Legislature(2005 - 2006)CAPITOL 120
02/23/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB124 | |
| HB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 132 | TELECONFERENCED | |
| *+ | HB 131 | TELECONFERENCED | |
| *+ | HB 124 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 23, 2005
1:59 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Nancy Dahlstrom
Representative Pete Kott
COMMITTEE CALENDAR
HOUSE BILL NO. 124
"An Act relating to the collection of, and the use of reasonable
force to collect, a deoxyribonucleic acid sample from persons
convicted of or adjudicated delinquent for certain crimes."
- MOVED HB 124 OUT OF COMMITTEE
HOUSE BILL NO. 132
"An Act relating to sentencing for certain crimes committed
against the elderly; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 131
"An Act increasing the criminal classification of theft of an
access device and of obtaining an access device or
identification documents by fraudulent means; increasing the
criminal classification for certain cases of fraudulent use of
an access device; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 124
SHORT TITLE: COLLECTION OF DNA/USE OF FORCE
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/02/05 (H) READ THE FIRST TIME - REFERRALS
02/02/05 (H) JUD, FIN
02/23/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 132
SHORT TITLE: CRIMES AGAINST ELDERLY
SPONSOR(S): REPRESENTATIVE(S) STOLTZE
02/09/05 (H) READ THE FIRST TIME - REFERRALS
02/09/05 (H) JUD, FIN
02/23/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 124 and
responded to questions; responded to questions during discussion
of HB 132.
CHRIS BEHEIM, Crime Lab Supervisor
Scientific Crime Detection Laboratory
Division of Statewide Services
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 124, provided
comments and responded to questions.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 124.
TONY NEWMAN, Program Officer
Division of Juvenile Justice (DJJ)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to a
question during discussion of HB 124.
SCOTT CALDER
Fairbanks, Alaska
POSITION STATEMENT: During discussion of HB 124, expressed
concerns and encouraged the committee to use caution regarding
the issue of collecting DNA samples.
BEN MULLIGAN, Staff
to Representative Bill Stoltze
Alaska State Legislature
POSITION STATEMENT: Presented HB 132 on behalf of the sponsor,
Representative Stoltze.
MARIE DARLIN, Coordinator
Capital City Task Force
AARP
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 132 and HB 131,
and responded to questions.
SAM TRIVETTE, AARP;
President
Retired Public Employees of Alaska (RPEA)
Alaska Public Employees Association/Alaska Federation of
Teachers (APEA/AFT)
Juneau, Alaska
POSITION STATEMENT: Responded to a question and provided
comments during discussion of HB 132, and testified in support
of HB 132 on behalf of the AARP.
LINDA GOHL, Executive Director
Alaska Commission on Aging (ACoA)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 132 and
responded to questions.
RANDY RUARO, Assistant Attorney General
Legislation & Regulations Section
Office of the Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 132 and
responded to questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:59:17 PM. Representatives
McGuire, Anderson, Coghill, and Gruenberg were present at the
call to order. Representative Gara arrived as the meeting was
in progress.
HB 124 - COLLECTION OF DNA/USE OF FORCE
2:00:13 PM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 124, "An Act relating to the collection of,
and the use of reasonable force to collect, a deoxyribonucleic
acid sample from persons convicted of or adjudicated delinquent
for certain crimes."
REPRESENTATIVE ANDERSON, speaking as the sponsor, provided some
background information on the current laws regarding the
collection of deoxyribonucleic acid (DNA) samples, as well as
some examples of how such samples are used. He noted that two
gaps have been discovered in the current law: one regarding the
collection of DNA samples for assaults in violation of municipal
laws similar to the state laws for which a DNA sample may be
collected; and one regarding felons who refuse to give a sample
even though such behavior will result in further felony charges.
He said that 11 other states allow for "reasonable force and
immunity from liability" in collecting a DNA sample from an
offender, characterized the bill as straightforward, and
commented on the zero fiscal notes.
2:03:21 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that the DOL supports HB 124, and concurred with Representative
Anderson's summary. She remarked that it seems reasonable to
close the loophole regarding collecting DNA samples from those
who commit assaults that are prosecuted by municipalities.
REPRESENTATIVE GARA said that he has concerns with the bill,
although he is supportive of its concept. He posited that the
great value of DNA evidence is that it can be used to solve
crimes that involve blood. He asked whether meaningful DNA
evidence is obtainable through other mediums.
MS. CARPENETI said that such is obtainable through other
mediums; noted that the bill will allow [law enforcement] to use
force to collect an oral sample, via a mouth swab, for inclusion
into the DNA registration system; and suggested that Mr. Beheim,
from the state's Scientific Crime Detection Laboratory ("Crime
Lab"), could better address the issue of what mediums can be
used to obtain a DNA sample. In response to another question,
she indicated that in cases of sexual assault, any semen that is
found can be used to obtain a DNA sample.
REPRESENTATIVE GARA asked why the bill does not just address
crimes against a person, and relayed that he has a concern
regarding the concept that force can be used.
MS. CARPENETI pointed out that with regard to using force, the
bill uses the term "reasonable", which she characterized as a
common term, surmising that it would be interpreted to mean the
least amount of force needed and that as long as a prisoner is
immobilized, a mouth swab can be taken. With regard to why HB
124 doesn't just address crimes against a person, she noted that
the committee considered that issue very carefully when the
originating legislation was before it, and suggested that Mr.
Beheim could again provide examples of why the current bill
should address more than just crimes against a person; for
example, it is very important to get DNA samples from people who
commit forgery because there is a correlation between forgery
and other crimes.
2:09:51 PM
REPRESENTATIVE GRUENBERG referred to AS 41.41.035(k) - which
says, "(k) The provisions of this section apply to a person from
another state that this state has accepted under any interstate
corrections or probation agreement or compact, regardless of
whether the person is confined or released, if the person was
convicted of an offense that is similar to an offense described
in (b) of this section" - and suggested that there is a conflict
between this language and the language currently on page 1,
lines 8-11, of the bill - which reads in part "in this state of
a crime against a person or a felony under AS 11 or AS 28.35 or
a law or ordinance with elements similar to a crime against a
person or a felony under AS 11 or AS 28.35, (2) a minor 16 years
of age or older, adjudicated as a delinquent in this state".
MS. CARPENETI relayed that the bill drafter has assured her that
there isn't a conflict, adding that after further review, she
agrees because subsection (k) includes the language, "if the
person was convicted of an offense that is similar to an offense
described in (b) of this section". If the state is taking a
prisoner on an interstate compact basis, the state can take a
DNA sample if the crime the prisoner was convicted of is similar
to one of the crimes listed in proposed subsection (b). In
response to a question of whether the state can take a DNA
sample from someone who is facing extradition for crimes
committed in another state, she pointed out that the DNA
identification system is based on convictions. But for
investigation purposes in such a situation, the state might be
able to get a search warrant allowing the collection of a DNA
sample if there is probable cause that a crime has been
committed in Alaska.
2:14:03 PM
REPRESENTATIVE GRUENBERG asked whether there are any
constitutional problems with taking a DNA sample from everyone.
MS. CARPENETI, noting that fingerprints can be taken from people
who have been arrested, pointed out that the U.S. District Court
in Anchorage has just held that the state cannot take a DNA
sample from a person who is on the sex-offender registration
list if that person is completely disconnected from parole or
probation. She surmised that there might be some constitutional
problems with taking a DNA sample from everyone, just as there
are with taking fingerprints.
REPRESENTATIVE GRUENBERG offered his understanding that a person
is fingerprinted whenever he/she is arrested and "booked," and
asked why a DNA sample couldn't be taken at the same time.
MS. CARPENETI indicated that the state has [decided] not to meet
that issue head on, by simply requiring that a person be
convicted before taking a DNA sample. She suggested that there
is a good argument that there isn't any difference between
taking fingerprints and taking a DNA sample - that a DNA sample
is merely a much better fingerprint.
REPRESENTATIVE GRUENBERG concurred, and opined that being able
to take a DNA sample at the time of arrest would greatly assist
law enforcement.
2:16:26 PM
REPRESENTATIVE ANDERSON noted that when he introduced the
originating legislation pertaining to the collection of DNA
samples, issues were raised regarding privacy and
confidentiality because there are other uses to which DNA
samples can be put, and so steps were taken to ensure
confidentiality. He said he agrees with Representative
Gruenberg, but has chosen to take a more conservative approach
and make changes to the law over time - "baby steps dictate that
maybe we keep it to this level" and just address those who
refuse to provide a DNA sample.
REPRESENTATIVE GRUENBERG, offering his belief that DNA sampling
is just a more modern form of fingerprinting, suggested that the
issue of taking a DNA sample at time of arrest be addressed
further, either through HB 124 or through another bill.
CHAIR McGUIRE opined that Representative Anderson is correct in
his summation that current law, which pertains to convictions
for crimes against a person, is a compromise - it is more
expansive than the law in some states, and less expansive than
in others.
MS. CARPENETI concurred, clarifying that current law pertains to
all felonies in Titles 11 and 28.
REPRESENTATIVE GRUENBERG asked whether the crime of arson in the
first degree is included.
MS. CARPENETI said it is.
CHAIR McGUIRE, in response to a question, said she would like to
confine testimony to HB 124.
MS. CARPENETI, in response to a question regarding the
aforementioned U.S. District Court decision which said that the
state may not take a DNA sample from a person who is on the sex-
offender registration list if that person is completely
disconnected from parole or probation, said that that decision
is not yet finalized, and offered to get the committee more
information on it.
2:21:39 PM
CHRIS BEHEIM, Crime Lab Supervisor, Scientific Crime Detection
Laboratory, Division of Statewide Services, Department of Public
Safety (DPS), said that although he is not an expert regarding
individuals who refuse to give a sample, he can relay that the
state's DNA database has been extremely successful in that 71
investigations have been aided and there are over 200 unsolved
crimes that are just waiting for a match. He mentioned that law
enforcement officials have told him that those inmates who
refuse to provide a DNA sample have probably committed crimes
that are already in the database, and predicted that being able
to take samples from such individuals could solve those crimes.
MR. BEHEIM, in response to a question, said that a DNA sample
can be gotten from toothbrushes, from blood, from the inside of
latex gloves, from saliva, from bottle caps, and from weapons.
He added, "We've linked up, now, five different unsolved
burglaries showing that the same perpetrator was involved in
each one of these cases; at this point we don't have the
perpetrator matched up to anybody specifically, but we hope to
as the database expands and we get more offender profiles
entered." In response to further questions, he said that either
a mouth swab or a blood sample would suffice for obtaining a DNA
sample except in circumstances where there has been a bone
marrow transplant, and that there the DNA markers that are
utilized the crime lab uses are strictly for law enforcement
identification purposes and have absolutely no value in
determining the propensity for a person to get a certain disease
or in determining anything else about the person.
MR. BEHEIM noted that the originating legislation made it a
felony to misuse DNA information. In response to another
question, he reiterated that mouth swabs - "the buckle (ph)
samples" - are sufficient to obtain a DNA sample, and relayed
that such samples are what are normally collected for the DNA
database.
2:27:44 PM
REPRESENTATIVE GRUENBERG said he supports moving rapidly on the
bill, but has received a list of questions from someone, and so
he would like to submit this list to agency personnel and
request that their responses to the questions therein be
provided to the committee in writing.
2:28:46 PM
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), said that the DOC
supports HB 124. Referring to Section 2 of the bill, she said
that generally there is not a problem collecting DNA samples
from offenders; most offenders are very compliant, particularly
those on probation/parole. The DOC has been using the kits
provided to it by the DPS, and has worked closely with the DPS
in developing policies and procedures regarding how to handle
DNA samples; these policies and procedures have been implemented
statewide. There are, however, a couple of problem inmates who
refuse to give an oral swab, which is currently the only way the
DOC collects a DNA sample, and there is no mechanism in place by
which to force compliance. She surmised that if inmates had no
choice but to provide a sample, then even problem inmates would
voluntarily comply. She posited that adoption of Section 2
would be very helpful even though it would be used rarely.
REPRESENTATIVE GRUENBERG raised the issue of a possible
technical change.
2:31:44 PM
TONY NEWMAN, Program Officer, Division of Juvenile Justice
(DJJ), Department of Health and Social Services (DHSS), relayed
that the DJJ also collects DNA samples, and that this function
is performed by juvenile probations officers, who are
responsible for processing incoming police reports on juvenile
crime and for preparing reports on juveniles for use in court.
He said that after discussing the bill with a number of DJJ
staff, he could not find a single instance wherein a youth did
not volunteer to provide a DNA sample. He relayed that the DJJ
believes the current laws pertaining to noncompliance regarding
DNA sample collection are sufficient, since juveniles are
generally incarcerated for only short periods of time and
therefore have incentive to comply. In short, he concluded, the
DJJ doesn't believe that HB 124 will have an effect on the
management of juveniles within the juvenile justice system
(JJS).
MR. NEWMAN, in response to a question, noted that AS 11.56.760
currently addresses violations of DNA testing requirements.
CHAIR McGUIRE paraphrased AS 11.56.760, which read:
(a) A person commits the crime of violating an order
to submit to DNA testing if, when requested by a
health care professional acting on behalf of the state
to provide a blood sample, oral sample, or both, or
when requested by a juvenile or adult correctional,
probation, or parole officer or a peace officer to
provide an oral sample, the person refuses to provide
the sample or samples and the person
(1) has been ordered to submit to DNA testing as
part of a sentence imposed under AS 12.55.015;
(2) has been convicted of an offense that
requires DNA testing under the provisions of AS
44.41.035; or
(3) is required to register as a sex offender or
child kidnapper under AS 12.63.
(b) In this section, "DNA testing" means the
collection of a blood sample, oral sample, or both,
for the deoxyribonucleic acid identification
registration system under AS 44.41.035.
(c) Violating an order to submit to DNA testing is a
class C felony.
2:34:48 PM
SCOTT CALDER expressed concern that DNA sampling requirements
are being applied too often already, adding that it seems that a
lot of people could be subject to the treatment the bill
proposes to allow. He expressed concern regarding what might be
considered, "reasonable force." For example, "reasonable" might
be construed to mean just what has been done historically; it
might be construed to mean that the official collecting the DNA
sample is comfortable and not that the person from whom the
sample is being taken is comfortable; or it might be construed
to mean the least amount of force necessary. Why not just
specify in the bill what that term involves, he asked, adding
that he doesn't necessarily buy the argument that "suspicion" is
an act of reason or that "force" is an act of reason.
MR. CALDER said, "Just because some people can ... parse words
... into ... a reason why it's okay for people to do whatever
they want to ... under the color of law, I'm not sure that the
public is well served by this type of ... rationalizing
process." He encouraged the committee to use caution on this
issue, to preserve the U.S. Constitution's mandate that no
person "shall be compelled in any criminal case to be a witness
against himself".
2:38:52 PM
REPRESENTATIVE GRUENBERG asked whether "reasonable force" is
statutorily defined.
MS. CARPENETI [speaking too far away from the microphones to be
picked up on the recording] indicated that that term is defined
via decisional law.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 124.
REPRESENTATIVE GRUENBERG said he is wondering whether it would
it be advisable to define "reasonable force" in statute.
REPRESENTATIVE ANDERSON said he did not think doing so is
necessary, and would prefer to give correctional officers the
latitude to decide what constitutes reasonable force.
2:39:55 PM
CHAIR McGUIRE asked Representative Anderson whether he would be
comfortable with confining the sample referred to in [Section 2
of] the bill to a mouth swab.
REPRESENTATIVE GARA said that is the route he would like to
take.
REPRESENTATIVE ANDERSON remarked that the bill refers to an
"oral sample".
2:40:41 PM
REPRESENTATIVE GARA said he's heard examples of a DOC official
physically abusing a prisoner, and so even though such might not
happen often, he wants to ensure that the bill doesn't contain a
loophole that a DOC official can use to abuse a prisoner. He
suggested that this can be accomplished by altering the bill so
that it uses the term "oral swab sample"; such a change would
resolve his concerns regarding what constitutes reasonable
force. He also noted that he would like to limit the bill so
that it only applies to those convicted of crimes against a
person.
REPRESENTATIVE ANDERSON said he doesn't agree that the language
should specify that DNA samples be taken with oral swabs,
because future technology might allow for DNA samples to be
taken another way. On the issue of whether the bill should only
apply to those who are convicted of crimes against a person, he
reminded members of testimony that Mr. Beheim gave during
discussion of the originating statute, testimony regarding the
number of links that are found when samples are taken from those
who are convicted of so-called white-collar crimes. He opined
that on the issue of whom HB 124 should apply to, it ought to
parallel the current statute.
2:47:24 PM
REPRESENTATIVE GARA clarified that his concern is that a DOC
official might want to extract a bit of personal justice by
using a needle to extract an "oral sample", and reiterated his
belief that adding the word, "swab" would resolve his concern.
REPRESENTATIVE ANDERSON pointed out, however, that regulations
can address that issue, and expressed confidence that the DOC
can promulgate regulations to ensure that prisoners are not
abused.
REPRESENTATIVE GARA countered that if that is the intent, then
they should specify it in the bill rather than relying on the
department to specify it via regulations. With regard to the
issue of limiting the bill only to those that commit crimes
against a person, he pointed out that the bill will allow
government officials to use force, which could involve
inflicting pain, when collecting DNA samples, and opined that
this should only be permitted for the most egregious crimes -
those committed against a person.
2:51:10 PM
REPRESENTATIVE GRUENBERG referred to page 2, line 19, and
suggested that the bill drafter insert the word "the" before
"collection". He indicated that he did not think a committee
substitute (CS) would have to be created; rather, perhaps the
bill drafter could simply make this technical change.
REPRESENTATIVE ANDERSON indicated that he had no objections to
such a change, but didn't think it was necessary.
2:51:54 PM
REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment
1, "to limit Section 2, the provision dealing with reasonable
force, to cases involving crimes against persons."
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE COGHILL said he objects to Conceptual Amendment 1
because he thinks the bill should apply to other felons in
addition to those that commit crimes against a person.
A roll call vote was taken. Representative Gara voted in favor
of Conceptual Amendment 1. Representatives McGuire, Anderson,
Coghill, and Gruenberg voted against it. Therefore, Amendment 1
failed by a vote of 1-4.
REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment
2, to change Section 2 to say in part, "oral swab sample, unless
another method is necessary,".
REPRESENTATIVE ANDERSON indicated that he would not object to
that change.
REPRESENTATIVE GRUENBERG questioned whether, if Conceptual
Amendment 2 is adopted, other references to "oral sample" - both
in the bill and in current statute - should be changed as well.
CHAIR McGUIRE objected to the motion, opining that Conceptual
Amendment 2 has not been fully thought out; she suggested to
Representative Gara that he get more specific language from
Legislative Legal and Research Services.
2:54:21 PM
REPRESENTATIVE GARA opined that Conceptual Amendment 2 would
work because elsewhere in the bill "oral sample" merely refers
to one of several ways a DNA sample can be obtained. The
language Conceptual Amendment 2 proposes to change deals with an
oral sample being taken by force, he pointed out, and so he
would like to limit such instances to the use of a swab.
2:55:07 PM
REPRESENTATIVE ANDERSON referred to a Legislative Legal and
Research Services report, and said he did not see that any of
the 11 states that allow reasonable force to be used when
collecting a DNA sample specify the use of a swab.
Notwithstanding his earlier statement that he would not object
to Conceptual Amendment 2, he said he now feels that the
committee should reject Conceptual Amendment 2 until more
research is done.
2:55:47 PM
A roll call vote was taken. Representatives Gruenberg and Gara
voted in favor of Conceptual Amendment 2. Representatives
McGuire, Anderson, and Coghill voted against it. Therefore,
Conceptual Amendment 2 failed by a vote of 2-3.
2:56:16 PM
REPRESENTATIVE COGHILL moved to report HB 124 out of committee
with individual recommendations and the accompanying zero fiscal
notes. There being no objection, HB 124 was reported from the
House Judiciary Standing Committee.
HB 132 - CRIMES AGAINST ELDERLY
[Contains mention of support for HB 131.]
2:56:38 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 132, "An Act relating to sentencing for
certain crimes committed against the elderly; and providing for
an effective date."
2:57:14 PM
BEN MULLIGAN, Staff to Representative Bill Stoltze, Alaska State
Legislature, sponsor, said on behalf of the sponsor that
Alaska's elderly population, which is growing rapidly, is often
the target of crime. The physical, emotional, and financial
impacts of crime on the elderly can be more devastating than
they would be on other people. House Bill 132 will increase the
penalty one level for certain crimes listed therein; this is
intended to deter the targeting of Alaska's elderly population.
2:58:14 PM
MARIE DARLIN, Coordinator, Capital City Task Force, AARP,
mentioned that members' packets should contain a letter of
support from the AARP; this letter also refers to the fact that
crimes perpetrated against the elderly cause much more harm than
they would if perpetrated against someone younger. With the
increase in Alaska's elderly population, HB 132 provides one
more way of ensuring that crimes perpetrated against the elderly
are viewed as seriously as they deserve to be. In conclusion,
she stated that the AARP supports HB 132 as written.
CHAIR McGUIRE asked whether the AARP approached the sponsor with
the concept embodied in HB 132.
MS. DARLIN indicated that she did not know, but relayed that the
AARP is very interested in the fact that seniors are now being
targeted more and more in identity theft crimes as well as other
crimes. In fact, the AARP has started a nationwide educational
campaign to make "baby boomers" and the elderly aware of all the
different types of scams and ID theft that are being
perpetrated. She reiterated that HB 132 is another way of
making people aware of the fact that such crimes will no longer
be misdemeanors. She stated that the AARP supports HB 131 as
well.
REPRESENTATIVE ANDERSON asked why the term "elderly" is used in
the bill. Is it just the vernacular, meaning that one has
reached the age of 65?
MS. DARLIN replied, "More or less, yes, and yet we know that not
everybody is going to be at the same stage of their life ... at
age 65 or even 75, and maybe more so in Alaska than other
places; but, nevertheless, we so far support the bill ... [as
an] idea that should be helpful."
SAM TRIVETTE, AARP; President, Retired Public Employees of
Alaska (RPEA), Alaska Public Employees Association/Alaska
Federation of Teachers (APEA/AFT), surmised that the sponsor
probably used the age of 65 in the bill because that is the age
at when the elderly usually start receiving social security
benefits and is the age commonly used throughout the country.
He relayed that the AARP is doing a lot of work educating folks
on the issues surrounding HB 132, and characterized this
education as an important component. Mentioning that he worked
for many years in the field of corrections, he said his
experience has shown that the impact of crime on the elderly,
particularly those with fixed incomes, is severe. He opined
that raising the crime to a felony level will attract attention,
and pointed out that many of the crimes perpetrated against the
elderly originate in other states, and that law enforcement
agencies in other states are willing to provide more assistance
when the crime is a felony. In conclusion, he said he thinks HB
132 makes sense, and stated, too, that the AARP supports it.
3:04:32 PM
LINDA GOHL, Executive Director, Alaska Commission on Aging
(ACoA), Department of Health and Social Services (DHSS), said
that the ACoA supports HB 132. She acknowledged Mr. Trivette
and Ms. Darlin's comments, and surmised that should HB 132 pass,
there might need to be more education efforts directed at
informing people of all ages of the changes encompassed in the
bill. With regard to terminology, she relayed that the federal
Older Americans Act frequently uses the term "older Americans,"
and so many state documents use the term "older Alaskans";
additionally, the term "elders" is used in parts of rural
Alaska.
3:06:22 PM
RANDY RUARO, Assistant Attorney General, Legislation &
Regulations Section, Office of the Attorney General, Department
of Law (DOL), relayed the DOL's support of HB 132 and offered to
answer questions.
REPRESENTATIVE GARA said he thinks HB 132 is a good idea though
perhaps a couple of the bill's [provisions] are a little bit
overbroad. Section 2 of the bill enumerates crimes for which
perpetrations against the elderly will result in more serious
penalties; referring to page 2, line 24, he offered his
understanding that proposed AS 12.55.136(b)(6) would make it a
felony to intentionally cause damage to property in an amount of
$500 or more - this could consist of using a key to damage the
paint job on a car if the paint job costs $500 or more.
MR. RUARO pointed out that practically speaking, there are a few
steps in between, the first of which is that the person would
have to be found guilty of the action, and then it would have to
be proven that the act was done with reckless disregard towards
property owned by someone age 65 or older. In other words, it
is not enough that the property owner is 65 or older; the state
still has to prove that the perpetrator recklessly disregarded
the fact that the property owner is 65 or older. He noted,
however, that the stipulation regarding reckless does not appear
in the bill. Instead it can be found in AS 11.81.610(b)(2),
which says that when no mental state is specified, then
"recklessly" is inferred for a circumstance - the circumstance
in this case being that the property is owned by someone 65 or
older.
[Chair McGuire turned the gavel over to Representative
Anderson.]
3:10:13 PM
REPRESENTATIVE GARA pointed out, however, that the bill amends
the sentencing statute - AS 12.55 - and opined that the element
that the perpetrator knew that the victim is 65 or older doesn't
have to proven at trial.
MR. RUARO relayed that that is not his understanding of the
bill; rather, according to his reading of AS 11.81.610(b)(2), it
requires that a reckless disregard for the age of the person the
act is directed at must be proven in order for the penalty in
the bill to apply.
REPRESENTATIVE GARA disagreed, adding that he doesn't think the
bill has anything to do with the underlying elements of the
crime.
MR. RUARO said that although that is one possible reading of the
bill, it is not the intent to have the bill apply in the sense
of strict liability; instead, the intent is to target the
penalties proposed in the bill towards those that intentionally
or recklessly commit acts against people 65 and older, to
enhance the penalties once the perpetrator's reckless disregard
for the victim's age is proven.
REPRESENTATIVE ANDERSON said he can see both arguments.
REPRESENTATIVE GRUENBERG offered his belief that HB 132, as
currently written, could engender issues related to the U.S.
Supreme Court case, Blakely v. Washington, 124 S. Ct. 2531
(U.S., 2004).
3:13:30 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
opined that Mr. Ruaro has given the committee the best answer
the DOL has, and suggested that perhaps [committee members]
might be more knowledgeable about the "Blakely issue."
REPRESENTATIVE GRUENBERG surmised that the state would have to
show that the perpetrator knew the victim was 65 or older, and
this would be another element of the crime.
MS. CARPENETI opined that Mr. Ruaro is correct in characterizing
it as a circumstance for which recklessness would have to be
proven.
REPRESENTATIVE GRUENBERG remarked that a perpetrator doesn't
"card" his/her victim.
MS. CARPENETI said she would do some research and provide the
committee with more information on the [issues raised].
REPRESENTATIVE GRUENBERG remarked that one cannot always tell
how old a person is just by looking at him/her.
MS. CARPENETI concurred, adding that that is why the mental
state of knowingly is a difficult one to prove.
REPRESENTATIVE GRUENBERG opined that even recklessness would be
difficult to prove, particularly given that during the winter,
people are bundled up against the cold and so a perpetrator
might not be able to discern his/her victim's age at all.
REPRESENTATIVE ANDERSON returned the gavel to Chair McGuire.
3:15:30 PM
REPRESENTATIVE GRUENBERG recapped the issues raised in the
Chair's absence, the Blakely issue and possible mistakes as to
age. He offered his understanding that with regard to the crime
of statutory rape, there is now a statute specifying that a
reasonable mistake as to age is a defense.
MS. CARPENETI offered her understanding that the statute
stipulates that one does not get to use that defense if the
victim is under 13 years of age.
REPRESENTATIVE GRUENBERG asked: "How do they do this with ...
the statutes dealing with elder abuse? Is there an age in
there?"
MS. GOHL offered her understanding that the adult protective
services statute just considers adults to be those who are 18
years of age and older, and doesn't make a distinction for older
Alaskans.
REPRESENTATIVE GRUENBERG asked, "Don't we have statutes proving
elder abuse?"
REPRESENTATIVE ANDERSON said he agrees with the DOL's
representatives on the legal issues, but respects Representative
Gara's points.
CHAIR McGUIRE, noting that the committee was losing its quorum,
indicated that HB 132 would be held over to allow interested
parties an opportunity to resolve members' concerns.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:17 p.m.
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