02/16/1998 01:08 PM House JUD
| Audio | Topic |
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 16, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Eric Croft
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 44
Proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature.
- MOVED CORRECTED VERSION OF CSHJR 44(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 252
"An Act relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
- MOVED CSHB 252(JUD) OUT OF COMMITTEE
* SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 293
"An Act relating to collection of settlement information in civil
litigation; and providing for an effective date."
- MOVED CSSSHB 293(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 273
"An Act relating to notification of the public concerning sex
offenders."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 44
SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING
SPONSOR(S): REPRESENTATIVES(S) PORTER, MULDER, Dyson, Green
Jrn-Date Jrn-Page Action
01/12/98 2020 (H) PREFILE RELEASED 1/9/98
01/12/98 2020 (H) READ THE FIRST TIME - REFERRAL(S)
01/12/98 2020 (H) JUDICIARY, FINANCE
01/14/98 2048 (H) COSPONSOR(S): DYSON
01/23/98 2121 (H) COSPONSOR(S): GREEN
02/06/98 (H) JUD AT 1:00 PM CAPITOL 120
02/06/98 (H) MINUTE(JUD)
02/11/98 (H) MINUTE(JUD)
BILL: HB 252
SHORT TITLE: REGISTRATION OF SEX & CHILD OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) RYAN
Jrn-Date Jrn-Page Action
04/16/97 1122 (H) READ THE FIRST TIME - REFERRAL(S)
04/16/97 1122 (H) JUDICIARY, FINANCE
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
05/05/97 (H) MINUTE(JUD)
05/08/97 (H) JUD AT 8:30 AM CAPITOL 120
05/08/97 (H) MINUTE(JUD)
10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
10/24/97 (H) MINUTE(JUD)
10/24/97 (H) MINUTE(JUD)
02/04/98 (H) JUD AT 1:00 PM CAPITOL 120
02/04/98 (H) MINUTE(JUD)
02/11/98 (H) JUD AT 1:00 PM CAPITOL 120
02/11/98 (H) MINUTE(JUD)
02/16/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 293
SHORT TITLE: PERSONS REQUIRED TO FILE SETTLEMENT INF0
SPONSOR(S): REPRESENTATIVES(S) PORTER, Berkowitz, Croft
Jrn-Date Jrn-Page Action
01/12/98 2021 (H) PREFILE RELEASED 1/2/98
01/12/98 2021 (H) READ THE FIRST TIME - REFERRAL(S)
01/12/98 2021 (H) JUDICIARY
01/20/98 2088 (H) SPONSOR SUBSTITUTE INTRODUCED -
REFERRALS
01/20/98 2089 (H) JUDICIARY
01/30/98 (H) JUD AT 1:00 PM CAPITOL 120
01/30/98 (H) MINUTE(JUD)
02/09/98 (H) JUD AT 1:00 PM CAPITOL 120
02/09/98 (H) MINUTE(JUD)
02/16/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 273
SHORT TITLE: NOTIFY COMMUNITY ABOUT SEX OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) MASEK
Jrn-Date Jrn-Page Action
05/08/97 1656 (H) READ THE FIRST TIME - REFERRAL(S)
05/08/97 1656 (H) JUDICIARY
10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
10/24/97 (H) MINUTE(JUD)
10/24/97 (H) MINUTE(JUD)
02/04/98 (H) JUD AT 1:00 PM CAPITOL 120
02/04/98 (H) MINUTE(JUD)
02/11/98 (H) JUD AT 1:00 PM CAPITOL 120
02/11/98 (H) MINUTE(JUD)
02/16/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE JOE RYAN
Alaska State Legislature
Capitol Building, Room 420
Juneau, Alaska 99801
Telephone: (907) 465-3875
POSITION STATEMENT: Sponsor of HB 252.
DAVID PREE, Legislative Assistant
to Representative Joe Ryan
Alaska State Legislature
Capitol Building, Room 420
Juneau, Alaska 99801
Telephone: (907) 465-3875
POSITION STATEMENT: Explained changes in Version T of HB 252.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified and answered questions on HB 252;
answered questions on HB 273.
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: Testified regarding fiscal note for HB 252.
EDDIE GRASSER, Legislative Assistant
to Representative Beverly Masek
Alaska State Legislature
Capitol Building, Room 432
Juneau, Alaska 99801
Telephone: (907) 465-2679
POSITION STATEMENT: Explained changes in Version E and answered
questions on behalf of sponsor of HB 273.
ACTION NARRATIVE
TAPE 98-17, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Members present at the call to order
were Representatives Green, Bunde, Porter, Rokeberg and James.
Representative Berkowitz arrived at 1:12 p.m. Representative Croft
attempted to join in by teleconference, but no lines were
available.
HJR 44 - REAPPORTIONMENT BOARD & REDISTRICTING
Number 0045
CHAIRMAN GREEN announced the first item of business would be minor
housecleaning on HJR 44, proposing amendments to the Constitution
of the State of Alaska relating to redistricting of the
legislature.
CHAIRMAN GREEN noted that the committee had moved CSHJR 44(JUD) out
on February 11, 1998. He advised members there was no need to
rescind that action. Chairman Green explained that there was a
drafting error on page 5, line 21, where language should have been
bracketed for deletion that said, "until after the official
reporting of the next decennial census". The committee substitute
to be transmitted to the House Finance Standing Committee would
show that language bracketed as it should be, if there was no
objection.
Number 0110
REPRESENTATIVE CON BUNDE said, "So moved."
CHAIRMAN GREEN asked whether there was any objection. There being
no objection, the corrected version of CSHJR 44(JUD) moved out of
the House Judiciary Standing Committee.
HB 252 - REGISTRATION OF SEX & CHILD OFFENDERS
Number 0151
CHAIRMAN GREEN announced the next item of business would be HB 252,
"An Act relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
Number 0211
REPRESENTATIVE JOE RYAN, sponsor, indicated he and his staff had
been working diligently with both the committee and the
Administration to address various concerns, making substantial
changes to the original bill. He called on his staff member, David
Pree, to outline the latest changes.
DAVID PREE, Legislative Assistant to Representative Joe Ryan,
Alaska State Legislature, referred to Version T [0-LS0818\T,
Luckhaupt, 2/13/98]. He explained that the substantive changes
made since the last hearing are in Sections 1 through 4; with the
exception of Section 7, the following sections contain minor
changes. They had changed some language for the Department of
Public Safety (DPS) and a few other things that he could point out.
Number 0307
MR. PREE discussed the gist of the major changes. First, failure
to register as a sex offender or child kidnapper has been changed
to a two-step process under which the first-time failure to
register is a class A misdemeanor. However, there is an exception
that a person could be prosecuted for a class C felony if the
failure to register was deliberate, intentional or malicious, or if
the period that they have not been in compliance or not properly
registered has been more than one year.
MR. PREE pointed out that Alaska is supposed to have approximately
3,300 registered sex offenders. He said there are two parts to the
problem. First, of the 1,600 who have actually registered, about
30 percent have not re-registered. And second, 1,700 are not
accounted for. Mr. Pree indicated those are the offenders that
were included in the original bill between 1994 and its retroactive
active date of July 1984, and those are the people that the felony
is intended for.
Number 0436
REPRESENTATIVE ETHAN BERKOWITZ expressed appreciation for the
sponsor's efforts to accommodate the legal concerns of all parties
involved. He made a motion to adopt Version T as a work draft.
CHAIRMAN GREEN asked whether there was an objection. Hearing none,
he announced that Version T (0-LS0818\T, Luckhaupt, 2/13/98) was
before the committee.
Number 0481
REPRESENTATIVE BERKOWITZ asked whether Section 24 is the same in
Version R and Version T, noting that he'd just received the latter.
MR. PREE pointed out that the sections were renumbered.
REPRESENTATIVE BERKOWITZ said as he understands Section 24, someone
already convicted of a sex offense would be required to register.
MR. PREE said that is true for a felony sex offense.
REPRESENTATIVE BERKOWITZ expressed concern that it might be subject
to challenge under the double jeopardy clause, as it places an
additional requirement on someone who has been sentenced for a sex
offense.
MR. PREE replied that courts across the nation have held that it is
not double jeopardy. He offered to provide backup material.
Number 0552
REPRESENTATIVE BRIAN PORTER requested an explanation of the
differences between Version R and Version T.
MR. PREE replied that Sections 1, 2, 3 and 4 were added to make
failure to register a two-part process, with a misdemeanor and a
felony.
REPRESENTATIVE RYAN explained that they had discussed with a lot of
people a provision for someone who perhaps wasn't intentionally or
maliciously trying to duck registration. "And putting a person for
two years for this, we acknowledge that may be perhaps a little
stiff," he said. "And so, we made it a class A misdemeanor, first
time, 90 days. You'll get the message. And a couple people get 90
days and word will get around, very quickly."
REPRESENTATIVE RYAN continued, "After that, you've had sufficient
notice, you've been registered by the court 30 days prior to
release, you've had your photograph taken and your registration
(indisc.) by Corrections, along with the new fingerprints and so
forth. You know what's going on. Now if you don't want to 'fess
up' and do what the law requires, then you have a class C felony,
which, since you've already been convicted of one felony, has a
presumptive sentence of two years."
Number 0648
REPRESENTATIVE RYAN mentioned that he and Representative Croft had
discussed possible consequences relating to the fiscal note from
the Department of Corrections. He suggested that a ball park
figure of five people a week would have to be incarcerated before
the word would get around that the state is serious.
Representative Ryan expressed his understanding that this
legislation would make the state eligible for $200,000 in federal
funds, which he didn't believe to be reflected in the fiscal note.
He then advised members that Mr. Pree would explain the rest of the
changes in detail.
Number 0699
CHAIRMAN GREEN pointed out that the differences between Versions R
and T actually begin in Section 3, on page 2 of Version T.
MR. PREE agreed, indicating he had been including changes made
since they took testimony at a previous hearing. He advised
members that Version R, an intermediate version, had contained
grammatical and spelling mistakes. He said they themselves had
received Version T very recently, and he apologized.
MR. PREE referred to Section 7 of Version T. He told members that
beginning at page 3, line 31, and continuing through page 4, line
9, that is new language shortening the deadlines to the next
working day. It was suggested by the Department of Corrections.
Number 0820
REPRESENTATIVE PORTER referred back to Section 3 and requested an
explanation of the difference between Version R and Version T.
CHAIRMAN GREEN noted that it is an addition. Section 4 is the
former Section 3. He then asked about the addition of Section 3 on
page 2, lines 22 through 29, in Version T.
Number 0885
REPRESENTATIVE RYAN explained that in Version R, the drafting
attorney had added a sentence that the court may reduce or suspend
the minimum term of imprisonment if the court finds the defendant's
violation was not malicious. However, that had opened a can of
worms because of the question of what is malicious. On reflection,
they had decided perhaps that language didn't need to be there
because it created too many problems. The intent is that it is up
to the court to decide, without making esoteric judgments on what
is malicious or not, and they are trying to make it as
straightforward and plain as possible. "They either did it or they
didn't," Representative Ryan added.
Number 0930
CHAIRMAN GREEN stated his understanding that they had dropped that
last sentence from Version R and had inserted a new Section 3,
which refers to Section 4, the former Section 3.
REPRESENTATIVE RYAN concurred.
Number 0954
MR. PREE told members the next change, for clarity, is on page 9,
line 5, which adds "registration or change of address" between the
words "receive" and "information." The next change following that
is on page 10, lines 1 and 2, which adds the language, "physical
description, description of motor vehicles, license numbers of
motor vehicles, and vehicle identification numbers." Mr. Pree
explained that "vehicle identification numbers" is the change here.
The language in their model had referred to another terminology,
and they had made this change after being informed that "vehicle
identification number" is the proper terminology in Alaska.
Number 1047
MR. PREE referred to page 12. On line 15, they had added, "(4) the
central registry of sex offenders and child kidnappers." And on
line 24, they had added the word "verification." Mr. Pree said he
believed those were all the changes since the last time they were
before the committee.
Number 1066
REPRESENTATIVE BUNDE said he had a philosophical question.
Suggesting that it may be fair to say that the initial sex offender
registry law hasn't been working, he asked whether the sponsor
contends that by changing to a felony, with facing two years in
prison, this will begin to work better than in the past.
Number 1096
REPRESENTATIVE RYAN affirmed that. He then referred to the
statistic of 3,300 offenders, of which 1,600 are registered and 30
percent of those are not in compliance. While the state doesn't
necessarily have to throw them all in prison for two years, he said
he believes that the hammer of the presumptive two-year sentence
will be a motivating factor to make these people comply with the
law. He indicated that the compliance is what they are trying to
accomplish, not only relating to federal statutes but also to the
right of people in the communities to know.
REPRESENTATIVE RYAN advised members that in first doing research on
this bill prior to last summer, they began looking at the printed
list of people. He had found that about 150 were within a mile of
his own home; having a nine-year-old son, that didn't make him feel
too comfortable. Furthermore, when they went down the addresses
listed, they found mail drops and business office buildings where
they knew these people didn't have residences. Representative Ryan
stated that not only were people not complying, but they were
skirting the law by giving false information.
REPRESENTATIVE RYAN said discussions with people in the law
enforcement community and with social workers, psychologists and
others have indicated that bringing light on these people can
render them fairly harmless. Only when they are allowed this do
they start doing the things they do, and we get the serious problem
of a child winding up seriously injured, emotionally scarred or
dead. Representative Ryan said it isn't what these people do but
what they are, and that their brains are wired a bit differently.
He suggested the courts need the tools necessary to enforce
compliance.
Number 1210
REPRESENTATIVE RYAN next referred to testimony about people who are
picked up, registered by the police, then set free when the court
asks whether they are now registered. He indicated someone from
the Office of the Attorney General had told them recently they had
begun prosecuting those. However, Representative Ryan pointed out,
the original law was passed in 1991 or 1992, and they are just
starting in now. He suggested perhaps the whole system hasn't been
as focused as it should be.
Number 1247
CHAIRMAN GREEN referred to the questions of double jeopardy and
whether a class C felony is unduly harsh by some standards. He
asked whether Representative Ryan wished to address those issues,
noting that Anne Carpeneti and Jayne Andreen were available to
answer questions. He further asked whether there is any indication
that moving this into the class C felony category will have the
desired effect. He added that he himself subscribes to that.
Number 1306
REPRESENTATIVE RYAN replied that casual conversations with people
in this field indicate the feeling that it would be a very good
tool and would force compliance. He added, "You know the old
saying, 'If it's not broke, don't fix it.' Well, it obviously is
broke."
Number 1332
CHAIRMAN GREEN asked whether any information from other
jurisdictions implies that moving in this direction would, in fact,
help.
REPRESENTATIVE RYAN deferred to Mr. Pree.
MR. PREE replied that Washington has moved away from treatment to
harsher, stiffer penalties for the offense, because their treatment
programs aren't working.
CHAIRMAN GREEN asked whether people are complying in better numbers
under the new regime.
MR. PREE said it is too early to tell.
Number 1375
REPRESENTATIVE BERKOWITZ said he wanted to make sure they were
comparing apples with apples. He asked whether Washington law
enforcement is at adequate levels, as opposed to our law
enforcement. He added that according to some police standards
surveys he has seen, the Alaska State Troopers are 50 percent below
recommended levels.
MR. PREE answered that he doesn't know their staffing levels.
Number 1396
REPRESENTATIVE RYAN requested that Mr. Pree tell members what they
do in Oregon as far as signs. He added that he doesn't propose
this.
MR. PREE informed members that in addition to the types of things
in HB 252, in Oregon they have passed other rules. For example, a
sex offender has been required to post a red sign that says, "Stop,
sex offender lives here," with a telephone number for the
department of corrections posted on the person's place of
residence. He indicated that communities are getting very serious
about this.
CHAIRMAN GREEN asked whether that is statewide or just in a
jurisdiction of Oregon.
MR. PREE answered that he didn't believe it was statewide.
Number 1442
REPRESENTATIVE JEANNETTE JAMES referred to the fiscal note and
asked about the $200,000 offset from the federal government.
REPRESENTATIVE RYAN stated his understanding that if this passed,
they would be eligible for $200,000 in federal funds, which would
offset the $437,000. He indicated that amount from the Department
of Corrections is for incarcerating six prisoners.
REPRESENTATIVE JAMES asked about the status of legislation from the
previous year that addressed identification of sexual predators,
allowing them to be kept incarcerated or in some sort of seclusion,
provided that they were evaluated to be repeat offenders.
Number 1525
REPRESENTATIVE RYAN replied that he has a companion bill that deals
with that, which because of the single-subject title had not been
combined with HB 252. He explained the other bill.
Number 1581
REPRESENTATIVE JAMES said she struggles with the class C felony for
failure to register on two points. First, there are 1,600 or 1,700
who haven't registered, and she isn't sure the fiscal note will
cover it. She asked how they will find these people. She further
asked whether Representative Ryan anticipates that the penalty
would result in a half-dozen people being picked up, which would
result in the others coming into line.
REPRESENTATIVE RYAN replied no, that that is more for enforcement,
to let people know there is a penalty. He added, "But we do
realize, too, that there's an educational process that's going to
have to be done in this area." He said that is why the first time,
it is 90 days.
REPRESENTATIVE RYAN indicated they had received testimony from
people in the Matanuska-Susitna area who said these people hang
around together and swap stories on how they entice children.
Representative Ryan expressed certainty that in that community,
word will get around about passage of this bill. He said he didn't
want to add a greater fiscal note and put more responsibility on
departments to notify these people, noting that ignorance of the
law is no excuse for lack of compliance. He mentioned the current
one-third compliance and suggested that if they don't want to take
stronger action and force compliance, they might as well repeal all
the laws on it and not have any registration.
Number 1670
REPRESENTATIVE JAMES commented that she is sensitive to this issue.
She suggested that putting up a sign, as in Oregon, may be as
destructive to the community as anything else, because of the
perception and the fear put into the community; no one will want to
live there, and property values will drop, for example.
Representative James specified that she wasn't saying this because
she opposes HB 252. She suggested that instead of making stronger
penalties, they should figure out a different way to make sure
these people don't offend again. She said she doesn't know that
registration will stop these people.
Number 1764
REPRESENTATIVE RYAN said he doesn't know that it will stop them,
either, but if he knew how to cast a smaller net, he would address
it in the bill. He is basically concerned with pedophiles and
their behavior. As an example, he referred to an Internet printout
for a Chico Rodriguez, listed as of 1/29/1998 as "not in
compliance," with five related aliases provided and a two-page list
of convictions including sexual abuse of a minor and sexual
assault. Representative Ryan suggested that perhaps such a person
would choose not to register because if people knew his
whereabouts, they could look out for him.
REPRESENTATIVE RYAN said other than what he has tried to put
together with HB 252, he doesn't know a solution, either. He
expressed hope that the bill will alleviate some of this or, if
not, that offenders will go to jail so society won't have to worry
about abuse of a minor.
REPRESENTATIVE JAMES agreed with the goal but said she doesn't
think this will do it; she believes that fellow should never be
out, free to have to register. "He should be somewhere else, where
he can't be getting to the public; that's my point," she concluded.
Number 1888
ANNE CARPENETI, Assistant Attorney General, Legal Services Section-
Juneau, Criminal Division, Department of Law, came forward,
clarifying that the state already receives the $200,000 in federal
Byrne funding referred to earlier by Representative Ryan. That is
in jeopardy if the state doesn't amend its laws to comport with the
Wetterling Act [Jacob Wetterling Crimes Against Children and
Sexually Violent Offender Registration Act], one reason that the
Administration introduced bills the previous year on sex offender
registration; in addition, there are good reasons to make
amendments in the area of sex offender registration. "But it's not
money that we're going to get if we pass it; it's money that we
will lose if we don't change our laws to comport with the Jacob
Wetterling Act," Ms. Carpeneti concluded.
Number 1916
CHAIRMAN GREEN asked Ms. Carpeneti to address double jeopardy.
MS. CARPENETI said Mr. Pree was correct, adding, "We haven't lost
a double jeopardy challenge yet to sex offender registration ...
for convictions that occurred before the date of the Act."
REPRESENTATIVE BERKOWITZ asked for confirmation that it has been
challenged, and he asked what the court's ruling was.
MS. CARPENETI replied that she would like to get more information
for the committee. She told members she relies on an attorney in
the department's Office of Special Prosecutions and Appeals (OSPA).
Ms. Carpeneti said, "And when I called him, he said we're doing
okay. It has been challenged in federal court, I believe, ... and
we haven't lost."
Number 1947
REPRESENTATIVE PORTER asked whether the four or five concerns of
the Department of Law, brought out at the last meeting, had been
fixed.
MS. CARPENETI said although she had just received Version T, a
brief review indicated the department's suggestions were adopted.
Number 1966
REPRESENTATIVE PORTER said he recognizes that there are 1,500 or
1,700 unregistered offenders. He asked whether there is some
indication that may not be the whole picture.
MS. CARPENETI said yes. First, they don't know whether those
people are still in the state; if not, they have no obligation to
register and are not out of compliance. She reported that one of
the main sections that the Administration suggested, which has been
included, allows the state to put on the central registry
information received from other sources besides an individual going
in and registering. Sources include court judgments and APSIN
[Alaska Public Safety Information Network].
MS. CARPENETI said the bill also makes it clear that it is the
responsibility of the sex offender to clear his or her name, if
that is somehow in error. For example, if a person who left the
state is on the registry, that person could prove to the
satisfaction of the DPS that there is no obligation to register and
thus get the name removed. However, the department doesn't have to
go out and figure out where so-and-so is, whether he or she still
has to register, or whether that person's date of registration has
passed.
Number 2030
REPRESENTATIVE PORTER asked if Chico Rodriguez is really missing.
MS. CARPENETI said she'd just been informed that he is in custody.
CHAIRMAN GREEN asked: If someone like Mr. Rodriguez was in
violation for not registering for three years and was picked up for
a traffic violation, for example, how would the penalty be handled?
MS. CARPENETI inquired whether he was asking how many charges would
be brought.
CHAIRMAN GREEN affirmed that.
MS. CARPENETI said that is a good question. She added that she
supposed they could really stack on a lot of charges for every year
of failure to register.
CHAIRMAN GREEN suggested jokingly that perhaps they could in this
way comply with Representative James' concern.
Number 2093
REPRESENTATIVE NORMAN ROKEBERG referred to Section 6, which defines
the scope of serious offenses. He requested an analysis of "how
this fits into this legislation by what appears to be expanding the
scope of what's called serious offenses."
MS. CARPENETI replied that it doesn't expand it very much but
reorganizes the statute. She explained, "Already felony offense is
included; it's just included in the prose section, or the
introduction section, rather than in the letters. And a crime
involving domestic violence is not an addition; it's already
there."
Number 2131
REPRESENTATIVE ROKEBERG asked whether contributing to the
delinquency of a minor, now in subsection (d) on line 20, would be
involved as a sexual offense for the purposes of this bill.
MS. CARPENETI said no. This section amends AS 12.62 and deals with
what information about an individual the DPS can release to an
individual who is inquiring because he or she wants to hire that
person to work with children or vulnerable adults. Ms. Carpeneti
stated, "And that is not even an addition. As you look on line 20
of Version T, that offense is already included." She added that
she believes it was just an edit, because she didn't think there
were one through three paragraphs in that particular section.
REPRESENTATIVE ROKEBERG pointed out there are four, with subsection
(3) being skipping school; he suggested that isn't germane to what
they're talking about in terms of sex offenders.
MS. CARPENETI agreed.
Number 2199
REPRESENTATIVE ROKEBERG expressed concern about Megan's Law and the
Wetterling Act. He asked whether, for example, indecent exposure
is included as a sexual offense.
MS. CARPENETI said if it is a felony offense, yes. She added that
it is presently included as a sex offense under AS 12.63.
REPRESENTATIVE ROKEBERG commented that he would assume it is at the
bottom of the list as far as harm to the community. He asked what
are included as sex offenses.
Number 2261
MS. CARPENETI suggested that page 8 of Version T might be helpful.
She explained that AS 11.41.410 through AS 11.41.438 are basic
sexual assaults and sexual assaults of a minor; AS 11.41.450 is
incest; AS 11.41.455 is unlawful exploitation of a minor under age
16; AS 11.61.125 is promotion of prostitution; and AS 11.66.110 is
distribution of child pornography. Ms. Carpeneti said the former
sections that are included are various former versions of sexual
assault before the (indisc.--papers over microphone) bill was
adopted.
REPRESENTATIVE ROKEBERG asked whether they are adding a new
definition of an aggravated sexual offense.
MS. CARPENETI replied, "Right. And the reason for that is to
comply with the Jacob Wetterling provision, in addition to that
it's a good idea. Right now, our present law requires recidivous
sex offenders to register for life. ... This bill requires people
who are convicted for the first time of sexual assault in the first
degree - which is basically rape - and sexual abuse of a minor in
the first degree to register for life. And that is an attempt to
comply with the Jacob Wetterling Act."
Number 2321
MS. CARPENETI explained that the Wetterling Act wants the states to
set up boards of experts in sexual offender behavior, sentencing
and treatment. The Act envisions that the states will appoint
these boards to examine people who are convicted of a sex offense,
to do a psychiatric or psychological exam and then to make a
recommendation to the sentencing court as to whether that person is
or is not a predator. If they make that recommendation and the
sentencing court agrees, the person is considered a predator and
must do the various things that predators must do under the
Wetterling Act, which is basically verify their address every 90
days. It also allows for the sex offender to come back and ask the
board to reconsider whether or not he or she is a sex offender, and
then to go back to the same sentencing court to try to convince
that judge that he or she is no longer a sexual predator.
MS. CARPENETI informed members that Alaska's approach, to which she
believes some other states are agreeing, is to treat recidivists
who have had a chance to reform but to no avail, as well as people
convicted of the most serious offenses, as if they are predators,
requiring verification of address every 90 days. That is the
protection the Wetterling Act provides relating to that group. Ms.
Carpeneti indicated they can thereby avoid having this board, which
would entail problems such as whether people can actually say if a
sex offender will not reoffend and is no longer dangerous. She
also noted the expense of litigation as to whether a person is an
offender, and then deciding whether, forever, the person is no
longer a predator.
Number 2394
REPRESENTATIVE ROKEBERG asked whether it is possible, under the
bill as drafted, that a person who committed the crime of indecent
exposure and failed to register would be committing a felonious
act.
MS. CARPENETI requested a statutory citation.
REPRESENTATIVE ROKEBERG said it is AS 11.41.460.
MS. CARPENETI answered that it is not included in the definition of
sex offense in HB 252.
Number 2418
REPRESENTATIVE ROKEBERG asked what the least egregious offense is
relating to this.
MS. CARPENETI said it is AS 11.41.440, a misdemeanor, sexual abuse
of a minor in the fourth degree, where the offender is over 18, the
victim is under 18 and three years younger, and where there is a
relationship of authority, such as a teacher. She said that is the
only misdemeanor in this bill.
REPRESENTATIVE ROKEBERG asked whether statutory rape still exists
without the authority provisions.
MS. CARPENETI replied that what used to be statutory rape is
included in sexual abuse of a minor.
REPRESENTATIVE ROKEBERG suggested that a person must be in a
position of authority or live in the household "in various
degrees." He asked whether it is true that an offense stemming
from a person over 18 having a sexual relationship with someone
under 18 no longer exists in Alaska's statutes.
[Ms. Carpeneti's reply was cut off by the tape change. According
to the log notes, she indicated it depends on the relationship and
that the age of consent is 16 in Alaska, unless the relationship of
the minor is with a person such as a coach or a teacher.]
TAPE 98-17, SIDE B
Number 0006
REPRESENTATIVE ROKEBERG asked, "So, we don't have old-fashioned
statutory rape?"
MS. CARPENETI replied that it still is illegal to have sexual
contact with a person under age 16; sexual penetration is still a
sexual abuse. She added that the age difference can affect the
severity of the offense.
REPRESENTATIVE ROKEBERG suggested that a person who committed
statutory rape would be a sex offender.
MS. CARPENETI agreed, saying that if a person over 18 had a sexual
relationship with somebody under 16, that would be sexual abuse of
a minor, which would require registration.
Number 0041
CHAIRMAN GREEN referred to page 8, line 18, and suggested that is
why it says "16 or 17", because a person younger than that would be
protected under other statutes.
MS. CARPENETI said that is for prostitution. If a person is under
age 16, it is already covered in the bill. She indicated that is
also a requirement of the Wetterling Act.
Number 0052
REPRESENTATIVE BUNDE stated his understanding that HB 252 would
meet the federal requirements that will keep the $200,000 [Byrne
funds] coming.
MS. CARPENETI replied, "I believe so, yes." She said she has
spoken to people in Washington, D.C., on a number of occasions, who
are unwilling to say yes, to guarantee that. Ms. Carpeneti
explained, "The Wetterling Improvement Act [Jacob Wetterling Crimes
Against Children and Sexually Violent Offenders Improvement Act],
which was passed in the budget bill last year, actually made it
easier for states to comply, but they haven't adopted guidelines,
and they're not willing to say, 'Yes, you will comply.' But I
believe we are in a very good position to comply with Wetterling,
with this approach."
REPRESENTATIVE BUNDE mentioned the size of the fiscal note and that
it will not be offset by the $200,000. He asked whether, now that
this will be a felony, there will be heightened enforcement even
though they are not providing more police officers.
MS. CARPENETI suggested the DPS could answer that better. She
agreed it is human nature to do that.
Number 0144
REPRESENTATIVE BUNDE mentioned people who travel outside Alaska and
then come back. He asked how long a person has, after arriving
back in Alaska, to come into compliance.
MS. CARPENETI said it is the next working day.
Number 0185
REPRESENTATIVE BUNDE referred to discussion about not knowing how
many of the 1,600 people have left the state. He asked whether
they do a match with the permanent fund dividend list, pointing out
that anyone staying in Alaska would hang on to that money.
MS. CARPENETI said that is a good question to which she doesn't
know the answer.
Number 0206
CHAIRMAN GREEN asked whether there is a concern that this might
work in reverse, that the more serious offense may result in more
plea bargaining, for example.
MS. CARPENETI asked whether he meant a sex offender would go
farther underground to avoid detection.
CHAIRMAN GREEN said either that or a plea bargain down from the
charge. He mentioned plea bargaining relating to driving under the
influence, which he called horrendous.
MS. CARPENETI agreed there is a possibility that a charge might be
plea bargained; she added that prosecutors have the interests of
justice and the state when they do that. She said it could
possibly be reduced to a class A misdemeanor under certain
circumstances. However, in this bill, a class A misdemeanor still
requires a mandatory 90 days in jail. Ms. Carpeneti said she
believes the tool would be there for prosecutors in serious cases
to proceed with a C felony, and she assured Chairman Green that she
thinks these will rise to a serious consideration by the state.
Number 0301
REPRESENTATIVE BERKOWITZ asked whether Ms. Carpeneti had given any
thought to the state's exposure in terms of liability resulting
from false listings, for example.
MS. CARPENETI replied that she had given it some thought. She
suggested that perhaps, as they do in other sections such as for
the domestic violence central register, they should consider making
it clear that a mistaken entry does not (indisc.--coughing).
REPRESENTATIVE BERKOWITZ responded that he wasn't going to go in
that direction but had wanted to make Ms. Carpeneti aware of it.
He added that he believes that if the state does falsely list
somebody, the state should be responsible.
Number 0306
REPRESENTATIVE BERKOWITZ raised the question of adequate resources
being given to prosecutors and law enforcement to address the
underlying problem, which is failure to register, and to ensure
public safety. He asked, "If the Department of Law had more
prosecutors, would you, under the current statutory scheme, be able
to better enforce ... the law regarding registration?"
MS. CARPENETI replied, "I assume if we had more prosecutors, we
could do a better job in all areas."
Number 0334
REPRESENTATIVE JAMES asked whether Alaska has any kind of
cooperation with other states. She said she was thinking of
someone from Alaska who leaves the state, making people elsewhere
vulnerable, and/or someone coming from another state, which
Alaskans don't know about. She requested an explanation of how
those issues are addressed in current law.
MS. CARPENETI replied, "The current law requires the offender to
notify Public Safety if they plan to leave the state, ... and to
tell us where they're going, and we will notify the -- if there is
an office that registers sex offenders in the new state, to notify
whatever public agency does that."
Number 0382
REPRESENTATIVE JAMES pointed out that people who didn't register
and went out of state may not be in compliance, even though they
have left the state.
MS. CARPENETI agreed, adding that if they hadn't told the state
they are leaving, they are certainly not complying with what the
law requires.
Number 0400
REPRESENTATIVE ROKEBERG asked, "How can we meet Wetterling without
spending as much money? Is there a way we can do that, to avoid
this fiscal note in this bill?"
MS. CARPENETI answered that the Wetterling Act requires that
failure to comply with the sex offender registration provisions
should be a crime, but it doesn't specify that it must be a felony
offense or talk about how the state must prosecute people who don't
comply. She suggested that may be an area to look at. Ms.
Carpeneti pointed out that using the idea of an aggravated sex
offense, and requiring people who are dangerous to register for
life, will save money in the long run by avoiding the expert
panels.
REPRESENTATIVE ROKEBERG asked whether the state is out of
compliance with the Wetterling Act now, as far as making failure to
register a crime.
MS. CARPENETI explained that the state is out of compliance with
some provisions now, but this summer they received an extension of
time from the federal government; the original deadline was
September 1997. She added, "But, like other states, we're working
on it, but we haven't quite made it yet. So, they gave us a couple
years more to comply."
Number 0465
REPRESENTATIVE ROKEBERG said they had "sleuthed down" that
statutory rape exists and is in the bill as a sex offense.
MS. CARPENETI said that is correct.
REPRESENTATIVE ROKEBERG asked whether the Wetterling Act or Megan's
Law requires that to be in it.
MS. CARPENETI specified that the Wetterling Act requires that to be
in here. She added, "It's already in here because it's a serious
sex offense."
Number 0488
REPRESENTATIVE ROKEBERG asked, "You mean, if somebody is three
years older than the other person and they have an act of sexual
intercourse, that's a sexual offense for federal law now? Is that
what you're saying?"
MS. CARPENETI replied that she doesn't know that it is against the
federal law to do that. She stated, "Wetterling requires us to
register people who victimize people under 18 years old - children
- in numerous ways, one of which is to sexually abuse them."
Number 0505
REPRESENTATIVE ROKEBERG referred to AS 11.41.438 and said it seems
that sexual abuse of a minor in the third degree doesn't have the
position of authority involved, just the three-year age spread.
MS. CARPENETI said that is a C felony, and every offense covered
under AS 11.41.438 requires registration by a person convicted of
that offense. What she was talking about before, as the
misdemeanor offense that is in the bill, is in AS 11.41.440(a)(2).
Number 0540
REPRESENTATIVE ROKEBERG suggested that requires the position of
authority in the fourth degree, but not necessarily in the third
degree, as the statute is drafted.
MS. CARPENETI responded that it is sexual penetration. In AS
11.41.440, it is sexual contact. The act is different.
REPRESENTATIVE ROKEBERG asked, "Sexual contact is defined that
way?"
MS. CARPENETI said sexual contact is defined in AS 11.81, in the
general definitions section.
REPRESENTATIVE PORTER commented that penetration has always been
required in statutory rape.
REPRESENTATIVE ROKEBERG said in fourth degree contact, it is not.
REPRESENTATIVE PORTER said it is fondling.
Number 0596
REPRESENTATIVE ROKEBERG responded that his point stands: Someone
three years older than a 15-year-old would be brought into the net
of sexual offenses in the state.
Number 0637
REPRESENTATIVE BERKOWITZ mentioned that he'd been trying to find
the citation for what he recalls was a violation of conditions of
release in Title 11 or Title 12. He said it seems that if a sex
offender is required under the terms of probation to register,
currently failure to register would constitute a violate of the
conditions of release. He suggested the state is in compliance
with the Wetterling Act as the situation now stands.
MS. CARPENETI indicated she wasn't familiar with that section. She
said she doesn't believe it is a separate crime to violate
conditions of release, although she could be mistaken.
Number 0637
REPRESENTATIVE BERKOWITZ said he would try to find the section. As
he recalled, it was a corollary of contempt of court.
MS. CARPENETI told Representative Berkowitz she would like to talk
about that afterwards. She restated that as far as she knows, it
is not a separate crime to violate conditions of release. She
noted that it is certainly a basis for getting a person back into
court and back into jail, if there is suspended time.
Number 0672
REPRESENTATIVE PORTER asked how long a sexual offender must
continue to reregister and whether it relates to a matter of
degree.
MS. CARPENETI answered, "For 15 years from the date of
unconditional release, which is the date that all time that we have
- all power we have - over that person is gone - no conditions of
release, no parole conditions - when we lose any power over that
person as a state, then they have 15 years beyond that to
register."
CHAIRMAN GREEN asked whether that is 15 total years, not 15 years
in Alaska necessarily.
MS. CARPENETI explained, "This bill provides that ... if the person
complies with the sex offender registration statute outside, and
shows us that he or she has, then that can count for the 15 years."
She advised Representative Rokeberg that she had located the
definition of sexual contact, AS 11.81.954, for all the sex
offenses.
Number 0758
BRUCE RICHARDS, Program Coordinator, Office of the Commissioner,
Department of Corrections, came forward to clear up matters
regarding the fiscal note. Written for a previous bill version,
the fiscal note was based on the straight C felony, using
information from 1996, when 22 admissions resulted in six people
actually doing time. "I'm not sure if the other ones were
dismissed if they registered right away, but I know we had six,"
Mr. Richards added.
MR. RICHARDS said he had received new information that indicates
more people are coming in now under the current statute. It is his
understanding that the DPS is stepping up efforts to locate these
people, and according to the numbers in the state's institutions,
it is working. He emphasized the difficulty of putting a number on
this; he has no idea how many people the DPS will round up, nor how
many are still in the state. Referring to Representative Bunde's
question about checking against the permanent fund dividend list,
Mr. Richards said he understands that the DPS now has a person
doing that, who has been successful in finding some of these
people.
MR. RICHARDS suggested with six people incarcerated, the fiscal
note would probably go down, because not all the convictions would
be for felonies. However, the numbers are going up because of
increased efforts. To determine the numbers for the fiscal note,
they have been talking with Department of Law personnel about
expected prosecutions, checking Department of Corrections records,
and taking into account the increased efforts of the DPS to find
these people. Mr. Richards told members he had planned to testify
at the previous hearing but had to go to another meeting at 3 p.m.
that day. He said he would do his best to provide a fiscal note
for Version T.
Number 0896
MR. RICHARDS mentioned that Mr. Rodriguez is not in compliance
because he is currently in custody and has been in custody. Mr.
Rodriguez was sentenced to a very long term, years ago, and had his
sentence reduced through a three-judge panel a couple of different
times. "And so, he did come up for release recently, last summer,"
Mr. Richards explained. "We were very concerned about the release
of Mr. Rodriguez. We went through extra-special steps to make sure
that he got registered and watched him very carefully. And he did
make a mistake, right away, and he is now back in custody. He's
going to have to serve out ... the remainder of his good time, if
you will. But we held him till the last minute that we could
possibly hold him ... under law, had to let him go, under
supervision, and watched him carefully, and were able to bring him
back in ... when we saw there was some problems. So, I wanted to
clear that up, as well."
Number 0948
CHAIRMAN GREEN asked whether the Department of Corrections would
treat two offenders, one with a class A misdemeanor and one with a
class C felony, differently, or whether people are treated
differently for different offenses.
MR. RICHARDS answered that following the trial, a prisoner is
classified based on security risk. He explained, "They're run
through a matrix, and we decide what their security risk level is.
A misdemeanant can be a really bad guy, previous history, may have
been a real bad felon a long time ago and have a long record of
that." Mr. Richards emphasized that it is not solely dependent
upon the current crime but involves the person's history and
scoring of the matrix. For example, a misdemeanant in prison can
be in maximum custody, maximum security, which they call "max/max."
And while a C felon would probably start out with a high
classification level, that can be lowered, based on behavior in the
institution and scoring on the matrix. Mr. Richards said he
believes it is every six months that prisoners go through a
classification review.
CHAIRMAN GREEN suggested this bill doesn't really affect that.
MR. RICHARDS replied, "Their treatment? No."
Number 1039
REPRESENTATIVE JAMES referred to the fiscal note and to Mr.
Richards' indication that more people are now being picked up for
noncompliance. She asked whether this bill will actually give the
department authority to hire more people.
MR. RICHARDS replied, "We have not been getting new staff people.
We're putting more people into the same space. Our current staffs
are working overtime. These costs that are in here are based on
the ... average daily cost of care for our inmates. And so, the
money goes towards overtime, food, clothing, all the things ...
that an inmate requires." He indicated that while money could be
spent on staffing, it is not broken out that way. The fiscal note
applies to all components, because it is so difficult to break
those out when dealing with inmates and the many different costs.
Number 1120
REPRESENTATIVE JAMES asked whether it is proper to move the bill
with the attached fiscal notes but with a notation that this one
needs to be redone.
Number 1154
MR. RICHARDS explained that it has normally been the practice of
the Administration that when a new committee substitute is
introduced and moved out of committee the same day, they provide a
fiscal note to the present committee, which then forwards that
along with the bill. They try to provide that fiscal note right
away. Mr. Richards assured members he would look at the
information again and do the best he could on the fiscal note,
adding that he is certain this will be an issue in the House
Finance Standing Committee, as well.
Number 1179
REPRESENTATIVE ROKEBERG asked whether Mr. Richards believes the
fiscal note will go down.
MR. RICHARDS said he is not sure. The fiscal note had been based
on 1996 information, and he had just received the 1997 information.
If they were all felonies, the number would go up. However, with
the two-tiered system that includes a class A misdemeanor with a
minimum of 90 days, he doesn't know how many people will be felons
or misdemeanants. He said he would work with the Department of Law
and the DPS to get the best estimate, but it could go either up or
down.
Number 1227
REPRESENTATIVE ROKEBERG pointed out that the greater enforcement,
or the fact that more people are found out of compliance, has
nothing to do with this bill; it has to do with the prior
legislation and either enforcement or other factors.
MR. RICHARDS replied that the real cost in this bill is in the
class C felony, which is not in current law.
Number 1258
REPRESENTATIVE JAMES made a motion to move HB 252, Version T [0-
LS0818\T, Luckhaupt, 2/13/98], from committee with individual
recommendations and attached fiscal note(s).
Number 1270
REPRESENTATIVE BERKOWITZ objected, saying it was to climb on a
soapbox for a second. He agreed with what the sponsor is
attempting to do with this legislation. However, while they hadn't
heard from the DPS, comments from the Department of Law and the
Department of Corrections highlight why the legislature must
concoct a bigger legal hammer, which is because of the chronic
underfunding to those departments.
REPRESENTATIVE BERKOWITZ told members that having been in the realm
of the criminal justice system, he can assure them that to the
people who have to make that decision, "plea bargain" is not a
dirty word. It is a necessity arising from the need to pick and
choose between types of cases. He explained, "As a prosecutor, I
have to determine, 'Am I going to go to trial on a C felony and
hold an officer in court for the week or so that it'll take to ...
be in court? Or am I going to roll it through on an A misdemeanor,
and get them on something more serious later on?' Usually, it's
not much of a choice. You make the deal because you have a
scarcity of resources, and you have to balance what the best
interests of public safety are. So, a lot of the decisions about
sex offender registration, or about any other crime, are predicated
on the need to make the best and highest use of the limited
resources that are available."
REPRESENTATIVE BERKOWITZ submitted to majority members that it
wouldn't take a great deal of additional resources for the
Department of Law and the Department of Public Safety to bring on
board the personnel necessary to run the system the way it should
be run. He stated his belief that it would have huge dividends in
terms of public safety and public confidence in the system.
Number 1364
CHAIRMAN GREEN commented that he appreciates that, one reason he
had asked about plea bargaining. He stated his understanding the
response from the Department of Corrections was that they look at
a person's history and so forth, rather than necessarily the
charge.
Number 1375
REPRESENTATIVE PORTER said to balance that out, it goes without
saying that any law enforcement agency, prosecutor's office, court
system or corrections official would say, "If I had some more
money, I could do a better job." At some point, they must draw the
policy line as to how much to spend. He pointed out that an
officer would not likely be held in court for a week on a felony
charge under this, because an officer would make the arrest but not
substantiate the evidence necessary for conviction, which he
suggested would be done by a clerk at the DPS.
REPRESENTATIVE PORTER stated, "The vast volume of this 1,500 or
whatever people out of compliance right now came out of Corrections
and then were required themselves to go back, some of which didn't
because they thought that the issue was still under litigation in
the court system. And now that's cleared up, plus the fact that
they're going to be registered by Corrections before they leave.
So, I think that that number is going to go down considerably. And
I think it's going to be helped considerably by the fact that this
piece of legislation is going to provide some pretty good
motivation."
Number 1441
REPRESENTATIVE ROKEBERG suggested the bill is a reaction to an
unfunded federal mandate that the state is being pushed into. He
said the fiscal note is of supreme importance and that without some
surgery the bill wouldn't make it through the process. He told
members he has problems with not the concept of Megan's Law and its
follow-up in the Wetterling Act, but with the way it is being
administered. Representative Rokeberg indicated that constituents
and others have told him that this "Scarlet letter" that people
wear for the 15 years may not be entirely fair in many instances,
which concerns him. He said it is not this bill, but it has to do
with this whole subject. "When you bring this subject up, you've
got to take the heat on everything, you know," he added.
REPRESENTATIVE ROKEBERG mentioned other legislation and that some
people in the real estate business are confronted with unintended
consequences relating to Megan's Law, the Wetterling Act, and the
questions of agency and disclosure. He expressed concern about the
higher standards, escalating costs, and the fact that these other
concerns are not being accommodated. He said he wouldn't hold the
bill up in committee but that under its present structure, he
couldn't vote for it on the floor.
Number 1581
CHAIRMAN GREEN asked whether Representative Rokeberg was talking
about breaking a fiduciary relationship.
REPRESENTATIVE ROKEBERG said it is a lawsuit waiting to happen.
There is a national debate about what should be done in that
business segment. Depending on circumstances and one's duty to the
buyer and seller, a person could be in an impossible position
relating to disclosure of information.
Number 1645
REPRESENTATIVE JAMES suggested it is probably not the only area
that will be affected.
Number 1660
REPRESENTATIVE BERKOWITZ withdrew his objection.
Number 1671
CHAIRMAN GREEN asked whether there was a further objection. There
being none, CSHB 252(JUD) [version 0-LS0818\T, Luckhaupt, 2/13/98],
moved from the House Judiciary Standing Committee.
SSHB 293 - PERSONS REQUIRED TO FILE SETTLEMENT INF0
Number 1721
CHAIRMAN GREEN announced the next item of business would be Sponsor
Substitute for HB 293, "An Act relating to collection of settlement
information in civil litigation; and providing for an effective
date."
Number 1730
REPRESENTATIVE PORTER, sponsor, described SSHB 293 as a
straightforward cleanup bill. He reminded members that the
previous year, they had passed a lengthy tort reform bill in which
they had asked that settlement information be reported so that they
could get a good track record on just what is involved in the
settlement of civil cases involving torts.
REPRESENTATIVE PORTER explained that the Alaska Judicial Council,
which has the task of collecting that information, had made two
suggestions, which were reviewed by the Department of Law;
amendments were then made to the original legislation that conform
with the position of Gail Voigtlander, who handles liability for
the state.
Number 1812
REPRESENTATIVE PORTER stated, "And now with Bill Cotton [Executive
Director, Alaska Judicial Council] and Gail Voigtlander both on
vacation today, I have been asked to submit their bill. Basically,
what it does in Section 1 is lay out several areas of the law that
we would not want reporting done on, as they do not fall within the
tort area, and it would be unnecessary for attorneys or parties -
or the court - to report. And in Section 2, it goes to establish
that not only the court but a party or their attorney should
furnish this information also when a case is settled."
REPRESENTATIVE PORTER advised members there was originally an
inclusion of retroactivity to cases filed before the tort reform
bill passed. He stated, "What we're saying now is that we're not
interested in getting the information unless the settlement itself,
or decision, comes after the effect of this bill. So, it could be
a case that's in existence now, but we're not going to go back and
try to get judgments, settlements or decisions that occurred prior
to the passage of this bill, which was of some concern to the bar
association."
Number 1897
REPRESENTATIVE JAMES made a motion to adopt the proposed committee
substitute, Version H [0-LS1144\H, Ford, 2/3/98], as a work draft.
There being no objection, it was so ordered.
Number 1926
REPRESENTATIVE BERKOWITZ asked whether the sponsor would mind his
joining in as a cosponsor.
REPRESENTATIVE PORTER replied, "Not in the least."
Number 1958
REPRESENTATIVE JAMES made a motion to move Version H out of
committee with individual recommendations and the attached fiscal
note.
CHAIRMAN GREEN asked whether there was any objection. There being
none, CSSSHB 293(JUD) moved from the House Judiciary Standing
Committee.
HB 273 - NOTIFY COMMUNITY ABOUT SEX OFFENDERS
Number 2006
CHAIRMAN GREEN announced the final item of business would be HB
273, "An Act relating to notification of the public concerning sex
offenders."
Number 2034
EDDIE GRASSER, Legislative Assistant to Representative Beverly
Masek, Alaska State Legislature, came forward on behalf of the
sponsor, advising members that Representative Masek was out of
town. He expressed hope that the new proposed committee substitute
[Version E] addresses some of the concerns raised at the hearing
during the interim. It takes out the requirement to notify
individual households or businesses within a neighborhood.
Instead, it requires putting a legal notice in a newspaper of local
distribution or notifying the head of a local community council, if
one is established in that community, area, or borough. Notice
would also be provided to the superintendent of schools, as well as
to other persons the department determines necessary to notify.
Number 2135
MR. GRASSER, indicating they had spoken with Representative
Rokeberg about real estate concerns, stated, "I think
Representative Masek agreed that if the committee would want to do
that, that would not be a problem with her." Mr. Grasser said they
had also tried to address concerns about the fiscal note by making
neighborhood notification through the newspaper. He acknowledged
the tremendous effort that the department would have to go through
to notify individual households.
MR. GRASSER said there had been questions about the rights of the
offender after leaving jail and moving into a neighborhood,
including the threat of vigilante activity. He also said the bill
is pretty simple; it just adds one section to current statute. He
concluded by indicating the sponsor's willingness to discuss any
other concerns.
Number 2221
CHAIRMAN GREEN referred to page 2 of Version E, which talks about
the presidents of the community councils. He pointed out that in
District 10 there are common lines where three community councils
come together. A person living inside one area may have a close
neighbor who lives in another area. Chairman Green asked whether
Mr. Grasser had done research regarding liability that would come
because the neighborhoods closest to the sex offender weren't
notified other than by newspaper. He further asked whether any
liability would attach to the president of the community council,
for example.
Number 2306
MR. GRASSER said that is a good question, which he had discussed
with Representative Masek; if the committee desired to take out
that section, she would not be totally adverse to that. Her
concern is trying to get some protection to children, which is why
she would like some extended notification procedures beyond just
being able to go down to the local law enforcement agency or trying
to find it on the Internet. Mr. Grasser agreed there are liability
questions.
Number 2370
REPRESENTATIVE BERKOWITZ made a motion to adopt as a work draft
Version E [0-LS1011\E, Luckhaupt, 2/3/98]. There being no
objection, it was so ordered.
Number 2399
REPRESENTATIVE ROKEBERG said he had talked to the sponsor and her
staff about the problem with Megan's Law and the real estate
community. Referring to other legislation, he indicated he had
added a related provision in the real estate licensing law, as part
of that chapter. He expressed hope that it would survive there,
which would make it unnecessary here.
TAPE 98-18, SIDE A
Number 0006
REPRESENTATIVE PORTER made a motion to delete lines 3 through 6 of
page 2, the community council section regarding notification.
MR. GRASSER told members he had spoken to Representative Masek
about liability questions that might arise if, for example, the
president of a community council received notice but failed to
notify several households for some reason. Mr. Grasser stated,
"And I told her I don't think we want to get into that. And I told
her I think by putting it in the newspaper and notifying the
superintendent, we were covering as many bases as we possibly could
beyond what's presently occurring. So, no, I don't think she would
mind."
Number 0128
REPRESENTATIVE PORTER formally restated his motion to delete lines
3 through 6 of page 2, and to renumber accordingly. There being no
objection, it was so ordered.
Number 0150
REPRESENTATIVE BERKOWITZ referred to testimony heard during the
interim from "Billie," the grandmother of a victim and the mother
of an offender; she had raised the point that sometimes divulging
the name of the offender can bring additional trauma to the victim.
Representative Berkowitz said he was wondering if there a way to
allow the victim to have some say in disclosure of information.
Number 0227
REPRESENTATIVE BUNDE said that to add fuel to the discussion, there
are also victims who become enablers. "I can see a situation where
a victim would take the name off the list because they participate
in their own revictimization, this ongoing cycle of abuse that
occurs many times, where victims get caught up in the process and
actually protect the victimizer," he explained.
REPRESENTATIVE JAMES said that is a different issue; this is just
an additional listing of something already listed.
CHAIRMAN GREEN suggested the issue is whether or not the victim
wants the world to know, whether from empathy or because of not
wanting to revisit it.
REPRESENTATIVE JAMES asked what part of this bill would accelerate
that concern.
CHAIRMAN GREEN said the newspaper.
Number 0368
REPRESENTATIVE BUNDE pointed out that on page 1, section (C)
requires notice of the crime for which the offender was convicted.
"If I publish a guy's name and the fact that he was convicted of
incest, we're also publishing the victim's name de facto," he
explained.
Number 0409
REPRESENTATIVE PORTER said in terms of the victim's being a victim
and for that reason not wanting this to become public, he believes
that is more relevant in the standard physical abuse domestic
violence case than in sexual assault. He suggested it would be
very appropriate, for all the reasons stated, to have a proviso in
here that the victim has the ability to say yes or no to these
publications. He said it is bad enough that it will be on the
Internet; when it goes to the school and is in the paper, that is
just about everybody who is notified.
Number 0469
CHAIRMAN GREEN asked Mr. Grasser what he believes Representative
Masek would think about a proviso like that.
REPRESENTATIVE JAMES suggested that a proviso requiring permission
from the victim before providing notice would complicate the issue
a lot more than having a straight list of what people must do who
are responsible for providing the notice. What would they do if
the victim were no longer in the state or lived in another area?
She suggested perhaps it could be clarified to require consulting
any victims who lived in the area, for example. She asked how much
they should depend on the victim before acting.
Number 0586
MR. GRASSER mentioned the testimony of "Billie" discussed by
Representative Berkowitz.
REPRESENTATIVE BERKOWITZ said that perpetrator had turned himself
in after an incident of abuse, confessed fully, took responsibility
and was making steps towards rehabilitation. And it was a case
where everyone in the community, as he understood it, could readily
ascertain who the victim was. Although Anchorage and perhaps
Fairbanks or Juneau have populations sufficient to provide a degree
of anonymity, in smaller communities of the state, he said, he
would suspect that most people already know anyway.
Number 0671
MR. GRASSER pointed out that legal notices are tiny ads in the back
of the newspaper. He offered the opinion that because this
information is on the Internet and available at the local law
enforcement agency, putting it in the legal section of the
newspaper wouldn't increase awareness in an increased portion of
the public.
REPRESENTATIVE ROKEBERG asked the reason for the bill, then.
MR. GRASSER said people can look if they don't have access to the
Internet.
Number 0721
REPRESENTATIVE PORTER suggested a victim would be present during a
trial, and it wouldn't be too difficult to get the consent or
waiver then or shortly after conviction, prior to sentencing. He
said as he reads it, it is a requirement on the Department of
Public Safety (DPS) to make these notifications once, not over the
life of the registration or every time an address changes.
MR. GRASSER said as he understands from talking to department
personnel, that is their understanding also. He told members he
needs to talk to Representative Masek to see whether that is what
she really intended. He pointed out that the DPS fiscal note
contains an estimate in the analysis of what it would cost to
provide the newspaper notice monthly, through fiscal year 2004,
while he believes the fiscal note itself is based on yearly
notification.
Number 0958
REPRESENTATIVE BUNDE commented that if it is there, someone,
somewhere, is going to read it. He advised members that he has a
great deal of concern about incest relating to publication of the
offender's name and the crime, which he believes advertises who the
victims are. He suggested there are some privacy concerns there.
He acknowledged that some victims may want this published but
should have the option. He suggested it would be very easy, at
sentencing, for the judge to announce that unless the victim comes
forward with reason for them to consider not complying with this,
they will comply. That would allow some discretion on the part of
the judge. Representative Bunde concluded that without some
protection of incest victims, he has a problem with the bill.
Number 0994
CHAIRMAN GREEN expressed his understanding that for sex crimes
against children, some 80 percent are either by a relative or
someone known well by the victim.
Number 1017
REPRESENTATIVE BERKOWITZ asked, "After we've provided notice to the
superintendent of the school district, what are they supposed to
do? And if they don't do it and something bad happens, is the
school district liable?"
CHAIRMAN GREEN asked Anne Carpeneti whether she could respond.
Number 1056
ANNE CARPENETI, Assistant Attorney General, Legal Services Section-
Juneau, Criminal Division, Department of Law, first pointed out
that she works for the Criminal Division. She then stated her
understanding that when they report incest, they don't use that
term because of the nature of the crime. Rather, they use "sexual
abuse." She pointed out that incest can be between adults.
Number 1065
REPRESENTATIVE BERKOWITZ asked about liability attaching to the
school district and its responsibility to act after receiving
information about a sex offender in the district. He suggested
that if the district failed to act in a certain way and harm befell
someone who was somehow within the district's care, the school
district could be liable for that harm.
MS. CARPENETI said it is a good question but she would prefer to
have someone from the Civil Division answer it.
Number 1104
REPRESENTATIVE ROKEBERG stated his understanding that when the
registry is now published on the Internet, the crime is not
specified.
Number 1138
REPRESENTATIVE BUNDE suggested that if it is not listed as "incest"
but as "sexual abuse," that lessens his anxiety about it.
REPRESENTATIVE ROKEBERG asked whether it has the Alaska citation
for incest.
MS. CARPENETI said she believes it does. She said she would have
to double-check, but she believes it says "sexual abuse" rather
than "incest" for that very reason.
Number 1166
REPRESENTATIVE PORTER suggested the statutes would probably say,
"sexual abuse in the 'X' degree."
REPRESENTATIVE ROKEBERG stated his understanding that incest is
under a separate statute.
Number 1198
MS. CARPENETI specified that she hadn't anticipated testifying on
this bill. She then said, "I'm assuming that if the victim is a
minor, the defendant is charged with sexual abuse of a minor. It
is also against the law to commit incest in the state, and I'm
assuming that adults who commit incest would be charged under the
regular incest statute."
REPRESENTATIVE BERKOWITZ said that is AS 11.41.450.
Number 1239
MR. GRASSER referred to the issue of liability on the part of
superintendents, which he said he had discussed with the DPS. He
suggested they also need to hear from the Department of Law. Mr.
Grasser told members, "Our conclusion on discussion was that since
this information is already available on the Internet, or down at
the local law enforcement agency, we felt that if somebody didn't
have the information, it wouldn't necessarily create a liability
question for the superintendent if he, for some reason, decided not
to notify anybody. But that's, again, something that somebody in
the Department of Law needs to answer."
Number 1273
CHAIRMAN GREEN suggested that if it was in statute that the
superintendent must be notified specifically, that might incur a
duty that wouldn't normally be there.
MS. CARPENETI said she would like to ask the department's civil
attorneys that question, adding that it is a good question.
Number 1304
REPRESENTATIVE BUNDE said he would like to hear from others on
this, including superintendents of school and the Department of
Law. He also asked that the sponsor further address the idea that
the judge would provide the victim a period of time at sentencing,
that if the judge doesn't hear from the victim a good and
sufficient reason that this shouldn't go forth, it would go forth.
Number 1341
REPRESENTATIVE ROKEBERG asking Ms. Carpeneti whether having the
caveat of asking the victim would be in violation of Megan's Law or
the Wetterling Act.
Number 1353
MS. CARPENETI replied that it is a very interesting issue. She
said she'd been thinking about it ever since it was raised, because
she also had heard that testimony this summer, which was
heartbreaking. On the other hand, there are people who victimize
children, and the point of the Wetterling Act is to allow people to
know, so that the parents can protect their children and protect
themselves from people who tend to do these bad things over and
over again. Ms. Carpeneti stated, "I clearly feel for these
people, and I would like to think about if there's alternatives.
I would be concerned that a person victimized another child, and
the only reason that his or her name wasn't published was because
the first victim, understandably, didn't want his or her name
publicized. I think it's a real tough issue."
Number 1405
REPRESENTATIVE ROKEBERG asked whether they couldn't do that by
publishing the name of the sex offender without specifying the
crime, which might lead to identification of the victim.
MS. CARPENETI said that is a possibility, although if she were
looking at the sex offender registration, she would be interested
in knowing whether a person was convicted of rape or sexual abuse
of a minor in the third degree. She said that would make a
difference to her.
REPRESENTATIVE ROKEBERG agreed but expressed concern.
MS. CARPENETI advised members that the federal government provides
that victims' names should not be revealed. She acknowledged,
however, that for some offenses that is difficult to do in small
communities.
Number 1441
REPRESENTATIVE BUNDE said his question regarding the federal law is
whether the victim could request prevention of the publication, to
be decided by the judge.
MS. CARPENETI pointed out that this bill only addresses additional
publication from what is already done and made available. "So, I
guess I wouldn't be terribly concerned if this particular provision
were limited, but ... whether you limited the ability of a person
to go into the Department of Public Safety and look at the
registration information, I would like to think about that," she
said.
Number 1508
REPRESENTATIVE PORTER suggested that nothing in this bill, whether
it had a requirement for victim approval or not, would have any
effect on the existing law regarding registration and the
availability of that registration to public access. He said his
own reaction right away was to victims' rights, which is in the
constitution now. He said at some point, we have to consider those
things. Representative Porter added that it is a close call,
saying he couldn't think of a victim of a pedophile who would not
want that person's name out there, but then suggesting that might
not be the case.
CHAIRMAN GREEN pointed out that there were several questions for
the sponsor to review.
Number 1582
REPRESENTATIVE BERKOWITZ noted the clear need for balance between
protecting the community as a whole, which registration aims to do
generally, and the interests of the victim, which he believes
should be addressed. He suggested if they could find a way to
navigate between the interests of the victim and the interests of
the community, they have a chance of doing something unique here,
which people would look to and say that this is the way sexual
registration ought to be done. He offered to help the sponsor work
towards that.
CHAIRMAN GREEN offered to talk to Mr. Grasser following the meeting
about members' questions. [HB 273 was held over.]
ADJOURNMENT
Number 1630
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:10 p.m.
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