD)
03/27/97 892 (S) JUD RPT 3DP
03/27/97 892 (S) DP: TAYLOR, PEARCE, MILLER
03/27/97 892 (S) ZERO FISCAL NOTE (DPS)
03/27/97 892 (S) INDT FISCAL NOTE (ADM)
04/01/97 915 (S) FISCAL NOTES (COURT, CORR)
04/09/97 (S) FIN AT 6:00 PM SENATE FINANCE 532
04/09/97 (S) MINUTE(FIN)
04/09/97 (S) MINUTE(FIN)
04/10/97 1075 (S) FIN RPT 6DP 1NR
04/10/97 1075 (S) DP: SHARP, PEARCE, PHILLIPS, PARNELL
04/10/97 1075 (S) DP: TORGERSON, DONLEY; NR: ADAMS
04/10/97 1075 (S) INDETERMINATE FN (S.FIN/CORR)
04/10/97 1075 (S) PREVIOUS FN (COURT)
04/10/97 1075 (S) PREVIOUS IND FN (ADM)
04/10/97 1075 (S) PREVIOUS ZERO FN (DPS)
04/11/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
04/11/97 (S) MINUTE(RLS)
04/14/97 1126 (S) RULES TO CALENDAR 4/14/97
04/14/97 1129 (S) READ THE SECOND TIME
04/14/97 1129 (S) ADVANCED TO THIRD READING
UNAN CONSENT
04/14/97 1129 (S) READ THE THIRD TIME SB 63
04/14/97 1129 (S) COSPONSOR(S): LEMAN, PEARCE, KELLY,
04/14/97 1129 (S) GREEN, SHARP
04/14/97 1129 (S) PASSED Y17 N- E3
04/14/97 1130 (S) LINCOLN NOTICE OF RECONSIDERATION
04/15/97 1149 (S) RECON TAKEN UP - IN THIRD READING
04/15/97 1150 (S) PASSED ON RECONSIDERATION Y14 N3 E3
04/15/97 1151 (S) TRANSMITTED TO (H)
04/16/97 1109 (H) READ THE FIRST TIME - REFERRAL(S)
04/16/97 1109 (H) JUDICIARY, FINANCE
04/16/97 1126 (H) CROSS SPONSOR(S): ROKEBERG
04/29/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KRISTEN BOMENGEN, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 234.
REPRESENTATIVE TERRY MARTIN
Alaska State Legislature
Capitol Building, Room 502
Juneau, Alaska 99801
Telephone: (907) 465-3783
POSITION STATEMENT: Sponsor of HB 234.
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3892
POSITION STATEMENT: Sponsor of SB 63.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West Fifth Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Provided department's position and answered
questions regarding SB 63.
MARGOT KNUTH, Assistant Attorney General
Criminal Division
Department of Law
240 Main Street, Suite 700
Juneau, Alaska 99801
Telephone: (907) 465-4652
POSITION STATEMENT: Testified regarding SB 63 on behalf of
Governor's Children's Cabinet.
ACTION NARRATIVE
TAPE 97-70, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:05 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter and Berkowitz.
Representatives Croft, Rokeberg and James arrived at 1:11 p.m.,
1:15 p.m. and 1:45 p.m., respectively.
HB 234 - ABORTIONS UNDER GENERAL RELIEF PROGRAM
CHAIRMAN GREEN announced the first order of business was House Bill
No. 234, "An Act relating to assistance for abortions under the
general relief program; and relating to financial responsibility
for the costs of abortions." He acknowledged the presence of the
sponsor, Representative Martin, and advised members that although
testimony had been closed previously, Kristen Bomengen had been
unavoidably absent and would therefore be testifying.
Number 0079
KRISTEN BOMENGEN, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law, came forward
to testify, specifying that she is the supervising attorney of the
Human Services Section.
MS. BOMENGEN noted that Deborah Behr had addressed one
constitutional issue quite adequately at the April 25 hearing; that
issue arises because the effect of this bill is to cut off funding
for abortions under the general relief medical program by placing
abortion services first on the list of procedures (to be
eliminated).
MS. BOMENGEN said in their analysis, that is likely to be found
unconstitutional because in states offering higher privacy
protections, state courts have found that when a state elects to
offer pregnancy-related services, it needs to do so in a
"constitutionally neutral" manner. "And under our privacy
protections, in our state, we find it likely that our court would
find the same," Ms. Bomengen added. She described that as the
first level of inquiry into the constitutional issues.
MS. BOMENGEN said, however, that if the funding status changed and
abortion services were made available - or if this bill were
successfully challenged in court, with a resulting determination
that the state had to make those services available - that would
trigger other parts of this bill, the issues of recovery of funding
and responsibility for repayment to the state, giving rise to
another level of constitutional problems.
MS. BOMENGEN explained that in this case, the woman would be
required to provide the name of her sexual partner, with the
express intent on the part of the state to inform that sexual
partner that the woman had received an abortion. Ms. Bomengen said
there are many reasons why a woman may not want that individual to
know. And although this law provides for a good-cause exception,
that may have to cover a broad range; there may be many
repercussions that would be an invasion of that individual's
privacy, such as simply revealing the fact to family and friends or
publicizing it in some way with an intent to humiliate.
MS. BOMENGEN stated, "And so, the U.S. Supreme Court has talked not
to this particular issue - I wasn't able to find any other state
laws that addressed it in quite this way - but the Supreme Court
has spoken to spousal notification issues. And even in the case of
a spousal notification requirement, where arguably a spouse ...
would have reasons to have that kind of private information, the
court has found that it's unconstitutional to require that a spouse
be informed of the procedure. So, we think it highly unlikely that
the court in our state, again, would allow us to make the provision
of services contingent upon the requirement that she identify her
sexual partner."
MS. BOMENGEN acknowledged that this may be somewhat confusing
because the state requires a woman who has a child and is seeking
services on behalf of that child to identify a sexual partner, the
father of the child. However, in that case, the state is in the
position of supporting that child otherwise and is able to show a
compelling interest in identifying a responsible parent to provide
that support.
MS. BOMENGEN pointed out that that compelling interest would not be
present here in that same way, since the state would only be
seeking to recover the minimal expense of the procedure.
Furthermore, the state already has a provision in place to recover
that cost from the woman's permanent fund dividend (PFD). Ms.
Bomengen concluded, "And so, it seems unlikely that this would
withstand a constitutional challenge as well, again, on privacy
grounds. And so, there is a reason to distinguish this kind of a
requirement, contingency of services that would require the naming
of a sexual partner, from the services in other instances where
there is a long-term support ... going to a child."
Number 0484
REPRESENTATIVE CON BUNDE indicated he was troubled about the
difference between the state's compelling right in a live birth and
in this instance. He requested clarification about the process and
expense of recovering the money from the male involved in an
aborted pregnancy. He added that obviously, he was concerned about
a net gain for the state, not a net loss.
Number 0583
MS. BOMENGEN replied that she was not exactly certain of the
figures for the costs. However, in this bill, the state would be
required to file an independent action in order to establish that
claim before even going after a PFD, for example. Given the
estimated cost of the procedure itself, it was likely that the time
involved in filing and pursuing a complaint would exceed the
recovery to be received directly from the individual. Even where
they could collect attorneys' fees, it was unlikely that they would
collect anything to really equal the costs in time and energy.
Furthermore, there would be additional costs if the case were
contested in some way so that blood testing or other testing became
necessary; those costs could conceivably be recovered. Ms.
Bomengen emphasized that the costs of pursuing these recoveries
would probably exceed the actual recoveries by the state.
Number 0658
REPRESENTATIVE BUNDE mentioned preserving evidence from a legal
standpoint, then said it boggles the mind.
Number 0685
REPRESENTATIVE BRIAN PORTER referred to the constitutional problem
relating to the state's provision for privacy. He asked what Ms.
Bomengen's feeling would be on that if the requirement to name the
father were to be eliminated.
MS. BOMENGEN replied, "That would eliminate that particular element
of the constitutional vulnerability of the bill. ... And that comes
at the point where we're making services contingent upon the
naming. So, that would remove that privacy invasion, so to speak."
She pointed out that the previous issue of virtually cutting off
funding would remain, however.
REPRESENTATIVE PORTER suggested that it would not be as a violation
of the privacy act.
MS. BOMENGEN said that previous provision is vulnerable as a
challenge to privacy considerations.
REPRESENTATIVE PORTER requested clarification.
MS. BOMENGEN explained, "That goes to ... the tests that have been
applied in other states that have explicit privacy protections,
that when a state elects to provide pregnancy-related services, and
out of an acknowledgment that some kind of medical procedure is
necessary in any pregnancy-related service, that it must provide
those services in a `constitutionally neutral,' manner, so to
speak, so that they would not necessarily impose upon the decision
... of whether that woman could choose, under her constitutionally
protected right to choose, whether to terminate that pregnancy."
MS. BOMENGEN continued, "And so, it's based on some other state
cases in which that has been the finding, again, based on either
constitutional privacy protections in those state constitutions or
in an analysis that holds individual rights in high regard, which
is also something we find in our state constitutional analysis."
REPRESENTATIVE PORTER asked: If it were legal but the state did
not have the money to pay for it, did those decisions say that the
state would have to provide the money to pay for it?
Number 0844
MS. BOMENGEN replied that in this case, the area in which it is
vulnerable and capable of being challenged under the constitution
is the matter of separating out abortion services from other
pregnancy-related services, so that abortion services are listed as
the first item (for elimination) but other pregnancy-related
services are offered.
REPRESENTATIVE BUNDE asked whether for the state to legally be able
to not provide abortion services, it would have to not provide any
pregnancy-related services.
MS. BOMENGEN said that was essentially it. She explained that if
the state was going to provide services in this area to people who
don't have funds to provide them for themselves, it was
inappropriate to use the means of separating out one from another
in order to affect a constitutionally protected right.
Number 0933
REPRESENTATIVE TERRY MARTIN, sponsor, wrapped up by touching on
numerous issues, including the state's attitude on abortion; fiscal
restraints; the Governor's saying that senior citizens are being
deprived of funds for emergency dental care and children are being
deprived of eyeglasses, both lower priorities than elective
abortions; and making the father responsible for abortion costs as
well as live births, especially in cases of rape or incest.
REPRESENTATIVE MARTIN continued, saying he found illogical the
arguments by the Department of Law, which he believed were red
herrings. He mentioned controversy in some states over disclosure
of sexual partners in order to stop venereal disease, and he said
in many cases, those individuals were charged for the medical
services.
Number 1074
REPRESENTATIVE MARTIN mentioned the constitutionality of the right
to abortions. He said there are many laws for which the state
expends no money. "It's not that we're not appropriating money for
it," he said. "We're finding another source of financing it. And
yes, we do limit that amount of money that goes to general relief
medicine to complement the federal money from Medicaid (indisc.)
allow for abortions." He noted that senior citizens, under new
legislation, are asked to give some money for their prescriptions
and eyeglasses; they pay partially now for the services of Medicaid
and/or general relief medical services. He restated his belief
that the constitutional issue of privacy is a red herring, saying,
"in many cases, for our freedoms, we do pay the bill; the
government does not pay for it."
REPRESENTATIVE MARTIN said he believes only nine states pay for
abortions, and he does not know whether that is partly funded by
patients or their partners. He said that a federal law had been
copied for the child support enforcement act. Noting that these
abortion procedures are elective, he asked: Why not let someone
else pay for them?
REPRESENTATIVE MARTIN concluded, "So, I'd rather test it in court,
to see if the legislators are in charge of the funding. The same
way like the prisons. The court charged us and said we're going to
fine you, every year now, for overcrowded prisons. Okay, fine us.
We don't fund it. ... We didn't put it back in the prisons account,
where they want the money. We take it out of DNR and roll it back
in and pay it again. So, we were not paying for what the court
demands that we will pay for. And it's very clear that we, the
legislators, have the final authority on appropriations. And in
this case, we're only seeking ... the partner to pay for the
abortion."
REPRESENTATIVE MARTIN referred to a prior hearing's testimony and
indicated the most important thing is that this will cause about 80
percent of the children to live. He commented, "Wonderful.
Hallelujah. Five hundred and ninety lives saved in one bill.
That's what I love." He said he did not particularly care what the
costs were.
REPRESENTATIVE PORTER asked whether public testimony was concluded.
CHAIRMAN GREEN indicated that although one person had called in,
testimony already had been closed except for Ms. Bomengen, who had
had a prior obligation.
Number 1357
REPRESENTATIVE BUNDE stated his understanding that currently the
state does not require a woman receiving a state-funded abortion to
contribute to the expense via her PFD but that this bill would
require it.
REPRESENTATIVE MARTIN affirmed that, adding, "Or the partner."
Number 1376
REPRESENTATIVE ERIC CROFT asked whether it was Representative
Martin's position that if a court were to find that this bill
violates Alaska women's right to privacy or other constitutional
provisions and ordered the legislature to fund these, the
legislature should refuse.
REPRESENTATIVE MARTIN responded, "Number one, I believe in
separation of the various three major bodies. I don't want to say
what the court will or will not do. I can see where the
Administration, on many cases that we have before us, will bring up
the court. Everything we do, almost, you know, has been
unconstitutional, no matter what the bill is. And so, we as
legislators, in our best judgment, go forth with what we think is
proper and that would serve the public purpose. Later on, if we
find it doesn't, ... then we have to adjust it accordingly. But I
don't want to anticipate what the court will do. I don't want to
even let that be a reason for supporting or [being] against the
bill."
Number 1438
REPRESENTATIVE NORMAN ROKEBERG announced that he had three
amendments. He offered Amendment 1, 0-LS0848\B.3, Lauterbach,
4/18/97, which read:
Page 2, line 7, through page 3, line 10:
Delete all material and insert:
"Sec. 47.25.205. Priority of general relief medical
assistance. If the department finds that the cost of medical
assistance for all persons eligible under AS 47.25.120 -
47.25.300 will exceed the amount allocated in the state budget
for that assistance for the fiscal year, the department shall
eliminate coverage for medical services in the following
order:
(1) abortions where the pregnancy did not
result from rape or incest and related services and supplies,
such as medical supplies and equipment, transportation,
laboratory and x-ray services, physician services, hospital
services, and pharmaceuticals, used for an abortion where the
pregnancy did not result from rape or incest;
(2) treatment of speech, hearing, and language
disorders;
(3)[(2)] optometrists' services and
eyeglasses;
(4)[(3)] occupational therapy;
(5)[(4)] emergency dental services for adults;
(6)[(5)] prosthetic devices not including
dentures;
(7)[(6)] medical supplies and equipment other
than those used to perform an abortion described in (1) of
this section;
(8)[(7)] physical therapy;
(9)[(8)] outpatient laboratory and outpatient
x-ray services other than those used for an abortion described
in (1) of this section;
(10)[(9)] ambulatory surgical center services
other than services to perform an abortion described in (1) of
this section;
(11)[(10)] nonemergency medical transportation
other than transportation to obtain an abortion described in
(1) of this section;
(12)[(11)] outpatient physician services other
than services to perform an abortion described in (1) of this
section;
(13)[(12)] outpatient hospital services other
than services to perform an abortion described in (1) of this
section;
(14)[(13)] intermediate care facility services;
(15)[(14)] skilled nursing facility services;
(16)[(15)] emergency medical transportation
other than transportation for an abortion described in (1) of
this section;
(17)[(16)] pharmaceuticals other than those
used in an abortion described in (1) of this section;
(18)[(17)] inpatient physician services other
than services to perform an abortion described in (1) of this
section;
(19)[(18)] inpatient hospital services other
than services to perform an abortion described in (1) of this
section."
REPRESENTATIVE ETHAN BERKOWITZ objected for discussion purposes.
REPRESENTATIVE ROKEBERG said it provides exceptions for instances
of rape and incest, which he believes would be consistent with
testimony regarding federal and state laws, as well as being
consistent with the remainder of the bill.
Number 1513
REPRESENTATIVE BERKOWITZ asked how it would be determined whether
the pregnancy resulted from rape or incest if the woman did not
choose to disclose how it occurred.
REPRESENTATIVE ROKEBERG said he would leave that to "the department
and the peculiarities of the circumstances." If there were a rape
or incest, he believed that law enforcement officers would be
involved and the evidence needed by the department would be
provided.
Number 1556
REPRESENTATIVE BERKOWITZ asked, "In the contingency where the
woman's shame prevents her from disclosing what has happened, what
would we be doing here? Would we be compelling her to relate a
story or compelling her to hide the truth?"
REPRESENTATIVE ROKEBERG suggested it would be a matter of choice.
Number 1580
REPRESENTATIVE CROFT noted that this conforms with every related
service, including medical transportation and pharmaceutical
services.
CHAIRMAN GREEN said those are in existing law.
REPRESENTATIVE ROKEBERG indicated the amendment was drafted by
their legal counsel, upon whom he would rely.
REPRESENTATIVE CROFT said he understood why it was drafted that
way. However, it troubled him that the woman may have to disclose
that this was the result of rape or incest every step of the way,
including before being allowed on an ambulance, for example.
CHAIRMAN GREEN suggested if they wanted compensation, there would
be disclosure. Otherwise, there would not be.
REPRESENTATIVE ROKEBERG said his answer was "ditto."
CHAIRMAN GREEN asked whether the objection was maintained.
REPRESENTATIVE BERKOWITZ said yes.
CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 1
were Representatives Bunde, Rokeberg and Green. Voting against it
were Representatives Porter, Croft and Berkowitz. Representative
James was absent. Therefore, Amendment 1 failed, 3 to 3.
Number 1730
REPRESENTATIVE ROKEBERG offered Amendment 2, 0-LS0848\B.4,
Lauterbach, 4/26/97, which read:
Page 1, line 5, following "costs.":
Insert "(a)"
Page 1, following line 7:
Insert a new subsection to read:
"(b) A parent or legal guardian of a minor liable
under (a) of this section for the medical costs of an abortion
is also liable for the medical costs of the abortion unless
the department determines that a statutory or constitutional
right of confidentiality would be infringed by a disclosure to
the parent or guardian that the abortion had occurred."
REPRESENTATIVE ROKEBERG explained that Amendment 2 provides that
the parent or legal guardian can be found liable for the medical
costs of an abortion, unless the revelation of the abortion would
impinge on the statutory or constitutional right of confidentiality
of the patient. Referring to earlier discussion of confidentiality
and privacy, he stated his belief that this is in the spirit of
maintaining that confidentiality, particularly as it relates to the
department's endeavor to get reimbursement and/or require a payment
by the parent or legal guardian for the procedure.
Number 1776
CHAIRMAN GREEN asked whether this would apply to the parents or
legal guardians of both the pregnant woman and the male involved.
REPRESENTATIVE ROKEBERG at first said it was the parents of the
female, then added that it also could be the parents of the father,
which is the way it is drafted.
REPRESENTATIVE BUNDE noted that in legislation previously passed
through this committee, the parent of the female would be required
to give permission, at certain ages, to have the abortion. He
asked whether the parent of the female, then, by having granted
this permission, would not assume greater liability.
CHAIRMAN GREEN suggested that since subsection (a) says both are
equally liable, the parents of both would also be liable with this
amendment.
Number 1837
REPRESENTATIVE BUNDE stated, "Parents A give permission for a
procedure that costs money. Parents B had no input in that
decision, and yet we're going to ... assess them both for the cost.
And, again, by the time we go through the whole process, ... it'll
have cost us more than we would have gained. But, you see, I have
some problem there."
CHAIRMAN GREEN replied, "Well, I think the attachment there would
be the fact that if ... mother A and father B are both minors, and
they have a responsibility but they can't afford it. So, the
parents of mother now [are] liable for a portion of the cost. And
if it exceeds, because of some complications, then the parents of
B, who is also responsible, it seems to me would be, under this
amendment, be equally liable for the actions of their children.
But they had no decision, I agree, the male side."
Number 1887
REPRESENTATIVE BUNDE noted that previous legislation had said that
for a child brought to term, the parents of the child's father had
equal financial responsibility, along with the parents of the
child's mother.
CHAIRMAN GREEN said he believed there would be parallel
responsibility with this amendment.
REPRESENTATIVE ROKEBERG commented that he couldn't disagree with
anything either Chairman Green or Representative Bunde had said.
Number 1912
REPRESENTATIVE CROFT asked whether the parents of the unborn
child's father, who had no right to influence the decision
regarding abortion, were liable under this section for the medical
costs.
REPRESENTATIVE ROKEBERG said that is correct.
CHAIRMAN GREEN agreed.
REPRESENTATIVE CROFT noted that it says "of a minor." He stated
his understanding that if it was an older man with a young woman,
that man's parents would not be liable.
Number 1960
REPRESENTATIVE ROKEBERG said he had not thought through that
scenario. He stated, "But I think the language is tight enough
that it would allow that the minor being liable under ...
subsection (a) above, it would be her parents or legal guardian.
If there was a person of the age of majority, then they would not
be."
CHAIRMAN GREEN agreed that was the way he would read it. He asked
whether that was Representative Rokeberg's intent.
REPRESENTATIVE ROKEBERG responded, "Yeah, I mean, that's fine,
because I -- you know, it does lead to a troublesome-type of
analysis in the field, as a practical application. But, I mean,
that would be one way to do the demarcation, as to the majority of
the individuals involved."
CHAIRMAN GREEN noted that Anne Carpeneti from the Department of Law
was present. He asked what would happen if the father was a minor
at the time of consummation but came of age by the time the
abortion occurred.
REPRESENTATIVE ROKEBERG suggested that the proximate cause would be
ascribed to the time of the occurrence.
Number 2031
CHAIRMAN GREEN, after Ms. Carpeneti deferred to Ms. Bomengen,
specified that the concerns regarding Amendment 2 were whether (b)
would attach a liability to the parents of both the minor father
and mother of the aborted child, and what would happen if that
father was not a minor or came of age between the conception and
the abortion.
MS. BOMENGEN responded, "It appears as though the intent is
certainly to require that the parents of both minors would be
liable, and that appears as though that's what the language is
doing here. I believe we would have some legal questions to argue
about when it comes to someone who transitions that, minority to
majority. So, I would imagine there'd be different ways that it
could be read, and it would have to be worked out."
CHAIRMAN GREEN asked whether Ms. Bomengen believed for a man who
was not a minor at the time of conception, this wording would
exclude his parents.
MS. BOMENGEN replied that this clearly says a parent or legal
guardian of a minor.
CHAIRMAN GREEN asked whether the objection was maintained.
REPRESENTATIVE CROFT said yes.
CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 2
were Representatives Rokeberg and Green. Voting against it were
Representatives Bunde, Porter, Croft and Berkowitz. Representative
James was absent. Therefore, Amendment 2 failed, 4 to 2.
Number 2163
REPRESENTATIVE ROKEBERG offered Amendment 3, 0-LS0848\B.5,
Lauterbach, 4/26/97, which read:
Page 1, line 7, following "child.":
Insert "The liability established under this section may
not be enforced if enforcement would violate a statutory or
constitutional right of confidentiality related to abortion
decisions."
Page 4, following line 6:
Insert a new bill section to read:
"* Sec. 7. AS 47.25 is amended by adding a new section
to read:
Sec. 47.25.267. Protection of confidentiality.
Notwithstanding AS 47.25.150, 47.25.220, and 47.25.240, the
department may not implement AS 47.25.150, 47.25.220, or
47.25.240 to the extent that implementation would violate a
statutory or constitutional right of confidentiality related
to abortion decisions."
Renumber the following bill section accordingly.
REPRESENTATIVE ROKEBERG advised members that Amendment 3 again
speaks to the issue of confidentiality, especially important in
light of the existing consent law and any "moving bill that speaks
to consent." It relates to shielding a young woman from any
revelations to a family member that may be harmful to her well-
being. He asked for unanimous consent.
Number 2228
REPRESENTATIVE PORTER said he would speak against the amendment and
stated, "I guess perhaps to explain the position on all these
amendments, I basically don't think it's appropriate to try to put
a dress on a nag and come up with a thoroughbred, because I don't
think this bill can ever be put in that position."
REPRESENTATIVE PORTER continued, "But notwithstanding that, this
particular provision, while I understand its intent, would just
basically make absolutely a requirement that the provisions of the
bill would go to court and have to be determined whether they do or
do not violate a constitutional right of, in this case, privacy, I
presume. I don't think we should write a statute that demands that
there be a supreme court decision before it could go into effect."
REPRESENTATIVE CROFT objected on much the same grounds, adding that
he did not want to employ more lawyers with this.
Number 2270
REPRESENTATIVE ROKEBERG took exception to the statement that this
would necessitate a legal judgment by the state supreme court. He
said it is clear, black-and-white language, adding, "And the
provisions in our constitution and our statutes are such that, I
think, that the rights of the individual should be protected, and
I think this speaks to that provision."
REPRESENTATIVE CROFT said it seemed that it would require
litigation, unless they were giving authority to the department to
just ignore those portions of this statute that someone in the
department feels would violate it. He stated, "I think both of
them are equally unpalatable, one, delegating that sort of judicial
determination to the department, the other, requiring that it be
litigated. So, ... I apologize for being flippant on it, but I do
think it either requires it or is making a somewhat unusual
delegation to the department."
Number 2337
REPRESENTATIVE ROKEBERG suggested perhaps the issues of Amendment
3 should be separated, because that was not his intention. He said
the objection he was hearing was that the department's judgment
would be taken up on the second portion. He asked Representative
Croft for a response.
REPRESENTATIVE CROFT stated, "I said that it's objectionable to me
either way." He stated his belief that it would require judicial
enforcement; if not, it would require departmental enforcement. He
guessed the former was preferable. However, he believed that both
provisions do the same thing. He concluded, "I would assume that
they mean judicial determination of statutory or constitutional
infirmity, not department. So, I'm not operating under that
assumption, and that's why I do think it will have to be
litigated."
REPRESENTATIVE ROKEBERG said he would still ask for consideration
of the amendment, stating that the intention is the paramount issue
here as to the constitutional and statutory rights being protected.
CHAIRMAN GREEN asked whether Representative Rokeberg was suggesting
dividing the question.
REPRESENTATIVE ROKEBERG said no.
CHAIRMAN GREEN requested a roll call vote. Voting for Amendment 3
were Representatives Rokeberg and James. Voting against it were
Representatives Bunde, Porter, Croft, Berkowitz and Green.
Therefore, Amendment 3 failed, 5 to 2.
REPRESENTATIVE ROKEBERG made a motion to rescind the committee's
action on Amendment 1.
REPRESENTATIVE PORTER objected.
REPRESENTATIVE ROKEBERG said he believed Amendment 1 should be
reconsidered in light of the fact that the intention was to provide
further rights to victims of rape and incest, to ensure that they
are able to get an abortion.
[Representative Porter's comments cut off by tape change]
TAPE 97-70, SIDE B
Number 0006
REPRESENTATIVE CROFT said his objection had been partly to the
substance. He did not believe that inquiry was warranted for the
actual abortion service, and he certainly did not believe it was
warranted at every stage of the proceeding. It compounded in his
mind a fundamental fallacy, that a woman must disclose and justify
it before obtaining this medical procedure.
CHAIRMAN GREEN asked whether that was an objection or was being
offered as a friendly amendment.
REPRESENTATIVE CROFT said it was an objection.
Number 0046
REPRESENTATIVE JEANNETTE JAMES apologized for having arrived late.
She suggested that rather than having to make this disclosure at
each stage, a woman would disclose it once to the department and
then qualify for those services.
Number 0081
REPRESENTATIVE BERKOWITZ agreed that would be true if the woman
chose to make the disclosure. "But what we're doing here is
requiring her to make a disclosure," he stated. "And to me, that's
invasive of her privacy on that issue, not even getting to the
privacy attached to abortion. It's the issue of whether she has a
right to remain silent."
Number 0099
REPRESENTATIVE BUNDE stated his understanding that for rape or
incest to exist for disclosure purposes under the bill, there must
have been a criminal trial and a finding, rather than someone
asking for an abortion and saying a rape occurred. He asked
whether that was correct.
REPRESENTATIVE PORTER replied, "Well, I think the work that's been
done throughout the state over the last 15-20 years has led to a
realization that there are fewer and fewer females who find
themselves personally afraid of going forward with a prosecution of
rape or incest. There are still those who do. And this is
precisely, in my mind, what the right to privacy is all about."
Number 0157
REPRESENTATIVE ROKEBERG referred to a document from the Department
of Health and Social Services, received that day (copy in packets),
the last page of which is entitled "Report on Claims of Good Cause
for Refusing to Cooperate in Establishing Paternity and Securing
Child Support." It indicates that from 4/1/96 to 9/30/96, there
was one instance of conception resulting from incest or forcible
rape out of 26 claims (of good cause) during that period.
Representative Rokeberg said the amendment is consistent with the
federal requirements, both in terms of the case law and the
regulations, and he did not understand the debate.
Number 0188
REPRESENTATIVE JAMES stated that Representative Bunde's comment
made a lot of sense because of the time issue. She said, "But
also, what Representative Rokeberg said, then why in the world do
they even have that language in there? Does that mean that if you
went and had an abortion and only could do it under rape and
incest, and then after the abortion is already done, you go to
court and you find out whether or not it was okay that you did it?"
REPRESENTATIVE JAMES said she believes there is a lot of
inconsistency with "decisions that have been handed down to the
court." She would like to put as much as possible on the table for
them to decide. Otherwise, they would never have those answers.
CHAIRMAN GREEN asked how long a trial might take.
REPRESENTATIVE PORTER said 120 days.
REPRESENTATIVE BERKOWITZ said that would be stretched out because
of discovery. A rape trial itself would take at least one or two
weeks.
CHAIRMAN GREEN suggested that might take five or six months.
REPRESENTATIVE PORTER clarified that it is 120 days from the time
of arrest or indictment. For a "stranger rape" involving an
unidentified perpetrator, it could be much longer.
Number 0262
REPRESENTATIVE ROKEBERG said he did not believe there needed to be
a fully adjudicated finding in this case; it did not make sense.
REPRESENTATIVE BERKOWITZ suggested if there was a false allegation
of rape or incest, the abortion would be performed and somebody's
name would be besmirched who could not come back and clear it. All
kinds of problems may result from just the call of rape or incest,
including determining whether it is true and then proceeding
accordingly. Noting that this bill had been put forward with the
idea of being fiscally responsible, he said, "To invade that
thicket invites all kinds of costs."
CHAIRMAN GREEN requested a roll call vote. Voting to rescind the
previous action on Amendment 1 were Representatives Rokeberg, James
and Green. Voting against it were Representatives Bunde, Porter,
Croft and Berkowitz. Therefore, the motion failed, 4 to 3.
REPRESENTATIVE ROKEBERG made a motion to rescind the previous
action on Amendment 2.
CHAIRMAN GREEN asked whether the reason was that an additional
committee member was present.
REPRESENTATIVE ROKEBERG said yes.
CHAIRMAN GREEN asked whether there was discussion and requested a
roll call vote, saying he assumed there was an objection.
An unidentified speaker affirmed the objection. Voting to rescind
the previous action on Amendment 2 were Representatives Rokeberg,
James and Green. Voting against it were Representatives Bunde,
Porter, Croft and Berkowitz. Therefore, the motion failed, 4 to 3.
CHAIRMAN GREEN announced that the original bill was again before
the committee.
Number 0359
REPRESENTATIVE PORTER stated that he respected the intent of the
sponsor and cosponsors. Although the discussion on the privacy
argument had left him a bit confused, that was not the reason that
he would not support this legislation. And while he also believed
that naming the father had merit, the cost and time involved in
trying to reach a conclusion to that end, including possible DNA
analyses and so forth, caused him some concern for "cruel-and-
unusual and also just plain it-doesn't-pencil-out." Additionally,
he understood the intent of the proposed amendments, and had he
seen some ability to make the bill function to his principles, he
probably would have supported them.
REPRESENTATIVE PORTER recalled another bill before the committee a
few years earlier, which he had believed was appropriate and which
would have done the reverse of this, eliminating some regulations.
He stated that the "folks that would qualify for this kind of a
procedure are precisely the folks that need it, that need to have
that availability to avoid what I have seen personally happen when
all of this was against the law, back-room abortions. And I will
never vote for a piece of legislation that would return us to that
era. For that reason, I will be voting `no' on this bill."
Number 0456
REPRESENTATIVE JAMES said her only concern in the bill is the issue
of the involvement of the man. She recalled how in high school,
there had been pregnant girls, with the "guy just going off on his
merry way." She believes it is unfair for the woman to take the
blame for something for which she is only half responsible. She
expressed interest in finding a way to have a level playing field
for the man and the woman.
REPRESENTATIVE JAMES said she understands the woman's right to
privacy; she supposes that if a woman chooses to take the whole
responsibility for the pregnancy, that is her choice. However, the
law should provide the option of involving the male from the
beginning. Representative James said she would go so far as to say
it is important for the male to even be involved in the decision of
whether to carry the child or abort it, because it is half his.
REPRESENTATIVE JAMES expressed reservations about whether the bill
should go anywhere, saying that they had not determined all of the
intended or unintended consequences and that "it's a little
premature and not correctly written." However, she wanted to put
on record her belief that when a choice is made to enter into the
act that causes a pregnancy, both parties should share that
responsibility equally, however that is accomplished.
Number 0567
REPRESENTATIVE BUNDE said he would like to "associate his comments
with the previous two speakers." He said he had serious concerns
about the constitutionality of the bill and yet would very much
appreciate a vehicle that would require personal responsibility of
the male. He restated a comment from a previous hearing, about a
man who bragged of having sired 19 children by 11 different women.
Representative Bunde said that although he wanted to have that man
be financially responsible, at the least, he did not see that
happening under HB 234. Referring to previous legislation, he said
the practicality of preserving evidence for future DNA tests and
having a data bank, for example, was fiscally insurmountable.
REPRESENTATIVE BUNDE said he believed the issue deserved debate and
further study, and he would not stand in the way if the committee
wished to move the bill for those purposes. "But I could not vote
for this bill in its present form, should it come to the floor," he
concluded.
Number 0650
REPRESENTATIVE ROKEBERG stated his belief that the sponsor's
intention was to focus on making people responsible for their
actions. Notwithstanding whatever position a person takes on
abortion, he believes that the large majority of Alaskans do not
agree with subsidizing abortion procedures because of the
sensitivity of the issue.
REPRESENTATIVE ROKEBERG referred to testimony about people seeking
abortions being transported out of state or to other locales, such
as from rural to urban areas. He suggested there is a gross amount
of abuse in this area and that many of these instances may occur
just for the personal desires of people to get a trip somewhere.
REPRESENTATIVE ROKEBERG indicated he agreed with Representative
Porter about the history of this issue. However, he is disturbed
about abuse of the system and respects the sponsor's position. He
himself had offered the amendments to try to "change the color of
this old nag, to make it a much better bill and to protect the
rights of women in this state, and their right to constitutional
privacy." Those amendments were based on what he thinks the
federal law is. While he had some philosophical problems with this
bill, given his own position on the issue, he thinks there is a
legitimate reason to curtail the state payment in some, but not
all, instances. He said without the amendments, it was difficult
to support moving the bill and he was in a quandary.
Number 0793
REPRESENTATIVE BERKOWITZ suggested in the next session trying to
figure out ways to reduce the incidence of unwanted or untenable
pregnancies instead.
REPRESENTATIVE ROKEBERG made a motion to move HB 234 from committee
with individual recommendations and the accompanying fiscal note.
REPRESENTATIVE CROFT objected.
CHAIRMAN GREEN requested a roll call vote. Voting to move HB 234
from committee were Representatives Bunde, Rokeberg, James and
Green. Voting against it were Representatives Porter, Croft and
Berkowitz. Therefore, HB 234 moved from the House Judiciary
Standing Committee by a vote of 4 to 3.
SB 63 - DEADLY WEAPON OFFENSES BY JUVENILES
[Contains discussion of HB 6 prior to number 0600 and at 0877 of
tape 97-71; contains discussion of HB 16 prior to number 1268 of
tape 97-71]
Number 0863
CHAIRMAN GREEN announced the next item of business was Senate Bill
No. 63, "An Act providing for automatic waiver of juvenile
jurisdiction and prosecution of minors as adults for certain
violations of laws by minors who use deadly weapons to commit
offenses that are crimes against a person, and relating to the
sealing of the records of those minors."
Number 0904
SENATOR DAVE DONLEY, sponsor, noted that SB 63 had passed one body
or the other of the last three legislatures, and it had passed
through the current committee the previous year. The bill follows
up on the juvenile waiver statutes from a few years before.
SENATOR DONLEY explained, "As you know, several years ago, we
adopted the automatic waiver of juveniles who commit class A
felonies, crimes against the person. And this reaches down a
little bit further than that, into the list of crimes, to try to
address the violent crimes that are not class A crimes and,
specifically, the use of deadly weapons to commit assaults. And
what Senate Bill 63 would do is say ... that if a juvenile over the
age of 16 has been previously convicted or adjudicated as a
delinquent as guilty of a[n] assault with a deadly weapon, then if
they're subsequently charged with assault with a deadly weapon,
they'd be waived to adult court."
SENATOR DONLEY said the department estimates that between five and
eight juveniles a year would fall in this category. He said there
is no mandatory sentencing requirement for those in this
classification. This only deals with the question of automatic
waiver to adult court for "this very, very small class of the most
violent types of juveniles." He said statistics show that violent
juvenile crime is one of our growing problems. And this is a
narrowly-targeted proposal to deal with the most violent types of
juveniles that are currently not being dealt with in adult court.
Number 0994
CHAIRMAN GREEN asked whether it would be reasonable for someone to
believe his or her life might be in danger, if accosted by a
juvenile several years younger than 16.
SENATOR DONLEY replied, "As you know, under federal law, the only
way to open up these type of cases is to ... put them into adult
court. As it is, unless they were a class A felony or unless they
moved through the optional waiver process, the proceedings would be
closed." He noted that another bill addressed that. He stated,
"But this is the one way to get them all the way opened up, so the
public can know who is committing these kind of crimes, without the
potential loss of federal funds also associated with that. So, it
would allow people to know who is committing crimes with a deadly
weapon multiple times. And the reason it's 16 years old [is]
because, frankly, the Governor is very opposed to anything under
16, and the Administration is opposed to even this one, because
they don't support any additional automatic waiver."
Number 1090
REPRESENTATIVE CROFT asked whether, under the same facts that this
would be an automatic waiver, there currently is the discretion to
waive.
SENATOR DONLEY said yes.
REPRESENTATIVE ROKEBERG observed that the Senate Finance Committee
had zeroed out the Department of Corrections fiscal note. He asked
who would be testifying.
CHAIRMAN GREEN advised him that Margot Knuth from the Governor's
Children's Cabinet and one person on teleconference planned to
testify.
REPRESENTATIVE ROKEBERG asked Senator Donley to speak about the
fiscal note.
Number 1130
SENATOR DONLEY pointed out that packets included an analysis from
the Senate Finance Committee explaining reasons for zeroing out the
Department of Corrections fiscal note. He said the assumption of
the department's fiscal note was that eight juveniles would be
waived to adult court, convicted of felonies and serve prison time.
However, the bill has no mandatory sentencing provisions, and the
Senate Finance Committee had not thought it was reasonable to
assume that all these juveniles would get extended criminal
sentences.
SENATOR DONLEY stated, "Additionally, for every one of these
individuals, if you're going to assume that they would get a
sentence like that, since our current juvenile facilities are all
desperately overcrowded already, there would be an offsetting
impact in the juvenile facilities; but, of course, that's in [the
Department of Health and Social Services] and it doesn't reflect.
So, another reason the Finance Committee zeroed it out is because
we viewed it as pretty much a `net zero' because anybody in their
second time of a deadly weapon assault, we were hoping that [the
Department of Health and Social Services] would be
institutionalizing some of those folks also. And so, if they're
not there, they're going to be here."
SENATOR DONLEY continued, "And finally, the basis for their request
for a 180-bed facility was mostly based on the mandatory waiver
that was already passed, for class A felonies from past years, and
not on the individual impact of this bill. So, they wanted a 180-
bed new facility to deal with the five-to-eight new people that
this bill would move in adult court, which are not necessarily
mandatory-sentenced."
Number 1226
REPRESENTATIVE ROKEBERG asked for confirmation that unclassified
and class A felonies are not included in felony-with-a-deadly-
weapon-type assaults.
SENATOR DONLEY replied, "There's a higher category of assaults with
a deadly weapon that result in serious permanent damage to the
victims that do become class A felonies. But the simple assaults,
and things that don't result in permanent physical damage to
people, I believe, are only class B felonies and [class] Cs." He
noted that Representative Berkowitz was looking up the definition.
REPRESENTATIVE ROKEBERG asked whether there was a "laundry list" of
those in the file.
SENATOR DONLEY replied that although it was not in the committee
packets, he had a memorandum that identified that list.
REPRESENTATIVE ROKEBERG asked that it be made available to the
committee. He requested examples.
Number 1312
SENATOR DONLEY responded, "Criminally negligent homicide, assault
in the second degree, assault in the third degree. They're the
ones that involve a deadly weapon. Assault in the second degree is
a class B felony. Assault in the third degree is a class C felony.
Those are the primary targets of the bill."
REPRESENTATIVE ROKEBERG asked, "The existing statutes, the fact
that a deadly weapon was involved is not a determining
characteristic of the definition of a type of assault, for example?
It may be a contributing factor, but there's other elements?"
SENATOR DONLEY replied that he believed if a deadly weapon was not
involved, it was a misdemeanor assault.
Number 1370
REPRESENTATIVE BERKOWITZ said there is no clear delineation between
the four degrees of assault; there is some overlap between each
one. The lowest degree is assault IV, a class A misdemeanor. For
example, there could be an assault IV misdemeanor involving a
deadly weapon if a person recklessly caused physical injury by
playing with a gun and accidentally shooting another person. Under
other circumstances, it might be moved up the scale. "Dangerous
instrument" is part of the terminology in assault III, a class C
felony. The continuum basically goes from physical injury to
serious physical injury. "And I know we had a discussion of
serious physical injury in another context," Representative
Berkowitz added.
Number 1438
CHAIRMAN GREEN asked whether those involve an offense against a
person.
REPRESENTATIVE BERKOWITZ said those were all the assaults involving
an offense against a person.
CHAIRMAN GREEN asked whether an assault against a person would
involve intent, rather than being reckless.
REPRESENTATIVE BERKOWITZ replied, "Not necessarily."
SENATOR DONLEY responded that a misdemeanor assault would not be
covered by this bill; one element under this bill is that it be an
offense punishable as a felony.
Number 1467
REPRESENTATIVE BERKOWITZ noted, however, that if someone recklessly
caused grave physical injury by playing with a gun, that could be
a B felony.
Number 1492
REPRESENTATIVE ROKEBERG stated his understanding that there are no
degrees of intent in criminal law.
REPRESENTATIVE BERKOWITZ affirmed that, adding that four mental
states apply to criminal statutes. The highest is intentional,
followed by reckless, negligent and strict liability; for the
latter, there is "really no mental state at all."
REPRESENTATIVE ROKEBERG asked whether there had to be intention to
have a crime.
REPRESENTATIVE BERKOWITZ said no; there are crimes involving strict
liability, such as many fishing violations.
REPRESENTATIVE ROKEBERG said they were statutory crimes, then.
REPRESENTATIVE PORTER said they were crimes because somebody says
they are; otherwise, they would not be.
REPRESENTATIVE ROKEBERG suggested that intent was needed under the
common law, then.
REPRESENTATIVE BERKOWITZ responded, "Or recklessness."
CHAIRMAN GREEN said he was looking at a list submitted by Jack
Chenoweth. He stated, "And I see intent in all of these. Now, I
don't know what necessarily constitutes criminally negligent
homicide, but that seems to be that there's got to be some intent
in there somewhere."
REPRESENTATIVE BERKOWITZ responded, "No. For example, if someone's
driving drunk and they run over a pedestrian ...."
CHAIRMAN GREEN said, "But we're talking about a weapon, now."
REPRESENTATIVE BERKOWITZ pointed out that a vehicle can be a
weapon.
REPRESENTATIVE JAMES asked whether they had a list of weapons that
are deadly.
REPRESENTATIVE BERKOWITZ replied, "There's nothing that's
definitive, but the statutes define weapons. I believe Senator
Donley had a list." He noted that under appropriate circumstances,
fists or boots have been defined as dangerous weapons or deadly
weapons.
CHAIRMAN GREEN suggested that did not go along with the driving
incident. It seemed that if a person used a fist on someone, it
would be intentional.
REPRESENTATIVE BERKOWITZ agreed.
CHAIRMAN GREEN stated, "And that's the concern we've got, is
whether there is intent."
Number 1637
REPRESENTATIVE PORTER asked what Mr. Chenoweth had been responding
to.
SENATOR DONLEY said those were all the crimes against a person that
are punishable as a felony.
REPRESENTATIVE ROKEBERG stated his understanding that there had to
be a crime against a person, a felony and a deadly weapon, under
this bill.
REPRESENTATIVE BERKOWITZ stated, "Hypothetically, ... if you hold
a knife at someone's throat and coerce them to do something, you've
got the coercion but the knife hasn't done any actual harm."
REPRESENTATIVE ROKEBERG asked whether that would not be assault.
REPRESENTATIVE BERKOWITZ said it would be an assault.
REPRESENTATIVE ROKEBERG suggested it could also be an exploitation;
there could be two different crimes committed in the same act.
REPRESENTATIVE BERKOWITZ agreed.
Number 1740
REPRESENTATIVE JAMES indicated that when she sees "deadly weapons,"
she thinks of guns. However, by using that language, it raises
different conceptions of what that means. She asked: Since guns
are such a tool used now by children, why didn't the bill just say
guns?
SENATOR DONLEY explained that the bill had originally dealt only
with firearms, as a response to guns in schools and the failure to
hold juveniles accountable for repeated firearms violations.
However, there was a reluctance to single out firearms because
other weapons such as brass knuckles, billy clubs, pipes and so
forth could be used. Therefore, a floor amendment passed several
years before in the Senate, to expand it to deadly weapons.
Number 1871
REPRESENTATIVE BERKOWITZ advised members that there is a
distinction between "deadly weapons" and "dangerous instruments,"
and he may have overlapped the two definitions in his earlier
explanation. He read: "A deadly weapon means any firearm or
anything designed for and capable of causing death or serious
physical injury, including a knife, an axe, a club, metal knuckles
or an explosive."
REPRESENTATIVE BERKOWITZ contrasted that with dangerous instrument,
"which includes any deadly weapon or anything that under the
circumstances in which it is used, attempted to be used, or
threatened to be used, is capable of causing death or serious
physical injury." He said, for example, the car would be a
dangerous instrument, not a deadly weapon. He emphasized that he
was retracting that portion of what he said earlier.
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage,
stating that the courts now have discretion to waive juveniles in
appropriate situations. His agency is concerned that an automatic
waiver would not be commensurate with the current statute. "Right
now, you have to have an unclassified or a class A felony, you
know, obviously very serious crimes, or arson," he said.
MR. McCUNE referred to earlier discussion about mental states. He
clarified that criminal intent occurs when a person's conscious
objective is the completion of an act. In addition, many assaults
and crimes against the person that are felonies occur with reckless
behavior, which he defined: "Recklessness is when you're aware of
a risk that a circumstance or result might occur, but you
disregard that risk and complete the act."
MR. McCUNE said assault III offenses happen in many ways. A deadly
weapon can include a club or an unloaded or loaded firearm. If a
juvenile scares another person, so that that person fears imminent
serious physical injury, that is an assault against the person. If
a club or gun, loaded or unloaded, is used, that is assault III.
While in some situations assault IIIs are very serious offenses,
they also can be less serious, depending on the facts.
MR. McCUNE said his agency was concerned about juveniles who commit
assault III offenses. For example, someone may have been
adjudicated regarding a theft or burglary that is a felony but not
have been placed in an institution or received treatment. If that
person committed a relatively minor assault III, he or she would be
institutionalized. Mr. McCune commented, "And, you know, you could
institutionalize that person probably, and still treat them as a
minor. So, we're concerned about that class of people being
automatically waived into adult court."
TAPE 97-71, SIDE A
Number 0006
REPRESENTATIVE CROFT requested a brief explanation of how
discretionary waiver works. Noting that the courts decide, he
asked whether it requires a filing by the department.
MR. McCUNE cautioned that there had been recent changes in the law
and he was not as up on it as he should be. The burden of proof
had changed, once the department filed, depending on the age of the
child. He stated "And so, the filing, as I understand it - and I
hope I'm correct in this - is done by the department or the
attorney general handling the case. And then, quite often but not
always, the burden of showing that the minor is amenable to
treatment as a juvenile ... is on the minor and the minor's
attorneys."
Number 0120
MARGOT KNUTH, Assistant Attorney General, Criminal Division,
Department of Law, came forward to testify, specifying that she was
representing the Governor's Children's Cabinet on legislation
relating to youth and justice this session. She said Senator
Donley had correctly indicated that the Governor's Children's
Cabinet has serious concerns about this bill and believes that it
would be a mistake to pass it in its current form.
MS. KNUTH, speaking of Senator Donley, explained, "He characterized
this bill as reaching down a little bit further than where we have
automatic waiver already. And I cannot disagree with that more
strongly; I cannot agree with that at all."
MS. KNUTH explained, "Right now, we have automatic waiver for class
A and unclassified offenses for 16- and 17-year-olds. And when it
comes to assault, that means that the offender must have caused
some physical harm to the victim." She said most of the offenses
do not involve physical harm to the victim but rather brandishing
a gun or a knife, which recklessly places a person in fear of
serious physical injury by means of a deadly weapon.
MS. KNUTH stated, "And the difficulty that we have with dropping
down to class B and class C felonies is that currently, we have a
pretty bright line on where automatic waiver ought to be occurring.
If you're going to drop down to B and C felonies, first you're
going to do it where there is use of a deadly weapon, and I just
have a significant concern that we're going to start patchworking
this and that there are many serious B and C felonies that don't
involve the use of a deadly weapon, and that to the extent we have
serious concerns with the way our juvenile system is operating,
what we need to do is to step back and look at some thoughtful,
holistic approach to revisiting it. And the Administration is very
concerned about piecemeal approaches, and especially this one,
because this is the camel's nose getting under the tent in a
significant fashion."
Number 0328
REPRESENTATIVE JAMES said one of her biggest concerns is the misuse
of guns. She asked whether a solution would be to make the use of
guns a more serious crime and whether that was possible.
MS. KNUTH replied, "Again, I think that people have studied our
criminal code as a whole and have tried to assign the seriousness
of certain offenses. And especially when we get to assaults, it's
a combination of mental state, whether or not an instrument is used
and whether or not harm was caused. And merely threatening harm
with a dangerous instrument should always be a less serious offense
than causing harm, versus causing serious physical harm. We've got
to have gradations in it. If you were to raise old juvenile
offenses involving a weapon to ... a class A felony crime, I think
there would be a basis for a challenge under equal protection of
why, when it's juveniles versus adults, considering the serious of
weapons."
MS. KNUTH continued, "But I'd ask the committee also to look at
what other class B and C felonies you can have that don't involve
a deadly weapon and yet, I think, are terribly serious crimes,
namely, sexual assault in the second degree. A 16-year-old who
engages in sexual intercourse with an incapacitated person is
guilty of a class B felony offense of sexual assault in the second
degree, and I think that's a mighty serious offense. Sexual abuse
of a minor in the second or the third degree are B and C felonies.
Criminal mischief, intentionally damaging the pipeline, is a class
B felony. Tampering with medicines, aspirin, say - I think there
was a case that happened somewhere in the nation that a whole bunch
of bottles had been tampered with - that's a class B felony. Drug
offenses, selling any amount of cocaine, a 16-year-old who sells a
pound of cocaine to a 14-year-old, that's a class B felony."
MS. KNUTH continued, "And I don't know how we could say these
offenses are less serious or less damaging than an offense of, `I
point a gun at you, and it may not even be loaded, but you should
always assume that it is loaded and you should be afraid as though
it were loaded.' But in terms of the actual harm that's caused by
the offenses, I don't know how you could say that that one is more
worthy of a different result than the other offenses that I've
outlined."
MS. KNUTH continued, "One of the props for this amendment was
before we had House Bill 6, which is now in Senate Finance, on
disclosure of juvenile offenders. And there was a concern that
there are offenders out there who are using guns and committing
serious crimes, and we didn't know who they are. That problem is
being addressed in disclosure of juvenile records and opening those
court proceedings. And to the extent that that was a motivation
for this bill, it's being cured in that separate form."
Number 0600
MS. KNUTH continued, "One of the things I'd like to note is that we
do have a usable ... petition-for-waiver procedure. And it's most
likely to be used and most likely to be successfully used when a
juvenile has a prior, which is one of the requirements of this
bill, because in order to waive a juvenile to adult court, you need
to show that it's unlikely the juvenile can be rehabilitated within
the juvenile justice system. One of the best measures of that is
the kid's already been through the juvenile system and it didn't
work, it didn't take. And so, we're talking about a group where
the discretionary waiver is more likely and more appropriate to be
used."
MS. KNUTH continued, "And certainly from the prosecutor's viewpoint
and from the Department of Health and Social Services' viewpoint,
this is not a big problem that demands fixing. They feel more
comfortable with it being discretionary because use of a gun can
often be an equalizer for -- suppose you have a 16-year-old boy who
is not very big and his mother's boyfriend, who beats up on the
mother on a fairly regular basis, is 300 pounds, 6'3". The kid
goes too far in pointing the gun at that guy, and it's an
inappropriate circumstance; maybe he comes back a week later or
something like that. But a gun is often used in these
circumstances that can be terribly serious but also might not be.
It might be an indication of something else going on there. And
you could have somebody who is in a situation where it happens more
than once, even. So, for that reason, the state feels more
comfortable if they are able to decide whether to petition for a
waiver, whether to say, `This is a bad case, that we need to get an
adult sentence there.'"
MS. KNUTH advised members that Bruce Richards from the Department
of Corrections was present and could answer questions about the
fiscal note. She stated, "It was based on the department's need
for a 64-bed facility for juveniles because, as a result of the
automatic waiver statutes that have been passed already, which were
not funded, we now have a number of juveniles in the adult system.
And one of the evils that we can all imagine as we sit here is that
when you put these kids in with adult population, they've got some
pretty bad role models there. And we would like to have them
separated."
MS. KNUTH continued, "They're not required by federal law to be
separated once they're an adult offender, but in terms of what's
appropriate for them and the special treatments that they need --
because psychologically they're in a different frame of mind, they
have poor impulse control, they have a whole set of problems that's
pretty particular to them. And a separate facility is a reality
that we need to face at some point. And we said that before.
We'll say it with this bill. I expect we'll probably be back and
say it again sometime."
Number 0787
CHAIRMAN GREEN referred to Ms. Knuth's example of a young boy being
confronted by his mother's bully boyfriend. He asked whether use
of a gun there would be considered a crime or self-defense.
MS. KNUTH said it would depend on the circumstances, although it
should be defense. She explained, "I consider most juveniles
judgment-impaired; I think that's the definition of being a
teenager. And their call on the situation can be wrong. Their
timing can be wrong. It could have been, last time, bully thumps
on mother; and this time, the kid's reacting too soon and bully
hasn't done anything, and the kid's just flying off the handle.
But he didn't do anything except say, `I've got a gun,' you know,
`You're dead meat,' whatever the scene is."
MS. KNUTH continued, "Especially if alcohol should be involved on
the part of the adult, then the stories of what happened become
more difficult to unravel, and if the kid's the one with the gun,
sometimes arresting the kid and getting him out of the house is
what makes the most sense in that circumstance. And so, there's a
continuum of these events, all the way from really appropriate,
righteous conduct to, you know, serious mistake. And the blurry
lines are along the way."
Number 0877
REPRESENTATIVE ROKEBERG said he somewhat shared her concern about
how this would fit in if HB 6 should pass. He asked, "Do you think
that, were that to pass, that that ... would meet some of the
requirements of the bill sponsor here and will allow the court to
go deeper down, at their discretion, for the waiver?" He asked Ms.
Knuth to explain how that would work.
MS. KNUTH replied, "House Bill 6 is a matter of disclosure of
juvenile offenders who have committed crimes against a person,
which include the offenses that we're talking about here, as long
as it's a felony crime against a person. So, it would be the B and
the C felonies, as well as the As and the unclassifieds. And there
is currently a debate still going on whether that disclosure should
be made at the point of when the petition is filed or should it be
made at the point of the adjudication. But the sponsor amended the
bill in Senate Judiciary to also have a provision for the court
proceedings to be open. So, not only do we get the information
about the offense and the offender from Health and Social Services,
but the state will be able to have the proceeding open to the
public."
MS. KNUTH continued, "And I think the part of this bill that that
takes care of is the concern that there's this veil of secrecy
about juveniles, we don't know who the dangerous ones are, and by
treating them as adults, that was one way of making sure that there
would be full disclosure about who they are, what they've done. If
you can have that same disclosure within the juvenile system, you
don't need to waive them to adult court just to find out who they
are and what they did; you can find that out while they're still in
the juvenile system."
Number 1000
REPRESENTATIVE ROKEBERG referred to HB 6 and stated his
understanding that the courts wouldn't be mandated or even have the
discretion to do an automatic waiver, unless it fit under the
unclassified or class A felony definition. So, their hands would
be tied as far as actually pursuing prosecution as an adult.
MS. KNUTH replied, "The court never makes that call unless the
state petitions for it anyway, although if the legislature has made
it automatic waiver -- I mean, their hands are equally tied. They
have to take it as an adult case. They don't have the means of
bouncing it back ... to juvenile proceedings."
REPRESENTATIVE ROKEBERG asked, "If the state had decided the fact
pattern was such, even with a third degree assault, for example,
... that they felt that the alleged criminal should be prosecuted
as an adult, do they have that ability to petition?"
MS. KNUTH said absolutely, yes.
Number 1064
REPRESENTATIVE BUNDE referred to Ms. Knuth's characterization of SB
63 as going deeper regarding the waiver process. He asked for an
idea of numbers or recent cases where someone would be affected
under SB 63 but not under existing legislation.
MS. KNUTH said the Department of Health and Social Services had
prepared a list of examples of cases but she did not have a copy
with her.
An unidentified speaker advised Ms. Knuth that it was in the
committee packets.
MS. KNUTH noted that results from nationwide studies on the success
of automatic adult waiver are not promising. They are finding that
kids who go through automatic waiver are more likely to re-offend
than those treated as juveniles, and the new offense is likely to
occur sooner and be a more serious offense than if they had gone
through the juvenile proceedings.
MS. KNUTH stated, "So, the three measures that we use for success
of rehabilitation of a system, all three of them are worse for kids
who are going through automatic waiver than for the kids who are
going through the juvenile system. And part of that is because
you're teaching them something they didn't know before they went
through the adult system: that they can survive it. They will find
a way to live as somebody with an adult conviction."
MS. KNUTH continued, "And it's the same thing the first time you
put a juvenile in detention. As long as you had that as a threat
over their head, it meant a lot. But the moment they actually
spent their first night in detention, they realized they can live
with that. They're going to be here tomorrow, and they're going to
find a way to get on with their life, and they made some new
friends that I'd just as soon they hadn't made. And you have the
same thing happening in the adult system."
MS. KNUTH stated, "The conference [on youth and justice]
recommended instead of having automatic waiver - either go down in
age or go down in the seriousness of offenses - what the conference
recommended was a dual-sentencing provision where the kid gets both
a juvenile and an adult sentence. And if they screw up, then you
impose the adult sentence. But it gives them that window of
opportunity to straighten their own life out, and it gives them
some control and some investment and some motivation to get back on
the straight and narrow." She said that is part of HB 16, an
alternative which she believes shows a great deal of promise.
Number 1268
REPRESENTATIVE BERKOWITZ referred to the list of examples drawn
from the Division of Family and Youth Services (DFYS) files. As he
read it, of those six examples, three would not have come within
the reach of this bill because they did not involve deadly weapons.
For one, somebody had used a vehicle; for another, someone had
another youth attack a third party; and for the third, someone used
a glass bottle. None of those is a deadly weapon.
REPRESENTATIVE BERKOWITZ said the one that troubled him most was
where someone was charged with an assault II and pled to an assault
IV. He said that seems to typify the problem more. His experience
has been "that you charge high and plead low."
MS. KNUTH commented, "Of course, we deny that ever happens ...."
REPRESENTATIVE BERKOWITZ said they got good sentences out of it.
He stated that the concern was that at first blush, there might
appear to be the elements to make a higher-level charge, but when
investigated further, they are lacking. On the other hand, that
was only one case in fiscal year '95-'96 that fell into that area.
Number 1340
REPRESENTATIVE JAMES said a trend she has seen over the last few
years is what she calls "coddling," giving offenders repeated
chances. It seems there should be a day of reckoning when
juveniles must realize they are responsible for what they do. She
referred to Ms. Knuth's indication that if juveniles serve time
with adults, they would learn bad behavior. Representative James
asked about the bad influence of that juvenile on other juveniles
if they served time together. She mentioned her experience with
reform school issues and foster care and stated, "I guess that I
think we've tried coddling. And I think we need to get more
serious with some of these issues." She asked for a response.
MS. KNUTH replied that first, there definitely needs to be the
ability to subdivide within juvenile facilities, to isolate the bad
offender from the run-of-the-mill property offender, for example.
As for coddling, she did not consider it an answer to "throw the
kid out and say good-bye forevermore." She stated, "That really
troubles me. When you saddle a kid with an adult conviction, you
have just disqualified him from entering the military. You have
made it a whole lot more difficult for him to get a job. You have
made it very difficult for him or her to go to college. And if a
kid can't do any of those three things, what are they going to do?"
MS. KNUTH continued, "I know we want to reach them. I know we want
to work with them and bring them back, but a kid has got to have a
way of being a productive member of society. And before we say,
`no job, no army, no college for you,' I mean, I want it to be a
pretty extreme situation."
MS. KNUTH emphasized that she would not minimize the seriousness of
a B or C felony. However, those crimes are not nearly as
significant as a class A or an unclassified offense. She stated,
"in our attempt to deal with the serious juvenile crime problem,
we've got to focus on those who are the chronic serious offenders,
be mean-as-heck to them, but not throw out the rest of the juvenile
population with them, because we're going to pay, pay, pay if we do
that."
Number 1488
REPRESENTATIVE JAMES said that many times, people older than 18 in
a group get the underage ones to do something because they know
they will not be in any trouble. She asked: How do you deal with
that?
Number 1509
MS. KNUTH replied, "This is, I think, the most important
conversation that's occurred from the youth and justice conference,
and I really appreciate the opportunity to have it. I think the
answer to what you're saying is part of the conference's
recommendations, which is that we let communities start responding
to some of the low-level offenders, because the state has done has
done a pretty bad job of responding consistently in seeing that
there are any consequences. And what we want to stop is what
you're talking about, where these kids say, `There are no
consequences; so, I can keep screwing up and I don't need to toe
the line.'"
MS. KNUTH continued, "If we allow communities to use more youth
board initiatives, more diversion panel projects, and if they will
implement them, as they say they want to do, in a consistent,
meaningful way, then I think we can start breaking the cycle of
kids feeling like there are no consequences."
MS. KNUTH continued, "What's a problem is when we have no
consequences, no consequences, no consequences and then boom, you
know, it's the whole thing's over. That's where we lose that kid,
and we haven't done anything, really, for all the ones that are
coming along, because they aren't able to see that. And I just
think it's important that we start approaching this in a ...."
Number 1568
REPRESENTATIVE JAMES said the only way it can be addressed in that
way is with the discretion of the people doing the arresting,
charging and so forth. "But history has proven that it's not been
effective," she said. "And that's where the general public comes
back and wants to have some more severe treatment. So, somehow or
other, we have to address that with the public."
Number 1590
REPRESENTATIVE PORTER stated, "I think that part of the discussion
centers on the point that once they get into adult court, I think
it was `boom, it's over.' Well, if that were the case, we wouldn't
have these problems in the first place. `Boom, it's over' on a C
and B felony doesn't happen in adult court. `Boom' is a strong SIS
is what happens with a B and C felony. Well, I don't think that
the concern that this kid is going to get thrown away and locked up
for the rest of his life is a reasonable concern in the first
place."
REPRESENTATIVE PORTER continued, "I agree with Representative
Berkowitz that the examples cited, three of them are incorrect, the
fourth one, maybe, and the fifth one, I'd want to put this kid in
there anyway. So, we're not talking about that big a group of
kids. We're not talking about an absolute `they're going to get
thrown away in jail for the rest of their lives' anyway, because at
this level of offense, they're probably going to get, if we're
lucky, an SSIS, which is a serious suspended imposition of
sentence. They are going to get the benefit of an adult court.
They are going to get the benefit of the exposure that we've been
trying to do through other kinds of bills. The parents are going
to get that same exposure. I think it's a positive thing, and I'm
ready to move this bill."
REPRESENTATIVE PORTER made a motion to move SB 63 from committee
with individual recommendations and the fiscal notes as attached
from the Senate Finance Committee. There being no objection, SB 63
moved from the House Judiciary Standing Committee.
ADJOURNMENT
Number 1684
The House Judiciary Standing Committee was adjourned at 3:05 p.m.
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