Legislature(1995 - 1996)
03/08/1995 01:59 PM Senate JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
March 8, 1995
1:59 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
NO MEMBERS ABSENT
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 27(FIN) am
"An Act directing the Department of Public Safety to establish and
maintain a deoxyribonucleic acid (DNA) identification registration
system and requiring DNA registration by persons convicted of a
felony crime against a person and of minors 16 years of age or
older who are adjudicated a delinquent for an act that would be a
felony crime against a person if committed by an adult; and
providing for an effective date."
CS FOR HOUSE BILL NO. 26(JUD)
"An Act amending Rule 15, Alaska Rules of Criminal Procedure,
relating to depositions."
SENATE BILL NO. 67
"An Act relating to the crime of unlawful evasion."
SENATE BILL NO. 7
"An Act relating to bail after conviction for various felonies if
the defendant has certain previous felony convictions."
NO PREVIOUS SENATE COMMITTEE ACTION
WITNESS REGISTER
Richard Vitale
Legislative Aide to Rep. Parnell
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Testified for sponsor of HB 27 and HB 26
Representative Sean Parnell
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of HB 27 and HB 26
Dr. Mary Walkenshaw
Scientific Crime Detection Laboratory
5500 E. Tudor Rd.
Anchorage, AK 99507-1221
POSITION STATEMENT: Answered questions on HB 27
George Taft, Chief
Scientific Crime Detection Laboratory
5500 E. Tudor Rd.
Anchorage, AK 99507-1221
POSITION STATEMENT: Answered questions on HB 27
Jay Miller
Federal Bureau of Investigation
Washington, D.C.
POSITION STATEMENT: Answered questions on HB 27
Jayne Andreen, Executive Director
Council on Domestic Violence & Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
POSITION STATEMENT: Supports HB 26, HB 27, and SB 7
Lauree Hugonin
Alaska Network on Domestic Violence & Sexual Assault
130 Seward, Room 501
Juneau, Alaska 99801
POSITION STATEMENT: Supports HB 27 and HB 26
Senator Judy Salo
Alaska State Capitol
Juneau, Alaska 99811
POSITION STATEMENT: Sponsor of SB 7
Gerald Bailey
Gastineau Human Services
5577 Aisek
Juneau, Alaska 99801
POSITION STATEMENT: Supports SB 67
Pete Roberts
145 W. 6th
Anchorage, AK 99501
POSITION STATEMENT: Supports SB 67
Catherine Petkoff
Allvest, Inc.
600 Barrow St.
Anchorage, AK 99501
POSITION STATEMENT: Supports SB 67
Alan Tesche
1032 G St.
Anchorage, AK 99501
POSITION STATEMENT: Supports SB 67
ACTION NARRATIVE
TAPE 95-11, SIDE A
Number 001
SJUD - 3/8/95
HB 27 DNA TESTING OF VIOLENT OFFENDERS
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:59 p.m. The first order of business was CSHB 27
(FIN)am.
RICHARD VITALE, legislative aide to Representative Parnell,
explained HB 27 allows for the collection of samples for DNA
testing. Both the sponsor and the Department of Law feel this is
an important procedure used in investigations for the conviction of
repeat sexual and violent offenders. Collection of samples will be
an important tool to be used at a later date.
SENATOR ELLIS asked at what point in the process the DNA sample is
taken. MR. VITALE replied the sample is taken upon conviction, by
the Department of Corrections when the offender enters the
correctional facility, and billed through the Department of Public
Safety.
SENATOR ELLIS questioned who will be responsible for maintaining
the records, and for how long. MR. VITALE replied the blood sample
will be stored by the Anchorage Crime Lab.
DR. WALKENSHAW, Anchorage Crime Lab, clarified the blood samples
would be dried and stored indefinitely. Currently samples are
stored in a walk-in freezer and are not destroyed. SENATOR ELLIS
asked if the samples deteriorate appreciably over time, and whether
the test results could be recorded and filed in lieu of keeping the
actual sample in storage. DR. WALKENSHAW stated the samples are
maintained because new testing methodologies are evolving.
SENATOR ADAMS noted a recent newspaper article disclosed that
evidence had recently been mishandled or misplaced by the Anchorage
Crime Lab. He asked what the penalty is for violating the
confidentiality provisions included in CSHB 27(Fin)am.
Number 087
GEORGE TAFT, Director of the Anchorage Crime Lab, stated the
situation reported in the Anchorage newspaper is currently under
investigation, and they will be able to answer the question
regarding confidentiality after the investigation is complete.
SENATOR TAYLOR commented the committee is unable to wait for the
conclusion of the audit, and asked Mr. Taft for recommendations
regarding the types of penalties for violation of confidentiality.
Number 106
MR. TAFT replied the specimen storage is done under strict
supervision and the specimens or evidence would be kept
confidential.
DEAN GUANELI, Department of Law, commented that in any storage
procedure, property can get lost, but no one's rights would be
violated. The specimen simply would not be available for analysis.
SENATOR TAYLOR questioned the breach of confidentiality violation.
MR. GUANELI stated under Title 11, misuse of confidential
information is a class A misdemeanor.
Number 134
SENATOR ADAMS stated the fiscal note reflects the cost of sample
collection only. There is no cost included for testing or anything
else. He asked what the registration system will cost once this
system is used in prosecuting crimes.
MR. GUANELI responded testing is becoming less expensive due to new
technology. The Crime Lab is only collecting samples at this time
because the law enforcement community as a whole has not really
focussed on a specific type of testing as the standard one to be
used nationally. Processing the samples at a later date will
enable the Crime Lab to use newer technology at a lower cost.
Number 158
SENATOR ADAMS noted the cost of any type of testing is not included
in the fiscal note. He asked if the testing would only be done on
samples from sex offenders. MR. VITALE replied the sponsor felt it
would be inappropriate to attach a fiscal note to the bill to
reflect something the Crime Lab is not required to do. The Crime
Lab does not feel prepared to type samples at this time because the
rapid changes in technology. The Crime Lab is currently estimating
$50 to $75 for each sample typing.
SENATOR ADAMS commented new state programs cost money and he
expressed concern that two fiscal notes were not included. MR.
VITALE explained the Crime Lab is not required to start typing the
samples, and when they are prepared to begin testing, they will
have to request funds from the legislature and they will know the
costs.
Number 187
JAY MILLER, Federal Bureau of Investigation (FBI), testified via
teleconference from Washington, D.C. He discussed the FBI CODIS
program, which is a DNA index system that attempts to standardize
software that can be made available to state and local crime
laboratories who are trying to implement their statewide databases.
To date, 32 states have passed DNA database legislation. All of
those states are confronted with the problem of storing DNA typing
results in a standard format, and exchanging information. The FBI
provides IBM PC software to crime laboratories that want to use the
standard procedures. If the crime laboratories' data meets quality
assurance standards, it is used in a FBI clearinghouse which
exchanges records among states. The two principle purposes of the
DNA database are: to link serial sex offenses where the offenders
are unknown; and to match evidence from a sexual assault against a
previous offender's file for identification. CODIS provides
investigative leads for law enforcement agencies who are trying to
link serial sex offenses to each other through genetic material, or
to identify suspects sooner than would otherwise be possible
through conventional police investigative methods. He stated HB 27
is consistent with some of the better laws passed in other states
in recent years.
Number 270
LAUREE HUGONIN, representing the Alaska Network on Domestic
Violence and Sexual Assault (ANDVSA), testified in support of HB 27
for the following reasons. Keeping a DNA database will help law
enforcement agencies quickly apprehend sex offenders; and, DNA is
proving to be a very adequate identifier which will help in the
prosecution of sex offenders. She commented it is important to
begin collecting samples now as it will broaden the pool of
available samples. Waiting to collect samples until better
technology is developed would result in the loss of samples from
many offenders.
JAYNE ANDREEN, Director of the Council on Domestic Violence and
Sexual Assault, testified in support of HB 27. She stated that
sexual assault continues to be one of the most under-reported
crimes in both the United States and Alaska. In Alaska, the
reporting rate is twice what the national rate is, yet a very small
percentage of cases reported result in a conviction. In 1992, 570
rapes were reported. Most victims were examined, but the forensic
evidence collected is not usable unless there are samples available
to compare the evidence to. The Council believes a DNA databank
will provide law enforcement agencies and the Crime Lab the ability
to compare evidence collected with alleged offenders and suspects
and it will increase the ability to obtain convictions. She noted
once that process is used, more victims are likely to report sexual
assault cases, because physical evidence will exist to obtain a
conviction.
Number 319
SENATOR ADAMS made a motion to adopt the following amendment (#1).
On page 1, following line 7, insert a new bill section to read:
"Section 1. AS 22.20 is amended by adding a new section to
read:
ARTICLE 4. JUDICIAL COUNCIL.
Sec. 22.20.200. DNA EVIDENCE INFORMATION. The judicial
council shall periodically review and distribute
information relevant to the technical, legal, and
scientific use of deoxyribonucleic acid (DNA) profiles in
criminal proceedings to
(1) judges and magistrates;
(2) the Department of Law;
(3) the Public Defender Agency;
(4) the office of public advocacy."
On page 1, line 8: delete "Section 1," insert "Sec.2" and renumber
the following bill sections accordingly. On page 4, line 1, delete
"sec.1" and insert "sec. 2."
SENATOR TAYLOR objected for the purpose of hearing feedback from
the Department of Law. MR. VITALE responded the same amendment was
opposed by the sponsor when it was previously offered, since the
amendment would be adding to the judicial council's
responsibilities which are already spelled out in law.
Number 334
SENATOR ADAMS commented that the amendment sends some direction to
the judicial council to review information, and it does no harm.
MR. VITALE stated the judicial council currently has that right.
DEAN GUANELI stated, from the standpoint of the Department of Law,
the issue is a policy call by the Legislature. He noted the
judicial council may not have expertise in scientific matters; they
research legal matters: court and sentencing procedures; and
sentencing trends. He suggested getting direct testimony from the
judicial council.
Number 350
SENATOR GREEN questioned the purpose of the amendment. SENATOR
ADAMS stated he feels the judicial council needs to review the
information on DNA testing periodically since in order to stay
knowledgeable about a quickly evolving field.
SENATOR ELLIS noted the amendment could be potentially beneficial
and can do no harm. He added the Legislature is unable to keep up
with this issue from year to year to keep up with changing trends.
SENATOR ADAMS suggested holding the bill in order to get comments
from the judicial council. SENATOR TAYLOR commented he is opposed
to adding extra burdens to the judicial council, but it may be wise
to have some agency provide a form of objective distribution of
information. He thought judges and magistrates would be well
briefed on the subject as the science evolves, as well as the
Department of Law and the Public Defender Agency. He requested
Senator Adams to withdraw the amendment until Representative
Parnell could speak to the issue. SENATOR ADAMS agreed and
withdrew the amendment.
SENATOR ADAMS discussed a second amendment to delete "and of minors
16 years of age or older who are adjudicated a delinquent for an
act that would be a felony crime against a person if committee by
an adult." He questioned the rationale for including this large
group of teenagers.
DEAN GUANELI explained the rationale was to create as large a
database as possible of those offenders who might be starting off
at an early age at becoming repeat sexual offenders. He added
Senator Adams is correct about the juvenile waiver bill passed last
year for offenders 16 and 17 years old who commit rapes. The bill
would require sample collections be taken from juveniles who have
committed lesser levels of sexual offense or when the prosecutor
has decided the juvenile system would be effective.
Number 400
SENATOR ADAMS asked for the Department of Law's position. MR.
GUANELI replied the Administration has not taken a position on this
piece of legislation. MR. VITALE stated the sponsor is opposed to
the amendment because of the nature of the crime and because of the
high recidivism rate among juveniles.
SENATOR MILLER objected to the second amendment. A roll call vote
was taken with the following result: Senators Taylor, Green and
Miller voted "nay," and Senators Adams and Ellis voted "yea."
The committee took up amendment number 1. MR. VITALE relayed the
following comments on the amendment prepared by Representative
Parnell, who was unable to be in attendance. The amendment would
add another layer to the government, and should not be added just
because it would do no harm. Additionally, the amendment does not
specify that any other type of judicial review will happen on other
types of evidence, therefore the amendment would elevate DNA
evidence to a higher level of importance than other evidence used
in court cases.
SENATOR ADAMS moved amendment number 1. SENATOR TAYLOR objected
for the purpose of discussion. SENATOR MILLER commented he
opposed the amendment when it was presented to the House Finance
Committee because it adds a task to the judicial council but does
not do anything meaningful. He felt the Department of Public
Safety and the Division of Legislative Budget and Audit should be
the agencies monitoring the program. He added he did not have a
strong objection to the amendment, but did not feel it adds
anything to the bill.
SENATOR ADAMS asked if anyone discussed the amendment with the
judicial council. SENATOR MILLER answered the judicial council did
not object to the amendment; they are mandated to provide a broad
range of tasks so this is within the scope of their authority. It
is something Bill Cotten said he was willing to do but he did not
say what it might cost. SENATOR ADAMS stated there was no fiscal
note reflecting the cost of testing the samples.
SENATOR TAYLOR asked if further objection was maintained to the
amendment. There being no further objection, amendment number 1
was adopted.
SENATOR GREEN moved CSHB 27 am out of committee with individual
recommendations. There being no objection, the motion carried.
SJUD - 3/8/95
HB 26 DEPOSITIONS IN CRIMINAL CASES
REPRESENTATIVE PARNELL, sponsor of HB 26, explained under current
law, a motion must be filed with the court to take a deposition of
another person in criminal cases. In practice, this provides
another attempt to interview witnesses and victims, particularly
victims of sexual assault, and provide another opportunity for
harassment of those victims. In most cases, the victim has already
given a tape recorded statement to the police, as well as a tape
recorded and transcribed statement to the grand jury, both of which
are available to the defense. CSHB 26(Jud) attempts to incorporate
portions of the federal court rule which states that depositions in
criminal cases can only be taken under exceptional circumstances or
when the witness will be unavailable for trial. The exceptional
circumstances test is in use in all 50 states and all federal
courts.
SENATOR ADAMS discussed a bill reviewed in committee last week
which attempted to change Rule 16. The Supreme Court undertook a
review of the court rule. He asked if a similar review had been
undertaken on Rule 15. REPRESENTATIVE PARNELL commented that the
court reviewed Rule 16 because it was a court committee
recommendation, but he did not believe the same recommendations was
made for Rule 15. MR. GUANELI confirmed that there was no court
recommendation to review Rule 15.
SENATOR ADAMS noted the phrase "clear and convincing evidence" on
page 1, line 7, requires a higher standard of proof than the
language "beyond a reasonable doubt." He questioned why a higher
standard of proof would be used. REPRESENTATIVE PARNELL explained
that the standard of proof "beyond a reasonable doubt" refers to
the standard under which a person is convicted. The "clear and
convincing evidence" standard relates to what must be shown upon
this motion. CSHB 26(Jud) requires either party to show clear and
convincing evidence that exceptional circumstances exist. This
narrows the scope under which depositions can be taken.
SENATOR TAYLOR asked if the Public Defender Agency is opposed to
CSHB 26(Jud) and whether Mr. Guaneli was aware of abuses to Rule 15
in Alaska. MR. GUANELI stated there are specific judges in
specific locations who grant depositions, particularly in rape
cases, in almost every case. That kind of practice is limited but
does occur and causes great concern to victims in those cases. He
discussed the revictimization of the victim when they must make
another deposition in front of the offender with no judge present.
Defendants have the right to be present at all critical court
proceedings. The American Bar Association (ABA) recommends that in
criminal depositions, the offender not have a right to be present,
but that does not hold in Alaska. He added the Public Defender
Agency does not feel it would affect that many cases which is why
they are not actively opposing the bill.
SENATOR TAYLOR felt the lack of opposition speaks highly of the
candor of the Public Defender Agency. SENATOR ELLIS asked how many
victims are involved. MR. GUANELI believed 15 to 20 victims per
year are affected.
LAUREE HUGONIN stated ANDVSA supports CSHB 26(Jud). ANDVSA does
not believe it places an undue burden on the defense and it will
protect victims that already make their testimony available in
several ways. She urged the committee's support of CSHB 26(Jud).
SENATOR GREEN moved CSHB 26(Jud) out of committee with individual
recommendations. There being no objection, the motion carried.
SJUD - 3/8/95
SB 67 UNLAWFUL EVASIONS CLASS A MISDEMEANOR
SENATOR ELLIS, sponsor of SB 67, explained the bill is companion
legislation to a bill introduced by Representative Brown in
response to concerns of people running half-way houses and people
living in the vicinity of half-way houses. Currently there is a
two-tiered penalty approach to people who are guilty of unlawful
evasion, or walking away from a half-way house facility. Felons
who walk away are charged with a class A misdemeanor, and
misdemeanor offenders in half-way houses are charged with a class
B misdemeanor for the same offense. SB 67 changes the offense to
a class A misdemeanor for all offenders and carries a maximum one
year prison sentence, and a maximum $5,000 fine. The class B
misdemeanor conviction is not providing enough incentive to prevent
people from walking away from half-way houses, and is not a
priority among prosecutors. The misdemeanor offenders are drunk
drivers or drug abusers, and documented cases show these people
have committed serious offenses after unlawful evasion.
SENATOR TAYLOR announced Ruth Moulton, who was planning to testify
via teleconference from Fairbanks, supports SB 67.
TAPE 95-11, SIDE B
CATHERINE PETKOFF, representing AllVest Incorporated (ABI), a
residential center with over 400 residents, testified in support of
SB 67. She stated AVI houses both felons and misdemeanants, and
after housing thousands of offenders since 1985, AVI strongly
believes appropriate sanctions are necessary to prevent residents
from walking away from the resident program. She explained the
conditions classifying a "walk-away" and provided statistics on
the number of walkaways in the last four years. She stated
misdemeanant offenders are more likely to violate program rules as
they consider the minimum sanctions as an acceptable consequence.
She added 26 offenders have walked away from residential facilities
between October 1, 1994 to February 28, 1995; 11 were
misdemeanants. She noted these programs are not only cost
effective for incarcerating offenders, but also offer the
opportunity for successful transition from institutional living by
allowing residents to gain employment, develop community support
services, and return something to the community through the
participation in work service prior to their release. In these
programs, residents only gain privileges after they have
demonstrated responsible behavior and accept responsibility for
their actions.
PETE ROBERTS testified via teleconference in support of SB 67. He
asked whether offenders would no longer be required to honor the
provisions of parole, for example restitution, after they recommit.
He asked if the offender may be trading the consequences of walking
away for the consequences of a previous crime. SENATOR TAYLOR did
not believe so, and commented the second offense would most likely
draw attention to the fact that the conditions of the first offense
had not been met. MR. ROBERTS recounted a situation in which arson
was committed on his vehicle, as well as others. The offender is
required to pay restitution. The prison official handling the case
stated that if the offender committed a new crime upon release, the
new sentence would overrule the conditions of parole. SENATOR
TAYLOR doubted that would be the case.
ALAN TESCE testified in support of SB 67. He explained he lives
three-quarters of a mile of 98 percent of all of the half-way
houses in Anchorage. He noted with the increased concentration of
half-way house beds in the downtown area, he expects the number of
walk-aways to rise. He felt passage of SB 67 would act as a
deterrent. He discussed testimony before a South [indisc.]
Community Council. The providers of half-way houses do not have
any responsibility to the state or neighborhoods for criminal
actions or any other actions committed by walk-aways once the
operator of the half-way house has notified the police.
SENATOR TAYLOR responded the restriction on the ability to file a
civil suit against a half-way house for negligence is known as tort
reform.
Number 493
GERALD BAILEY, Program Director of Gastineau Human Services (GHS),
testified in support of SB 67. He pointed out that GHS has been
holding misdemeanants at their facilities since 1991.
Misdemeanants are more likely to walk away than felons; one reason
being that the sanctions are not as restrictive for misdemeanants.
The City and Borough of Juneau changed a city ordinance at GHS's
request to strengthen the charges; this has had a significant
impact in decreasing the number of walk-aways.
SENATOR ADAMS moved SB 67 out of committee with individual
recommendations. SENATOR TAYLOR objected to make the following
comment, "In my previous experience and life as a judge, when you
sentenced somebody to a halfway house, you were kind of giving them
a break and hoping they would learn something from it. To have
people walk away, and there to be no teeth, and there to be a
system that was so hidebound with paperwork that you could never
get an officer to go and start looking for them to bring them back
was always very frustrating, so I really applaud the sponsor for
bringing this forward. I remove any objection I have, and wish the
bill well, and it moves from committee." SB 67 was moved out of
committee with individual recommendations.
SJUD-3/8/95
SB 7 NO BAIL FOR FELONS W/PREVIOUS CONVICTIONS
Number 468
SENATOR SALO, sponsor of SB 7, stated an identical measure (SB 228)
passed the Senate last year with 19 - 0 vote, and received all "do
pass" recommendations in both the Senate and House. SB 7 adds to
the list of crimes and circumstances for which bail is not allowed.
It prevents a person's release on bail either before sentencing or
pending appeal, if the person has been previously convicted of
sexual assault in the second and third degrees, and/or stalking in
the first degree. SENATOR SALO noted additional information on SB
7 is included in committee packets, including information on the
perpetrator who was the impetus for the legislation. She noted that
perpetrator was convicted of an assault he committed while on
$5,000 bail. She commented that although infrequent, such low
incidence situations should be prevented from occurring in the
future.
Number 446
SENATOR ADAMS noted the perpetrator had been convicted of three
rape charges and auto theft, and asked why he was able to get bail
when in Alaska. SENATOR SALO replied the only thing in current law
that prevents bail from being issued is either an unclassified or
a class A felony conviction. The perpetrator's previous crimes
were class B felonies. SB 7 would add those offenses to the list.
SENATOR TAYLOR clarified there are two standards the court must
look to, aside from the classification formula, when allowing bail:
is the person going to flee the jurisdiction of the court; and is
this person going to be a risk to others. Often that decision is
based on the premise the defendant is innocent until proven guilty.
There being no further testimony on SB 7, SENATOR GREEN moved SB 7
out of committee with individual recommendations. There being no
objection, the motion carried.
SENATOR TAYLOR adjourned the meeting at 3:04 p.m.
| Document Name | Date/Time | Subjects |
|---|