Legislature(1997 - 1998)

05/06/1998 03:28 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
         HOUSE JUDICIARY STANDING COMMITTEE                                    
                    May 6, 1998                                                
                     3:28 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                                                             
                                                                               
CS FOR SENATE BILL NO. 216(JUD)                                                
"An Act providing for the civil commitment of sexually violent                 
predators."                                                                    
                                                                               
     - MOVED HCS CSSB 216(JUD) OUT OF COMMITTEE                                
                                                                               
CS FOR SENATE BILL NO. 219(FIN) am                                             
"An Act relating to establishing an office of victims' rights;                 
relating to compensation of victims of violent crimes; relating to             
eligibility for a permanent fund dividend for persons convicted of             
and incarcerated for certain offenses; and amending Rule 16, Alaska            
Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and             
Rule 501, Alaska Rules of Evidence."                                           
                                                                               
     - FAILED TO MOVE CSSB 219(FIN) AM OUT OF COMMITTEE                        
                                                                               
CS FOR SENATE BILL NO. 305(L&C)                                                
"An Act establishing a standard for determining when an injured                
worker is eligible for reemployment benefits and establishing a                
procedure for adopting a new, revised, or replacement standard for             
determining when an injured worker is eligible for reemployment                
benefits."                                                                     
                                                                               
     - SCHEDULED BUT NOT HEARD                                                 
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL: SB 216                                                                   
SHORT TITLE: CIVIL COMMITMENT OF SEXUAL PREDATORS                              
SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Wilken,                 
Leman, Duncan, Lincoln, Ward, Mackie                                           
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 1/12/98      2166     (S)  PREFILE RELEASED - 1/9/98                          
 1/12/98      2166     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 1/12/98      2167     (S)  JUD, FIN                                           
 4/03/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 4/03/98               (S)  MINUTE(JUD)                                        
 4/20/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 4/22/98      3432     (S)  JUD RPT  CS  2DP 2NR      SAME TITLE               
 4/22/98      3432     (S)  DP: TAYLOR, MILLER; NR: ELLIS, PEARCE              
 4/22/98      3432     (S)  FNS TO SB & CS (ADM-2, COR, LAW,                   
 4/22/98      3432     (S)  DHSS, COURT)                                       
 4/23/98      3455     (S)  CORRECTED FNS  (#2/ADM; #4/LAW)                    
 4/27/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/27/98      3514     (S)  FIN RPT  2DP 3NR (JUD)CS                           
 4/27/98      3514     (S)  DP: PARNELL, PHILLIPS; NR: PEARCE,                 
 4/27/98      3514     (S)  SHARP, TORGERSON                                   
 4/27/98      3514     (S)  PREVIOUS FNS (ADM-2, COR, LAW,                     
 4/27/98      3514     (S)  DHSS, COURT)                                       
 4/28/98               (S)  RLS AT 11:30 AM FAHRENKAMP RM 203                  
 4/29/98      3596     (S)  RULES TO CALENDAR  4/29/98                         
 4/29/98      3599     (S)  READ THE SECOND TIME                               
 4/29/98      3599     (S)  JUD  CS ADOPTED UNAN CONSENT                       
 4/29/98      3599     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 4/29/98      3600     (S)  READ THE THIRD TIME  CSSB 216(JUD)                 
 4/29/98      3600     (S)  COSPONSOR(S): DUNCAN, LINCOLN, WARD,               
 4/29/98      3600     (S)  MACKIE                                             
 4/29/98      3600     (S)  PASSED Y20 N-                                      
 4/29/98      3608     (S)  TRANSMITTED TO (H)                                 
 4/30/98      3354     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 4/30/98      3354     (H)  JUDICIARY, FINANCE                                 
 5/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
BILL: SB 219                                                                   
SHORT TITLE: OFFICE OF VICTIMS' ADVOCACY                                       
SPONSOR(S): SENATOR(S) HALFORD, Green, Donley, Taylor, Leman,                  
Wilken, Parnell, Miller                                                        
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 1/12/98      2167     (S)  PREFILE RELEASED 1/9/98                            
 1/12/98      2167     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 1/12/98      2167     (S)  JUD, FIN                                           
 1/21/98               (S)  JUD AT  1:30 PM BELTZ ROOM 211                     
 1/21/98               (S)  MINUTE(JUD)                                        
 1/28/98               (S)  JUD AT  2:00 PM BELTZ ROOM 211                     
 1/28/98               (S)  MINUTE(JUD)                                        
 1/30/98      2357     (S)  JUD RPT  CS  2DP  1NR     NEW TITLE                
 1/30/98      2357     (S)  DP: MILLER, TAYLOR                                 
 1/30/98      2357     (S)  NR: PEARCE                                         
 1/30/98      2357     (S)  FISCAL NOTE TO SB (LAA)                            
 1/30/98      2357     (S)  INDETERMINATE FN TO SB (LAW)                       
 1/30/98      2357     (S)  ZERO FISCAL NOTE TO SB (DPS)                       
 2/04/98      2391     (S)  FN TO CS (LAA)                                     
 2/05/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 2/25/98               (S)  MINUTE(JUD)                                        
 4/22/98               (S)  FIN AT  9:00 AM SENATE FINANCE 532                 
 4/22/98               (S)  FIN AT  4:30 PM SENATE FINANCE 532                 
 4/23/98      3455     (S)  FIN RPT  CS  5DP 2NR      NEW TITLE                
 4/23/98      3455     (S)  DP: SHARP, PEARCE, PHILLIPS, PARNELL,              
 4/23/98      3455     (S)  DONLEY; NR: ADAMS, TORGERSON                       
 4/23/98      3455     (S)  FN TO CS (LAA)                                     
 4/24/98      3481     (S)  ZERO FN TO CS (REV)                                
 4/23/98      3455     (S)  PREVIOUS INDETERMINATE FN APPLIES                  
                            (LAW)                                              
 4/23/98      3455     (S)  PREVIOUS ZERO FN APPLIES (DPS)                     
 4/27/98               (S)  RLS AT 12:10 PM FAHRENKAMP RM 203                  
 5/01/98      3651     (S)  FN TO CS (COR)                                     
 5/01/98      3651     (S)  RULES TO CALENDAR  5/1/98                          
 5/01/98      3681     (S)  READ THE SECOND TIME                               
 5/01/98      3681     (S)  FIN  CS ADOPTED UNAN CONSENT                       
 5/01/98      3682     (S)  AM NO  1     ADOPTED UNAN CONSENT                  
 5/01/98      3683     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 5/01/98      3683     (S)  READ THE THIRD TIME  CSSB 219(FIN) AM              
 5/01/98      3683     (S)  COSPONSOR(S): WILKEN, PARNELL, MILLER              
 5/01/98      3684     (S)  PASSED Y19 N1                                      
 5/01/98      3684     (S)  COURT RULE(S) SAME AS PASSAGE                      
 5/01/98      3698     (S)  TRANSMITTED TO (H)                                 
 5/02/98      3457     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 5/02/98      3457     (H)  JUDICIARY, FINANCE                                 
 5/06/98               (H)  JUD AT  1:00 PM CAPITOL 120                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
BILL STOLTZE, Legislative Administrative Assistant                             
   to Senator Rick Halford                                                     
Alaska State Legislature                                                       
Capitol Building, Room 121                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4958                                                     
POSITION STATEMENT:  Presented sponsor statement on SB 216.                    
                                                                               
ANNE CARPENETI, Assistant Attorney General                                     
Legal Services Section - Juneau                                                
Civil Division                                                                 
Department of Law                                                              
P.O. Box 110300                                                                
Juneau, Alaska 99811-0300                                                      
Telephone:  (907) 465-3428                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
KARL BRIMNER, Northern Regional Mental Health Services Coordinator             
Northern Regional Office                                                       
Division of Mental Health and Developmental Disabilities                       
Department of Health and Social Services                                       
751 Old Richardson Highway, Suite 350                                          
Fairbanks, Alaska 99701                                                        
Telephone:  (907) 452-1673                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
ELMER LINDSTROM, Special Assistant                                             
Office of the Commissioner                                                     
Department of Health and Social Services                                       
P.O. Box 110601                                                                
Juneau, Alaska 99811-0601                                                      
Telephone:  (907) 465-3030                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
BRUCE RICHARDS, Program Coordinator                                            
Office of the Commissioner                                                     
Department of Corrections                                                      
240 Main Street, Suite 700                                                     
Juneau, Alaska 99801                                                           
Telephone:  (907) 465-3307                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
JAYNE ANDREEN, Executive Director                                              
Council on Domestic Violence and Sexual Assault                                
Department of Public Safety                                                    
P.O. Box 111200                                                                
Juneau, Alaska 99811-1200                                                      
Telephone:  (907) 465-4356                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
WALTER MAJOROS, Executive Director                                             
Alaska Mental Health Board                                                     
431 North Franklin Street                                                      
Juneau, Alaska 99801                                                           
Telephone:  (907) 465-3072                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
BLAIR McCUNE, Deputy Director                                                  
Central Office                                                                 
Public Defender Agency                                                         
Department of Administration                                                   
900 West 5th Avenue, Suite 200                                                 
Anchorage, Alaska 99501-2090                                                   
Telephone:  (907) 264-4400                                                     
POSITION STATEMENT:  Provided testimony on SB 216.                             
                                                                               
BRETT HUBER, Legislative Assistant                                             
   to Senator Rick Halford                                                     
Alaska State Legislature                                                       
Capitol Building, Room 121                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4958                                                     
POSITION STATEMENT:  Provided sponsor statement for SB 219.                    
                                                                               
NANCI JONES, Director                                                          
Permanent Fund Dividend Division                                               
Department of Revenue                                                          
P.O. Box 110460                                                                
Juneau, Alaska 99811-0460                                                      
Telephone:  (907) 465-2323                                                     
POSITION STATEMENT:  Provided testimony on SB 219.                             
                                                                               
CHRIS CHRISTENSEN, Staff Counsel                                               
Administrative Staff                                                           
Office of the Administrative Director                                          
Alaska Court System                                                            
820 West 4th Avenue                                                            
Anchorage, Alaska 99501-2005                                                   
Telephone:  (907) 264-8228                                                     
POSITION STATEMENT:  Provided testimony on SB 219.                             
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-85, SIDE A                                                             
Number 0001                                                                    
                                                                               
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee               
meeting to order at 3:28 p.m.  Members present at the call to order            
were Representatives Green, Bunde, Rokeberg, James and Berkowitz.              
Representatives Croft and Porter arrived at 3:40 p.m. and 4:13                 
p.m., respectively.                                                            
                                                                               
CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS                           
                                                                               
CHAIRMAN GREEN announced the first item of business would be CS for            
SB No. 216(JUD), "An Act providing for the civil commitment of                 
sexually violent predators."                                                   
                                                                               
CHAIRMAN GREEN called on the spokesperson from the sponsor of the              
bill's office.                                                                 
                                                                               
Number 0080                                                                    
                                                                               
BILL STOLTZE, Legislative Administrative Assistant to Senator Rick             
Halford, Alaska State Legislature, stated SB 216 allows for the                
confinement of sexual predators, a certain class of the most                   
heinous offenders.  The confinement is allowed after they have                 
served their sentence.  The recent ruling from the Supreme Court of            
the United States (Kansas v. Hendricks) indicated that if the                  
states meets certain test, it is an allowable non-(indisc.)                    
procedure.  The concerns were ex post-facto, double jeopardy, and              
due process.  The court ruled that the Kansas statute met the                  
requirements through (indisc.).  The legal department crafted a                
statute (indisc.) the Kansas statute which has met the test in the             
highest court.  Cynthia Cooper from the Department of Law prepared             
a chart which outlines the screening phases.                                   
                                                                               
Number 0252                                                                    
                                                                               
CHAIRMAN GREEN noted that this has a significant fiscal impact,                
according to the fiscal notes.  He asked Mr. Stoltze whether he or             
the Senator has anything to say about that impact.                             
                                                                               
Number 0279                                                                    
                                                                               
MR. STOLTZE replied it is an expensive tool.  It would not be used             
in every case.  Initial conversations with the Department of Law               
indicated a more modest fiscal note.  It is an expensive tool and              
would be used as much as could be afforded.                                    
                                                                               
Number 0329                                                                    
                                                                               
CHAIRMAN GREEN stated it is not uncommon that when the                         
Administration submits a high fiscal note it is not in tune with               
that particular piece of legislation.  He asked Mr. Stoltze whether            
the committee will hear from the Administration.                               
                                                                               
Number 0357                                                                    
                                                                               
MR. STOLTZE replied the Administration is prepared to defend the               
fiscal notes.                                                                  
                                                                               
Number 0376                                                                    
                                                                               
REPRESENTATIVE CON BUNDE stated it is his understanding that                   
pedophiles will be pedophiles their entire life.  They are born                
with it.  It is beyond exercising self-control.  They are not                  
"curable."  He asked Mr. Stoltze whether that is correct.                      
                                                                               
Number 0414                                                                    
                                                                               
MR. STOLTZE replied he is not an expert on that.  Personally, he               
believes that it is not cured by hand-holding encounter groups.                
There is a very high percentage level of repeat offenses.  Senator             
Halford is trying to stress that the individuals who continue to               
perpetrate these crimes will be confined at some point.  Therefore,            
he wants to slow down the stream of victims and suffering that                 
follows.                                                                       
                                                                               
Number 0468                                                                    
                                                                               
CHAIRMAN GREEN stated that this would apply to people who have                 
served their sentence and then incarcerated additionally on a                  
supposition - the punishment before the crime.  He asked Mr.                   
Stoltze whether he recalls how that was addressed in the Supreme               
Court of the United States.                                                    
                                                                               
Number 0500                                                                    
                                                                               
MR. STOLTZE replied "incarceration" is the wrong term.  The correct            
term is "confinement."  Justice Clarence Thomas specified that it              
was not double jeopardy or ex post-facto punishment.  Justice                  
Thomas indicated, "The state may take measures to restrict the                 
freedom of the dangerously mentally ill.  This Kansas statute is a             
legitimate non-punitive governmental objective and has been                    
historically so regarded....The mere fact that a person is detained            
does not inexorably lead to the conclusion that the government has             
imposed punishment or that the state has disenvowed any punitive               
intent, limited confinement to a small segment of particularly                 
dangerous individuals, provided strict procedural safeguards,                  
directed that confined person be segregated from the general prison            
population and afforded the same status as others who have been                
civilly committed recommended treatment if such is possible, and               
permitted immediate release upon a showing that the individual is              
no longer dangerous or mentally impaired, we cannot say that it                
acted with punitive intent."                                                   
                                                                               
Number 0594                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ stated he has heard concern that the            
current civil commitment language in Title 47 might be inadequate              
to respond to this problem.                                                    
                                                                               
Number 0613                                                                    
                                                                               
MR. STOLTZE replied this is a whole other type of civil commitment             
than a commitment int Title 47.  He would rather have Anne                     
Carpeneti from the Department of Law elaborate on that later.                  
                                                                               
Number 0639                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Stoltze whether he knows if                 
there have been any instances where Title 47 has been used in                  
Alaska to hold a sexual predator or anyone who is likely to commit             
a crime against another individual.                                            
                                                                               
Number 0653                                                                    
                                                                               
MR. STOLTZE deferred to Anne Carpeneti from the Department of Law              
to answer the question.                                                        
                                                                               
Number 0664                                                                    
                                                                               
REPRESENTATIVE JEANNETTE JAMES asked Mr. Stoltze whether he would              
liken this confinement to the type of confinement that the state               
used to have with mental institutions for the criminally insane.               
                                                                               
Number 0695                                                                    
                                                                               
MR. STOLTZE replied there is a different type of statute that                  
covers the guilty but mentally ill criminals.  Some are confined to            
the Alaska Psychiatric Hospital.  It isn't actually a warehouse.               
It is a small number of people.                                                
                                                                               
Number 0728                                                                    
                                                                               
REPRESENTATIVE NORMAN ROKEBERG asked Mr. Stoltze what the sponsor's            
opinion is of the fiscal note and objection to the $12 million to              
house these people.                                                            
                                                                               
MR. STOLTZE replied Senator Halford's reaction is that it is an                
expensive tool.  Prosecutors would use it only as often as they                
could afford to use it.  Senator Halford didn't say so directly,               
but by inference they were excessive.  They reflected a broader                
application than the intent of the legislation.                                
                                                                               
Number 0774                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether the testimony has            
indicated any relationship between actual cases and instances in               
the state where this would have been beneficial to have, or is it              
based on perspective only.                                                     
                                                                               
Number 0793                                                                    
                                                                               
MR. STOLTZE replied, he believes, as written the procedure starts              
for those people who are currently incarcerated.  Through the news             
media he has seen a few good candidates for it.                                
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there has been               
any evidence that the situation should have been in hand before.               
                                                                               
Number 0838                                                                    
                                                                               
MR. STOLTZE replied not in proceedings, but talking with                       
individuals he has heard of cases anecdotally.  He cited Mr.                   
Rodriguez (ph) as an example.                                                  
                                                                               
Number 0890                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated the bill applies to sexually                   
violent predators and someone who suffers from a mental illness.               
According to AS 47.30.705, anyone who is suffering from a mental               
illness and is likely to cause serious harm to himself or others,              
can be taken into custody.  It seems to sweep up the concern that              
this bill addresses.                                                           
                                                                               
Number 0988                                                                    
                                                                               
REPRESENTATIVE ERIC CROFT stated if it can be done now and do all              
the things that the front part of the bill talks about...                      
                                                                               
Number 1010                                                                    
                                                                               
MR. STOLTZE stated Representative Croft is right on the point.  The            
statute does not meet the guidelines that Justice Thomas laid out              
in his majority opinion without the safeguards in place and the due            
process procedures outlined in the bill.                                       
                                                                               
Number 1029                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated there is a whole section in the                
statute about commitment proceeding rights, notification, court                
orders, and additional commitments.  They seem fairly extensive.               
                                                                               
Number 1049                                                                    
                                                                               
REPRESENTATIVE BUNDE stated violent serial rapists are judged                  
insane.  They are judged criminal.  It seems that psycho predators             
or the insane are one of the criteria.                                         
                                                                               
REPRESENTATIVE BERKOWITZ noted that it says "and."                             
                                                                               
REPRESENTATIVE JAMES stated in trying to associate what is in                  
statute with what the bill is trying to accomplish, she noted that             
this happens while they are under control as opposed to finding                
them on the street when considering them dangerous to themselves or            
others, such as a mental person in statute.  She believes that the             
bill tends to address the people who are called "sexually violent              
predators" who are currently incarcerated for their crime and                  
whether or not they should be let go as opposed to whether or not              
they should be brought in.                                                     
                                                                               
Number 1147                                                                    
                                                                               
CHAIRMAN GREEN stated the testimony is getting into the nuances.               
He suggested hearing from a legal expert.                                      
                                                                               
Number 1188                                                                    
                                                                               
ANNE CARPENETI, Assistant Attorney General, Legal Services Section             
- Juneau, Civil Division, Department of Law, noted that the person             
who should describe civil commitments is Karl Brimner who works for            
the Division of Mental Health and Developmental Disabilities.  He              
knows about the mental health commitments in Title 47.  The                    
findings in the bill set out clearly that it is dealing with a                 
different sort of mental illness than what Title 47 is dealing                 
with.  It uses a different definition of mental illness from the               
statute.  It uses a definition in Title 12 rather than in Title 47.            
The bill is aimed at people who suffer from mental illnesses                   
dealing with sexual deviation who are not treatable compared to                
people who suffer from mental illnesses in other contexts.  In                 
other contexts, the approach is for treatment in a short time.                 
Treatment for sexually violent predators takes a long time.                    
                                                                               
Number 1285                                                                    
                                                                               
KARL BRIMNER, Northern Regional Mental Health Services Coordinator,            
Northern Regional Office, Division of Mental Health and                        
Developmental Disabilities, Department of Health and Social                    
Services, stated Title 47's involuntary commitment law is primarily            
used for purposes of individuals who are mentally ill and                      
psychotic, and who are dangerous to themselves or others at that               
immediate time.  That is how the judges rule on it.  It is used for            
a short period of time for stabilization to get the individual back            
into the community to receive services.  The individuals being                 
discussed in the bill usually require treatment for long periods of            
time, and they don't respond to treatment well.                                
                                                                               
Number 1344                                                                    
                                                                               
CHAIRMAN GREEN stated that pedophiles appear normal.  He wondered              
whether pedophiles go through cycles so that they test alright at              
one particular time then when back out do something bad.  He asked             
whether the state would incur any liability by having something                
like this in statute and letting somebody out who comites a                    
reoffense.                                                                     
                                                                               
Number 1390                                                                    
                                                                               
MS. CARPENETI replied there is an immunity section in the bill.  If            
a decision to release somebody is made in good faith, the state,               
agencies of the state, employees of agencies of the state, and                 
officials cannot be sued.                                                      
                                                                               
Number 1404                                                                    
                                                                               
CHAIRMAN GREEN stated the decision could be in good faith, but                 
according to the testimony they are almost incurable.  The chance              
of them going back into society is almost nil, but according to the            
tests they should be let go.                                                   
                                                                               
MS. CARPENETI replied Mr. Brimner can answer the testing provision.            
When looking at and evaluating people who qualify as sexually                  
violent predators, a test includes their past and history of abuse             
also.  The state would be able to introduce evidence of their past             
in a trial as well.                                                            
                                                                               
Number 1455                                                                    
                                                                               
CHAIRMAN GREEN asked Ms. Carpeneti whether that would mean there is            
no light at the end of a tunnel for a sexually violent predator                
because his past is pretty jaded.                                              
                                                                               
MS. CARPENETI replied, "I don't think so."  The state has to offer             
treatment in good faith under the bill to withstand constitutional             
muster.  There are methods of treating sexually violent predators.             
It takes a long time and focuses on not necessarily changing their             
predilections, but curbing their actions.                                      
                                                                               
Number 1491                                                                    
                                                                               
REPRESENTATIVE BUNDE stated the commitment under Title 47 often                
involves medication as well as psychological treatment.  He asked              
Mr. Brimner whether there is medical treatment for sexual                      
predators, other than castration.                                              
                                                                               
MR. BRIMNER replied there is some medication used.  It is not a                
full-proof method, however.  He has seen success with individuals              
who are not as dangerous as the individuals that the bill talks                
about.  Sometimes medication can be helpful when there is a good               
prognosis, when there isn't resistance, and when there is a                    
willingness to change.                                                         
                                                                               
Number 1552                                                                    
                                                                               
CHAIRMAN GREEN wondered whether the bill would cover female                    
offenders as well.                                                             
                                                                               
MS. CARPENETI replied, "Yes."                                                  
                                                                               
CHAIRMAN GREEN asked whether the tests and procedures would be the             
same for female offenders.                                                     
                                                                               
MR. BRIMNER replied the assessment tools would be for either sex.              
The psychological dynamic is usually a personality disorder which              
can be either male or female.                                                  
                                                                               
Number 1602                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked whether there have been any findings             
or rulings by the federal courts that castration or other types of             
methods like that are cruel and unusual punishment.                            
                                                                               
MS. CARPENETI replied she doesn't know whether that procedure is               
allowed in the country.  She would be happy to find out.                       
                                                                               
REPRESENTATIVE ROKEBERG wondered whether chemical or other methods             
available would be cheaper than going the route of hard-bed                    
facilities to accommodate the populations.                                     
                                                                               
Number 1668                                                                    
                                                                               
MR. BRIMNER stated chemical castration to eliminate the sexual urge            
does not necessarily take care of the problem.  It is often an                 
issue of power, not sex.  It is the desire of an individual to have            
power over someone else and to hurt that person which is often                 
sexually, as well as physically.  There are isolated cases where it            
can be helpful though.                                                         
                                                                               
Number 1712                                                                    
                                                                               
REPRESENTATIVE BUNDE noted that there has been cases where inmates             
have requested chemical castration in an attempt to control                    
themselves.  They are usually pedophiles.  It is often said that               
rape is not a sexual crime, but a crime of violence.  Chemical                 
castration may not be the answer.                                              
                                                                               
CHAIRMAN GREEN asked, if there is another part of the testosterone,            
would that mean there is a different manifestation of the anger.               
                                                                               
MR. BRIMNER replied, "Certainly."  An individual may lash out in a             
much more violent manner.                                                      
                                                                               
CHAIRMAN GREEN stated these are the things that somebody would have            
to look at before a predator could pass muster, if the bill is                 
enacted.                                                                       
                                                                               
MS. CARPENETI noted after there is a finding that a person is a                
sexually violent predator, the court must decide if that person can            
be safely placed in a noncustodial setting.  She is sure that                  
chemical castration would be one of the things looked at to keep               
that person safe from other people.  The finding would have to be              
made before that person could be sent to an institution.                       
                                                                               
Number 1800                                                                    
                                                                               
MS. CARPENETI stated there are two other issues that the department            
would like to consider as conceptual amendments today.  The bill               
was modeled after the Kansas statute that was just upheld by the               
Supreme Court of the United States.  It is based on the                        
Constitution of the United States.  However, she does not know                 
whether the state courts would uphold it based on the state                    
constitution.  At any rate, the bill has some provisions dealing               
with the representation of the person who the state is seeking to              
commit and how that person obtains experts to examine them and to              
testify on their own behalf.  The department thinks it would be a              
lot cleaner to make it clear that the person would be represented              
by counsel, which is constitutionally required, or represented by              
a public defender who can then make the determination if an expert             
should be retained.  She referred to page 4, line 11; page 6, line             
14; and page 7, lines 20-21.                                                   
                                                                               
CHAIRMAN GREEN asked Ms. Carpeneti whether it would abrogate the               
court's authority.                                                             
                                                                               
MS. CARPENETI replied in other civil commitment and criminal cases             
the person's lawyer makes the decision to obtain an expert witness,            
not the judge.  It would put the judge in an awkward position to               
decide what expert to appoint to assist a person.                              
                                                                               
CHAIRMAN GREEN asked Ms. Carpeneti whether there would be a problem            
with a conflict of interest for an attorney to bring in witnesses              
on his clients behalf rather than on an impartial basis.                       
                                                                               
MS. CARPENETI replied civil commitment proceedings are adversarial             
proceedings in general.                                                        
                                                                               
Number 2057                                                                    
                                                                               
REPRESENTATIVE BUNDE made a motion to adopt Amendment 1 and                    
conceptually the same amendment to page 6, line 14; and page 7,                
line 20.  Amendment 1 reads as follows:                                        
                                                                               
     TO:  CSSB 216(JUD)                                                        
                                                                               
          Page 4, line 11:                                                     
                                                                               
               Delete "to assist"                                              
                                                                               
               Insert "under AS 18.85 to represent"                            
                                                                               
          Page 4, lines 15 - 20:                                               
                                                                               
               Delete "If the person is indigent, the court,                   
               upon the person's request, shall determine if                   
               the services are necessary and the                              
               compensation for those services is reasonable.                  
               If the court determines that the services are                   
               necessary and the compensation for the                          
               services is reasonable, the court and the                       
               person's counsel shall assist the person in                     
               obtaining an expert or professional to perform                  
               an examination or participate in the trial on                   
               the person's behalf."                                           
                                                                               
CHAIRMAN GREEN objected for discussion purposes.                               
                                                                               
REPRESENTATIVE BUNDE asked Ms. Carpeneti to explain AS 18.85.                  
                                                                               
MS. CARPENETI replied it addresses the powers and authorities of               
the public defenders.                                                          
                                                                               
Number 2102                                                                    
                                                                               
CHAIRMAN GREEN asked Ms. Carpeneti whether the court would still               
exercises the authority.                                                       
                                                                               
MS. CARPENETI replied the court would appoint an attorney for                  
representation.                                                                
                                                                               
CHAIRMAN GREEN asked Ms. Carpeneti whether the court would help                
find an expert.                                                                
                                                                               
MS. CARPENETI replied the court would probably not be in a position            
to help in a particular case.  It would probably be the attorney               
who determines the best expert.                                                
                                                                               
CHAIRMAN GREEN noted that the amendment says, "the court and the               
person's counsel shall assist the person in obtaining an expert or             
professional..."                                                               
                                                                               
MS. CARPENETI noted that language is to be deleted.                            
                                                                               
CHAIRMAN GREEN removed his objection.                                          
                                                                               
CHAIRMAN GREEN asked whether there is any further objection to the             
motion to adopt Amendment 1.  There being no objection, the motion             
was so adopted.                                                                
                                                                               
Number 2170                                                                    
                                                                               
MS. CARPENETI referred to page 5, subsection (c) and explained the             
Kansas and Washington statutes that were approved by the Supreme               
Court provide for two separate hearings - one to determine whether             
the act was committed, and one to determine whether the person                 
should be committed.  Kansas has already moved to amend its                    
procedure to allow the factual finding to be determined in                     
conjunction with the commitment hearing to eliminate two separate              
proceedings.  An amendment to address this issue has not been                  
drafted.  It would be a conceptual amendment.                                  
                                                                               
REPRESENTATIVE JAMES noted that is a true conceptual amendment.                
                                                                               
CHAIRMAN GREEN announced he has some problems with that.                       
                                                                               
MS. CARPENETI explained the person cannot be tried for the acts                
because he is not in a mental state to be subject to a criminal                
trial.  On the other hand, he may be in a position to be released              
in order to proceed under a civil commitment.                                  
                                                                               
CHAIRMAN GREEN stated he is concerned about the tremendous fiscal              
impact.                                                                        
                                                                               
Number 2261                                                                    
                                                                               
REPRESENTATIVE BUNDE suggested waiting for an actual amendment                 
since the votes are not here to pass the bill out of the committee             
anyway.                                                                        
                                                                               
CHAIRMAN GREEN asked Ms. Carpeneti whether she could provide the               
amendment in writing.                                                          
                                                                               
MS. CARPENETI replied, "Yes."  In terms of the fiscal note, the                
amendment would probably streamline the procedure.  She noted that             
this situation comes up rarely.  It is not found very often that a             
person is found to be incompetent to be tried for a criminal                   
charge.  In the circumstances where that person is found to be                 
incompetent, it would streamline the procedure to avoid two                    
separate hearings.                                                             
                                                                               
CHAIRMAN GREEN noted, in theory, it should reduce the fiscal note.             
                                                                               
MS. CARPENETI replied she doesn't want to give any false hopes                 
because it doesn't happen very often.                                          
                                                                               
Number 2313                                                                    
                                                                               
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,                
Department of Health and Social Services, referred to the flowchart            
illustrating the three phases - screening, court proceedings, and              
appeal and annual review.  This is truly a different population of             
persons who are not being served or treated by the department as               
mental health clients.  These persons would not be criminals.  They            
would be civilly committed.  This is creating a brand new system to            
deal with a brand new type of thing.  The department feels strongly            
that, if this is the road the state wants to walk down, it would be            
very expenses.  The fiscal notes are not inflated or exaggerated.              
They represent the cost of creating a brand new system to deal with            
a new population.                                                              
                                                                               
Number 2418                                                                    
                                                                               
REPRESENTATIVE JAMES asked whether there is any provision in law               
that would allow for the confinement of this type of person.                   
                                                                               
MS. CARPENETI replied, "I don't believe so."  This type of person              
would not qualify under the civil commitment statute as imminently             
dangerous to himself or others.                                                
                                                                               
REPRESENTATIVE JAMES asked Ms. Carpeneti whether the difference is             
tomorrow, three weeks, two months, or a year.                                  
                                                                               
MS. CARPENETI replied, "I believe so."  In reference to the fiscal             
note, the number was chosen based on conversations with the state              
of Washington, which has a similar statutory procedure...                      
                                                                               
TAPE 98-85, SIDE B                                                             
Number 0000                                                                    
                                                                               
MS. CARPENETI continued.  The state of Washington has not lost a               
single one that has been filed.  The statute was adopted it 1990.              
It is not being used frivolously.  It turns out to be about 2                  
percent of the sexual offenders released from the prisons.                     
                                                                               
Number 0024                                                                    
                                                                               
REPRESENTATIVE JAMES asked Ms. Carpeneti what would be 2 percent in            
numbers for Alaska.                                                            
                                                                               
MS. CARPENETI replied 160 sex offenders are expected to be released            
this calendar year.  Two percent is about three and a half to four.            
                                                                               
Number 0043                                                                    
                                                                               
MR. LINDSTROM stated it has been suggested that this is just a tool            
in a toolbox, and that there is discretion associated with it.                 
This is true to a point, but if the Department of Corrections                  
refers someone to the Department of Health and Social Services                 
believing that the provisions in the bill are appropriate and the              
Department of Law believes that there is evidence to go to court               
and make it stick, what basis would the state have not to proceed.             
"I don't think the public or you or anyone else would accept the               
fact that we only had money to do this for three people and the                
fourth person coming down the pipe who meets all of these criteria             
and we all believe is a threat that we are simply going to say                 
we're out of money this year and I'm afraid we're not gonna go                 
forward.  I don't think you would stand for that.  I don't think               
the public would stand for it, and I don't think the professionals             
in this system could stand for it."                                            
                                                                               
Number 0103                                                                    
                                                                               
CHAIRMAN GREEN asked Mr. Lindstrom whether there is a plateau                  
associated with the fiscal notes.                                              
                                                                               
MR. LINDSTROM replied the Department of Health and Social Services'            
fiscal note is based on the assumption of five persons actually                
going to trial and the state prevailing in four of the five cases.             
This is very long treatment and the department expects the                     
population to grow by another four each year.  The evidence so far             
in other states is that people do not graduate from the program                
readily.                                                                       
                                                                               
CHAIRMAN GREEN asked Mr. Lindstrom what he sees as the alternative             
to something like this at the risk of putting these people out into            
society.                                                                       
                                                                               
MR. LINDSTROM replied, in the absence of this type of system, the              
odds are that these types of people would probably be put back into            
corrections.                                                                   
                                                                               
Number 0181                                                                    
                                                                               
MR. STOLTZE stated, according to the sponsor, the alternative is to            
wait for a new stream of victims and trials with criminal                      
proceedings.  "We don't find that a real palatable alternative," he            
declared.                                                                      
                                                                               
Number 0189                                                                    
                                                                               
REPRESENTATIVE JAMES stated when more cases come up they are not               
tried because there isn't any money.  A supplemental is requested,             
for example.  She believes that someplace down the line there would            
be this money spent and other money not spent.  It might not be                
this year or next year, but over a long period of time it appears              
that this approach would have a cost savings.                                  
                                                                               
Number 0234                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated, if these people are without a                 
reasonable doubt going to recommit a crime later own, it becomes a             
question of pay now or pay later.                                              
                                                                               
Number 0248                                                                    
                                                                               
MR. LINDSTROM stated he does not know how to make that type of                 
comparison.  The department is assuming that these individuals                 
would be sent out of state for treatment.  The one place that would            
be willing to accept these folks costs $400 a day - about one-half             
the cost of acute care treatment in a psychiatric hospital setting.            
Obviously, if the bill passes, there would have to be discussions              
in the future on whether to continue to contract or provide instate            
facilities.                                                                    
                                                                               
Number 0300                                                                    
                                                                               
REPRESENTATIVE CROFT asked what is the recidivism rate for sex                 
offenders.                                                                     
                                                                               
Number 0310                                                                    
                                                                               
BRUCE RICHARDS, Program Coordinator, Office of the Commissioner,               
Department of Corrections, stated he believes the last recidivism              
study was based on how long people were in treatment.  He doesn't              
have the information in front of him, however.  He could get some              
information on the sex offender treatment program, which shows                 
those who do not participate in treatment versus those who                     
participate in treatment in prison.  There is a significant                    
difference in time between the next reoffense.                                 
                                                                               
Number 0349                                                                    
                                                                               
REPRESENTATIVE CROFT asked Mr. Richards the magnitude of the                   
difference.  Is it between 1 and 5 percent, or 33 and 50 percent?              
                                                                               
MR. RICHARDS replied he wouldn't even venture to guess.                        
                                                                               
CHAIRMAN GREEN asked Mr. Richards whether he could provide that                
information.                                                                   
                                                                               
MR. RICHARD replied in the affirmative.                                        
                                                                               
REPRESENTATIVE CROFT asked whether there was a deduction based on              
recidivism estimates incorporated into the fiscal notes.                       
                                                                               
MS. CARPENETI stated she would find that out for the Department of             
Law.                                                                           
                                                                               
Number 0395                                                                    
                                                                               
MR. STOLTZE stated, as an editorial, that this is part of the                  
Administration that is chided as a group for not passing                       
intervention programs.                                                         
                                                                               
Number 0404                                                                    
                                                                               
REPRESENTATIVE BRIAN PORTER suggested to the departments to                    
consider the recidivism rates.  The small percentage of folks that             
would return has to be based on the expectation of committing                  
another crime.  There has got to be an offset, otherwise this whole            
theory doesn't work.                                                           
                                                                               
Number 0431                                                                    
                                                                               
MS. CARPENETI noted that the treatment under this scheme would be              
a lot less expensive than psychiatric care, but it still is a lot              
more expensive than time in jail.                                              
                                                                               
Number 0444                                                                    
                                                                               
REPRESENTATIVE PORTER stated, "I'm assuming that we would have the             
good track record that we have and convict 99 percent of these guys            
again, and they would be back anyway.  So all of that should be                
part of the fiscal analysis."                                                  
                                                                               
Number 0453                                                                    
                                                                               
REPRESENTATIVE CROFT stated there would be the cost of a trial, but            
there would be a lower cost of incarceration because they would be             
placed in a facility as ordinary criminals at $100 a day.  It wound            
not come to anything near to a wash, but it is appropriate to have             
some sort of an offset.                                                        
                                                                               
CHAIRMAN GREEN noted that it is a policy call.                                 
                                                                               
Number 0485                                                                    
                                                                               
REPRESENTATIVE ROKEBERG stated there is a University of Alaska                 
Anchorage (UAA) study and wondered whether there is another study              
on the efficacy of the sex offender in terms of the education                  
program.  Are they two separate studies? he asked.                             
                                                                               
MR. RICHARDS replied that was the study done by the university.                
                                                                               
REPRESENTATIVE ROKEBERG stated they are one in the same.                       
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Richards whether the study tried             
to categorize prisoners as violent.                                            
                                                                               
MR. RICHARDS replied, "Yes."                                                   
                                                                               
Number 0536                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Ms. Carpeneti what would be the size            
of the jury, 6 or 12.                                                          
                                                                               
MS. CARPENETI replied she is assuming that the size of the jury                
would be 12.                                                                   
                                                                               
Number 0549                                                                    
                                                                               
REPRESENTATIVE ROKEBERG said, if there is a correlation between the            
success rate of people who offend violently and the program, it                
would be interesting to see.  It would be interesting to see if                
they would be categorized as a violent sexual offender under the               
criteria used in the study and whether or not they would offend                
less by going through the program.                                             
                                                                               
Number 0587                                                                    
                                                                               
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and            
Sexual Assault, Department of Public Safety, pointed out that                  
sexual offenders are all violent offenders.  Sexual assault by its             
very nature is a violent offense.  Sex is merely the tool used to              
perpetuate the violence.  Sex offenders cannot be rehabilitated.               
At the very best, they can learn to control their offenses.  The               
council wants to acknowledge that since a very small percentage of             
sex offenders have a high predatory level that extensive                       
incarceration or commitment is in the best interest of the public's            
safety, while acknowledging that there is a very high potential for            
all sex offenders to reoffend.  The council supports the bill.                 
Ideally, the council would like to see all sex offenders have long             
enough terms so that they cannot be a threat to the public at any              
point in the future.  However, the council realizes that is not                
going to happen.  This bill is one avenue to help raise the safety             
level for the general public.  In addition, it is important to                 
segregate these offenders from the general mental health                       
populations because they would move from a criminal to a civil                 
process.  Mental health patients are even more vulnerable to sexual            
assault than the general public.  There needs to be clear                      
separation between the two.                                                    
                                                                               
Number 0671                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Ms. Andreen whether there was any               
attempt to make a sexual assault predator an aggravator with a                 
mandatory addition of probation or parole time, if not jail time.              
                                                                               
MS. ANDREEN replied the council was not actively involved in the               
negotiations.                                                                  
                                                                               
REPRESENTATIVE BERKOWITZ stated the reason that he asked is because            
consolidating everything at the initial fact-finding stage speeds              
everything up and spares the expense of subsequent proceedings.                
                                                                               
Number 0745                                                                    
                                                                               
MR. STOLTZE stated the Department of Law has testified that the                
people were sentenced for shorter periods of time until the                    
philosophical change of the legislature towards more stringent                 
laws.  He understands Representative Berkowitz's point, but there              
isn't an avenue to address it under the title.                                 
                                                                               
Number 0776                                                                    
                                                                               
CHAIRMAN GREEN noted that a pedophile, a threat to society, would              
go from a $100 bed to a $400 bed at the end of his incarceration.              
He wondered whether that is strange.                                           
                                                                               
MR. STOLTZE replied the alternative is letting him out.                        
                                                                               
CHAIRMAN GREEN asked why is the next phase a $400 or $800 a day                
bed.  Why not keep him in a cheaper facility?                                  
                                                                               
MR. STOLTZE replied the procedure kicks in towards the end of his              
sentence.  It is about the time that he is ready to be spewed out              
into society.  According to the Supreme Court decision, there has              
to be some treatment and hope for rehabilitation.                              
                                                                               
CHAIRMAN GREEN stated on the one hand he is incorrigible.  On the              
other hand there has to be some reasonable assurance for hope of               
rehabilitation.                                                                
                                                                               
MR. STOLTZE stated the desire of the sponsor is limited by what                
would be allowed by the court.  This is the only mechanism to...               
                                                                               
CHAIRMAN GREEN interjected to keep him off the street.                         
                                                                               
Number 0875                                                                    
                                                                               
REPRESENTATIVE JAMES stated she doesn't know how long the original             
term is, but it seems backwards.  Why is a person in the                       
correctional system without getting any treatment?  Why don't we go            
right into it? she asked.  It does not seem sensible to keep a                 
person then put him into treatment when he is about to get out.                
                                                                               
Number 0915                                                                    
                                                                               
MR. STOLTZE noted that Hendricks refused treatment for his                     
confinement.                                                                   
                                                                               
CHAIRMAN GREEN asked Mr. Stoltze, if the bill passes, would those              
who refuse treatment stay in the slammer.                                      
                                                                               
MR. STOLTZE replied it is an involuntary commitment.  He                       
understands the queasiness, but it is the only path to walk on.                
                                                                               
REPRESENTATIVE BERKOWITZ stated it is not the only path.  The bill             
loads the program at the back end instead of the front end.  The               
proceedings could be initiated at the point of incarceration.  Why             
not put a person through these proceeding at the get-go and see if             
he is a sexually violent predator?  If he washes out, he is gone               
forever.  If he passes out, then the state doesn't have to keep him            
in for perpetuity.  There is no reason to wait for a person to                 
serve his period of incarceration then make a determination of                 
civil commitment.                                                              
                                                                               
REPRESENTATIVE JAMES noted that is her point also.                             
                                                                               
Number 1041                                                                    
                                                                               
MS. CARPENETI stated the problem is we don't know how a person                 
would do at that point in jail by participating in a sex offender              
treatment program.                                                             
                                                                               
REPRESENTATIVE BERKOWITZ stated if these are sexually violent                  
predators, according to the definition, they are going to be                   
diagnosable when convicted.  Certainly, if after going through                 
their period of incarceration as sexually violent predators, they              
must have started out as sexually violent predators.  Why not start            
them out at the beginning of the sentence, instead of the end of               
the sentence? he asked.                                                        
                                                                               
MS. CARPENETI replied, "You might not come to that conclusion that             
they are mentally ill under this definition and suffer from--that              
they are mentally ill and sexually violent predators, until they               
have served their sentence in jail and gone through the treatment              
programs available in the jail."  If there is a proceeding at the              
same time of conviction, there may be a lot of time and resources              
wasted.                                                                        
                                                                               
Number 1074                                                                    
                                                                               
MS. ANDREEN stated the best would be to have both options                      
available.  There are times when corrections would not know until              
it has had someone for a while.  The standard presumptive sentence             
for first degree sexual abuse is eight years, which means six and              
one-third years with good behavior.  Sometimes it takes that amount            
of time to really understand.  Sex offenders are incredibly                    
manipulative.  She cited a story of a sex offender in Homer.                   
                                                                               
Number 1183                                                                    
                                                                               
CHAIRMAN GREEN stated on one hand these types of criminals are                 
incurrable, and asked why does the state need to wait six and one-             
half years before determining that they are this type of criminal.             
They were arrested for being that type of criminal.  Are there                 
those who do this type of crime just once or do they do it for                 
life? he asked.                                                                
                                                                               
MS. ANDREEN replied according to studies the average number of                 
victims is around 40 before being convicted.  It is a pattern.  It             
is something that would be repeated.                                           
                                                                               
CHAIRMAN GREEN stated he is really confused why the state needs six            
and one-half years to determine that this type of person would                 
spend the rest of his life incarcerated.                                       
                                                                               
MS. CARPENETI noted that the person is serving a criminal sentence.            
                                                                               
CHAIRMAN GREEN stated if the state knows someone is an "A" type and            
convicts him to an "A" facility, and asked why the state doesn't               
help him up front instead of waiting six and one-half years.                   
                                                                               
MS. CARPENETI asked what would be the advantage of doing it at the             
beginning of a sentence.                                                       
                                                                               
CHAIRMAN GREEN stated, if the state has him for six and one-half               
years in the slammer and knows he would not be corrected, why not              
keep him in the slammer instead of sending him to an "A" type                  
facility that costs four to eight times as much.  Representative               
James and Berkowitz suggested treating the person earlier while in             
jail, instead of waiting for his sentence to end.                              
                                                                               
MS. CARPENETI replied a lot of people respond to giving this type              
of person a longer criminal sentence because it would be less                  
expensive and more practical.  The state is now getting longer                 
sentences for people who commit these types of crimes, especially              
for their second and third times, compared to a decade ago.  It is             
a prospective procedure, however.                                              
                                                                               
MS. CARPENETI further replied that there are treatment programs                
available in the prisons for sex offenders.  She suggested hearing             
from Bruce Richards.  He is able to give statistics on how well the            
state is doing and what is available.                                          
                                                                               
Number 1420                                                                    
                                                                               
CHAIRMAN GREEN said, "We have heard that this person when it does              
finally come time to either he is on the street or in treatment,               
that he no longer is under the corrections department.  He now is              
in a different department."                                                    
                                                                               
MS. CARPENETI noted that he would be in the custody of the                     
Department of Health and Social Services.                                      
                                                                               
CHAIRMAN GREEN stated, "And, that's the only way we can pass the               
Kansas type extension is so go to that method rather than to say               
okay he's a danger then we'll leave him in the slammer."                       
                                                                               
MS. CARPENETI replied that is correct.                                         
                                                                               
MR. STOLTZE noted that it would be using a selective tool very                 
unselectively.  If it is applied universally, it is trying to                  
determine a very broad class.                                                  
                                                                               
Number 1470                                                                    
                                                                               
REPRESENTATIVE BUNDE noted that there are treatment programs within            
the correctional facilities.  They are voluntary while some folks              
are treatable and some are not.  "We ought not to lose site of what            
the purpose is at the end for the civil commitment."  It isn't to              
treat them; they are beyond treatment.  It is to keep them off of              
the street.  What is the price of keeping children safe? he asked.             
The treatment is just eyewash.  It is just to keep them locked up.             
                                                                               
CHAIRMAN GREEN stated it seems that there ought to be a reasonable             
degree of assurance.                                                           
                                                                               
MS. CARPENETI stated it is true that these people are very                     
difficult to treat, but it is not true that they are hopeless.                 
                                                                               
Number 1579                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ referred to page 3, line 10, and called it            
the most important part of the section.  It may determine whether              
a person is a sexually violent predator prior to conviction or                 
during the period of incarceration.  Waiting to the end of a                   
person's conviction is postponing a decision that should have been             
made earlier.  He said, let's attack the problem when it is                    
discovered.  Let's not wait until it has festered.                             
                                                                               
MS. CARPENETI asked Representative Berkowitz whether he is                     
envisioning a separate hearing after a conviction on whether or not            
the person is a sexually violent predator.                                     
                                                                               
REPRESENTATIVE BERKOWITZ stated this is a civil commitment.  Why               
does the fact of incarceration matter? he asked.                               
                                                                               
MS. CARPENETI replied it matters to the extent that the person has             
committed a crime and is serving a sentence for another reason                 
apart from his treatment.                                                      
                                                                               
REPRESENTATIVE BERKOWITZ replied a civil commitment is a                       
prospective, not a punitive measure.  "We're not saying we're                  
civilly committing you because you have done something bad.  We're             
saying we're civilly committing you because we think you're going              
to do something bad."  Once the state determines that it is going              
to commit someone, the current factor of his conviction for a crime            
is irrelevant.  "If you see someone walking down the street who you            
believe is a sexually violent predator and they're not convicted,              
what are we doing about them?  Nothing.  So, who are we really                 
protecting?"                                                                   
                                                                               
MS. CARPENETI replied she would like to deal with a sexually                   
violent predator walking down the street too.  She is dealing more             
with realities.  There is a person and the state knows his history,            
how he has done in jail, and how he has responded to treatment.                
Then, there is the concern about letting him out.  She would want              
to know more information whether the individual walking down the               
street unincarcerated and uncharged is a sexually violent predator.            
                                                                               
REPRESENTATIVE BERKOWITZ replied, "But, here when say they've gone             
through a treatment program while they're in, and the treatment                
program, say it's a first offense, is usually five and two-thirds.             
And, so you know, at three years to say we're not doing it or we've            
walked out of the program twice or whatever has happened.  Why are             
we waiting to the end of the five and two-thirds?  Why aren't we               
just grabbing them after three and saying ok this a sexually                   
violent predator.  Let's pop him now."                                         
                                                                               
MS. CARPENETI replied we are requiring him to serve his sentence as            
part of a criminal conviction.  He violated the law and victimized             
a person.  He ought to go to jail for it and serve his sentence.               
If he hasn't taken advantage or been able to be rehabilitated in               
jail, then he should be looked at again.                                       
                                                                               
MR. STOLTZE stated the concern is not of the individual, but                   
society.  Society is concerned when a person is about to be                    
released.                                                                      
                                                                               
REPRESENTATIVE BERKOWITZ asked why is the state wasting resources              
to try to rehabilitate them while incarcerated, if they are                    
incorrigible.  Why not put those scarce resources where they can do            
some good?                                                                     
                                                                               
MR. STOLTZE replied he is not sure what side of the issue                      
Representative Berkowitz is on.                                                
                                                                               
REPRESENTATIVE BERKOWITZ replied he is taking his argument and                 
using it in response.  "First, as Representative James says either             
these folks are treatable, in which case let's go get them off the             
get-go.  And then you say that they're not treatable.  And, I'm                
saying that if they aren't treatable let's find out so we don't                
waste the resources in prison and give--put those resources to                 
someone else.  But, let's find out as soon as possible.  That's the            
most efficient use of our resources."                                          
                                                                               
MR. STOLTZE replied it is impossible to prove whether or not that              
they are untreatable.  We have to go on substantial likelihood.  He            
doesn't think that resources are being wasted because they serve as            
a public purpose.  It is keeping them off of the streets - the                 
higher threshold of a public purpose.                                          
                                                                               
Number 1950                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ replied he is not saying let these guys               
out.  He is saying when they are incarcerated a determination                  
should be made quickly.  Would they be amenable to treatment?  If              
the answer is yes, let's give them treatment.  If they wash out of             
the treatment, then let's run them through the sexually violent                
predator petition.  If they run out in the middle of their                     
sentence, let's do it then.  Let's not wait until the end of their             
sentence.  Let's not try to put them through a program again.  On              
the other hand, if a sexually violent petition is given at the                 
beginning of a sentence, and it is determined that they are not                
amenable to rehabilitation, let's not waste resources trying to                
rehabilitate them.  Let's put them towards an individual who                   
deserves to be or can be rehabilitated.                                        
                                                                               
Number 2006                                                                    
                                                                               
MR. STOLTZE stated that might be interpreted to be (indisc.) by the            
courts.                                                                        
                                                                               
REPRESENTATIVE JAMES stated it seems that in order to meet the                 
criteria established in the court case the money has to be spent               
for the expensive program whether it works or not.                             
                                                                               
CHAIRMAN GREEN stated, "If you're gonna keep them off the streets."            
                                                                               
REPRESENTATIVE JAMES stated it seems that in order to meet the                 
requirement we have to send them away for this expensive treatment.            
                                                                               
CHAIRMAN GREEN asked whether we can continue to have them                      
incarcerated, not necessarily in the slammer, even though there are            
treatments offered there, but something less than the $400 or $800             
type of confinement, which we know isn't going to work anyway.                 
                                                                               
MS. CARPENETI stated it might be hard when a person is convicted to            
make a determination as to whether or not he is treatable.  The                
bill requires the court, after a person is found to be a sexually              
violent predator, to determine whether a less restrictive                      
alternative would be safe for the public.                                      
                                                                               
CHAIRMAN GREEN asked whether the state of Kansas keeps them in a               
prison type of environment with medical treatment, or does it                  
actually change departments and keep them strictly as medical                  
patients.                                                                      
                                                                               
MS. CARPENETI replied they cannot be housed with other prisoners.              
This bill requires that they be housed in a secure facility apart              
from other people who are serving criminal sentences and apart from            
people who are being treated for a mental illness.                             
                                                                               
MR. STOLTZE stated, for example, it could actually be within a                 
walled parameter of a correctional facility, but administered by               
corrections.  We offered to contract out because we don't know what            
type of facility would be needed.  We figured it would be better to            
judge how many people we are going to have then determine what type            
of facility to build.  It could be within Spring Creek or Lemon                
Creek, for example.  It would have to be administered to meet the              
restrictions provided by in the Supreme Court decision.  It could              
not be administered by the Department of Corrections as spelled out            
in statute.  But, we are not that far along.  We don't want to get             
into legislation for building facilities.                                      
                                                                               
Number 2375                                                                    
                                                                               
WALTER MAJOROS, Executive Director, Alaska Mental Health Board.  He            
is also a prior director of a sex offender treatment program in                
Juneau, and a prior division director for the Department of                    
Corrections.  The board is concerned about the impact of the bill              
on persons with mental illnesses within the mental health system.              
It commends the sponsor and the legislature for their concern of               
protecting the public from sexually violent predators.  It is a                
very serious issue that deserves debate and consideration.  The                
first point from the board's perspective...                                    
                                                                               
TAPE 98-86, SIDE A                                                             
Number 0000                                                                    
                                                                               
MR. MAJOROS continued.  Sexually violent predators have antisocial             
behavioral disorders or personality disorders that require a very              
different type of treatment.  The criminal justice system is set up            
for long-term confinement of individuals who are likely to commit              
violent crimes.  The civil system is set up for short-duration                 
treatment needs for people with mental illnesses.  There are                   
several mechanisms within the criminal and public safety system                
now, including sentencing laws, good-time provisions, victim                   
notifications, rigorous prosecutions, sex offender registrations,              
paroles, probation conditions and intensive supervision - all                  
appropriate mechanisms to address sexually violent predators.  The             
board encourages the committee members to consider and enhance                 
those options to protect the public's safety.  The board is also               
concerned about safeguards for persons with mental illnesses within            
the public mental health system.  One area is to narrowly define               
the population so that the law only applies to the most dangerous              
and violent offender.  The board is also concerned that the                    
facilities and treatment programs are separate from those for the              
mentally ill.  The board is also concerned about ensuring that the             
integrity of the mission of the public mental health system is not             
jeopardized.  Lastly, the board is concerned about the treatment               
approaches.  It is important to recognize the significant                      
philosophical difference between criminal offenders and the                    
treatable mentally ill.  The board is concerned that resources are             
not diverted away from treating people with mental illnesses to                
treating people who are sex offenders.  The board asks that the                
funding be separate and not come from the existing funding for the             
public mental health system.  He has submitted a proposed amendment            
to achieve a safeguard.  It would disallow the treatment of                    
sexually violent predators at Alaska Psychiatric Hospital.  The                
fiscal notes prepared by the Administration already assume that the            
people would not receive treatment at the Alaska Psychiatric                   
Hospital, and contract it out, but there is nothing to prohibit                
that treatment from happening at the Alaska Psychiatric Hospital.              
The board is concerned about taking treatments away from the                   
mentally ill patients.  The Alaska Psychiatric Hospital is being               
downsized within the next couple of years from 79 to 54 beds.                  
Every bed would become precious.  He has discussed the issue with              
Senator Halford, and the mental health industry feels very strongly            
about it.  He has also discussed it with the commissioner of the               
Department of Health and Social Services.                                      
                                                                               
Number 0394                                                                    
                                                                               
CHAIRMAN GREEN made a motion to adopt Amendment 2.  There being no             
objection, it was so adopted. [AMENDMENT 2 WAS NOT PROVIDED]                   
                                                                               
Number 0440                                                                    
                                                                               
BLAIR McCUNE, Deputy Director, Central Office, Public Defender                 
Agency, Department of Administration, testified via teleconference             
in Anchorage.  The agency has submitted a fiscal note that includes            
the history of this type of law.  It is important to point out that            
this would be the first time in Alaska where people would be                   
confined based on a prediction that they might commit criminal                 
offenses in the future.  That type of determination is a real                  
slippery slope and not favored in the law because it potentially               
violates the right to liberty and due process.  He also noted that             
a task force report from the American Psychiatric Association                  
indicated that these types of determinations should not be made                
because it distorts the traditional civil commitment process.  In              
addition, the pressure to have commitments of more than five a year            
might be strong.  The definition of mentally ill in the bill is                
very broad.  It means any mental conditions that increases the                 
propensity of (indisc.) to be dangerous to the public's safety.                
Historically, in 1982 the legislature really changed the not guilty            
by reasons of insanity laws to make it difficult for that type of              
defense.  The statute referred to in the bill talks about mental               
illness for people who get out of a commitment.  And, the mental               
health commitment to the Alaska Psychiatric Hospital in Title 47               
means an organic or mental disturbance.  There are three different             
definitions of mental illness in statute.  The one chosen is the               
broadest one available.  He mentioned that it would be very hard to            
qualify an attempt to have sexual contact with another person as a             
sexually violent crime given the types mentioned in statute.  In               
addition, according to the UAA study, over 90 percent of the people            
who went through treatment did not pass or complete it.  There have            
only been a handful of people who have successfully completed a                
program over the years.  It is not something that is offered                   
routinely in jail.  He suggested that the legislature look at                  
funding for that, given the comments made by Representatives James             
and Berkowitz.  It is a very expensive program according to other              
public defenders in other states because it is a civil trial rather            
than a criminal trial and experts need to be hired.  The agency                
agrees with the amendment offered by Ms. Carpeneti.  The expense of            
the experts was taken into account in the fiscal note.  He lastly              
noted that it would be in the superior court so the jury size would            
be 12.                                                                         
                                                                               
Number 0995                                                                    
                                                                               
CHAIRMAN GREEN stated a 2-percent review would put about three or              
four people into this category each year.  He asked Mr. McCune                 
whether 2 percent is reasonable when dealing with sexual predators.            
Could it be 50 percent?                                                        
                                                                               
MR. McCUNE replied that is the agency's fear.  The agency used the             
Department of Law's figure of 2 percent.  It is a slippery slope               
for psychologists and psychiatrists to guarantee someone's safety.             
                                                                               
Number 1070                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. McCune whether he would use                  
Article I, Section 12, of the state constitution to attack this                
type of law.                                                                   
                                                                               
MR. McCUNE replied it is a civil law, therefore, it would not                  
apply.  In Kansas v. Hendricks due process, ex post-facto, and                 
double jeopardy were attacked.  The state would have to argue the              
purpose of the law.  It is likely to lose if it is found to be a               
law that is to just lock people up.                                            
                                                                               
Number 1205                                                                    
                                                                               
CHAIRMAN GREEN stated, in reference to the jury size, that parties             
could stipulate to a jury size of less than 12.  There could be a              
smaller jury.                                                                  
                                                                               
MR. McCUNE replied a person faced with a potential lifetime                    
commitment would want a big jury.                                              
                                                                               
CHAIRMAN GREEN announced that there are only two members left of               
the committee.  The bill will be put aside at this time.                       
                                                                               
CSSB 219(FIN) AM - OFFICE OF VICTIMS' ADVOCACY                                 
                                                                               
CHAIRMAN GREEN announced the next item of business would be CS for             
SB No. 219(FIN) am, "An Act relating to establishing an office of              
victims' rights; relating to compensation of victims of violent                
crimes; relating to eligibility for a permanent fund dividend for              
persons convicted of and incarcerated for certain offenses; and                
amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9,                  
Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence."             
                                                                               
CHAIRMAN GREEN called on Brett Huber, staff to Senator Rick                    
Halford, sponsor of the bill.                                                  
                                                                               
Number 1319                                                                    
                                                                               
BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska             
State Legislature, noted that $30 million annually is spent either             
prosecuting or defending criminals.  On November 8, 1994, 86                   
percent of the ballots ratified the victims' rights amendment to               
the state constitution providing victims with constitutional                   
rights.  Senate Bill 219 establishes an office of victims' rights.             
The legislature tasked the victims' advocate with assisting crime              
victims and obtaining their rights guaranteed under the                        
constitution and laws of the state with regards to their contacts              
with state justice agencies.  The Senate Judiciary Committee heard             
heartfelt testimony showing that crime victims are all too often               
left to deal with the justice system that's heavily weighted to the            
benefit of the criminal, that's full of legalese and                           
technicalities, and virtually impossible for anyone - other than an            
attorney - to understand.  The passage of SB 219 would provide                 
victims of crime with an advocate that understands and is                      
experienced in criminal law under the justice process.  The bill               
does not preclude the responsibility of the prosecutor's office to             
fulfill its statutory obligations.  The bill does not preclude                 
organizations such as Victims for Justice.  Their effectiveness                
would be boosted by the office of victims' rights.  Mr. Huber                  
announced that there is an amendment addressing the concerns of the            
Department of Law.                                                             
                                                                               
Number 1426                                                                    
                                                                               
CHAIRMAN GREEN stated he would gladly introduce the amendment, but             
there isn't a quorum.  He asked Mr. Huber to explain the sections              
of the bill.                                                                   
                                                                               
MR. HUBER explained that Section 1 of the bill provides a short                
title.                                                                         
                                                                               
MR. HUBER explained that Section 2 of the bill amends AS                       
12.55.023(b) allowing the advocates to make statements at the time             
of sentencing in lieu of the victim.                                           
                                                                               
MR. HUBER explained that Section 3 of the bill brings the victims'             
advocate under the ethics of the legislature.  The office was built            
on the model of the ombudsman.                                                 
                                                                               
MR. HUBER explained that Section 4 of the bill creates the actual              
Office of Victims' Rights.  It creates a new chapter - AS 24.  He              
mentioned the sections within the new chapter.                                 
                                                                               
MR. HUBER explained that Section 5 of the bill provides the option             
of adopting longevity pay provisions to the advocate.                          
                                                                               
MR. HUBER explained that Section 6 of the bill extends the period              
for permanent fund dividend ineligibility from one to two years.               
                                                                               
MR. HUBER explained that Section 7 of the bill provides that the               
proceeds of the permanent fund dividend may be used to fund the                
office of victims' rights, subject to legislative appropriation.               
                                                                               
MR. HUBER explained that Section 8 of the bill exempts regulations             
promulgated by the office from gubernatorial review.                           
                                                                               
MR. HUBER explained that Section 9 of the bill exempts an advocate             
from some of the record keeping requirements.                                  
                                                                               
MR. HUBER explained that Section 10 of the bill provides a sunset              
review of agencies to include interaction with the office of                   
victims' rights.                                                               
                                                                               
MR. HUBER explained that Section 11 names the office as a state                
agency for the purposes of state publications.                                 
                                                                               
MR. HUBER explained that Sections 12 and 13 of the bill provide a              
notice of the court rule changes.                                              
                                                                               
Number 1609                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Huber whether the office has been            
funded in the budget or is there a fiscal note.                                
                                                                               
MR. HUBER replied it would take the next legislature to appoint the            
victims' advocate and establish the office.  Although the fiscal               
notes shows a fiscal year (FY) 1999 cost, there is no actual                   
anticipated cost in 1999.  A fiscal note was prepared thinking that            
there was enough time to pass the bill and appoint the advocate                
this legislative session.  The Senate Finance Committee, although              
all members were supportive of the bill, was concerned that it is              
a new general fund draw, which is why there is a tie to the                    
permanent fund dividend forfeiture.  If the bill passes, the fiscal            
note would be subject to the Conference Committee.  The office                 
cannot be put together without an advocate appointed.  He                      
reiterated, he anticipates no cost for FY 99.                                  
                                                                               
Number 1679                                                                    
                                                                               
CHAIRMAN GREEN asked Mr. Huber, for clarification, whether the                 
permanent fund dividend is the other funding source.                           
                                                                               
MR. HUBER replied, "Correct."                                                  
                                                                               
CHAIRMAN GREEN asked Mr. Huber whether the permanent fund dividend             
would amount to almost $500,000.                                               
                                                                               
MR. HUBER replied testimony from the Permanent Fund Dividend                   
Division indicated that in the second year of eligibility the                  
revenue stream is estimated at up to $4 million.  The funding                  
mechanism more than exceeds the requirements of the bill.                      
                                                                               
Number 1709                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would work             
procedurally.                                                                  
                                                                               
MR. HUBER replied procedurally anybody has the opportunity to use              
the office who feels that his rights as a victim have been denied,             
providing that it is a felony offense or certain misdemeanor                   
offenses.  The bill also provides that the office can establish a              
priority.  The office would have to be able to address those that              
it can given staff and budget constraints.  The office has the                 
power to advocate on behalf of a victim, investigate, consult,                 
publish a report, and make recommendations after a case, similar to            
the ombudsman.                                                                 
                                                                               
Number 1811                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated prioritization usually raises equal            
protection and due process problems.  He asked Mr. Huber whether               
there was testimony on that in any of the other committees.                    
                                                                               
MR. HUBER replied the testimony in the other committees has been               
limited to the fact that the case load is high, especially after               
some misdemeanor cases were added in an amendment in the Senate                
Judiciary Committee.  It is not the idea that the advocate becomes             
someone's civil attorney.                                                      
                                                                               
REPRESENTATIVE BERKOWITZ stated he does not mean that.  He is                  
concerned about denying services to a citizen.                                 
                                                                               
MR. HUBER replied it is the same for the Office of the Ombudsman.              
Services would not be denied.  The office would be operating inside            
of staff and budget constraints.                                               
                                                                               
REPRESENTATIVE BERKOWITZ stated the office is being predicated on              
a constitutional basis.  The Office of the Ombudsman doesn't have              
a constitutional basis.                                                        
                                                                               
MR. HUBER replied the constitutional rights would be the same.  As             
with all other constitutional provisions, there are statutory                  
provisions.  The statutory provisions to implement the office allow            
for prioritizing the cases.  It does not diminish a person's                   
constitutional rights.                                                         
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber how the office would                  
proceed when there are two crimes and one victim wants the service             
and the other victim doesn't.                                                  
                                                                               
MR. HUBER replied there is discretion with the court to determine              
who is a named victim.  Alaska Statute 12.55.185 defines a victim              
as follows:                                                                    
                                                                               
     "(16) "victim" means                                                      
                                                                               
          (A) a person against whom an offense has been                        
          perpetrated;                                                         
                                                                               
          (B) one of the following, not the perpetrator, if                    
          the person specified in (A) of this paragraph is a                   
          minor, incompetent, or incapacitated:                                
                                                                               
               (i) an individual living in a                                   
               spousal relationship with the person                            
               specified in (A) of this paragraph;                             
               or                                                              
                                                                               
               (ii) a parent, adult child, guardian, or                        
               custodian of the person;                                        
                                                                               
          (C) one of the following, not the perpetrator, if                    
          the person specified in (A) of this paragraph is                     
          dead:                                                                
                                                                               
               (i) a person living in a spousal                                
               relationship with the deceased before the                       
               deceased died;                                                  
                                                                               
               (ii) an adult child, parent, brother,                           
               sister, grandparent, or grandchild of the                       
               deceased; or                                                    
                                                                               
               (iii) any other interested person,                              
               as may be designated by a person                                
               having authority in law to do so."                              
                                                                               
MR. HUBER stated, according to the statutory definition, it boils              
down to "a" victim.  The office would proceed at the discretion of             
the person who comes forward and asks for assistance.                          
                                                                               
Number 2005                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ referred to page 8, lines 4 - 7, and asked            
Mr. Huber whether a law clerk or in-court clerk would be able to be            
subpoenaed.                                                                    
                                                                               
MR. HUBER replied this section was adopted by the Senate Judiciary             
Committee at the request of the court system.  The court system was            
concerned about actual judicial decisions coming under question.               
It did not have a problem with procedures coming under question.               
Therefore, the language "concerning a judicial action or nonaction"            
was included.                                                                  
                                                                               
REPRESENTATIVE BERKOWITZ noted that often times a law clerk is                 
intertwined with what the judge is doing.  In a way it would                   
backdoor a judge's insulation from the process.                                
                                                                               
MR. HUBER replied the court system offered the amendment and is                
comfortable with the language.  A law clerk could not be questioned            
about decisions, only procedures.                                              
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean               
the office would have the ability to subpoena members of the                   
prosecution.                                                                   
                                                                               
MR. HUBER replied that's correct.                                              
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether that would mean               
the office would have the ability to subpoena law enforcement.                 
                                                                               
MR. HUBER replied that's correct.                                              
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the proceeding                
would be done publicly.                                                        
                                                                               
MR. HUBER replied the subpoena is for investigating a decision.  It            
would not be subject to a public hearing.  The office is barred                
from releasing confidential information or prereleasible reports               
before taking the preliminary report to the agency affected,                   
getting their recommendations, and at a later date publishing the              
final report and recommendations.                                              
                                                                               
REPRESENTATIVE BERKOWITZ referred to page 7, line 1, and asked Mr.             
Huber what procedural safeguards would an individual have, such as             
an attorney or taking the Fifth Amendment.                                     
                                                                               
MR. HUBER replied there is nothing in the bill that would change               
anybody's constitutional rights to due process.  Certainly, one                
would be able to take the Fifth Amendment, for example.                        
                                                                               
REPRESENTATIVE BERKOWITZ disagreed.  This is a huge change in                  
criminal processes.  Historically, it has been an adversarial                  
process with an arbitrator.  Now, a new agency is being                        
interjected.  It could be a good policy call, but needs to be done             
very carefully.  There are a lot of possibilities for unintended               
consequences.                                                                  
                                                                               
MR. HUBER agreed with Representative Berkowitz.  The sponsor has               
spent a considerable amount of time talking to prosecutors, defense            
attorneys, the Department of Law, the court system, and agencies               
tasked to assist victims.  The bill has been through the Senate                
Judiciary Committee and the Senate Finance Committee.                          
                                                                               
Number 2231                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether the bill is                   
modeled after something in other jurisdictions.                                
                                                                               
MR. HUBER replied the office is modeled after the Office of the                
Ombudsman.  He doesn't know of another agency like this in another             
state.  Again, there is the unique constitutional provision adopted            
in 1984 that promised the voters their rights.  Senator Halford                
believes that it is time to put forth a practical mechanism to help            
make sure that those rights are implemented.                                   
                                                                               
REPRESENTATIVE BERKOWITZ stated, he believes, that there are other             
states that have victims' rights.                                              
                                                                               
Number 2256                                                                    
                                                                               
REPRESENTATIVE ROKEBERG stated he appreciates the fact that there              
are constitutional rights for a victim.  He is concerned about who             
in fact would deny these rights.  The judge can't be subpoenaed who            
oversees the rights of the victim as they relate to the process                
now.                                                                           
                                                                               
MR. HUBER replied the Department of Law and the prosecutors are                
specifically tasked with some of the provisions that provide the               
mechanism for making constitutional rights available.  He cited, to            
consult with a prosector, to be involved with the prosecution and              
investigation of the case, and to be able to make a statement at               
the time of sentencing as examples.  There are statutes that                   
specifically task the prosecutor's office with certain                         
responsibilities under the constitutional amendment.  The                      
legislation does not do anything for somebody when the judge or                
jury made a bad decision.  That is what the appellate courts and               
civil proceedings are for.  According to the court system, the                 
majority of the complaints are of the process, and mainly of the               
prosecutorial side.  The bill does not attempt to influence or                 
review specific judicial action.                                               
                                                                               
REPRESENTATIVE ROKEBERG referred to a constituent who complained               
about a prosecutor misdirecting her case and asked Mr. Huber                   
whether this could be used to harass the prosecutor.  What's to                
protect those folks?                                                           
                                                                               
MR. HUBER replied prosecutorial discretion rests in the                        
prosecutor's office.  The Office of the Prosecutor makes                       
determinations all of the time:  what level to bring a charge to,              
what plea bargain is reasonable, how to proceed with an                        
investigation, and how to proceed with a court proceeding, for                 
example.  If a person feels that his rights have been abridged, the            
Office of Victims' Rights is tasked to look at the facts of the                
case and make a preliminary report to the effected agency.  The                
agency responds to the report and then the advocate produces a                 
final report and recommendation(s).                                            
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Huber whether he is suggesting               
that a victim can second guess a prosecutor.                                   
                                                                               
MR. HUBER replied there are victims now who second guess a                     
prosecutor's decision.  Prosecutorial discretion still lies with               
the prosecutor.  There are victims now, however, who are thrown                
into a system full of legalities that may or may not understand                
what has been done correctly....                                               
                                                                               
TAPE 98-86, SIDE B                                                             
Number 0000                                                                    
                                                                               
MR. HUBER continued.  ... the opportunity to have somebody who is              
familiar with the process, has a criminal law background, and has              
dealt with these issues before in order to take a reasoned look at             
the complaint.  It may only result in an initial consultation at               
which time it is determined that no right has been abrogated.                  
Victims now feel that there are certain shortcomings in the                    
judicial system.  The most powerful statement in the Senate                    
Judiciary Committee was that the criminal has on his side all of               
the constitutional protections of somebody who is accused.  On the             
prosecutor's side it is the full force and weight of the state that            
is bringing the case.  The victim, therefore, is left in the shadow            
of justice.  The office allows for an advocate to help a victim                
through the process, understand the process, and ensure that his or            
her constitutional rights are protected as the process goes on.                
                                                                               
Number 0057                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Huber what is the penalty                    
involved here.                                                                 
                                                                               
MR. HUBER replied the penalty provisions are only for somebody who             
is obstructing the victims' office from doing its job.  It is not              
set up to punish the prosecutors or courts.  It is set up to give              
the public a better understanding of what happens in the process.              
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Huber whether nagging or                     
jawboning is being institutionalized.                                          
                                                                               
MR. HUBER replied he believes that many of the issues that the                 
legislature chooses to deal with are ones that are brought forward             
by constituents that have been put into a situation that they don't            
want to be put back into.                                                      
                                                                               
Number 0101                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Huber what is the remedy.  What              
would happen if there is a finding?                                            
                                                                               
MR. HUBER replied ideally the information in the report comes                  
forward and the justice agencies have been told the                            
recommendations.  If someone feels that his constitutional rights              
have been aggrieved, of course, he can bring suit with or without              
the office.  If he feels that the decision was in error, of course,            
he can appeal it or try to bring civil litigation.                             
                                                                               
Number 0128                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber to whom would he appeal.              
                                                                               
MR. HUBER replied appeal was the wrong choice of words.  The appeal            
would be on the side of who is convicted, but certainly civil                  
remedies are something that could be sought.                                   
                                                                               
Number 0149                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber, if the office writes a               
scathing report about a prosecutor and the prosecutor comes out                
with contrary evidence, who would he take it to.                               
                                                                               
MR. HUBER replied the prosecutor would take the evidence to his                
superiors inside the Department of Law.  There is no specific                  
penalty for the prosecutor in that position.                                   
                                                                               
REPRESENTATIVE BERKOWITZ stated the prosecutor has been publicly               
sanctioned, but he doesn't have a public avenue to gain his good               
name back.                                                                     
                                                                               
MR. HUBER stated, before a report is issued in final, the agency is            
consulted and has the opportunity to answer to the report.                     
                                                                               
Number 0188                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated there used to be something known as            
the victim witness coordinator in most prosecutors' offices.                   
Usually, they are under funded, but it is their job to explain to              
victims how the process works and the consequences.  He asked Mr.              
Huber whether he is saying that they don't need to be funded                   
anymore.                                                                       
                                                                               
MR. HUBER replied he is not saying that at all.  There are                     
designated victim coordinators in all of the offices of public law             
with the exception of some satellite offices.  The bill does not               
ask to divert those funds.  The bill does not relieve them of any              
of their statutory responsibilities.  It merely provides an entity             
for a victim to consult with somebody who is versed in the system.             
                                                                               
Number 0246                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated this is an interesting separation              
of powers issue.  The office would be a legislative entity doing               
oversight of both the executive and judicial branches.  It raises              
some real questions.  If someone was to come to the legislature to             
determine whether it did a good job putting a bill together, for               
example, he would feel resentful of someone from the executive or              
judicial branch looking over his shoulder.  He asked Mr. Huber                 
whether the legislature is guilty of the same sin.                             
                                                                               
MR. HUBER replied he doesn't view it that way.  He suggested                   
looking at the Office of the Ombudsman, a legislative branch                   
function tasked to do exactly what Representative Berkowitz                    
described with the executive branch.  It was not brought forward as            
a punitive measure.  Legislators represent the branch of government            
that is tasked with representing the people - the branch that                  
brought the House Joint Resolution forward to provide the                      
opportunity to vote on the constitutional amendment.  It is the                
branch whose phone rings first when a constituent is having a                  
problem with a state agency.                                                   
                                                                               
Number 0322                                                                    
                                                                               
REPRESENTATIVE ROKEBERG stated he is still not satisfied that there            
is a remedy.  The only remedy that he can think of is a public                 
opinion editorial in the Anchorage Daily News.                                 
                                                                               
Number 0354                                                                    
                                                                               
REPRESENTATIVE JAMES stated it seems that the bill serves the                  
purpose for victims to understand their opportunities.  Victims                
have indicated that they don't have a source, they don't know the              
legalities, they don't know when to complain, and they don't have              
anywhere to go unless they hire an attorney.  Many victims don't               
have enough money to hire an attorney.  The purpose of the office              
is for information.  It seems simply like an advocacy for those who            
are vulnerable or disenfranchised and cannot represent themselves              
just like all the other advocacies in the state.  The only time                
that there would be any punitive kinds of treatment is when there              
is a case.  She sees a real advantage to having the office, but she            
doesn't know who would pay for it.                                             
                                                                               
Number 0467                                                                    
                                                                               
MR. HUBER replied that is the intent of this legislation.                      
According to the fiscal note, there is a projected $500,000 cost.              
There is a potential funding source included in the bill with the              
increased revocation of the permanent fund dividend for convicted              
felons or multi-misdemeanants.  It would appear as an item in the              
legislative budget  and be subject to appropriation.                           
                                                                               
Number 0492                                                                    
                                                                               
                                                                               
CHAIRMAN GREEN stated there has been indication that this would be             
a money maker rather than an expense.                                          
                                                                               
MR. HUBER stated the folks from the Permanent Fund Dividend                    
Division have indicated that there is the potential for a $4                   
million revenue stream.                                                        
                                                                               
REPRESENTATIVE JAMES stated the office is also trying to eliminate             
people becoming victims and a constitutional amendment has been                
passed.  She thinks it is a good idea.                                         
                                                                               
Number 0540                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber whether he knows                      
quantitatively how often victims' rights are violated.                         
                                                                               
MR. HUBER replied no he does not have any quantitative data.  He               
can give some anecdotal data, however.                                         
                                                                               
REPRESENTATIVE BERKOWITZ stated most anecdotal data would not get              
by an attorney's evaluation.  Currently, there are the Victims for             
Justice and Court Watch in Anchorage that do a very good job of                
keeping their eyes on things and explaining to victims how the                 
process works.  He asked Mr. Huber whether the government is                   
supplanting something that is being done in the private sector.                
                                                                               
MR. HUBER replied the sponsor has long supported the work of                   
Victims for Justice, which is on record for supporting the bill as             
a priority in this legislative session.  At its level, it believes             
that having an agency like this would help it with its task, not               
hinder it.                                                                     
                                                                               
Number 0614                                                                    
                                                                               
REPRESENTATIVE ROKEBERG made a motion to adopt Amendment 1.  It                
reads as follows:                                                              
                                                                               
     TO:  CSSB 219(FIN) am                                                     
                                                                               
          Page 6, line 13, following "Jurisdiction.":                          
                                                                               
               Insert "(a)"                                                    
                                                                               
          Page 6, following line 21:                                           
                                                                               
               Insert a new subsection to read:                                
                                                                               
               "(b) The victims' advocate shall exercise                       
                                                                               
                    (1) the jurisdiction granted under this                    
                    section in a manner that does not                          
                    interfere with a criminal investigation                    
                    or with a criminal prosecution;                            
                                                                               
                    (2) reasonable care to prevent crime                       
                    victims and employees of the office of                     
                    victims' rights from making extrajudicial                  
                    statements that the victims' advocate is                   
                    prohibited from making under the Alaska                    
                    Rules of Professional Conduct."                            
                                                                               
          Page 6, lin 26:                                                      
                                                                               
               Delete "Notwithstanding another provision of law,               
               the"                                                            
                                                                               
               Insert "The"                                                    
                                                                               
          Page 6, line 27, following "state":                                  
                                                                               
               Insert "under art. I, sec. 24, Constitution of the              
               State of Alaska, and AS 12.55.023,"                             
                                                                               
          Page 7, following line 1:                                            
                                                                               
               Insert a new subsection to read:                                
                                                                               
                    "(d) Records obtained by the victims'                      
                    advocate shall remain in the exclusive                     
                    custody of the victims' advocate.  The                     
                    victims' advocate may not disclose                         
                    confidential information to any person."                   
                                                                               
MR. HUBER noted that the amendment was suggested by the Department             
of Law to meet some of its concerns.  The sponsor concurs with the             
amendment.                                                                     
                                                                               
CHAIRMAN GREEN asked whether there is any objection to Amendment 1.            
There being no objection, it was so adopted.                                   
                                                                               
Number 0636                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Huber whether there is a House               
Finance Committee referral.                                                    
                                                                               
MR. HUBER replied, "Yes."                                                      
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Huber how a victims' advocate               
would determine whether the exercise of its jurisdiction interferes            
with a criminal investigation.  There are a lot of times when                  
proceedings are cloaked in some degree of secrecy to prevent                   
information from getting out.  A non-answer from a prosecutor could            
jeopardize an ongoing investigation or prosecution.                            
                                                                               
MR. HUBER replied the amendment speaks to the confidentiality of               
the information gleamed in the investigation and advocacy process.             
                                                                               
REPRESENTATIVE BERKOWITZ stated he is particularly concerned about             
cases of domestic violence.  The perpetrator often leans on the                
victim.  He is concerned about exacerbating the problem.                       
                                                                               
MR. HUBER replied Representative Berkowitz has a valid concern.                
The sponsor has addressed it through the process of qualification              
and appointment of the victims' advocate.                                      
                                                                               
REPRESENTATIVE BERKOWITZ replied he is not worried about the Office            
of Victims' Rights.  He is worried about a perpetrator sending a               
victim into the office demanding not to testify, for example.  The             
office would then go to the prosecutor on behalf of the client and             
the prosecutor would say, "Tough luck."  The office then tells the             
victim that he has to testify.  As a victim's voice, it could be a             
conduit for further violence to the victim.                                    
                                                                               
MR. HUBER replied he understands the point, but he is not certain              
whether that same eventuality is out there with or without the                 
Office of Victims' Rights.  As a victim, to come forward and ask               
for help is an incredible big step, especially in cases of domestic            
violence.  There are other agencies that deal with these                       
situations, such as non-profit domestic violence shelters.                     
                                                                               
Number 0841                                                                    
                                                                               
NANCI JONES, Director, Permanent Fund Dividend Division, Department            
of Revenue, stated she would like to correct the amount estimated.             
There are no statistics at all to determine how much money would be            
earned by holding another years dividend.  This year the felon                 
ceiling amount that was given to the Office of Management and                  
Budget was $3.9 million.  That is funding for the Department of                
Public Safety, Department of Corrections, Council on Domestic                  
Violence and Sexual Assault, crime victim compensation, and gate               
fees.  In 1995, there was a provision added to include                         
misdemeanants.  The division has not been able to collect that data            
yet because of the reporting period.  This bill and SB 274 add an              
additional pot of dividends.  The division is concerned based on               
the felon program was it first started in 1988.  It was challenged             
and taken all the way to the supreme court.  The court ruled that              
it was a legitimate purpose to withhold the dividend.  It was for              
incarcerated people and the cost of their keep.  The division's                
concern of SB 274 is the parole fee.  If they don't pay it we levy             
it.  The provision in SB 219, just like the second part of SB 274,             
says one is ineligible for the permanent fund dividend if                      
incarcerated in any of two years.  One year the division would get             
it anyway because the person is in jail.  Now, the division would              
get the dividend the second year when the person is out of jail as             
well.  The bill also says that there is a cost for these people                
being on parole - $3.  The dividend is constantly increasing.  She             
wondered who would get the difference.  The provisions of the bill             
say because a person was in jail two years ago, the division has to            
estimate a dividend for him when normally he would not apply for               
one.  It starts to get into other people's pockets.  The division              
is paying people who otherwise would not be eligible.  These people            
would not otherwise apply for a dividend.  The number given to OMB             
was based on the number of people incarcerated in 1996 and how many            
of those people did not return to jail in 1997.  The Department of             
Corrections came up with 1,100.  The division would have to run the            
number through an eligibility test then calculate how many would               
have gotten a dividend had they not been in prison.  She is afraid             
it won't stand up in court.  She doesn't think that there is a                 
legitimate purpose for holding dividends from people who are no                
longer in jail, even if they are on probation.  She is also                    
concerned that since they are not in jail and perhaps eligible for             
a dividend they would not be able to pass it on to pay debts, such             
as child support.  Every year there is about a 3 percent increase              
in the amount of claims that the Child Support Enforcement Division            
(CSED) gives to the Permanent Fund Dividend Division.  That money              
would no longer be available to CSED.                                          
                                                                               
Number 1183                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Ms. Jones whether this would also               
jump ahead of restitution, fines, and civil debts.                             
                                                                               
MS. JONES replied it definitely jumps ahead of everything.  These              
people are now ineligible for a dividend.  The division takes the              
money that they would have gotten and gives it to state government.            
                                                                               
REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund                 
state government before it would pay victims.                                  
                                                                               
MS. JONES replied, "Exactly."                                                  
                                                                               
REPRESENTATIVE BERKOWITZ asked Ms. Jones whether it would fund                 
state government before it would pay civil creditors.                          
                                                                               
MS. JONES replied everyone.                                                    
                                                                               
Number 1231                                                                    
                                                                               
REPRESENTATIVE JAMES asked Ms. Jones whether the money would be set            
aside whether there is an application filed or not.                            
                                                                               
MS. JONES replied, "Right."  The extra provision in the bill means             
the year that the person is out of jail when the division would not            
normally have gotten the dividend.  This bill would make the person            
ineligible and instead the division would give the money to state              
government.                                                                    
                                                                               
REPRESENTATIVE JAMES asked Ms. Jones whether they would have to                
make an application for the dividend.                                          
                                                                               
MS. JONES replied, "No."                                                       
                                                                               
REPRESENTATIVE JAMES asked Ms. Jones, "Even the year that they're              
in?"                                                                           
                                                                               
MS. JONES replied, even the year that they are incarcerated, they              
do not make an application.  The Department of Corrections gives               
the division a list of those who are incarcerated during the                   
qualifying year.  The division runs them through the eligibility               
criteria to determine who would be eligible for a dividend if they             
were out on the street.  That becomes the ceiling from which the               
Office of Management and Budget (OMB) can budget from.  There is a             
provision that says OMB cannot budget anymore than the ceiling that            
was budgeted from the previous year, otherwise every use of every              
dollar given would have to be listed.                                          
                                                                               
REPRESENTATIVE JAMES agreed that there are some problems.                      
                                                                               
Number 1390                                                                    
                                                                               
CHRIS CHRISTENSEN, Staff Counsel, Administrative Staff, Office of              
the Administrative Director, Alaska Court System, stated the                   
supreme court takes no position on the legislation.  In reference              
to the question regarding law clerks asked earlier, he had                     
originally drafted an amendment to take care of that problem.  Law             
clerks act as the agent of the judicial officer at the officer's               
direction.  If a law clerk is subpoenaed, it is in essence the same            
as subpoenaing a judge.  It is access to the judge's thought                   
processes.                                                                     
                                                                               
Number 1457                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Christensen whether the                     
committee could amend it to fulfill his concern.                               
                                                                               
MR. CHRISTENSEN replied he would appreciate it.                                
                                                                               
Number 1464                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to conceptually incorporate             
law clerks and in-courts.                                                      
                                                                               
MR. CHRISTENSEN stated the language that he had originally given               
was a judicial officer or person working under the direction of a              
judicial officer.  Remember, this is limited to judicial acts, not             
administrative acts.                                                           
                                                                               
MR. CHRISTENSEN suggested on page 8, line 4, following "magistrate"            
add "or a person acting under the direction of a justice, judge, or            
magistrate".  He also suggest on page 8, line 5,  following "by"               
add "or under the direction thereof".                                          
                                                                               
Number 1570                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 2                    
suggested by Mr. Christensen.  There being no objection, it was so             
adopted.                                                                       
                                                                               
Number 1605                                                                    
                                                                               
MR. CHRISTENSEN further stated that the bill is a further                      
implementation of the victims' rights amendment to the state                   
constitution.  It does a number of significant things that would               
probably make the system better for victims.  The court system is              
not concerned about the creation of the Office of Victims' Rights,             
the authority of an advocate to appear in court in lieu of a                   
victim, the ability of the advocate to obtain court records                    
relating to an offense, the ability of the advocate to investigate             
the administrative matters.  He offers no comment on the sections              
of the bill that relate to the executive branch.  He is concerned              
about allowing the advocate to issue a report critical of a jury's             
decision.  For example, the constitution requires that a victim be             
treated with dignity and respect.  A jury decides who to believe -             
a decision that does not involve treating the victim with dignity              
and respect.  The courts have always protected and shielded jurors.            
The court system is concerned about people being taken to task by              
a government official for a decision that they have rendered in                
good faith as part of a jury.                                                  
                                                                               
MR. CHRISTENSEN further stated that the bill would allow the                   
advocate to issue a decision that in effect says the judge, the                
court of appeals, or supreme court is wrong.  This system of                   
government places final decisions on justice matters in the hands              
of judicial officers.  It is not that way everywhere.  There are               
countries where it is the parliament that acts as a supreme court.             
This system isn't perfect.  A system run by people is not going to             
be perfect, but it seems to work fairly well.  The bill has the                
effect of turning the system on its head.  It says that a mid-level            
bureaucrat in another branch actually gets the final say on whether            
or not justice was done in a particular case.  He might not have               
the authority to actually overturn a decision, but he gets to tell             
the public that the court of appeals is flat out wrong, for                    
example.  He does not accept the premise that a single bureaucrat              
has some greater degree of insight of what the law means than the              
three members of the court of appeals or the five members of the               
supreme court.  It would have the effect of decreasing the public's            
confidence in the justice system, not increasing it - the thrust of            
the bill.                                                                      
                                                                               
Number 1856                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ asked Mr. Christensen what are the                    
relative abilities of the court as opposed to the victim advocate              
to go public with the reasons and substance of the decision.                   
                                                                               
MR. CHRISTENSEN replied the Cannons of Judicial Conduct prohibits              
a judicial officer from commenting publicly on a decision.  A                  
decision has to speak for itself.  In essence, a judge would be                
prohibited from defending a decision, other than in the decision               
itself.                                                                        
                                                                               
REPRESENTATIVE BERKOWITZ stated the judge would be a sitting duck.             
                                                                               
Number 1907                                                                    
                                                                               
REPRESENTATIVE JAMES stated it seems that the complaints can only              
be on the procedures, not the decisions.                                       
                                                                               
MR. CHRISTENSEN replied it has been his experience that if there is            
waffle language in a bill the bureaucrats would fill it.  The                  
testimony in the Senate Judiciary Committee from the public                    
indicated that they would like to have somebody else to say the                
decision was wrong and justice was not done.  For better or worse,             
the judicial branch is suppose to have the final say in whether or             
not justice was done in a case.  People may exercise their First               
Amendment rights to comment on it, but there shouldn't be a                    
government office charged by statute with interjecting his or her              
judgement into the basic question of whether or not justice was                
done.  This is a small piece of what the advocate would do, but a              
significant piece.  He thinks that about 95 percent of what the                
advocate would do would be things like oversight of the rights                 
guaranteed by statute or helping the person in court, not second               
guessing the decision.  Last year, there was somewhere between                 
3,000 and 3,500 felonies filed in the state and 20,000                         
misdemeanors, of which, about 85 percent end up pleading guilty,               
and less than 10 percent go to trial.  He expects at least half of             
those that go to trial to be convicted.  It is a fairly size of                
folks who are unhappy with their results.  He expects that if there            
is an avenue to address their unhappiness they would take it.                  
                                                                               
Number 2059                                                                    
                                                                               
CHAIRMAN GREEN stated the bureaucrat's decision would be an                    
opinion, not a law.                                                            
                                                                               
MR. CHRISTENSEN stated it would be an opinion.  He could not                   
overturn a decision, but he would be charged by statute with saying            
that the court is wrong when under the constitution it is the court            
who is the final arbiter of the statute.                                       
                                                                               
CHAIRMAN GREEN asked Mr. Christensen whether it would be any                   
different than an attorney filing an appeal.  An appeal is also                
saying that the court is incorrect.                                            
                                                                               
MR. CHRISTENSEN replied that is the method that the system                     
provides.  This is a government official given a charge very                   
similar to the court's charge.  In essence, he would supersede the             
courts because he would get the final say on whether or not justice            
was really done.                                                               
                                                                               
Number 2146                                                                    
                                                                               
REPRESENTATIVE JAMES asked Mr. Christensen where it says that.                 
                                                                               
MR. CHRISTENSEN replied there is not a specific section.  If the               
bill is read in its whole, it would be within an advocate's                    
jurisdiction.  He had submitted an amendment to the Senate                     
Judiciary Committee and would provide a copy of it to the House                
Judiciary Committee as well.  It reads as follows:                             
                                                                               
     TO:  CSSB 219(FIN) am                                                     
                                                                               
          Page 6, line 19, insert following "state.":                          
                                                                               
               "The victims' advocate may not investigate a                    
               complaint regarding a judicial act taken or                     
               decision rendered by a judicial officer of a                    
               jury."                                                          
                                                                               
REPRESENTATIVE ROKEBERG noted page 8, line 29.                                 
                                                                               
Number 2205                                                                    
                                                                               
MR. HUBER stated he does not know of any place in this bill that               
the advocate could supplant a judicial decision of a judge.  This              
report is only if the victim's rights in the opinion of the court              
with the response of the justice agency says a constitutional right            
has been denied.  It is not the intent of the legislation to say               
that it is the advocate's decision instead of the judge's.                     
                                                                               
Number 2276                                                                    
                                                                               
MR. CHRISTENSEN replied he appreciates the intent of the bill.                 
Judges make evidentiary rulings all the time.  Some of them may go             
to matters in the constitution - the right to be treated with                  
fairness and dignity.  A jury's decision may turn on one particular            
evidence of ruling made by a judge.  An advocate's judgement would             
supplant that ruling with his judgement as to whether that                     
evidentiary language on which the case hinged was done correctly or            
not.                                                                           
                                                                               
Number 2324                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated the opportunity for consultation               
seems hollow as far as the judiciary is concerned.  He does not                
know of an avenue for a judge to reply back to a victim's                      
complaint.                                                                     
                                                                               
Number 2386                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Christensen whether the presiding            
judge in the judicial district can make some comments to the                   
public.                                                                        
                                                                               
MR. CHRISTENSEN replied judges are prohibited from commenting on               
any matters that have been or coming before the court.  A decision             
has to speak for itself.  It is something that happens in contested            
judicial elections, which is why they have caused a lot of                     
problems.                                                                      
                                                                               
Number 2444                                                                    
                                                                               
REPRESENTATIVE ROKEBERG commented that he would like to see what               
was rejected in the Senate.                                                    
                                                                               
Number 2450                                                                    
                                                                               
REPRESENTATIVE JAMES noted she would like to see what was rejected             
in the Senate too.  It seems that there might be some language to              
ensure what Mr. Christensen is talking about doesn't happen.  She              
doesn't see the problem, but if there is one it should be looked               
at...                                                                          
                                                                               
TAPE 98-87, SIDE A                                                             
Number 0004                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated it is not going to carry the weight            
of a judicial opinion, but it would carry some weight.  Anytime                
there is a published opinion by a state agency or attorney it is               
low in the precedential value, but it carries some weight.                     
                                                                               
Number 0036                                                                    
                                                                               
REPRESENTATIVE JAMES stated it seems that the purpose of the bill              
is advocacy for victims.  If a report is due, it is due to the                 
victim.  She doesn't understand making a report on screw ups by the            
process.  Certainly, there are screw ups on the decision when it               
has violated a right in some way.                                              
                                                                               
Number 0115                                                                    
                                                                               
CHAIRMAN GREEN asked Mr. Huber whether the language would alter the            
concept of the sponsor of what the office would do.                            
                                                                               
MR. HUBER replied the amendment was discussed in the Senate                    
Judiciary Committee and the sponsor did not support it.  He stated             
he is confused by Mr. Christensen's testimony because the judge                
makes the decision.  He agrees that the decision should stand on               
its own face, but the court just like the legislature serves the               
public.  He is not certain of the fear of the public taking a look             
at how the court system works.  Aren't all branches of the                     
government subject to scrutiny by the public? he asked.                        
                                                                               
Number 0204                                                                    
                                                                               
CHAIRMAN GREEN stated the issue is not the public.  The issue is               
the bureaucracy.  An individual complaint would not have the same              
weight as a bureaucracy.                                                       
                                                                               
MR. HUBER stated the reports are an opportunity to review the                  
problems.  It would be valuable information to the legislature to              
determine whether they are reoccurring problems that need a                    
statutory fix, for example.                                                    
                                                                               
Number 0277                                                                    
                                                                               
REPRESENTATIVE ROKEBERG stated the sponsor is representing the                 
denial of constitutional rights.  It does not speak to decisions.              
There is no denial of constitutional rights as to decisions.  He is            
troubled by the very broad term "judicial act" in the bill and                 
asked Mr. Christensen to respond to his concern.                               
                                                                               
Number 0326                                                                    
                                                                               
MR. CHRISTENSEN replied the term "judicial act" has been defined               
extensively in both federal and state case law.  It is used to                 
distinguish it from administrative acts.  There is a formula used              
to determine when a judge is acting judicially versus                          
administratively.  The formula has been set by the Supreme Court of            
the United States and the Alaska Supreme Court.  He cited moving a             
court room without telling so that court dates are missed.  That is            
an administrative decision, not a judicial act.                                
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Christensen whether a                        
constitutional denial could be a judicial act.                                 
                                                                               
MR. CHRISTENSEN replied judicial acts are repealable.  The bill                
says that the final decision on the constitutionality of the law               
rests in the hands of the advocate.  He might not be able to act on            
it, but he can make a public statement.                                        
                                                                               
Number 0474                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that an intentional interference of             
a constitutional right is a misdemeanor.  If a victim feels that a             
judge has intentionally abrogated his or her rights, the victim can            
bring a criminal complaint forward under the normal process of a               
criminal charge.  That protection is already there for victims.                
                                                                               
Number 0517                                                                    
                                                                               
REPRESENTATIVE JAMES asked whether a victim would have to create a             
case to repeal an action to challenge a decision.                              
                                                                               
MR. CHRISTENSEN replied the prosecution would repeal a case.                   
                                                                               
Number 0560                                                                    
                                                                               
REPRESENTATIVE ROKEBERG stated after hearing the arguments, he is              
still not convinced about the term "judicial act."  He thinks it is            
too broad.  Unless there is another term, he would amend it out.               
                                                                               
Number 0597                                                                    
                                                                               
MR. HUBER stated the concern of the term "judicial act" was also               
brought up in the Senate Judiciary Committee.  Another term is "or             
decision rendered" or "may not investigate."  It is not talking                
about investigating a decision, but how broad it "may not                      
investigate" if a decision has been rendered.  Does that mean if a             
decision has been rendered that all investigatory authority is                 
precluded?                                                                     
                                                                               
MR. CHRISTENSEN replied that is not the intent.                                
                                                                               
Number 0640                                                                    
                                                                               
REPRESENTATIVE JAMES stated an advocate can't make a report if the             
advocate can't investigate a complaint first.  Yet there is another            
avenue for a victim - the appeals process.  She wondered whether an            
advocate would need to investigate a complaint in order to get to              
that decision or just make a complaint.                                        
                                                                               
Number 0721                                                                    
                                                                               
MR. HUBER noted that the sponsor's office would be more than happy             
to work with Mr. Christensen further on this issue.  The bill has              
another committee of referral.  If the amendment had been brought              
to the sponsor yesterday rather than this committee he would have              
been willing to run it by the bill drafters and discuss the issue              
with Mr. Christensen.                                                          
                                                                               
CHAIRMAN GREEN asked Mr. Christensen whether the concern is about              
the investigation or making it public.                                         
                                                                               
MR. CHRISTENSEN replied once a report is released there is no way              
to guarantee that it would not be made public.                                 
                                                                               
CHAIRMAN GREEN asked Mr. Christensen whether there could be some               
type of confidentiality between the advocate and victim like an                
attorney-client relationship.                                                  
                                                                               
MR. CHRISTENSEN replied while there is a way to keep the advocate              
from releasing things there is no way to keep the victim from                  
publicly releasing things.  He would fully expect, however, the                
victim to say publicly, "this is what the advocate says."                      
                                                                               
CHAIRMAN GREEN said, "Well no.  I think that you--maybe the public             
that way, but it certainly--if you prohibit the investigation                  
that's a lot different than saying you're not going to make it                 
public.  Now, I understand your problem with the victim making it              
public, but to prohibit the advocate from even investigating these             
things it seems like it--it--it in effect makes (indisc.)."                    
                                                                               
REPRESENTATIVE BERKOWITZ stated there is an interesting ethical                
dilemma for the advocate who is an attorney.  As an attorney                   
representing the victim, he has a certain set of ethical                       
responsibilities.  He cited a report as an example.  The victim                
asks for a report, the courts give it to the victim, but it can't              
be divulged.  The victim says he wants to divulge it.  What does               
the lawyer do? he asked.                                                       
                                                                               
REPRESENTATIVE ROKEBERG stated a dentist should be hired instead to            
solve the problem.                                                             
                                                                               
REPRESENTATIVE BERKOWITZ stated according to the bill a lawyer has             
to be hired.                                                                   
                                                                               
REPRESENTATIVE ROKEBERG replied that's the problem.                            
                                                                               
Number 0958                                                                    
                                                                               
REPRESENTATIVE JAMES suggested changing the language of the                    
amendment to read as follows:                                                  
                                                                               
     "The victims' advocate may not investigate or challenge                   
     a decision rendered by a judicial officer or a jury."                     
                                                                               
REPRESENTATIVE JAMES noted it would delete the complaint regarding             
a judicial action.  There is another avenue to pursue when a                   
constitutional right has been violated.  She is concerned about the            
resulting reports.  They seem to be reports on procedures, not                 
decisions.  The decision rendered by a judicial officer should not             
be investigated or challenged.                                                 
                                                                               
CHAIRMAN GREEN wondered whether it would give rise to a problem                
with the concept of the bill.  If it can't be challenged.                      
                                                                               
Number 1036                                                                    
                                                                               
MR. HUBER stated certainly the intent is for a victim or somebody              
involved in the proceeding to go out and say whatever he or she                
wants to about a decision.  The concern, therefore, is about the               
bureaucracy, the power of the office questioning the judicial                  
authority or a final decision.  He suggested allowing the advocate             
to investigate a complaint, but disallow publishing the specifics              
that deal with the decision rendered by the judicial officer or                
jury in the report.  Thus, a state agency would not publicly                   
challenge a decision that has to stand on its face.  It would leave            
the court free to make a decision without an agency's challenge,               
and a victim free to complain.                                                 
                                                                               
Number 1108                                                                    
                                                                               
REPRESENTATIVE ROKEBERG suggested adopting the amendment and moving            
the bill to the House Finance Committee given the time of day.  If             
there isn't satisfaction, it can be killed there.  The committee               
needs to move along and take up other bills.                                   
                                                                               
Number 1155                                                                    
                                                                               
REPRESENTATIVE JAMES stated she would like to include this                     
amendment before moving it forward and take the word of Mr. Huber              
who said the sponsor would work with Mr. Christensen.  This is a               
judicial issue and needs to be fixed in the House Judiciary                    
Committee.                                                                     
                                                                               
CHAIRMAN GREEN noted that there are three versions of the                      
amendment.                                                                     
                                                                               
Number 1185                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ noted that he likes the first version.                
                                                                               
REPRESENTATIVE JAMES agreed to use the first one.                              
                                                                               
Number 1194                                                                    
                                                                               
CHAIRMAN GREEN called it repugnant for a finance group to deal with            
a judiciary issue.                                                             
                                                                               
Number 1207                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 3.  It               
reads as follows:                                                              
                                                                               
          Page 6, line 19, insert following "state.":                          
                                                                               
               "The victims' advocate may not                                  
               investigate or challenge a decision                             
               rendered by a judicial officer or a                             
               jury."                                                          
                                                                               
Number 1240                                                                    
                                                                               
MR. CHRISTENSEN stated the decision portion of this amendment is               
significantly more important than the judicial act.  The decision              
is the ultimate finding on the case.                                           
                                                                               
Number 1256                                                                    
                                                                               
CHAIRMAN GREEN asked whether there is any objection to Amendment 3.            
There being no objection, it was so adopted.                                   
                                                                               
Number 1280                                                                    
                                                                               
REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as             
amended, from the committee with individual recommendations.                   
                                                                               
CHAIRMAN GREEN noted there is still one more amendment.  There has             
been a request to change "five" years to "three" years on page 4,              
lines 1 and 4 (Amendment 4).                                                   
                                                                               
Number 1324                                                                    
                                                                               
MR. HUBER stated five years comes from the qualifications for being            
a judge.                                                                       
                                                                               
REPRESENTATIVE ROKEBERG noted that the bill does not hire a judge.             
                                                                               
REPRESENTATIVE BERKOWITZ stated there is no objection.                         
                                                                               
CHAIRMAN GREEN asked whether there is any objection to adopting                
Amendment 4.  There being none, it was so adopted.                             
                                                                               
Number 1360                                                                    
                                                                               
REPRESENTATIVE ROKEBERG made a motion to move CSSB 219(FIN) am, as             
amended, from the committee with individual recommendations and the            
attached generous fiscal note.                                                 
                                                                               
UNIDENTIFIED SPEAKER objected.  A roll call vote was taken.                    
Representatives Berkowitz voted against the motion.                            
Representatives Rokeberg, James and Green voted in favor of the                
motion.  Representatives Bunde and Porter were absent.  The motion             
failed.                                                                        
                                                                               
CSSB 216(JUD) - CIVIL COMMITMENT OF SEXUAL PREDATORS                           
                                                                               
Number 1427                                                                    
                                                                               
CHAIRMAN GREEN announced the committee would take up SB 216 again              
in order to consider an amendment suggested earlier by the                     
Department of Law.                                                             
                                                                               
CHAIRMAN GREEN announced Amendment 3 is before the committee.  It              
reads as follows:                                                              
                                                                               
     "(c) If the state files a petition under AS 47.30.816 -                   
     47.30.824 to commit a person who has been charged with a                  
     sexually violent offense and been found incompetent to be                 
     tried for the offense, the  trier of fact, in conjunction                 
     with the commitment proceeding, will make a determination                 
     beyond a reasonable doubt, whether the person committed                   
     the offense charged.  The finding that the person                         
     committed the offense may not be used for any other                       
     purpose than for consideration of commitment.  If the                     
     trier of fact finds that the person committed the                         
     offense, the trier of fact may proceed to determine                       
     whether the person is a sexually violent predator under                   
     this section."                                                            
                                                                               
Number 1463                                                                    
                                                                               
MR. STOLTZE stated the amendment is the language proposed by the               
Department of Law.  It deletes the current subsection (c) and                  
replaces it with a new subsection on page 5, lines 6 - 24.                     
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether there is a House             
Finance Committee referral.                                                    
                                                                               
MR. STOLTZE replied, "Yes."                                                    
                                                                               
Number 1562                                                                    
                                                                               
REPRESENTATIVE JAMES made a motion to adopt Amendment 3.  There                
being no objection, it was so adopted.                                         
                                                                               
Number 1634                                                                    
                                                                               
REPRESENTATIVE ROKEBERG referred to the study provided to the                  
committee members from the Department of Corrections and asked what            
it means in terms of Title 47 and the bill.  Would it lower the                
numbers?                                                                       
                                                                               
Number 1706                                                                    
                                                                               
MR. RICHARDS replied the study was conducted anticipating a                    
proposed bill during the interim by Representative Joe Ryan.  It               
was a broader bill.                                                            
                                                                               
Number 1725                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Richards whether the numbers                 
would be fewer than what is in the study.                                      
                                                                               
MR. RICHARDS replied, "Correct."                                               
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Richards whether he has provided             
the study to the sponsor of the bill.                                          
                                                                               
MR. RICHARDS replied he has testified on it at the various                     
committee hearings on the numbers.  He is not sure whether it has              
been provided to the sponsor.                                                  
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Stoltze whether he has ever seen             
the study before.                                                              
                                                                               
MR. STOLTZE replied that he has heard the references, but he has               
not seen the document.                                                         
                                                                               
Number 1747                                                                    
                                                                               
REPRESENTATIVE ROKEBERG asked Mr. Richards to provide a nutshell               
analysis of the study.                                                         
                                                                               
Number 1754                                                                    
                                                                               
MR. RICHARDS replied the study was done to evaluate the sex                    
offender treatment program at the Highland Mountain Correctional               
Center to find out its effectiveness.  He is not an expert on the              
analysis of the study, but in a nutshell it says the treatment is              
effective for those who participate in the program.  The longer one            
stays in the program there is a longer period of time before a                 
reoffense.                                                                     
                                                                               
Number 1796                                                                    
                                                                               
REPRESENTATIVE ROKEBERG stated this exposes the potential for a                
higher fiscal note.  He also mentioned his concerns of the timing              
of bringing a civil commitment into a criminal type of activity.               
Nevertheless, he would vote to move the bill out of the committee.             
                                                                               
Number 1823                                                                    
                                                                               
CHAIRMAN GREEN stated that he shares the same concern regarding the            
fiscal note.                                                                   
                                                                               
REPRESENTATIVE ROKEBERG stated it is a problem for the House                   
Finance Committee.                                                             
                                                                               
CHAIRMAN GREEN agreed.                                                         
                                                                               
Number 1830                                                                    
                                                                               
REPRESENTATIVE JAMES stated that she was surprised and encouraged              
about the findings in the study.  Those who were in treatment                  
longer tended to last longer in the community without reoffense.               
Those who completed all stages of treatment to the advanced stage              
had a zero reoffense rate for sexual offenses, including rapists.              
The study supports the concern of waiting for a person's term to be            
just about up before determining whether the person is a sexually              
violent predator.  It seems that chances of not being committed as             
a predator would be better by going through treatment up to the                
advanced stages.                                                               
                                                                               
Number 1881                                                                    
                                                                               
REPRESENTATIVE BUNDE made a motion to move CSSB 216(JUD), as                   
amended, from the committee with individual recommendations.                   
                                                                               
REPRESENTATIVE BUNDE noted that the committee had asked for                    
information on the recidivism rate.  It got some information from              
the study, but no information on the recidivism rate.  It would be             
very difficult to fund the bill given the fact that the sponsor of             
the bill is putting a limit on how much money could be spent from              
the constitutional budget reserve.  It might be difficult to have              
it both ways.  He noted he would support to move the bill out of               
the committee.                                                                 
                                                                               
CHAIRMAN GREEN stated the bill sounds great if the state can afford            
it.  But, the state can not afford it either.  It is something that            
would have to be reviewed in the next committee of referral.                   
                                                                               
CHAIRMAN GREEN asked whether there is any objection to the motion              
to move the bill out of the committee.  There being no objection,              
HCS CSSB 216(JUD) was so moved from the House Judiciary Standing               
Committee.                                                                     
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 1998                                                                    
                                                                               
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee                
meeting at 7:20 p.m.                                                           

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