Legislature(1993 - 1994)
02/16/1994 01:15 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 16, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Pete Kott
Rep. Gail Phillips (arrived 1:42)
Rep. Joe Green
Rep. Cliff Davidson (arrived 2:30)
Rep. Jim Nordlund (arrived 1:40)
OTHER MEMBERS PRESENT
Rep. Sean Parnell
COMMITTEE CALENDAR
Special presentation regarding the Alaska Native Justice
Center.
HB 349: "An Act providing for the civil commitment of
sexually violent predators."
HEARD AND HELD
HB 415: "An Act making corrective amendments to the Alaska
Statutes as recommended by the revisor of the
statutes; and providing for an effective date."
AMENDED AND MOVED FROM COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS
HCR 28: Relating to requesting the Governor to direct the
Attorney General to undertake all available means
to have the partial settlements agreed to by the
state in Cleary v. Smith and the court orders
issued in that case that imposed required
conditions of confinement and continued monitoring
and oversight of the correctional system by the
courts dissolved or modified.
NOT HEARD
HB 316: "An Act adopting the Uniform Statutory Rule
Against Perpetuities; and providing for an
effective date."
NOT HEARD
HB 323: "An Act authorizing the Bureau of Vital Statistics
to release certain information for the purpose of
organ and tissue donations."
NOT HEARD
HB 292: "An Act relating to civil actions; amending Alaska
Rules of Civil Procedure 49 and 68; and providing
for an effective date."
NOT HEARD
WITNESS REGISTER
KIMBERLY MARTUS
Executive Director
Alaska Native Justice Center
670 W. Fireweed Lane
Anchorage, Alaska 99503
Phone: 265-5965
POSITION STATEMENT: Ms. Martus gave a presentation to the
committee regarding the new Alaska
Native Justice Center.
REP. SEAN PARNELL
Alaska State Legislature
State Capitol, Room 513
Juneau, Alaska 99811
Phone: 465-2995
POSITION STATEMENT: Prime Sponsor of HB 349
DEBORAH SMITH, Executive Director
Alaska Mental Health Board
431 N. Franklin St., Number 101
Juneau, Alaska 99801
Phone: 465-3071
POSITION STATEMENT: Testified in favor of HB 349
CAPTAIN SHIRLEY WARNER
Anchorage Police Department
Co-Chair Anchorage Task Force on Sexual Assault
4501 South Bragaw
Anchorage, Alaska 99508
Phone: 786-8500
POSITION STATEMENT: Testified in favor of HB 349
CINDY SMITH, Executive Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward Street, Number 501
Juneau, Alaska 99801
586-3650
POSITION STATEMENT: Testified in support of HB 349
BRANT MCGEE, Director
Office of Public Advocacy
Department of Administration
900 W. 5th Avenue, Suite 525
Anchorage, Alaska 99501
Phone: 272-1684
POSITION STATEMENT: Testified regarding HB 349 and
recommended changing "Office of Public
Advocacy" to "Public Defender"
LEONARD ABEL
Community Mental Health Coordinator
Department of Health and Social Services
State Office Building, Room 503
Phone: 465-5030
POSITION STATEMENT: Testified on HB 349
MARGO KNUTH
Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Phone: 465-3428
POSITION STATEMENT: Testified on HB 349
CHRIS CHRISTENSEN
Staff Counsel
Alaska Court System
303 K Street
Anchorage, Alaska 99501
Phone: 264-8228
POSITION STATEMENT: Testified regarding HB 349
DAVE DIERDORFF
Statute Revisor
Legal Division
Legislative Affairs Agency
130 Seward Street, #409
Juneau, Alaska 99801
Phone: 465-6655
POSITION STATEMENT: Drafter of HB 415
PREVIOUS ACTION
BILL: HB 349
SHORT TITLE: CIVIL COMMITMENT OF SEXUAL PREDATORS
SPONSOR(S): REPRESENTATIVE(S) PARNELL,Toohey,Olberg,Sanders,
Bunde
JRN-DATE JRN-PG ACTION
01/07/94 2019 (H) PREFILE RELEASED
01/10/94 2019 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2019 (H) HES, JUDICIARY, FINANCE
01/13/94 2056 (H) COSPONSOR(S): OLBERG
01/26/94 2160 (H) COSPONSOR(S): SANDERS
02/07/94 (H) HES AT 03:00 PM CAPITOL 106
02/07/94 (H) MINUTE(HES)
02/09/94 2310 (H) HES RPT CS(HES) 5DP 2NR 2AM
02/09/94 2310 (H) DP: KOTT,BUNDE,TOOHEY,B.DAVIS,
BRICE
02/09/94 2310 (H) NR: OLBERG, NICHOLIA
02/09/94 2310 (H) AM: VEZEY, G. DAVIS
02/09/94 2311 (H) -3 FISCAL NOTES (DHSS, LAW, ADM)
2/9/94
02/09/94 2311 (H) -ZERO FISCAL NOTE (ADM) 2/9/94
02/09/94 2311 (H) REFERRED TO JUDICIARY
02/09/94 2328 (H) COSPONSOR(S): BUNDE
02/14/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 415
SHORT TITLE: 1994 REVISOR'S BILL
SPONSOR(S): RULES BY REQUEST
JRN-DATE JRN-PG ACTION
01/31/94 2204 (H) READ THE FIRST TIME/REFERRAL(S)
01/31/94 2204 (H) JUDICIARY
02/14/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HCR 28
SHORT TITLE: GET CLEARY ORDERS DISSOLVED OR CHANGED
SPONSOR(S): REPRESENTATIVE(S) BARNES,PHILLIPS,WILLIAMS,
TOOHEY,VEZEY,JAMES,MARTIN,FOSTER,PORTER,MULDER,OLBERG,
GREEN,BUNDE,SANDERS,HUDSON,LARSON,KOTT,MACLEAN,HANLEY
JRN-DATE JRN-PG ACTION
01/19/94 2108 (H) READ THE FIRST TIME/REFERRAL(S)
01/19/94 2108 (H) JUDICIARY
01/26/94 2159 (H) COSPONSOR(S): HANLEY
02/09/94 (H) JUD AT 01:15 PM CAPITOL 120
02/09/94 (H) MINUTE(JUD)
02/14/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 316
SHORT TITLE: RULE AGAINST PERPETUITIES
SPONSOR(S): REPRESENTATIVE(S) MOSES
JRN-DATE JRN-PG ACTION
01/03/94 2009 (H) PREFILE RELEASED
01/10/94 2009 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2010 (H) JUDICIARY
02/14/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 323
SHORT TITLE: RELEASE OF CERTAIN DEATH CERT. INFO
SPONSOR(S): REPRESENTATIVE(S) TOOHEY
JRN-DATE JRN-PG ACTION
01/03/94 2011 (H) PREFILE RELEASED
01/10/94 2011 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2011 (H) HES, JUDICIARY
02/07/94 (H) HES AT 03:00 PM CAPITOL 106
02/07/94 (H) MINUTE(HES)
02/09/94 2309 (H) HES RPT CS(HES) NEW TITLE
7DP 1DNP 1NR
02/09/94 2309 (H) DP: BUNDE, VEZEY, G. DAVIS,
TOOHEY
02/09/94 2309 (H) DP: B. DAVIS, NICHOLIA, BRICE
02/09/94 2309 (H) DNP: KOTT
02/09/94 2309 (H) NR: OLBERG
02/09/94 2309 (H) -2 ZERO FISCAL NOTES (DHSS,
COURT) 2/9/94
02/16/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 292
SHORT TITLE: CIVIL LIABILITY
SPONSOR(S): LABOR & COMMERCE
JRN-DATE JRN-PG ACTION
04/23/93 1459 (H) READ THE FIRST TIME/REFERRAL(S)
04/23/93 1459 (H) L&C, JUDICIARY, FINANCE
09/10/93 (H) L&C AT 09:00 AM CAPITOL 17
11/22/93 (H) MINUTE(L&C)
01/27/94 (H) L&C AT 03:00 PM CAPITOL 17
01/27/94 (H) MINUTE(L&C)
02/01/94 (H) L&C AT 03:00 PM CAPITOL 17
02/01/94 (H) MINUTE(L&C)
02/03/94 (H) L&C AT 03:00 PM CAPITOL 17
02/03/94 (H) MINUTE(L&C)
02/07/94 2280 (H) L&C RPT CS(L&C) NEW TITLE 3DP
4NR
02/07/94 2280 (H) DP: HUDSON, MULDER, PORTER
02/07/94 2280 (H) NR: GREEN, WILLIAMS, SITTON,
MACKIE
02/07/94 2280 (H) LETTER OF INTENT WITH L&C
REPORT
02/07/94 2280 (H) -ZERO FISCAL NOTE (LAW) 2/7/94
02/16/94 (H) JUD AT 01:15 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-22, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:32 p.m. on February 16, 1994. A quorum was present.
Chairman Porter announced that the committee would hear a
presentation from MS. KIMBERLY MARTUS, Executive Director of
the Alaska Native Justice Center, prior to taking up the
calendar.
SPECIAL PRESENTATION REGARDING THE ALASKA NATIVE JUSTICE
CENTER
Number 029
KIMBERLY MARTUS, Executive Director, Alaska Native Justice
Center (ANJC), began her presentation discussing the
diversity of the group, which has a 25 person Board of
Directors, comprised of business leaders from the Native
regional corporations, members of the Native Bar
Association, Public Defender, Prosecutor, FBI, and the
Anchorage Police Department. She said with the cross-
section board and staff, which they hope to get, they hope
to do some education about the status of Alaska Native
people in the justice system. Ms. Martus explained she
wanted to discuss the status of the ANJC and the need to
improve their status.
MS. MARTUS continued, saying ANJC incorporated in 1993 as a
nonprofit, and their overall mission is to advocate for
Alaska Native people in the justice system, and her role as
the executive director, since the justice system is so
large, is to unpackage that system and do an analysis of all
of the processes and see where Alaska Native people are
experiencing the most difficulties.
MS. MARTUS discussed their profile and discussed a 1992
Alaska Sentencing Report which indicates that although
Alaska Native people comprise 16 percent of the state
population, they are currently incarcerated at the rate of
32 percent; 43 percent of these convictions are
misdemeanant, 39 percent are for sex offenses, and 50
percent are for second degree murder. She said that only 25
percent of Alaska Native inmates eventually obtain
probational parole, yet the few that obtain it are pretty
much revoked on technical violations at the rate of 42
percent. Ms. Martus cited statistics impacting Anchorage:
for minors under the age of 18, the arrests for alcohol are
at 42.4 percent, and the arrests for prostitution are at
33.3 percent; and for those over the age of 18, 54.1 percent
are arrested for domestic violence, 29.7 percent are
arrested for disorderly conduct, 26.7 are arrested for sex
offenses, 20.9 for drug arrests, 18.5 for alcohol offenses,
and 18.2 for murder arrests.
MS. MARTUS discussed victims of crime and said Natives are
also over-represented as victims in that Alaska Native
people are one of the most victimized groups in the state.
She said 27 percent of the Standing Together Against Rape
center case load is comprised of Alaska Natives, and as far
as being victims of violence, the homicide rate for Alaska
Natives is three times higher than the national average,
meaning that 45 per 100,000 Alaska Natives die by homicide.
Ms. Martus indicated that a Native man age 20 who never
marries has a 25 percent chance of dying violently before
the age 60, and Native females are four and a half times
more likely to be murdered as the average U.S. female. She
said these are some of the conditions that influence Alaska
Natives in their encounters with the justice system.
Number 174
MS. MARTUS continued, discussing cultural factors that also
complicate their encounters and result in unequal treatment
in the justice system, and a cultural clash in the courts.
Ms. Martus said that it isn't that Natives go into the
system without a set of values or ethics, rather, they clash
with the Western judicial proceedings, but commonly
traditional Native values and ethics include the compulsion
for full disclosure or truth telling, which in terms of
confessions and Miranda rights causes a clash. She said
Native people often confess without representation, and
another common Native value that comes in to play is not
interfering, or nonconfrontation, and avoidance of conflict.
MS. MARTUS discussed the Justice Center, saying this is the
first time the Native community has organized and
concentrated its resources on justice system issues and
targeted the whole justice system with the goal of improving
their status, and they cannot do this without the
cooperation and support of the state justice agencies, which
is why she wanted to familiarize the committee on what they
are up to. She said she is just in the process of
identifying the justice agencies that they really need to
work with. Ms. Martus indicated in addition they are in the
midst of fundraising, and their strategy is to work with the
business and legal community, to look for grants for
funding, and she would like to establish a relationship with
political leaders and form partnerships towards this goal.
MS. MARTUS concluded by discussing the financial cost of
incarceration versus looking at more culturally relevant
resources. She indicated opposition to the proposed death
penalty legislation and discussed how difficult it is to get
the Native vote out, and their votes on an advisory ballot
would be very diluted. Ms. Martus discussed looking for
funding for about five different programs; one to have
Native justice advocates working with the Public Defender to
assist and navigate the system and fill the cultural gaps
that exist, and on the victim's assistance end, they would
want to work with the traditional victim's assistants and
prosecutor, especially focusing on domestic violence
problems. She said the other project is a legal education,
know your rights campaign, and the third, a pro-bono program
to represent people that fall in the cracks and are not
eligible for Legal Services. Ms. Martus said the fourth
project they would like to do is be a clearinghouse and a
preserver of the alternative dispute resolution entities
that are alive and well in rural Alaska; and the fifth
project which would include policy issues such as
alternative punishment and working with the criminal justice
system.
Number 353
REP. JAMES told Ms. Martus that she applauds her efforts and
wishes her success.
HCR 28 - GET CLEARY ORDERS DISSOLVED OR CHANGED
Number 345
CHAIRMAN PORTER informed the committee that HCR 28 would be
held until Friday, February 18, 1994, and the first bill on
the calendar would be HB 349.
HB 349 - CIVIL COMMITMENT OF SEXUAL PREDATORS
Number 355
REP. SEAN PARNELL, Prime Sponsor of HB 349, testified that
HB 349 is an act that provides for the civil commitment of
sexual predators, and recognizes that there are a special
group of people that don't fall within the conventional
civil commitment system, which are for people who get
committed to Alaska Psychiatric Institute (API), where
typically the time frame of commitment is short. He said
the time frame for treatment needs of this population is
much more lengthy and expensive than the typical commitment
procedures are designed for. Rep. Parnell explained that HB
349 would set up another category of civil commitment
procedures for this group of people, and the bill recognizes
that they have a personality disorder or mental abnormality
that would predispose them to sexual offenses, and it
recognizes that these people are entitled to treatment and
should be confined. Rep. Parnell said that most of the
people that have committed a sexual offense have been
incarcerated, and three months before their sentence is
about to end, Department of Corrections will send a notice
to the Attorney General's (AG's) Office telling them that a
person who may fall within the definition of a sexual
predator is about to be released. He continued, saying the
AG's Office then makes a determination whether they intend
to petition for civil commitment, and if they do decide to
do so, they file a petition with the Superior Court, and
within 72 hours there is a probable cause hearing held at
which the individual has a right to be present. Rep.
Parnell said if there is probable cause to believe the
person is a sexual predator, a hearing is then scheduled for
45 days within the date of the filing of the petition, and
at the hearing the person the AG is attempting to commit has
all the attendant constitutional rights of a trial, and the
AG's Office has to prove beyond a reasonable doubt that this
person is a sexually violent predator under the act. Rep.
Parnell explained that once that happens, the individual is
transferred to the custody of the Department of Health and
Social Services (DHSS) for custody care and confinement.
Number 448
REP. PARNELL discussed questions that commonly come up, one
of which is, is there a mechanism in the bill to prevent
confinement for life. The short answer is there is a
mechanism in the bill that provides for annual examinations
and the right to petition to the Court for release, and at
the hearing the burden of proof falls on the AG's Office to
show the individual is still a violent sexual predator and
should still be committed. He discussed other questions,
including how many people would fall under this commitment
law, and said the Department of Law has estimated it will
prosecute two to three individuals a year; another question
was how much will this cost? He referred to the DHSS fiscal
note and explained they were predicting about ten detainees
a year and said he has asked them to revise it if necessary.
Rep. Parnell then discussed the constitutionality of the
bill, and said one of the primary areas of concern is the
right to liberty and whether a person should be confined
after they have served their sentence for a crime, but said
HB 349 is modeled after a Washington sexual predator act
that has been challenged on this ground as well as others,
and the Washington Court found that where the state has a
compelling interest in treating and confining these people,
based upon their mental abnormality or personality disorder,
and based upon their danger to society, the civil commitment
process in Washington has been upheld and does not violate
the constitutional provision of taking of liberty. Rep.
Parnell said the Court did find fault with several aspects
of the law, which have been remedied in HB 349, including
the treatment aspect of the bill.
Number 506
DEBORAH SMITH, Executive Director of the Alaska Mental
Health Board, testified regarding HB 349 and discussed
several comments from the Board, including making the
distinction between those sex offenders that can be
rehabilitated and those who can't. She said the Board's
real concern with the bill is that if it is a lock them up
and throw away the key, that is not mental health treatment,
it is protecting the public. Ms. Smith indicated that there
are some categories of sex offenders that can be treated,
but what they have found is that what sex offenders
treatment in the prisons is not necessarily appropriate for
some population groups, and gave an example, citing the sex
offenders who are developmentally disabled.
MS. SMITH urged the committee to look at the whole spectrum
of sex offenders and how you are going to treat them, and
said the Board suggested the committee look at sex offender
registration, current treatment in prisons, and then HB 349
could become part of that spectrum. She said that the Board
also has a problem with the DHSS fiscal note for HB 349 in
which funding is out of the Mental Health Trust, and if this
is not a treatment program, it is not an appropriate use of
mental health trust money.
Number 565
REP. PORTER observed that the administration of the penal
system by constitution does address rehabilitation of the
offender, but also addresses protection of the public, and
said that is part of what HB 349 is about.
Number 572
REP. JAMES commented that she agrees that there are more
pieces to the sex offender legislation and would like to get
some of those pieces in the legislation here also.
Number 577
CAPTAIN SHIRLEY WARNER, Anchorage Police Department and Co-
Chair of the Task Force on Sexual Assault, testified in
favor of HB 349 on behalf of both entities. Capt. Warner
discussed the high recidivism rate for sex offenders, and
described one perpetrator that has served jail time, has
committed a violent sexual assault on a woman in a
wheelchair, and is currently stalking a woman working for
the Department of Corrections, and said he would be a
perfect candidate for commitment under this legislation.
Ms. Warner suggested that the legislation would help both
the perpetrator and the victims and urged the committee to
support HB 349.
Number 624
REP. PHILLIPS asked Captain Warner if the Task Force had
looked at HB 349, and if they had any recommendations on the
bill.
Number 629
CAPTAIN WARNER replied that the Task Force did not review it
in great detail; however, they support the bill in essence
and concept.
Number 638
CINDY SMITH, Executive Director of the Alaska Network on
Domestic Violence and Sexual Assault, a coalition of twenty-
two nonprofits around the state that work with victims of
domestic violence and sexual assault. Ms. Smith said they
are pleased to support HB 349, and believe it would address
several problems, including crime prevention. She discussed
the recidivism rate and said it ranges from about 80 to 95
percent, and that some treatment lowers the rate, but it is
not a cure. Ms. Smith described a current case where a sex
offender convicted of first degree sexual assault and
kidnapping from Washington moved to Homer, and the Homer
Police were notified, but because Alaska doesn't have a sex
offender registration, they could not publicize it. She
said within three weeks of moving to Homer, he committed a
crime with the same M/O, and said for this individual it
wasn't a question of if, it was a question of when. She
cited other examples of sex offenders in Alaska repeating
their crimes after being released from prison.
Number 690
MS. SMITH continued, saying the commitment law won't fix
that unilaterally, that is actually a law that is fairly
specific and applies to a small number of people, but the
intent is not punitive, rather it is to try and provide
treatment, and try and fix the problem. She said we are not
successful in treating individuals in jail, and her
organizations thinks this bill will work.
Number 700
REP. PORTER said for the record that he too hopes that by
the end of the session, Alaska will have a sexual offenders
registration law.
Number 716
BRANT MCGEE, Director, Office of Public Advocacy, testified
on the fiscal aspect of HB 349, citing the requirement of a
Public Advocate, but said there is a better and cheaper way
to provide representation, and that is through the Public
Defender's Agency. He said the reason is that the Public
Defender is likely to have represented these individuals on
prior charges, and in addition, many times his staff will
not be able to represent them, because it is not uncommon
for the perpetrators who have done their crime against
children, and his staff is already acting on behalf of the
child, which would cause a conflict and they would have to
hire private attorneys to take over the case, which is the
most expensive way to do business. Mr. McGee encouraged the
committee to change the representation from the Office of
Public Advocacy to the Public Defender's Office.
Number 758
REP. PARNELL responded that he thinks the change would tend
to make people think the civil commitment is a criminal
matter versus a civil matter.
Number 769
MR. MCGEE responded that the Public Defender's Office
provides representation in civil cases as well as criminal
and that they have specialists in the civil procedures.
Number 788
REP. PORTER said he thought for the purposes of the record
with the information Mr. McGee has provided that both
agencies have civil and criminal responsibilities, and in
the interest of reduced budget, it might be appropriate for
the first agency to be the Public Defender. He said the
committee would discuss it when they take up specific
amendments.
Number 798
LEONARD ABEL, Community Health Director for DHSS, testified
that the DHSS would be the recipient of this new class of
committed patients, and generally DHSS is cooperative and
supportive of SB 349, as they believe some people need to be
off the street to protect society. He said the way the bill
is structured it does that and also provides an avenue for
treatment for a population that is not considered "mentally
ill," but they do have a very severe, very disabling mental
disorder that very severely limits their capacity to
function socially, legally and morally. Mr. Abel indicated
that there is a chance for these people, but it involves
long-term treatment, with highly specialized staff, and DHSS
is concerned about where this treatment would take place,
which hinges on the number of people, and also issues like
least restrictive.
MR. ABEL discussed DHSS's fiscal note that looks at the
possibility of needing two ten-bed, fairly secure
residential facilities and that was based on the
consideration of least restrictive, and also by focusing on
other institutions such as API and their mission. He said
DHSS's estimates may be too high, but their approach is
still to use a residential facility that would have security
measures. Mr. Abel indicated the department is also
concerned about the funding, and cited other groups of
people that are easier to treat, and they would not like to
see funds removed from those treatment programs to focus on
this particular population. He said, however, that the
department is generally supportive of HB 349, given these
concerns.
Number 857
REP. JAMES questioned whether a ten bed residential unit
would be the place to house these people, because the
individuals committed would not want to be confined with
nothing to do, and not being particularly productive in some
way.
TAPE 94-22, SIDE B
Number 000
MR. ABEL indicated that this is not a population that can be
given weekend passes and such.
Number 016
REP. PORTER asked if the ten-bed unit was envisioned as a
wing on API or a stand-alone facility.
Number 022
MR. ABEL said they were looking at a separate facility, but
that was when the estimate was ten or more people a year,
and if it is closer to two or three people per year,
speaking for himself, not DHSS because he has not discussed
it with other officials, but perhaps API could absorb the
population.
Number 073
REP. GREEN discussed the fiscal note, and treatment, but not
necessarily a cure and long-term treatment and asked if the
fiscal note was based on a long period of time. He also
asked, if the legislation involved incarceration, would DHSS
withdraw its support?
Number 090
MR. ABEL responded that the fiscal note was based on long-
term treatment, and if treatment was deleted they would
withdraw their support.
Number 102
REP. NORDLUND asked if it was possible to begin treatment
during criminal incarceration.
Number 120
REP. PARNELL discussed the distinction between voluntary and
involuntary treatment, and said inmates can refuse
treatment.
Number 133
REP. PORTER said there is sex offender treatment available
in prisons, but one problem is the first time offender often
gets released before a treatment program can begin, another
problem is the prisoner can refuse treatment, and finally,
prisoners are often furloughed without receiving any
treatment. He said if an individual is committed, the
intent is for treatment.
Number 186
REP. NORDLUND responded that if treatment was introduced
earlier in the process, it might save money.
The committee discussed treatment options available through
the Department of Corrections and the cost of treatment in
correctional settings and as proposed under HB 349 and the
constitutional impact of mandating a program that other
legislatures would have to fund.
Number 291
REP. PORTER closed the hearing to public testimony and asked
for amendments, along with requesting testimony from Margo
Knuth.
Number 320
MARGO KNUTH, Assistant Attorney General, Department of Law,
testified that for preventative detention, one theory is
that you cannot take someone you think is dangerous, just to
keep them from committing crimes, and you need both
dangerousness and mental illness. She said the definition
of mental illness has been something that's treatable, and
if you can't treat it, it's something else and all of the
civil commitment proceedings fall apart. Ms. Knuth
continued and said another school of thought is that you can
be mentally ill and not treatable and still be mentally ill.
MS. KNUTH explained the Court's interpretation, whereby a
person that is anti-social cannot be committed, and the
answer is to increase prison sentences for the crime of
sexual assault in the first degree and deal with them
criminally instead. She told the committee that they need
to have on the record the premise of mental illness, and it
helps if there is any indication they are treatable. Ms.
Knuth indicated a problem the bill might run into is the
argument that it really is a criminal proceeding and not a
separate civil proceeding and it violates double jeopardy.
She said the answer to that is the mental illness and
treatment factors, but it is the double jeopardy arguments
she expects to hear most frequently. Ms. Knuth concluded
that the greatest help for the bill is a strong factual
showing of the possibility of treatment. She discussed
amendments to strengthen the bill and said the committee
would get to them at some point in the hearing.
Number 394
REP. PORTER said it seems to him that there is an anomalous
situation, if you take the approach that would seem to be
cleaner cut; i.e., criminal, then you have all the
constitutional questions that come in from that; but when
you try to deal with it on the other spectrum you've got
just the opposite considerations. Rep. Porter asked for
amendments.
Number 412
REP. PHILLIPS, for the purposes of discussion, moved
Amendment No. 1.
Number 422
REP. PARNELL indicated that the work draft was before the
committee and that Amendment No. 1 clarifies some of the
problems that were identified by the Washington Supreme
Court, as well as cleans up some language. Rep. Parnell
discussed line 28, page 3, where it says that within 45 days
of filing the petition, Amendment No. 1 would insert the
words "and following a judicial determination of probable
cause." He then discussed page 4, line 5, which cleans up
examiner language to add the words "expert or professional."
Rep. Parnell said on page 5, line 25, after correction
facility, what came up was a person could actually be
confined for up to a year without being notified of their
right to an annual examination and hearing, and this
addresses that when a person is committed, they are told of
this right.
Number 486
MS. KNUTH addressed the immunity provision for the state
agency and employees of the agency and said the bill
currently offers immunity for any good faith conduct under
the act. He explained that good faith protects you from
paying the dollars at the end of the judgement, but it
doesn't protect you at all from being sued, and on one hand
it is unpalatable for some people that the state be given
absolute immunity, but on the other hand it's costing a lot
of dollars to be defending the number of tort cases that we
are seeing, and the immunity section will protect the state.
Number 523
REP. PHILLIPS asked if HB 277, Indemnification for Public
Employees, which passed out of House Judiciary last week,
didn't do what Ms. Knuth was describing.
Number 527
REP. PORTER replied that HB 277 provided individual
liability, not state.
Number 540
REP. NORDLUND asked about gross negligence.
Number 550
MS. KNUTH said it was the same thing as non-good faith, and
that she probably could find out what the proper phrase was
that would allow liability for outrageous conduct.
Number 561
REP. PARNELL indicated that he didn't have a problem with
amending the amendment to drop that particular language at
this point, and then another amendment could be offered at a
later time.
Number 565
REP. JAMES replied that she thought we could take any good
faith out now and then maybe find something else to put in
there.
Number 570
MS. KNUTH indicated that intentional misconduct would
satisfy her concerns.
Number 582
REP. PORTER said the committee should probably leave good
faith in HB 349 rather than take it out and not have
something in place, and moved to amend the amendment by
deleting page 7, line 31.
Number 636
THE COMMITTEE SUBSTITUTE FOR HB 349 WAS MOVED WITHOUT
OBJECTION.
Number 673
AMENDMENT NO. 1 WAS AMENDED AND MOVED WITHOUT OBJECTION.
Number 675
REP. PORTER directed Ms. Knuth and Rep. Parnell to page 4,
second paragraph (b), line 13, "the court or jury shall
determine beyond a reasonable doubt whether the person is a
sexually violent predator." He continued, saying if a
finding of sexual motivation is necessary, and asked if the
state had a crime for which the element is "sexually
motivated?"
Number 686
MS. KNUTH responded no, and said what's going on is that all
sex offenses automatically qualify for this type of
proceeding, but other felonies also qualify -- murder,
robbery, etc., and what this is saying is that if you are a
non-sex offense offender, then the state can still try to
civilly commit you if the state finds that the crime, which
wasn't a sex offense, nonetheless was sexually motivated.
She said the classic example is the person who ends up being
convicted for murder when it was murder/rape, so what would
be required there is simply showing that the charge and
conviction was murder, but the offense was a sex offense.
Number 701
REP. PARNELL refereed the committee to their bill packets
which contained profiles of the types of offenders who are
confined in Washington at this time, and it will demonstrate
the worst of the worst.
Number 714
REP. PORTER indicated that he sees what it is HB 349 is
seeking to do, but he has some difficulty with alleging that
a finding of sexual motivation is necessary to classify the
offense as a sexually violent offense.
Number 720
MS. KNUTH responded, saying what HB 349 is saying is if the
offense that's being alleged is an offense for which the
finding of sexual motivation is necessary, then the state
has to prove that beyond a reasonable doubt. Ms. Knuth said
the motivation part is the hardest part to prove,
particularly when we know rape isn't a sex crime, it's a
power crime, so analytically it makes sense, but in terms of
practical terms, there is something troublesome there.
Number 738
REP. PORTER asked if the Washington case spoke to proof
beyond a reasonable doubt and if HB 349 would have to use
that stringency, and if you could not use preponderance
instead.
MS. KNUTH replied that she didn't know, but what might be
easier to change is the terminology; sexual motivation is
something the Washington law used, but maybe Alaska could
refer to something that goes to conduct rather than
motivation. She indicated that she could work with the
sponsor to come up with language focusing on conduct instead
of motivation.
Number 757
REP. GREEN expressed a concern that once an individual is
committed and they have the right to an annual review, would
this cause an undue burden on Department of Law?
Number 765
MS. KNUTH responded that a burden, yes, but as far as an
undue burden, she doesn't know, it is not avoidable.
Number 781
REP. PORTER asked if the committee objected to making the
Public Defender the primary agency in charge of commitments.
Number 787
REP. PARNELL said he still had concerns about that and the
issue deserved more scrutiny.
Number 790
REP. JAMES indicated she shared Rep. Parnell's concern with
the perception of using the Public Defender versus the
Office of Public Advocacy.
Number 803
REP. PORTER explained that the state has a Public Defender
and an Office of Public Advocacy and they sound pretty
close, and he thinks the consideration will ultimately be
fiscal, and if the committee can get enough information on
the record that they mean confinement, not incarceration,
that they mean civil procedure, not criminal procedure, that
they mean an attempt at treatment, although they recognize
that is one difficult process, that within the
constitutional requirements of making this bill meant the
constitutional restrictions that obviously exist. He said
at the same time, he doesn't think it would be deleterious
with that on the record, to save some money and if the
Public Defender can save two-thirds of the work by already
having a record of this case, then so be it.
Number 820
REP. PARNELL said he wanted to return to the treatment
portion of HB 349 and put some things on the record, and
asked the chairman if he wanted to resolved the Public
Defender issue first.
Number 823
REP. PORTER suggested that Rep. Parnell make a note of these
concerns and any others that come up, then the committee
would hold the bill until he comes back with other
amendments addressing those concerns.
MS. KNUTH indicated that from the Department of Law's
perspective, it does not make any difference which agency
handles it, and to the Court of Appeals, the treatment issue
is more important than any of the other trappings, and she
does believe it's true that the Public Defender's Office
handles all civil commitment proceedings, in which case it
does make sense for them to do this as well.
Number 833
REP. NORDLUND asked for a fiscal note from the Public
Defender's Agency.
Number 840
REP. PORTER discussed another issue that came up previously
in regard to the appointment of the examiner and whether it
should be the responsibility of the Court rather than the
agency.
Number 849
CHRIS CHRISTENSEN, General Counsel to the Judicial Branch,
testified regarding three sections in the bill, and said the
way Alaska does things is a little different than in
Washington where the judge appoints both the counsel and the
psychiatrists to do the examinations. Mr. Christensen
indicated that in Alaska the individual gets their public
defender or public advocate and that person goes out and
hires whatever expert they think they need, which is funded
out of their budget, so all the costs of representation are
in one agency's budget. He said the way HB 349 has been
drafted directs the Office of Public Advocacy to perform
some functions, and the Court to appoint the examiner. Mr.
Christensen recommended the new draft reflect only one
agency's involvement.
TAPE 94-23, SIDE A
Number 000
MS. KNUTH indicated that the Court in Washington said if you
are in that category the state must also show a recent overt
act of showing dangerousness, and she expects an amendment
will be forthcoming that would include that as well, and
added that it's not required when a person has been
incarcerated because, presumably, there has been no
opportunity for this recent display of dangerousness.
Number 016
REP. GREEN asked if the fact that you may have someone
committed for a violent sex crime, and he has already served
his time, and now it's his review period, does the fact that
he was committed in the first place act in the state's
interest of showing this guy still isn't well?
Number 018
MS. KNUTH said she didn't know; however, a conviction will
certainly help establish that this was a dangerous person,
but they will still need expert testimony on the mental
illness question, and the best sexual offender treatment
program the state has is Highland Mountain Correction
Center. She said she understands it actually has worked for
some sex offenders, but the problem is it is too small, and
there is a long waiting list for it, so they have made it
available to the most serious offenders close to when they
are being released. Ms. Knuth indicated that it has been a
resource issue, so sex offenders can't start in it and stay
in it the whole length of their criminal sentences.
Number 054
REP. GREEN asked, what is the situation now with respect to
this kind of individual if we didn't have this kind of
statute?
Number 060
MS. KNUTH responded that they sigh.
Number 067
REP. PORTER told the committee that he will hold HB 349
until Rep. Parnell is ready with new amendments, and then
they will hear it at the next meeting.
HB 349 WAS HELD FOR FURTHER ACTION.
REP. PORTER then called for HB 415.
HB 415 - 1994 REVISOR'S BILL
Number 088
DAVE DIERDORFF, Legislative Affairs Agency, Legal Counsel,
testified that HB 415 mainly fixes problems in earlier
legislation transferring the Alaska Energy Authority to the
Department of Community and Regional Affairs. He said they
discovered the problems before the Governor signed the
legislation and came up with the amendments in HB 415,
Sections 6 through 15, made it available to the executive
branch and they have been acting since the Governor signed
the bill as though this were the law. Mr. Dierdorff
explained the intent was to transfer these functions without
change in the terms of the dynamic relationship, and these
amendments simply complete the job that wasn't completed
last year when the law passed, which is why these sections
are made retroactive to the effective date of that
particular law.
MR. DIERDORFF discussed Section 1, which just restates the
law so it is clearer to those who read it, and what it
really means, which is a portion of the permanent fund is
exempt and a portion isn't. He discussed Section 2, which
codifies an Alaska Court of Appeals decision, taking a
definition from one part of the law and applying it to
another, and they agree that decision was correct. Mr.
Dierdorff continued with Section 3, which is a conforming
amendment to make sure that the language of the King Salmon
tags is the same throughout the statutes, which was an
oversight last year in the Omnibus (inaudible) bill.
MR. DIERDORFF discussed Sections 4 and 5, which change
boilerplates to match other boilerplates. He said Section
16 takes care of an oversight in last year's Executive Order
84. He said it doesn't even belong in the revisors bill,
but was a favor to the Department of Law. He said it
relates to the sunset date for the Human Relations
Commission of 1993, and under the law that means it's not
here anymore, so you really need to address the sunset or
lack thereof, and the committee could take this provision
out and the Human Relations Commission won't have a sunset
date, or it can be taken out and the committee can ask the
Health, Education and Social Services Committee to consider
a bill addressing it, or can change the name and let it be.
Mr. Dierdorff said his preference is to take it out of there
because it doesn't belong in HB 415.
Number 238
MR. DIERDORFF continued discussing Section 17, which gets
rid of reference to a division that doesn't exist in that
form anymore. He said the repealers are pretty straight
forward. Mr. Dierdorff referenced an amendment in front of
the committee which takes care of a mistake made several
years ago to include elk as a domestic mammal lawfully
owned. They were conforming this definition to the Elk Game
Farming statutes, and Fish and Game asked them to go back to
the law as it was so they can enforce the game laws with
respect to all elk except those that are in licensed elk
forms, and this would close the loophole regarding certain
things relating to regulation and control of elk. Mr.
Dierdorff said the effective date would go back to the
original legislation. Finally, they have added one item to
the repealers and that is simply a redundancy in the law
that needs to be taken care of.
Number 300
REP. PHILLIPS moved Amendment No. 1, and hearing no
objection it was so moved.
AMENDMENT NO. 1 WAS ADOPTED.
Number 311
REP. PORTER asked for additional explanation about Section
16.
Number 339
MR. DIERDORFF said in the executive order the Governor used
to consolidate the commissions into the Human Relations
Commission, including the Women's Commission, they realized
after the fact that an error had been made, but what he has
been saying is that because that sunset date has passed now,
there is a bigger question. He continued, saying in January
of 1993 it would have made a lot more sense to do it,
because then you still had some time to look at it to decide
to extend it or not, but in 1994 it's a little harder to
rationalize it being here.
Number 342
REP. PHILLIPS moved to delete Section 16 from HB 415 and
turn it over to the HESS Committee.
AMENDMENT NO. 2 WAS SO MOVED.
REP. DAVIDSON made the motion to move HB 415 out of
committee as amended with individual recommendations.
Hearing no objection, it was so moved.
CSHB 415 (JUD) WAS MOVED FROM COMMITTEE WITH INDIVIDUAL
RECOMMENDATIONS.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 3:31 p.m.
HB 323 - WAS NOT HEARD TODAY
HB 292 - WAS NOT HEARD TODAY
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