Legislature(1999 - 2000)
03/06/2000 02:30 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
March 6, 2000
2:30 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Joe Green
Representative Norman Rokeberg
Representative Eric Croft
Representative Beth Kerttula
MEMBERS ABSENT
Representative Jeannette James
Representative Lisa Murkowski
COMMITTEE CALENDAR
HOUSE BILL NO. 357
"An Act relating to the redemption of shares of certain Alaska
corporations."
- MOVED HB 357 OUT OF COMMITTEE
HOUSE BILL NO. 378
"An Act eliminating certain taxes under AS 21.09 on premiums from
the sale of workers' compensation insurance; relating to the
establishment, assessment, collection, and accounting for service
fees for state administration of workers' compensation and worker
safety programs; establishing civil penalties and sanctions for
late payment or nonpayment of the service fee; and providing for an
effective date."
- MOVED CSHB 378(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 284
"An Act relating to uninsured and underinsured motor vehicle
insurance."
- MOVED CSHB 284(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 372
"An Act relating to criminal sentencing and restitution."
- HEARD AND HELD
HOUSE JOINT RESOLUTION NO. 35
Relating to requesting the United States Congress to repeal the
"Brady Handgun Protection Act".
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 357
SHORT TITLE: REDEMPTION OF CORPORATE SHARES
Jrn-Date Jrn-Page Action
2/09/00 2147 (H) READ THE FIRST TIME - REFERRALS
2/09/00 2147 (H) L&C, JUD
2/25/00 (H) L&C AT 3:15 PM CAPITOL 17
2/25/00 (H) Moved Out of Committee
2/25/00 (H) MINUTE(L&C)
2/28/00 2329 (H) L&C RPT 5DP
2/28/00 2330 (H) DP: MURKOWSKI, HARRIS, CISSNA,
HALCRO,
2/28/00 2330 (H) ROKEBERG
2/28/00 2330 (H) ZERO FISCAL NOTE (DCED)
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
BILL: HB 378
SHORT TITLE: WORKERS COMP AND WORKER SAFETY
Jrn-Date Jrn-Page Action
2/16/00 2211 (H) READ THE FIRST TIME - REFERRALS
2/16/00 2212 (H) L&C, JUD, FIN
2/16/00 2212 (H) 4 FISCAL NOTES (ADM, DCED, 2-LABOR)
2/16/00 2212 (H) GOVERNOR'S TRANSMITTAL LETTER
2/28/00 (H) L&C AT 3:15 PM CAPITOL 17
2/28/00 (H) Heard & Held
2/28/00 (H) MINUTE(L&C)
3/03/00 (H) JUD AT 1:00 PM CAPITOL 120
3/03/00 (H) <Bill Postponed to 3/6>
3/03/00 (H) L&C AT 3:15 PM CAPITOL 17
3/03/00 (H) Moved CSHB 378(L&C) Out of Committee
3/03/00 (H) MINUTE(L&C)
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
BILL: HB 284
SHORT TITLE: UNINSURED MOTOR VEHICLE INSURANCE
Jrn-Date Jrn-Page Action
1/12/00 1906 (H) READ THE FIRST TIME - REFERRALS
1/12/00 1907 (H) L&C, JUD
2/18/00 (H) L&C AT 3:15 PM CAPITOL 17
2/18/00 (H) Scheduled But Not Heard
2/21/00 (H) L&C AT 3:15 PM CAPITOL 17
2/21/00 (H) Moved CSHB 284(L&C) Out of Committee
2/21/00 (H) MINUTE(L&C)
2/23/00 2269 (H) L&C RPT CS(L&C) 1DP 5NR
2/23/00 2270 (H) DP: HARRIS; NR: MURKOWSKI, CISSNA,
2/23/00 2270 (H) BRICE, SANDERS, ROKEBERG
2/23/00 2270 (H) ZERO FISCAL NOTE (DCED)
3/03/00 (H) JUD AT 1:00 PM CAPITOL 120
3/03/00 (H) Heard & Held
3/03/00 (H) MINUTE(JUD)
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
BILL: HB 372
SHORT TITLE: COMMUNITY BASED SENTENCING
Jrn-Date Jrn-Page Action
2/11/00 2184 (H) READ THE FIRST TIME - REFERRALS
2/11/00 2184 (H) JUD, FIN
2/11/00 2184 (H) REFERRED TO JUDICIARY
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
BILL: HJR 35
SHORT TITLE: REPEAL BRADY ACT
Jrn-Date Jrn-Page Action
3/31/99 624 (H) READ THE FIRST TIME - REFERRAL(S)
3/31/99 624 (H) WTR, JUD
5/18/99 1638 (H) COSPONSOR(S): KOHRING
1/26/00 2018 (H) COSPONSOR(S): SANDERS
2/15/00 (H) WTR AT 5:00 PM CAPITOL 124
2/15/00 (H) -- Meeting Postponed to 2/22/00 --
2/22/00 (H) WTR AT 5:00 PM CAPITOL 124
2/22/00 (H) Moved Out of Committee
2/22/00 (H) MINUTE(WTR)
2/23/00 2275 (H) WTR RPT 4DP 2NR
2/23/00 2276 (H) DP: MASEK, GREEN, BARNES, COWDERY;
2/23/00 2276 (H) NR: PHILLIPS, JOULE
2/23/00 2276 (H) ZERO FISCAL NOTE (H.WTR)
2/23/00 2276 (H) REFERRED TO JUDICIARY
2/23/00 2288 (H) COSPONSOR(S): MASEK
3/06/00 (H) JUD AT 2:15 PM CAPITOL 120
WITNESS REGISTER
SHAN HAN, Staff
to Representative Lisa Murkowski
Alaska State Legislature
Capitol Building, Room 406
Juneau, Alaska 99801
POSITION STATEMENT: Presented HB 357 on behalf of the sponsor.
TERRY ELDER, Director
Division of Banking, Securities & Corporations
Department of Community & Economic Development
P.O. Box 110807
Juneau, Alaska 99811-0807
POSITION STATEMENT: Identified HB 357 as a policy question.
JULIUS BRECHT, Attorney and Managing Shareholder
Wohlforth, Vassar, Johnson & Brecht
900 West Fifth Avenue, Suite 600
Anchorage, Alaska 99501
POSITION STATEMENT: Testified on HB 357 that the Alaska
Corporations Code is in need of amendment to recognize the needs of
modern corporations, while retaining shareholder protection as
already adopted in other states.
JOHN LOWBER, Chief Financial Officer
General Communication Incorporated (GCI)
(Address not provided)
Anchorage, Alaska
POSITION STATEMENT: Testified that passage of HB 357 would
encourage businesses to continue to incorporate in Alaska.
DAVID TAYLOR, Chief Financial Officer
Brady & Company, Inc.
1031 West 4th Avenue, Suite 400
Anchorage, Alaska 99510-7502
POSITION STATEMENT: Testified in support of HB 357.
PAUL GROSSI, Director
Division of Workers' Compensation
Department of Labor & Workforce Development
P.O. Box 25512
Juneau, Alaska 99802-5512
POSITION STATEMENT: Presented HB 378 on behalf of the Governor.
BARBARA HUFF TUCKNESS, Director
Governmental and Legislative Affairs
General Teamsters Local 959 State of Alaska
520 East 34th Avenue
Anchorage, Alaska 99503
POSITION STATEMENT: Testified in support of concept of HB 378,
which will level the playing field and encourage safer conditions.
DON ETHERIDGE, JR., Lobbyist
for Alaska State AFL-CIO
710 9th Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 378.
KEVIN RITCHIE, Executive Director
Alaska Municipal League
217 2nd Street, Suite 200
Juneau, Alaska 99801
POSITION STATEMENT: Testified that the Alaska Municipal League
doesn't have a problem with many of the concepts of CSHB 378(L&C),
but pointed out that anytime costs rise in municipal governments,
that gets passed on to the people in the community.
LEANDRA ESTEP, Workers' Compensation Claims Manager
Alaska Municipal League Joint Insurance Association, Inc.
807 G Street, Suite 356
Anchorage, Alaska 99501
POSITION STATEMENT: Testified that changes made in CSHB 378(L&C)
clearly address the subrogation but not necessarily the
reinsurance.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 372.
PETER TORKELSON, Staff
to Representative Fred Dyson
Alaska State Legislature
Capitol Building, Room 104
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions regarding HB 372.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
POSITION STATEMENT: Testified that HB 372 contains good ideas and
thoughts but the department has serious problems with it; offered
to work with sponsor towards finding common ground.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Number 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Testified in favor of the concept of HB 372;
cautioned that if done as a sentencing tool, this would have a
fairly high impact on his agency although he does not know what the
fiscal impact would be; noted that this is used as a pretrial
diversion or diversion agreement in the juvenile system.
RYNNIEVA MOSS, Staff
to Representative John Coghill
Alaska State Legislature
Capitol Building, Room 416
Juneau, Alaska 99801
POSITION STATEMENT: Presented HJR 35 on behalf of sponsor.
ACTION NARRATIVE
TAPE 00-28, SIDE A
Number 0001
CHAIRMAN PETE KOTT called the House Judiciary Standing Committee
meeting to order at 2:30 p.m. Members present at the call to order
were Representatives Kott, Green, Rokeberg and Croft.
Representative Kerttula arrived as the meeting was in progress.
HB 357 - REDEMPTION OF CORPORATE SHARES
CHAIRMAN KOTT announced that the first order of business would be
HOUSE BILL NO. 357, "An Act relating to the redemption of shares of
certain Alaska corporations."
Number 0135
SHAN HAN, Staff to Representative Lisa Murkowski, Alaska State
Legislature, testified on behalf of the sponsor. He explained that
HB 357 allows Alaskan corporations to issue preferred shares that
are redeemable at the discretion of the shareholder. Basically,
this provides Alaskan corporations with another method of raising
funds.
Number 0215
TERRY ELDER, Director, Division of Banking, Securities &
Corporations, Department of Community & Economic Development
(DCED), pointed out that the division has submitted a zero fiscal
note. The bill would have no impact on the filing requirements of
corporations. He views HB 357 as a policy question with regard to
whether one would want to remove the current restriction from the
issuance of shares that are redeemable at the option of the
shareholder versus the option of the corporation. He noted that
the division has reviewed HB 357 and aspects of Title 10, which
provides other shareholder protection against redemptions that
would cause a company to have a financial problem. The division
believes that there is ample security for shareholders in other
sections of Title 10. Therefore, there is no objection to this.
MR. ELDER acknowledged that other states, such as California, have
moved in this direction. It has been mentioned that Alaska's
statute is based on California's statute, which has changed, and
thus HB 357 would adopt the change that California has. With
regard to corporations, this would be allowed rather than required;
corporations would only use this option if the corporation saw it
as in their best interest in negotiating with purchasers of these
securities. Typically, there would be trade-offs between the price
obtained for the security versus various options such as redemption
options. Mr. Elder said that the division cannot think of any
particular public policy reason to prevent this option from being
available to corporations.
Number 0381
REPRESENTATIVE GREEN requested clarification.
MR. ELDER said this [HB 357] would essentially allow the
corporation to redeem the shares and thus the corporation would buy
them back. In this case, it [the buy-back] would be at the option
- with the various terms already negotiated - of the holder.
REPRESENTATIVE GREEN inquired as to whether it would be at the
issued value or some floated value.
MR. ELDER answered that it would be at whatever schedule the issuer
determines at the time of issuance. Currently, this is true for
convertible securities and other securities that have sinking
funds, for example. These are preset prices that ordinarily have
no relation to current market values. In response to a question by
Representative Green, he clarified that one would not necessarily
get it back at the value for which it was purchased; that would be
dependent upon the schedule.
Number 0542
JULIUS BRECHT, Attorney and Managing Shareholder, Wohlforth,
Vassar, Johnson & Brecht, testified via teleconference. He
informed the committee that he is a past director of the Alaska
Division of Banking, Securities and Corporations, having served
from 1976 to 1980. Since that time he has been in private practice
in Anchorage. He noted that his law practice is in the area of
business law, with a focus on securities and corporate and finance
law. Mr. Brecht also noted that the committee should have a copy
of his written testimony, which he would paraphrase.
MR. BRECHT informed the committee that he had participated in the
development and review of proposals for a new Alaska corporate code
from the late-1970s to the 1980s. That ten-year effort had
resulted in a bill enacted by the legislature that became the
Alaska Corporations Code, effective July 1, 1989. He noted that
this was a comprehensive effort but said the needs of corporate law
do change with time, as exemplified in HB 357. Mr. Brecht echoed
Mr. Elder's earlier comments that the Alaska Corporations Code
provision dealing with the redemption of shares, AS 10.06.325, is
based on a similar provision of the California Corporation Code of
the time. Since that time, however, the California law has
changed, and thus HB 357 is before the committee to accomplish a
similar change under the Alaska Corporations Code.
MR. BRECHT told members that in his view, the proposed changes to
[AS 10.06.]325 do not lessen the provisions of the code protecting
shareholders of the corporation; however, they allow greater
flexibility to a corporation's board of directors in addressing
capital needs in present-day financial markets. He concluded that
the Alaska Corporations Code is in need of amendment to recognize
the needs of modern corporations, while retaining shareholder
protection already adopted in other commercial states.
Specifically, the amendment is needed to incorporate changes to
code provisions of California on which [AS 10.06.]325 is based.
Number 0756
JOHN LOWBER, Chief Financial Officer, General Communication
Incorporated (GCI), testified via teleconference from Anchorage.
He informed the committee that he had been serving in that capacity
for nearly 15 years. He pointed out that GCI is headquartered and
incorporated in Alaska, and its subsidiaries are incorporated in
Alaska. Therefore, his interest in HB 357 is to ensure that GCI
does not suffer any competitive disadvantages when compared to
other peers. Currently, the inability of the holder of preferred
stock to ask for redemption results in the company having to
compensate for that inability in another manner, which indirectly
increases [the company's] cost of capital. This would not be the
case if GCI were incorporated in some other state, including
California.
MR. LOWBER told members he is interested in HB 357 so that the
Alaska law stays current and does not discourage companies from
incorporating in other states. Therefore, it is important for the
legislature to adopt a law so that "we" are not disadvantaged in
raising capital. Furthermore, Mr. Lowber believes that passage of
HB 357 would encourage business to continue to incorporate in
Alaska.
Number 0880
DAVID TAYLOR, Chief Financial Officer, Brady & Company, Inc.,
testified via teleconference from Anchorage. He informed the
committee that he has worked in this capacity for the past 17
years. Brady & Company is a private-account Alaska corporation and
an Alaskan (indisc.) insurance brokerage. Mr. Taylor said he
supports HB 357 for the same reasons provided by the prior
witnesses. An Alaskan corporation should not have a competitive
disadvantage in attracting investment capital. This bill helps to
strengthen Alaska's economy by promoting investment in Alaskan
corporations, which would result in additional growth and
profitability of those corporations, and which would, in turn,
result in more tax revenue to the state treasury.
CHAIRMAN KOTT asked if anyone else wished to testify, then closed
public testimony.
REPRESENTATIVE ROKEBERG pointed out that HB 357 had received a
thorough hearing in the House Labor & Commerce Committee. He
believes it is essential that Alaska updates its corporate code.
Number 0966
REPRESENTATIVE ROKEBERG made a motion to move HB 357 out of
committee with individual recommendations and the accompanying zero
fiscal note. There being no objection, HB 357 was moved from the
House Judiciary Standing Committee.
HB 378 - WORKERS COMP AND WORKER SAFETY
CHAIRMAN KOTT announced that the next order of business before the
committee would be HOUSE BILL NO. 378, "An Act eliminating certain
taxes under AS 21.09 on premiums from the sale of workers'
compensation insurance; relating to the establishment, assessment,
collection, and accounting for service fees for state
administration of workers' compensation and worker safety programs;
establishing civil penalties and sanctions for late payment or
nonpayment of the service fee; and providing for an effective
date."
CHAIRMAN KOTT called upon Paul Grossi to present the bill, noting
that Dwight Perkins, Deputy Commissioner, was present as well.
[The bill was sponsored by the House Rules Committee by request of
the Governor. Before the committee was CSHB 378(L&C), Version
GH2072\D.]
Number 1090
PAUL GROSSI, Director, Division of Workers' Compensation,
Department of Labor & Workforce Development, explained to the
committee that first, HB 378 eliminates the premium tax on all
workers' compensation insurance policies. Second, it enacts a user
fee on all workers' compensation payments. And third, it
establishes a special account that those fees will go into, for the
funding of workers' compensation and workers' safety or OSHA
[Occupational Safety and Health Administration].
MR. GROSSI discussed the present system. All employers are
required to cover workers' compensation in Alaska, which is done in
one of three ways: by purchasing a workers' compensation insurance
policy on which there is a premium tax; by self-insuring, for
larger entities, in which case no premium tax or fee is paid; or by
forming a JIA [Joint Insurance Arrangement], which applies to
certain municipalities or public entities and for which there is no
premium tax.
MR. GROSSI reported that this bill eliminates the premium tax that
some employers pay, and it enacts a user fee on all workers'
compensation payments that will generate the same amount of money
that the premium tax did, approximately $3.5 million. It phases in
self-insurers and those who aren't currently paying, and the fee
goes from 3.1 percent down to 2.6 percent as the self-insurers are
phased in. People purchasing workers' compensation insurance
policies will pay basically the same the first year, and then they
will slowly "phase in" as the pool gets larger and all the payers
participate. Ultimately, all employers will pay at the same rate,
according to their claims experience: the more injuries there are,
the more they would pay, and the fewer injuries there are, the less
they would pay.
MR. GROSSI told members he believes it is a good policy, and it is
better than the current system. It provides a greater incentive
for employers for provide safe workplaces, because the safer the
workplace, the fewer claims there will be and the less they will
pay. It also allows all employers to pay for the use of the
system, according to use and need. Furthermore, it reduces the
reliance on general funds for these two programs.
Number 1305
MR. GROSSI noted that this proposal is unusual for the State of
Alaska, but it is not out of the ordinary in other states. He
provided figures from a four-page document that outlines how other
states fund workers' compensation and other programs. Alaska is
one of six states that funds workers' compensation on pure general
fund dollars; 34 states pay through some sort of special funding
mechanism; and ten states use a combination of general funds and a
special fund. Of the 44 states with special accounts, 16 have
funding mechanisms similar to the one proposed in this bill. Mr.
Grossi noted that support for the bill isn't unanimous because
entities that haven't had to pay anything will have to pay under
this system. He emphasized the need to ask whether this [proposed
system] is fair, however, and whether it is a better system, which
he believes it is.
Number 1418
REPRESENTATIVE ROKEBERG said he would direct the same question to
Bob Lohr of the DCED if he were online. He then stated his
understanding that nothing in the bill mandates reduction of
premiums. He said one theory is that the risk will be spread to a
greater number of people by going to a fee on the claim, and
therefore the premium tax will go down, particularly over the
phaseout period. He asked whether anything in this bill ensures
that the insurance company will pass that on to the business.
MR. GROSSI answered that nothing in the bill forces that, but
market forces probably would dictate that ultimately. If it costs
less, the product can be provided more cheaply.
REPRESENTATIVE ROKEBERG asked whether that is because there are so
many workers' compensation underwriters working in Alaska.
MR. GROSSI said there are about 30, to his belief.
REPRESENTATIVE ROKEBERG inquired about the market share of the top
companies.
MR. GROSSI suggested perhaps Mr. Lohr could answer that. [However,
Mr. Lohr apparently was not on teleconference.]
Number 1518
BARBARA HUFF TUCKNESS, Director, Governmental and Legislative
Affairs, General Teamsters Local 959 State of Alaska, came forward
in support of the bill, noting that her organization represents
employees in both the public and private sectors across the state.
Some employers have contributed "for eons" into this program, she
told the committee, whereas others have never contributed. Her
organization supports the concept of the bill, which they believe
will level the playing field and encourage a more proactive safety
program that should theoretically reduce the number of worker
injuries.
Number 1601
DON ETHERIDGE, JR., Lobbyist for Alaska State AFL-CIO, came forward
in support of the bill. He said the AFL-CIO sees this as a way to
improve worker safety and to keep the workers' compensation and
OSHA programs from being killed off in the future legislative
budget process, because this will fund itself.
Number 1658
KEVIN RITCHIE, Executive Director, Alaska Municipal League, came
forward. He advised members that the Alaska Municipal League
doesn't have a problem with many of the concepts of the bill, but
he pointed out that anytime that costs rise in municipal
governments, that gets passed on to the people in the community.
He clarified that he wasn't saying that the bill does that unfairly
or that it is unjust. If the whole playing field were leveled,
that would be a different issue as far as revenues go. But at this
point, that is a consideration for municipalities, which is why the
Alaska Municipal League board was concerned about the bill.
Number 1684
REPRESENTATIVE ROKEBERG alluded to a memorandum in committee
packets [from Ms. Leandra Estep] and asked whether the definition
of "user fee" is still a concern.
MR. RITCHIE deferred to Ms. Estep.
LEANDRA ESTEP, Workers' Compensation Claims Manager, Alaska
Municipal League Joint Insurance Association, Inc., testified via
teleconference from Anchorage. She indicated that changes made in
CSHB 378(L&C) seem to address previous concerns: the subrogation
question was clearly answered, although the reinsurance was not
necessarily addressed in any of those amendments.
CHAIRMAN KOTT asked whether anyone else wished to testify, then
closed public testimony. He asked whether there was any committee
discussion; none was offered.
Number 1818
REPRESENTATIVE GREEN made a motion to move CSHB 378(L&C) from the
committee with individual recommendations and the attached fiscal
notes. There being no objection, CSHB 378(L&C) was moved from the
House Judiciary Standing Committee.
HB 284 - UNINSURED MOTOR VEHICLE INSURANCE
Number 1879
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 284, "An Act relating to uninsured and underinsured
motor vehicle insurance." [Before the committee was CSHB
284(L&C).]
CHAIRMAN KOTT reminded members that at the previous hearing, there
was some question over the word "disinterested," and one party had
opposed inclusion of that word. Chairman Kott reported that the
individual who had testified from Northern Adjusters the previous
Friday, March 3, had called him this morning and they had spoken at
length. Chairman Kott stated:
Essentially, the end result was they were satisfied with
the word "disinterested" in the bill, that it was a
version that was certainly a compromise between the
initial concept and where we're at today. So, they were
comfortable with that, and they're forwarding a memo on
to me to that effect, that the person who made that
statement is now recanting it. They only addition they
would like to see, ... as was mentioned, was an effective
date of 1 January 2001, which we heard the arguments for
that, and I think that's probably justifiable.
CHAIRMAN KOTT called an at-ease at 3:05 p.m. He called the meeting
back to order at 3:06 p.m.
Number 1952
REPRESENTATIVE CROFT specified that he wouldn't offer what had been
distributed regarding "disinterested." He offered an amendment to
make the bill effective as of 1/1/01.
CHAIRMAN KOTT asked whether there was any objection to the
conceptual amendment. Hearing none, he announced that the
amendment was adopted.
REPRESENTATIVE GREEN asked Representative Croft about dropping
"disinterested."
REPRESENTATIVE CROFT said he would think about it some more and
probably would bring it up later.
CHAIRMAN KOTT called another at-ease at 3:07 p.m. and called the
meeting back to order at 3:08 p.m.
Number 2003
REPRESENTATIVE CROFT made a motion to advance HB 284 [CSHB
284(L&C)], as amended, from the committee with individual
recommendations and the attached zero fiscal note. There being no
objection, it was so ordered and CSHB 284(JUD) was moved from the
House Judiciary Standing Committee.
HB 372 - COMMUNITY BASED SENTENCING
CHAIRMAN KOTT announced that the next order of business would be
HOUSE BILL NO. 372, "An Act relating to criminal sentencing and
restitution."
Number 2019
REPRESENTATIVE FRED DYSON, Alaska State Legislature, sponsor of HB
372, first offered some history. He explained that our inherited
legal system and almost all traditional societies have had, as a
primary goal, the propitiation or restoration of the victim to a
pre-offense condition. One Norman king, however, at the time of
the Norman invasion, had decided that he owned everything and
everybody in England; therefore, every offense against a person or
property was an offense against the king. Thus began the
continuing tradition where one pays a fine to the government even
though the offense was against an individual.
REPRESENTATIVE DYSON noted that in the last 25 years, there has
been a growing trend in this country to get back to the concept of
restorative justice. Alaska's constitution is one of the few in
the nation that actually talks about it. Furthermore, [Alaska's]
juvenile justice system is completely committed to this concept of
restorative justice and trying to get back to a pre-offense
condition. Representative Dyson indicated he'd been considering
this concept for three years, including a possible constitutional
amendment regarding the adult justice system that he had decided is
too big a "bite" at this time. He said HB 372 is a relatively
small step in that direction.
REPRESENTATIVE DYSON explained that HB 372 just says that after a
case has been adjudicated and a decision has been made, the judge
may order, as part of the punishment, the restitution of the victim
or the community. If negotiations between the offended party and
the perpetrator are successful, and if the judge concurs, then [the
judge] can give that negotiated settlement the force of law.
Representative Dyson noted that several judges in the state are
doing pioneer work in this area; he mentioned so-called circle
sentencing and community-based sentencing, "where they work with
the community of the offender and/or offendee, and the victim and
the perpetrator, to negotiate terms that will try to restore the
victim and the community to the pre-offense condition."
REPRESENTATIVE DYSON noted the presence of Robert Buttcane, who has
been overseeing this radical transformation in the juvenile justice
system with impressive results. Pointing out that judges also have
been working on some of these issues, he indicated that the
previous year he had brought Judge Barry Stewart (ph), a pioneer in
North America in the restorative justice concept, here from the
Yukon Territory to talk about his work in Canada and other
countries.
REPRESENTATIVE DYSON related his own experience with perpetrators.
That they have been enabled to "restore" their victims - or to take
major steps towards that - has been a major step in their own
reclamation; it provides a basis on which to begin to forgive
themselves, to deal with the magnitude of their crimes, and to take
steps to have more productive lives. Representative Dyson
emphasized that this bill only deals with nonviolent property
crimes and those sorts of things, not with violence.
Number 2231
REPRESENTATIVE GREEN concurred that this has been extremely
effective in the juvenile justice system, both here and Back East,
where he attended workshops. In many cases, it was the young
person's first offense. He said he wonders whether the same effect
would be there for adults, however.
REPRESENTATIVE DYSON responded that he had attended one national
restorative justice conference, and has been in contact with the
people who are working on this. Some states such as Vermont have
done this totally, and the rate of recidivism is remarkably
reduced, although arguably not all as a result of the restorative
justice concept. As for adults that he has dealt with, who have
had to face their victims and the impacts on those victims, this
has been a major emotional event in their lives.
REPRESENTATIVE DYSON recounted how he had sat at dinner twice in
Washington, D.C., with the mothers of murdered children and the men
who had murdered them; they had worked through, over the years,
being reconciled, "and the perpetrator making what retribution
could be." He said he believes the evidence is absolutely with
this concept. He emphasized that this is totally voluntary. It
gives the judges freedom to explore it, if the perpetrator is
willing; he noted that historically, in other settings, many
perpetrators have not been willing just because of the trauma of
having to face their victims.
Number 2324
REPRESENTATIVE KERTTULA asked, "What about in situations of
domestic violence or with children?" Noting that she had just
looked at the statutes, she pointed out that some offenses against
the family aren't exempted [in the bill]. Her concern arises
because in those situations there is an inherently unequal
bargaining position. For instance, she has heard arguments against
having mediation in divorce cases for precisely that reason,
because the person who has been the victim gives in a little bit
too easily.
REPRESENTATIVE DYSON responded:
Once again, it's totally voluntary, ... and we're
trusting that the judge and/or the victims' advocates
will be there to support them, and that they not be
intimidated. In eastern Oregon, where I've been around
some of this ... happening, it's been fascinating because
the victim will come to ... the sentencing panel and say,
"Here's what I need: I need to know that this person is
never within ... 150 miles of me; I need to have
counseling; I need to have my doctor bills paid; I need
to have my property restored; I need to be recompensed
for the time I lost when I was in the hospital, and pain
and suffering."
And ... the perpetrator will come and say, "Well, I
didn't realize ... how much trouble I caused. I'll agree
to stay ... 150 miles away, but I do have a maiden aunt
... in that country I'd like to be able to visit, and I'd
like to be able to negotiate [a] twice-a-year visit, you
know, whatever. Here's what I can do to pay back the
doctor bills and fix [the] car." And that's all
negotiated there. But, indeed, the victim has to be able
to make their case for what they want."
Number 2415
REPRESENTATIVE CROFT referred to the language that says "may, with
the consent of the offender, impose a sentence ...." He asked
whether it should say "with the consent of both the offender and
the victim." He surmised that a victim just wouldn't agree to the
negotiated agreement. He asked the reason for putting [the victim]
through the negotiating process if the person doesn't want to do
it.
REPRESENTATIVE DYSON deferred to Peter Torkelson.
Number 2439
PETER TORKELSON, Staff to Representative Fred Dyson, Alaska State
Legislature, answered that to his understanding from going over
this with Legislative Legal Services personnel, it should be
implied that the victim has to be willing to be involved in the
negotiating process with the offender. He indicated that is the
intention.
REPRESENTATIVE DYSON added that both have to agree to the solution.
REPRESENTATIVE CROFT concurred that clearly the negotiated
agreement is between the offender and victim and requires their
coming to terms. However, it isn't as clear to him that the whole
process doesn't start without the victim's approval.
REPRESENTATIVE DYSON replied, "If you're correct, we would be
delighted to have that clarified."
TAPE 00-28, SIDE B
Number 0011
REPRESENTATIVE GREEN referred to language in the bill that read,
"or between the offender and the community if there is no victim."
He asked, "How would you determine the community?"
REPRESENTATIVE DYSON explained that if a school were vandalized or
if someone vandalized the parking meters, for instance, then the
designated representative of the community - the mayor or a
designee, for example - would negotiate what it takes to propitiate
the community.
REPRESENTATIVE GREEN asked about the potential effects of hearing
about a particular agreement on other potential perpetrators.
REPRESENTATIVE DYSON answered that this certainly is aimed at
repairing the damage to the victim. It is still in the judge's
purview, however, to ensure that the penalties are sufficient to
provide an adequate deterrent.
Number 0079
MR. TORKELSON pointed out that this can also be in addition to
another type of sentence or a portion of a sentence. Section 2 of
the bill, which amends the restitution section of law, is
potentially in addition to jail time or another penalty that the
judge may feel is appropriate. "It's not necessarily an easy way
out," he added.
REPRESENTATIVE GREEN asked whether that would be understood.
REPRESENTATIVE DYSON answered that he believes it is clear, but he
offered to research that. He remarked that often the judge will
ask the perpetrator whether he or she wants to work on the
restitution portion of the penalty. When the judge give the power
of law to [the agreement] at the end, generally there will be
alternative sanctions: "You're going to pay this money, you're
going to fix this, you're going to do these things to get your act
together, and so on and so forth; you fail, you go back and [do]
three-to-five [years in jail], and otherwise, you've got six
months' jail time, a year and a half suspended, and all this work
to do to repair your victim."
Number 0152
CHAIRMAN KOTT asked whether the victim can be a minor. If so, who
would negotiate the settlement if the minor could not do it?
REPRESENTATIVE DYSON replied that he had assumed it would be the
minor in conjunction with the minor's guardian, whoever that is. or
whoever represents that person. It could be the Office of Public
Advocacy, he suggested, if assistance were needed.
REPRESENTATIVE KERTTULA said that gets back to her concern with the
children involved in this. She asked how it plays out and whether
Representative Dyson assumes there will be an advocate for the
people there. She noted that the legislation doesn't say that.
REPRESENTATIVE DYSON replied, "Absolutely. ... They have a right to
be represented, and we have a ... responsibility to let them know
that they have that right, and provide it if they don't." He
emphasized that this regards sentencing.
REPRESENTATIVE KERTTULA commented, "But that's usually what my
clients really cared about." She asked whether one idea was to
have the public advocate, probably, in cases where the public
defender is already representing a victim going into this.
[Representative Dyson's response was indiscernible.]
Number 0228
REPRESENTATIVE CROFT remarked that this is a fascinating approach.
Noting that committee packets contained an Anchorage Daily News
article, he mentioned that he had talked with Judge Wanamaker. He
said there must be ways to create alternatives. Calling attention
to Representative Dyson's statement that this is all voluntary, he
requested confirmation that the judge would have the power to
decide not to use this approach, even if the case fit the statute
and the offender and victim were willing.
REPRESENTATIVE DYSON said he believes so.
REPRESENTATIVE CROFT asked, "If we're just giving them more tools
and the sentence can be out there as a hammer, ... what's the
problem? What have you heard?"
REPRESENTATIVE DYSON said there is a signficant paradigm shift
happening, and virtually all traditional societies try to get back
to a pre-offense condition. The Tlingits had requested 300
blankets in recompense after an elder had died, for example.
Furthermore, Barry Stewart (ph) had related a fascinating story
from New Zealand: Elders from two villages met to decide the
penalty for rape after the Crown had decided the guilt of the
perpetrator; the elders had decided that because the woman was now
less desirable in marriage, the perpetrator had to make her so
wealthy that she was at least as attractive in marriage as she
would have been. Representative Dyson emphasized the desire to try
to balance the scales and make the victim whole.
Number 0330
REPRESENTATIVE CROFT, speaking in response to Representative
Green's question, said Judge Stewart (ph) had described to him the
affected community rather than Anchorage. If a school had been
vandalized, he suggested, a PTA [Parent Teacher Association]
representative might be involved, or a teacher and a student, or
members from the nearby area who felt less safe; they could talk
about the effects of [the vandalism] in terms of how they felt
about the school, for example. Representative Croft indicated that
in his limited experience in this, it is both the worst and the
best for offenders to meet face-to-face with those they have hurt
and to discuss how that can be remedied. "Even if the money they
end up getting fined is less, it's much more impactful than simply
a $300 fine to the court," he added.
REPRESENTATIVE DYSON agreed, adding that people he knows who have
done "major time" say they have paid their debt to society by
spending time in jail. However, that doesn't help the victim, who
is still out there with losses such as hospital bills, as well as
terror that person may feel.
REPRESENTATIVE CROFT said he isn't sure that helps society much,
either.
Number 0403
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, came forward to testify on HB 372. She told
members that there are some really good ideas and thoughts behind
this bill, but the department has serious problems with it; she
said she isn't sure whether there might be some common ground but
would set out the problems.
MS. CARPENETI informed members that in 1970 the Alaska Supreme
Court had decided State v. Chaney, which set out several factors
that the court must consider when imposing sentence on a defendant;
embodied in Alaska's presumptive sentencing law in 1978, those
include protection of the public, reaffirmation of societal norms,
condemnation of the criminal act and the seriousness of the
offense. This bill, however, allows a sentencing judge to ignore
most of those and to focus on restoration of the victim and
community, and rehabilitation of the offender, which are important
goals but not the only goals that the judge should consider.
MS. CARPENETI pointed out that this applies to felony offenses. In
1978, the state, through the legislature, adopted a presumptive
sentencing scheme; the rationale behind it was a concern by the
legislature that although it isn't even desirable to get sentences
of equal amounts of imprisonment around the state, or for other
terms of sentencing, the belief at the time was that there was too
much disparity in sentences for robberies perpetrated in Fairbanks
versus Juneau, for example. The idea was to look at what the
defendant did and impose a term that gave the sentencing judge
discretion to go up or down under certain circumstances, as set
forth by the legislature; it evened out some of the "bumps." Ms.
Carpeneti noted that there had been concern over discrimination in
sentencing and those sorts of issues. That presumptive sentencing
scheme has guided Alaska's courts since 1978. She stated:
We've worked on ways to give the judge more discretion
for certain things, when you have factors in aggravation
and factors in mitigation, that the legislature
fine-tunes every year. We add them when situations come
up that aren't allowed for in the statutes. And this
bill really allows a defendant and a victim to negotiate
around presumptive sentencing, which has been our law for
many years and has worked out to be ... a good scheme.
So we have concerns about the way it kind of end-runs
presumptive sentencing.
MS. CARPENETI informed members that another concern, especially for
more serious offenses like felonies, is that a defendant and a
victim aren't really in equal bargaining positions. First, a
defendant has a lawyer, but this bill doesn't provide a lawyer for
a victim. Although the prosecutor acts as the spokesperson for the
victim and does his or her best to represent the victim's
interests, [the Department of Law] also has at heart the interests
of the state as a whole and the people as a whole. Second, in
terms of covering felonies, many domestic violence crimes are not
in Chapter 41 of Title 11; burglary, criminal trespass, terroristic
threatening and arson could be domestic violence offenses that
should not be negotiated because the victim and the defendant are
not in equal bargaining positions. There are good reasons why our
law does not allow negotiation in terms of child custody and
divorce, in cases where there has been domestic violence, Ms.
Carpeneti said, because a power issue exists "no matter where you
are in terms of divorce and representation."
Number 0608
MS. CARPENETI also expressed concern about the practicalities of
how this would work. Although the bill doesn't say so
specifically, it is supposed to apply when a person has been
convicted but not sentenced. Suggesting that Representative
Kerttula correct her if she were wrong, Ms. Carpeneti said she
doubts that it would work in that case, because most defendants are
not going to enter a plea of guilty to a charge unless they know
what the sentence will be. This would be pre-adjudication
negotiations, which would raise all sorts of problems and concerns
of cross-examination of the victim, for example.
MS. CARPENETI cautioned that this will probably have the effect of
allowing defendants of means to get better sentences than those
without means. Furthermore, although the sponsor says it applies
only to nonviolent property crimes, the bill doesn't say that or
limit it to misdemeanors. Ms. Carpeneti suggested perhaps these
provisions could be looked at in terms of improving the position of
the victim to make his or her case in front of the sentencing
judge. She continued:
We do have victim impact statements. Victims are
statutorily authorized to come into court and make an
oral statement. It doesn't even have to be under oath;
it can be just a statement. They can do a written
statement to the court. They can talk to the Department
of Corrections when they're doing presentence reports.
There are a lot of provisions already in our statutes
that allow the victim to have a voice in what sentence is
imposed.
We still have a civil compromise statute that this
committee looked at last week, in terms of ... our law
still allows certain crimes to be civilly compromised if
they are misdemeanors. And I think this committee last
week fine-tuned that bill so it would not allow any sort
of civil compromise for ... any kind of domestic violence
case.
The court can invite comment by community
representatives. There is nothing in our law that
prohibits that approach. We have concerns - the same as
Representative Green did - about if there is no victim in
the crime, who is going to speak for the community? And
suppose there are problems in a diverse community with
different interests?
So those are our basic concerns with this bill. ... It
says it's voluntary, but it's not voluntary in the sense
that it does allow the court to ignore our jurisprudence
for the last 30 years and our sentencing laws that have
been working pretty well.
Number 0751
REPRESENTATIVE CROFT asked what the Chaney factors are.
MS. CARPENETI noted that she had paraphrased them previously. She
read from AS 12.55.005, which she said is basically a paraphrasing
as well [of the factors that the court shall consider in imposing
sentence]:
(1) the seriousness of the defendant's present
offense in relation to other offenses;
(2) the prior criminal history of the defendant and
the likelihood of rehabilitation;
(3) the need to confine the defendant to prevent
further harm to the public;
(4) the circumstances of the offense and the extent
to which the offense harmed the victim or endangered the
public safety or order;
(5) the effect of the sentence to be imposed in
deterring the defendant or other members of society from
future criminal conduct; and
(6) the effect of the sentence to be imposed as a
community condemnation of the criminal act and as a
reaffirmation of societal norms.
Number 0800
REPRESENTATIVE CROFT stated his understanding from Ms. Carpeneti's
testimony that in addition to those factors, the aggravating and
mitigating factors are changed every year or two.
MS. CARPENETI responded, "Well, you fine-tune them. ... You add
aggravators and you add mitigators."
REPRESENTATIVE CROFT noted that the legislature has the power to do
that. He asked, "Do we have the power to change the Chaney
factors, or are they constitutionally mandated?"
MS. CARPENETI said it was a decision of law.
REPRESENTATIVE CROFT voiced his understanding that the legislature,
in this bill or any other, could change those if, as the policy
making body for the state, the legislature decided to do so.
MS. CARPENETI said she believes so.
REPRESENTATIVE CROFT explained his reason for asking. This
provides an option that changes the process, and that may change
the factors. He doesn't know whether the sponsor wants to say that
the negotiated sentence shall be evaluated by the judge under the
Chaney factors or to ensure that it meets those elements, for
example, or wants [the legislature] to change one or more of those
factors.
MS. CARPENETI noted that Article I, Section 12, of Alaska's
constitution does set some parameters on sentencing; the Chaney
case had elaborated on the constitutional provisions. She added:
I think you could go in and modify [AS] 12.55.005 to
modify the goals of sentencing, if that was your desire.
One thing that I would say is that judges are doing this
now. ... There are judges in the Matanuska Valley who are
having "circle" sentences. There's nothing in our law
that I'm aware of that prohibits this approach to
sentencing. But our concern is if you state it in our
statutes the way this bill states it, you're going to be
allowing negotiations of sentences in cases where nobody
anticipates that it's a good idea to do so.
Number 0917
REPRESENTATIVE GREEN asked Ms. Carpeneti whether she was present
when the sponsor was discussing the fact that this would be
voluntary, in addition to normal law, and that it just deals with
trying to make the victim whole without abrogating any other
penalties that might be applied to the perpetrator.
MS. CARPENETI affirmed that she had heard that. Although she
thinks that is the intent, she said, she doesn't know whether this
bill provides for that. Practically, she would have to give it
some serious thought because she is wondering what defendant will
enter a plea to a charge without knowing what the sentence is going
to be. To her understanding now, there usually is a ceiling on
jail time and fines. She added, "I don't know whether restitution
is part of it; it probably could be, or it may be. ... So this
would not apply to many cases because so many of our cases ... are
resolved by plea negotiations."
Number 0984
REPRESENTATIVE CROFT indicated he previously had heard concerns
from the Public Defender Agency, where the youth court program
originated, about that very thing, and yet the youth court later
became the biggest proponent of this. These [agreements] were
workable in the juvenile context, he said, which has unique issues;
it seems to him that they are workable here too. Representative
Croft suggested that there could be a process to have that
discussion in which, if the negotiation ended in something
unacceptable, those admissions cannot be used in court. Or, if the
negotiations broke down, the parties would be back where they
started. He asked, "Can't we do things like that, as we did in
youth court?"
MS. CARPENETI answered, "I think we can do that now." She
suggested looking at the victim impact statements to make sure that
they are broad enough to allow the victim to set forth all of his
or her concerns, and what would make him or her whole again.
REPRESENTATIVE CROFT responded that there is a big difference
between submitting a piece of paper to the judge, as a victim
impact statement, and having the opportunity with other members of
the community and the offender to negotiate the consequences. He
explained:
I worry that we tend to look at it as "the way we have
always done it is the only way we can do it." And I know
that that was the perspective of the [Public Defender
Agency]. Until they got in and involved, they were very,
very worried about the "traditional rights" approach that
was able to be solved in the youth court context. And I
worry that we're taking that same "we can't do this
'cause that's not the way we do it" approach.
MS. CARPENETI commented that she has that feeling, too, when she
takes the position that she is taking. However, she also knows
that this is being done on an informal basis throughout the state,
where the defendant and victim agree and the judge concurs; there
are "circle" sentences where this had been done. She indicated she
wasn't against the position that perhaps some procedures or
statutes might need to be fine-tuned or changed to recognize this
type of practice. In response to further questions, Ms. Carpeneti
clarified that she believes it is a good idea in certain cases.
However, she doesn't think the state needs to adopt a statute that
authorizes a judge to ignore all the tradition of sentencing.
Furthermore, she assumes that when judges have decided to do a
"circle" sentence, which doesn't happen often, they have taken all
the statutory factors into account.
Number 1204
CHAIRMAN KOTT referred to Ms. Carpeneti's earlier indication that
there may be common ground. He asked, "Can we get from here to
there?"
MS. CARPENETI said she would be happy to work with the sponsor
towards that goal. "I think so," she added.
Number 1240
BLAIR McCUNE, Deputy Director, Public Defender Agency, Department
of Administration, testified via teleconference from Anchorage. He
commented that this had been a really good discussion. He then
spoke in favor of the concept, agreeing there have been some good
results in juvenile cases; he mentioned that Robert Buttcane is an
expert on this type of process.
MR. McCUNE also noted that although a little different, the same
process applies somewhat in the mental health courts that both the
state and the [federal government] have been working on, in
Anchorage, to try to prevent recidivism in mental health cases; he
mentioned a special court to addresses those particular
[sentences], and said there is quite a lot of victim involvement in
those cases as well. He restated support for the concept.
MR. McCUNE informed members that this would tend to have a fairly
high impact [on his agency] if done as a sentencing tool. However,
there are other ways of doing it. For example, in the juvenile
system, restorative justice is implemented as a pretrial diversion
or a diversion arrangement; the charges are held over someone's
head under certain conditions and then dismissed if the juvenile
fulfills the conditions that were agreed upon in [victim]-offender
mediation.
Number 1365
REPRESENTATIVE KERTTULA asked what Mr. McCune believes the fiscal
impact will be [on the Public Defender Agency] if this is set up
full-scale. She offered her opinion that it would be fairly
substantial, although she hadn't seen a fiscal note from the
agency.
MR. McCUNE answered that the agency hadn't prepared a fiscal note
yet. It is hard to say what the impact might be. It is something
the judge has discretion about. Also, a lot of offenses are taken
off the table, such as all of the offenses against a person, and it
involves consent of the offender, by the statute, and also must
involve consent of the victim or there wouldn't be any negotiation.
Therefore, a fiscal note would be speculative.
MR. McCUNE conveyed concern about the fiscal compact, however. He
mentioned the drug court; he indicated his agency had determined
that if a drug court were set up, quite a lot more involvement
would be needed from public defender attorneys than is required
under the current system. Mr. McCune expressed hope that the end
result would be less recidivism and crime, and less need for public
defenders in the long run, which certainly is the goal of this.
Noting the lack of hard and fast data about the number of cases and
the agency's duties, however, he said his attitude is that this is
still in the learning stage.
Number 1482
REPRESENTATIVE CROFT asked whether the state could, using the youth
court model, hold a presumptive statutory sentence over the
perpetrator's head.
MR. McCUNE suggested Representative Croft was referring to a
pretrial diversion program. He doesn't know whether it would have
to be in statute, he said. The Department of Law would have to set
that up, as a policy matter, and to agree to administer it and to
screen cases. Recalling pretrial diversion in the late 1970s,
disbanded around 1980, he said there really hasn't been a formal
pretrial diversion "setup" since then.
REPRESENTATIVE CROFT responded that he doesn't know that it would
have to be a pretrial [diversion] or set up like the youth court
model, however, because within the agreed-upon sentence it could
say that there is three years' [jail time] suspended, for example,
conditioned upon meeting all the other conditions imposed.
MR. McCUNE agreed that it can be done in a sentencing situation and
doesn't have to be a pretrial diversion. The one "circle"
sentencing case he had just read about in the paper was a DWI
[driving while intoxicated] sentencing case that wasn't handled
through his agency. The defendant did plead "no contest" to the
DWI, Mr. McCune noted, and the court set about doing a sentence
with the input of community representatives, the victim, the police
officer and others involved.
Number 1650
REPRESENTATIVE DYSON offered closing remarks. He told members he
believes this will save millions of dollars because prisoners who
are not a threat to public safety won't be in "hard cells" in
Arizona, for example, but will be out working to repay their
victims and to help support their families, although they may,
indeed, be lodged at a community facility, wearing a bracelet and
urinating in a bottle daily. To his understanding, no present
sentencing laws and guidelines are removed by this. It only adds
another factor to the sentencing guidelines and goals regarding
negotiated propitiation of the victim. Suggesting this concept
goes back to the Old Testament, he posed as example:
Eric kills my cow and does it accidentally, he replaces
my cow. If he did it on purpose, he has to replace two
cows. ... That gives me a cow back and him an additional
penalty. Now our system gives both cows to the
government and leaves the victim without a cow. ... It's
utterly absurd. ... What we're trying to do is getting
back to fixing the harm, repairing the harm.
Number 1769
MR. TORKELSON spoke up to add clarification. On page 1, lines 8
and 9, regarding presumptive sentencing, it says "if that sentence
otherwise complies with this chapter." He said that is there with
the goal of not totally unraveling the presumptive sentencing
guidelines and established traditions. In addition, Section 3 is
just "one of 17 other mitigating factors" that could be used by a
court in figuring out what the correct presumptive term might be;
it isn't undoing the presumptive term. He remarked, "So I'm not
certain that we're just flushing the last 30 years; that's
certainly not the intent when we put it together." As for concern
expressed [by Ms. Carpeneti] about who would want to go into a
situation where the potential outcome is known, Mr. Torkelson
reported that in Vermont one agrees to plead guilty, for example,
and then gets the choice of 90 days in jail or taking whatever
sentence is negotiated by the "community reparative board." He
concluded that there are ways around some of those concerns as
well.
Number 1882
REPRESENTATIVE DYSON conveyed that he appreciates Representative
Kerttula's concern, but if the harm caused were ruining someone's
prized old car, for example, the reparation would be to restore it.
Doctor bills or counseling bills are quantifiable, he noted. That
is the genius of the reparative model.
MR. TORKELSON referred to testimony about the Chaney provisions set
forth by the supreme court, stated in AS 12.55.005. He told
members this adds AS 12.55.011 below that, and doesn't negate or
repeal those [factors]. It adds one more thing that the court may
consider after - presumably - it has complied with [AS 12.55.]005
in looking at all these other factors. He said that is the intent.
Number 1990
REPRESENTATIVE KOTT suggested that clarifying Section 1 by
specifically adding in Chaney factors as goals wouldn't be a
problem, then, as it is the sponsor's intent to ensure that the
goals under Chaney still exist.
REPRESENTATIVE DYSON replied, "Absolutely."
Number 2026
REPRESENTATIVE CROFT referred to the points made by Ms. Carpeneti
that some domestic violence crimes aren't under AS 11.41, and that
negotiations between perpetrators and victims are inherently
difficult because of the perpetrator's power over the victim.
MR. TORKELSON responded by mentioning Representative Dyson's
intention of "no violence, no crimes against the person." He
stated, "[AS] 11.41 is the standard crime against the persons that
we use in ... other factors." Noting that some felonies aren't in
AS 11.41, Mr. Torkelson said a domestic violence situation is under
AS 11.41, to his belief, if there is any form of battery or
assault.
REPRESENTATIVE KERTTULA pointed out, however, that domestic
violence crimes don't always get charged that way. Trespass is a
classic example; there often is domestic violence at the root of
it, but the crime charged is trespass. "So you're probably at
least going to have to consider ... what the facts of the case
are," she said. She added about the legislation, "I really think
it's well meaning, but it's just going to be an incredible lot of
work to make a change like this, to be sure that you don't cause
problems with inequality in sentencing, and that's one of them."
REPRESENTATIVE DYSON conveyed the desire for consistency but not
"foolish consistency." Particularly in rural Alaska, he noted,
there is real pressure to have culturally appropriate sentencing.
In northern Canada, much of the restorative justice is working with
in rural areas with the First Nations people, with great success;
having the perpetrator deal with the elders of the community and
the shame brought upon them, and making it right, follows a
cultural tradition perhaps several thousand years old. Although it
is working well there, Representative Dyson said he doesn't think
the same kind of consistency should be enforced in downtown Juneau
or Palmer, for example.
Number 2278
CHAIRMAN KOTT applauded the idea of the bill, which he said
deserves the greatest scrutiny that the committee can give it. He
announced that HB 372 would be held over.
HJR 35 - REPEAL BRADY ACT
CHAIRMAN KOTT announced that the final order of business would be
HOUSE JOINT RESOLUTION NO. 35, relating to requesting the United
States Congress to repeal the "Brady Handgun Protection Act".
Number 2294
RYNNIEVA MOSS, Staff to Representative John Coghill, Alaska State
Legislature, introduced HJR 35 on behalf of the sponsor. She
explained the HJR 35 requests the United States Congress to repeal
the "Brady Handgun Protection Act". Representative Coghill had
introduced HJR 35 after reading about the direction of
congressional actions on gun controls. He felt it appeared that
Congress was giving up on the Second Amendment. In the past few
years, Congress has been reviewing legislation that would change
how gun laws are handled by disallowing civil suits against gun
manufacturers and disallowing retention of criminal search records
of law-abiding citizens. Representative Coghill feels that
Congress is going in the wrong direction to restore the ability of
individuals to protect themselves and their families.
MS. MOSS told members that Representative Coghill's real question
is who the Brady Act protects. She said it already is known that
illegal weapons are prized commodities that usually [result in]
burglary or death, and that Switzerland's practice of requiring
citizens to be armed can reduce crime. Criminals don't buy
firearms through legal means, and when criminals do attempt to
purchase firearms contrary to the Brady Act, the law is not
enforced by the administration. One of the big criticisms now is
that there are stringent federal laws against criminals having
guns, but those laws are not being enforced.
TAPE 00-29, SIDE A
MS. MOSS concluded by saying that if the Brady Act is not enforced,
then there really is no compelling interest on the part of the
federal government to invade the privacy of law-abiding citizens.
restricting their ability to protect themselves and their families
against criminals, and, for that matter, their ability to provide
food for their families.
CHAIRMAN KOTT announced that HJR 35 would be held over.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:07 p.m.
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