ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 16, 2005
1:26 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
OVERVIEW(S): DEPARTMENT OF CORRECTIONS - CONTAINMENT MODEL
- HEARD
HOUSE BILL NO. 103
"An Act requiring an actionable claim against the state to be
tried without a jury."
- MOVED HB 103 OUT OF COMMITTEE
HOUSE BILL NO. 187
"An Act establishing the Alaska capital income account within
the Alaska permanent fund; relating to deposits into the
account; relating to certain transfers regarding the Amerada
Hess settlement to offset the effects of inflation on the Alaska
permanent fund; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 188
"An Act establishing the State of Alaska Capital Corporation;
authorizing the issuance of bonds by the State of Alaska Capital
Corporation to finance capital improvements in the state; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 103
SHORT TITLE: CLAIMS AGAINST THE STATE
SPONSOR(S): REPRESENTATIVE(S) KELLY
01/24/05 (H) READ THE FIRST TIME - REFERRALS
01/24/05 (H) STA, JUD, FIN
03/03/05 (H) STA AT 8:00 AM CAPITOL 106
03/03/05 (H) Moved Out of Committee
03/03/05 (H) MINUTE(STA)
03/04/05 (H) STA RPT 1DNP 5NR
03/04/05 (H) DNP: GRUENBERG;
03/04/05 (H) NR: GARDNER, GATTO, RAMRAS, ELKINS,
SEATON
03/09/05 (H) JUD AT 1:00 PM CAPITOL 120
03/09/05 (H) Heard & Held
03/09/05 (H) MINUTE(JUD)
03/16/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
Kim English, MA, Research Director
Division of Criminal Justice
Colorado Department of Public Safety
Denver, Colorado
POSITION STATEMENT: Presented the [sex offender] containment
model on behalf of Department of Corrections (DOC).
REPRESENTATIVE BERTA GARDNER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Asked questions during the containment
model presentation.
PORTIA PARKER, Deputy Commissioner
Office of the Commissioner - Juneau
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: Responded to a question during the
containment model presentation.
Jeffrey Jenks, Owner and President
Amich & Jenks, Inc.
Wheat Ridge, Colorado
POSITION STATEMENT: Assisted with the presentation of the [sex
offender] containment model on behalf of Department of
Corrections (DOC).
Peggy Heil, MSW, LCSW, Consultant
Responding to Sexual Violence Proactively (RSVP)
Canon City, Colorado
POSITION STATEMENT: Assisted with the presentation of the [sex
offender] containment model on behalf of Department of
Corrections (DOC).
GAIL VOIGTLANDER, Chief Assistant Attorney General - Statewide
Section Supervisor
Torts and Worker's Compensation Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 103.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:26:30 PM. Representatives
McGuire, Kott, Gruenberg, and Gara were present at the call to
order. Representatives Anderson, Coghill, and Dahlstrom arrived
as the meeting was in progress. Representative Berta Gardner
was also in attendance.
^OVERVIEW(S)
^DEPARTMENT OF CORRECTIONS - CONTAINMENT MODEL
1:27:31 PM
CHAIR McGUIRE announced that the first order of business would
be the overview by Department of Corrections regarding the [sex
offender] containment model.
1:27:39 PM
KIM ENGLISH, MA, Research Director, Division of Criminal
Justice, Colorado Department of Public Safety, presented the
[sex offender] containment model on behalf of Alaska Department
of Corrections (DOC). She described a study conducted by the
U.S. Department of Justice, Bureau of Justice Statistics which
determined that almost half of the inmates in state prisons had
actually been under correctional supervision, on probation or
parole, at the time of the offence for which they are currently
doing time. She said:
In fact, 24 percent of the prisoners who were serving
time for rape were under correctional supervision,
probation, or parole, when they were arrested for the
rape.... And 19 percent of prisoners serving time for
sexual assault had been under correctional supervision
at the time of the [assault]. ... We want to talk
about the need for specialized sex offender management
practices; why this is not a typical criminal justice
population. ... One of the challenges that we face
with sex offenders is that rape victims don't report
this crime. We actually don't have very much
information about these crimes. The containment
approach is about obtaining information and then
trying to translate what we learn into treatment
approaches that will be useful for the offender and
contain the offender in the community.
MS. ENGLISH pointed out that Alaska ranks first in the United
States in rapes per capita, and the reported rape rate is twice
the national average. She noted that no one knows if there is a
large difference between the actual incidence of sexual assault
and those reported to authorities. In 2003, the Alaska
Department of Public Safety calculated that there is one
forcible rape [in Alaska] every 15 hours, and rapes have
increased between 2000 and 2003 by 21.7 percent. She said:
More than half of rape victims have been raped more
than once. That's either because [during] the ...
single episode during which they were raped they had
multiple assaults perpetrated on them, or you have a
single victim who is raped over a duration of many
years.
REPRESENTATIVE GRUENBERG asked Ms. English is she could break
that data out to determine how many of those victims had been
victims of totally separate rapes.
MS. ENGLISH stated that she did not have that information. She
stated that there is evidence that once a person is victimized,
he/she is more likely to be victimized again, and that the
trauma from subsequent assaults may be greater than the first
time.
CHAIR McGUIRE told Ms. English that any follow up data that she
could get for the committee would be helpful.
MS. ENGLISH pointed out that victims of sexual assault are six
times more likely to develop a Post Traumatic Stress Disorder
(PTSD), three times more likely to develop major depression, and
13 times more likely to attempt suicide. She continued:
At an estimated cost of $86,000 per victim, this would
be their lifetime cost, times $521 victims a year, the
State of Alaska is probably losing $45 million a year
per year for the lifetime costs of those who've been
assaulted that year. But only 16 percent of rape
victims report the crime, and only half of those tend
to report it within the first five years. So when
they do get reported, ... it usually doesn't result in
arrest. ... Perpetrators choose victims whom they
think will not report the crime.
1:37:30 PM
MS. ENGLISH explained that 60-65 percent of the victims of
sexual assault are under the age of 18, and 30 percent are under
11. She stated, "Studies of victims of sexual assault have been
pretty clear that those who are younger and who know the
perpetrator tend to delay disclosure." In one study, children
ages 3-12 explained that they delayed disclosure because they
feared being disbelieved, punished, or unprotected.
MS. ENGLISH continued:
If you ask adult victims why they did not report the
crime, 71 percent said they were concerned about their
family knowing...., 68 percent were concerned about
others knowing, generally, 69 percent were concerned
about being blamed by others.... As a society we
still [blame the victim], and the result is that very
few victims report the crime. ... So a goal of
containment, given the fact that most victims never
report the crime, is to obtain information about the
offender. In a nutshell, the containment approach is
grounded in ... this multidisciplinary triangle, where
you have the polygraph examiner, the treatment
provider, and the criminal justice system - which in
this case is the Department of Corrections - working
together to manage individual offenders. On top of
that, what these ... additional policies are on the
side are ways of shoring up the original containment
so that you've got kind of a web of different things
going on to keep this person very structured ... in
their lifestyle in the community, and highly
restricted. So what needs to happen, and what the
Department of Corrections is doing, is developing
policies around revocation procedures, employment
restrictions, [and] leisure time monitoring.
1:44:56 PM
MS. ENGLISH continued:
The jurisdiction of the offender and the
responsibility for the offender falls on the criminal
justice system. ... The criminal justice system makes
sure that treatment and polygraph [are] integrated.
They're in charge of the case, basically, ... and
they're making sure that everything is happening.
CHAIR McGUIRE asked if offenders could be in this program while
still in a correctional facility.
MS. ENGLISH responded affirmatively.
CHAIR McGUIRE asked, if the offender was on parole or probation,
if he/she would have to come in for a scheduled polygraph.
MS. ENGLISH responded that this was correct. She explained that
this program could be used in the prisons as well as in the
community for those on probation. She emphasized the importance
of parole, "You don't want people going out without any kind of
supervision afterwards." In Colorado, she said, the parole
board won't release a convicted sex offender unless he/she
agrees to treatment, polygraph, and supervision.
1:49:44 PM
MS. ENGLISH continued:
Hopefully during the course of treatment you're
finding out exactly what their high-risk behavior is.
... Once they're out in the community, ... one of the
things you're asking them is, "What have you been
doing in the last six months?" ... and if they commit
a new crime, and they admit to you that they've
committed a new crime during that period, then they're
going to get prosecuted. If it's before that and we
find out something that's very dangerous, ... then you
crank down on them even more and you might increase
home visits, you might put them on GPS monitoring, you
might have urinalysis testing much more frequently.
So there are many ways of trying to get in and
structure their lives and make them uncomfortable with
making decisions that will put themselves and others
at risk.
1:52:32 PM
MS. ENGLISH described a Canadian study focusing on 400 sex
offenders who had been released from prison and were on parole.
She pointed out that the 200 who failed parole supervision saw
themselves as no risk, had diverse victim types, tended to fail
early in the process, had access to victims, had attitudes of
sexual entitlement, and had poor social influences. She
commented that one can learn a lot from asking offenders about
their deviant sexual behavior in the past.
MS. ENGLISH recalled past studies that she and her colleagues
had conducted in which they compared what was known about
particular offenders before sentencing to what was known after
treatment. During treatment offenders were required to write
out their sex history, and then they would have polygraph tests.
She explained that the average number of victims of the
offenders in the study was two, and the average number of
[offenses] in their sex history was 83, but after the first
polygraph test that number was doubled to 165, and after the
second polygraph test that number rose to 184. She noted that
this demonstrates how much more information [corrections
officers] are getting from the offenders through this program.
REPRESENTATIVE BERTA GARDNER, Alaska State Legislature, asked
Ms. English to explain the difference between the number of
victims and the number of offenses.
MS. ENGLISH replied that sometimes an offender will assault the
same victim multiple times.
2:00:07 PM
MS. ENGLISH referred to a study of 223 sex offenders which
showed that at the time of the offenders' court hearings, it was
known that 7 percent of them had assaulted both adults and
children. After the polygraph test it was found that the number
was actually 70 percent. Offenders often access their victims
through patterned activities, and she opined that these patterns
can be discovered via a treatment that includes polygraph
testing. She presented several additional examples of
information gathered by using the polygraph testing on
offenders.
CHAIR McGUIRE asked if the containment model had been used on
juvenile offenders.
MS. ENGLISH replied affirmatively. She commented that juveniles
have a lot to hide but still have the potential to be treated
and repatterned.
2:06:40 PM
PORTIA PARKER, Deputy Commissioner, Office of the Commissioner -
Juneau, Department of Corrections (DOC), in response to Chair
McGuire, stated that the DOC has invited the juvenile justice
system to participate in the containment model as well.
MS. ENGLISH noted that the word "paraphiliac" is applied to a
person having deviant sexual behaviors. She continued:
As a summary, the reason that we're trying to put so
much responsibility on the offender for giving us
information is because they're responsible and we're
trying to hold them accountable. And we're trying to
take the responsibility off of the victim to educate
us. We need the offender to educate us and tell us
everything he knows rather than what he wants us to
know.
2:09:31 PM
JEFFREY JENKS, Owner and President, Amich & Jenks, Inc.,
assisting with the presentation of the [sex offender]
containment model on behalf of Department of Corrections (DOC),
relayed that his company is a polygraph investigative firm which
has conducted over 34,000 exams, most of which have been with
sex offenders. Prior to 1989, he was testing accused sex
offenders only prior to conviction and was focusing only on the
investigation [of a particular crime]. He commented, "At that
time, I was under the mistaken notion that a rapist was just a
rapist.... I had no clue what I was going to be getting in when
we got into the post-conviction testing in 1989. And since that
time I've learned that the crossover behavior of these
individuals is just unbelievable."
MR. JENKS noted that sex offenders are good polygraph subjects
because their acts are so secretive and their fear of being
caught is so great. However, offenders are also experienced at
blaming others for their behavior and therefore, he said, the
polygraph examiner has to be very careful in question
formulation. He stated that polygraph use allows agencies to
hold perpetrators accountable. If an offender is afraid of
detection, he continued, when "they come in for a polygraph,
their fight or flight response takes over, which affects their
autonomic nervous system, what we're measuring: blood pressure,
pulse rate, blood volume, galvanic skin response, and their
respiratory patterns."
2:13:08 PM
MR. JENKS pointed out that a polygraph is very portable. He
gave a brief explanation of how modern polygraphs work and how
they are being used for the purpose of gathering information.
In 2003 the National Academy of Sciences set the median accuracy
of polygraph tests at 89 percent, with a range for 70-99
percent. He stated that in Colorado polygraph examiners limit
the number of pertinent questions to three or four to maintain
accuracy and reliability.
2:16:35 PM
MR. JENKS reviewed the process of the polygraph pre-test, in-
test, and post test. In the pre-test, the examiner explains the
purpose of the exam, tells the offender the questions that will
be asked, and defines terminology. During the in-test phase,
the polygraph charts are run and there are two to four very
specific, relevant questions with two or three comparison
questions. The post test interview is very important, he said,
because "a vast majority of individuals that we test that fail
their test make admissions to us after the test that verify
those results." He noted, "[The offenders] very rarely admit
everything; that's the role then [for the] therapist and the
[parole officer] to work with them the next several months,
getting more admissions from them and then they come back in for
another clarification polygraph."
2:19:19 PM
MR. JENKS pointed out that there are three main types of tests.
The first is a sex history test to obtain information about past
victims, past methods used, the age of onset, frequency, and the
extent of crossover behavior. The second test is regarding the
specific crime, which is often run on the offender's first day
in treatment "because the quicker you get them out of denial,
the more they're going to get out of treatment and the quicker
they're going to get use out of treatment."
REPRESENTATIVE GARA asked, "If they don't come out of denial,
then ... they're not entitled to the probation time? They go
back to jail?"
MR. JENKS replied: "There is a time bar set that they have to
come out of denial, and usually that time bar, I believe, is six
months in the State of Colorado. ... Almost all of them do."
REPRESENTATIVE GARA asked if the offenders are on probation
during those six months.
MR. JENKS replied that the offenders are on probation and
parole, and are in the community for those six months. He
opined that through [group therapy], often another offender can
bring a person out of denial better than a polygraph would.
MR. JENKS explained that the third test is the maintenance exam,
in which the [therapist] checks out assault patterns and
behaviors regarding supervision conditions in order to look for
precursor behaviors.
2:23:17 PM
MR. JENKS reviewed the three types of tests and presented
additional examples.
CHAIR McGUIRE asked if other types of evidence are used during
the polygraph test.
MR. JENKS responded that the polygraph test is more accurate if
the examiner is able to collect as much information as possible
during the pre-test interview. He continued reviewing the test
types and pointed out that the monitoring polygraph is conducted
every three to six months. In Colorado, the state pays for the
polygraphs at first, but if lies are detected the offender must
pay for the tests. He commented that this "has brought the
deception rate way down." He continued:
The monitoring test provides information on whether
the offender is changing their lifestyle and applying
what they're learning in treatment; it provides
information on whether they're continuing to engage in
high-risk behaviors. ... The specific-issue tests are
used to clarify various risk concerns. It should be
scheduled when concerns persist, even after increasing
surveillance. ...
MR. JENKS referred to a 1986 study in which the deterrent effect
of polygraph testing on offenders on probation was shown to be
considerable.
2:28:28 PM
MR. JENKS opined that the State of Alaska is doing an excellent
job on recruitment and training of polygraph examiners. He
said, "These tests are not easy to run; you would not want to
run one of these just coming out of polygraph school." He
characterized it as an art.
REPRESENTATIVE GARA asked if there are polygraph schools that
are part of accredited universities.
MR. JENKS replied that they are usually separate from
universities. He speculated that there are probably 15-20 such
schools in the United States. After completing the schooling,
there are another 6-8 months of training, he said.
CHAIR McGUIRE asked if the polygraph examiner is usually
employed by the state.
MR. JENKS responded that the examiner is generally a private
contractor.
REPRESENTATIVE COGHILL expressed concern regarding the use of
the term "art." He asked, "I like the idea of asking hard
questions that you just can't duck, but is there any room for
that subjective, leading [questioning]?"
2:31:34 PM
MR. JENKS answered that examiners can use leading questions. He
noted that it is important to have all of the tests videotaped
to allow for strict scrutiny.
REPRESENTATIVE COGHILL commented, "It seems to me like somebody
that is in several interviews in a month ... would be affected
by the series of events that a polygraph interview would
affect." He asked if there is a professional code to determine
when [the offender] needs a break from polygraph tests.
MR. JENKS replied that there is such a procedure. He noted that
when an offender is being tested frequently, it can create
inconclusive tests. In Colorado the number of tests that are
administered are regulated very closely. The first year the
offenders have three tests: sex history test, specific issue
test, and the maintenance or monitoring test. He noted that if
the offender doesn't need a specific issue test, he/she will
have two maintenance tests within the year.
REPRESENTATIVE COGHILL asked if the offender has the same
interviewer throughout the treatment.
MR. JENKS replied, "No, we switch them off."
2:35:47 PM
REPRESENTATIVE GARA asked what kind of background education the
polygraph examiners need to have.
MR. JENKS answered that the examiners come from all different
backgrounds. In Colorado, he said, the examiners are not
required to have any particular educational background before
starting polygraph school, but "a psychology background of some
sort ... can be very helpful."
2:38:48 PM
MR. JENKS listed implementation considerations: develop
procedures, educate therapists, develop sex history
questionnaires, set examiner qualifications and requirements,
videotape the exams, develop a system to track and use the
results, educate stakeholders, and develop consequences. In
summary, he stated that the value of polygraph testing in risk
assessment includes: increased information on past offenses,
evaluation of treatment effectiveness/compliance, and evaluation
of the risk of child contact.
REPRESENTATIVE KOTT asked if the offender is present while the
polygraph is assessed.
MR. JENKS replied, "If the interrogation is going nowhere and
they're not giving us any new information, sometimes ... I'll
just show them the chart and ... the computerized scoring. ...
That's sometimes all they need to see to push them over to start
giving us information." But usually the offender is not present
when the assessment is completed, he noted. He detailed the
issue of countermeasures and the consequences.
2:43:59 PM
PEGGY HEIL, MSW, LCSW, Consultant, Responding to Sexual Violence
Proactively (RSVP), assisting with the presentation of the [sex
offender] containment model on behalf of Department of
Corrections (DOC), spoke about the role of treatment in the
containment approach. She explained that what has been found is
that neither treatment nor polygraph alone is as effective as
both used together; treatment and supervision can be more
effective when used in conjunction with a polygraph test. She
remarked that when using the polygraph test, it is important for
the treatment team to figure out what they will do with the
information about previous crimes that is obtained through the
process. Some jurisdictions have opted to grant immunity on
past crimes.
REPRESENTATIVE GARDNER asked if there is a problem with defense
attorneys objecting to people participating in a polygraph test.
MS. HEIL replied that that is not a problem because the testing
is post conviction. She said, "One of the advantages of the
immunity situation is that you can collect the names of the
victims, and if you have children that have been victimized that
were unknown, you can then offer them treatment." She remarked
that she is not really working to cure sex offenders, but is
giving them tools to be able to manage their problem. She noted
that [researchers] obtain a lot of information from offenders,
which is shared with supervising officers so that the officers
can understand the patterns and can intervene before the
offender reoffends. If the offender does reoffend, the
information obtained through treatment and polygraph testing can
help catch the offender sooner. She then presented information
on a study that showed the importance of combining treatment
with polygraph testing.
2:51:07 PM
REPRESENTATIVE GARA asked what is being done with the
information about past crimes if it is not used to prosecute the
offender.
MS. HEIL replied that [in Colorado], because of the self-
incrimination aspect, offenders are not asked for the names of
the victims. However, if the name is determinable, then it is
reported to social services. When the name of the victim is not
known, the details surrounding the offense are used to set
parameters for prevention goals and for parole conditions.
2:54:35 PM
REPRESENTATIVE GARA asked if parole is withdrawn if a person is
determined to be a repeat sex offender.
MS. HEIL replied, "No, that has not been one of the responses."
She detailed some of the things that occur in Colorado in such
situations.
REPRESENTATIVE GARA asked if it is true that repeat offenders
are less likely to succeed at treatment than single-time
offenders.
MS. HEIL remarked that in all of her years working with sex
offenders, there were only two with a single-time offense. She
commented, "The unfortunately thing is [that] people who commit
sex offenses can get away with this for years, so by the time
we're dealing with them in the criminal justice system, it's a
very entrenched problem."
2:57:28 PM
MS. HEIL continued:
Sex offender treatment is very different than
traditional treatment. It's treatment with
accountability.... In sex offender treatment, you're
very focused on [relaying the message], "It's not okay
to hurt people; you need to be changing your
lifestyle." There are consequences for the choices
that you make and you want to build those consequences
in, so if they choose not to participate in treatment,
choose not to follow their conditions of parole, there
should be consequences that immediately kick in at
that point. You want to focus on the present and you
want to see that they're changing their behavior and
you check to verify it. You don't just accept their
word for it. And that is very different than what we
traditionally do in treatment. The client is the
community as much as it is sex offenders; we're
working towards public safety.
MS. HEIL turned attention to a study regarding the impacts of
different types of treatments on recidivism rates. She noted
that there is an increase in recidivism rates for those treated
with psychotherapy, "so the wrong kind of treatment can be very
damaging." She pointed out the cognitive-behavioral treatment
that she uses for sex offenders reduces recidivism by about
half.
MS. HEIL, in response to Chair McGuire, commented that
psychotherapy may give the offender insight but doesn't
necessarily change the behaviors.
REPRESENTATIVE GARDNER opined that the recidivism rates in
presentation are low, and asked whether they were accurate.
MS. HEIL offered her belief that the presented rates are very
low and inaccurate. She referred to charts and explained that
of offenders who were released without treatment, 52 percent
were successful on parole. Of offenders who were released after
two phases of treatment, 84 percent were successful; she
characterized this as a cost savings. She turned to another
chart which shows that offenders who had parole supervision as
they were transitioning out of parole had the lowest violent
arrest rate within one year, while the offenders who had no
parole or treatment had the highest rate.
MS. HEIL described another study regarding where sex offenders
live after release from prison. The conclusion was that the
offenders who had the highest number of violations were those
living with family members. She remarked that family members
are caring, but many times they are also enabling. The
offenders with the best outcome were those who were living in
arrangements with other sex offenders where they were frequently
monitored and in treatment. She emphasized the importance of
preparing an offender's support system.
CHAIR McGUIRE asked about Colorado's sex offender registry.
MS. HEIL replied that there have not been any problems with the
Colorado registry. She then turned to the cost benefits of the
treatment program. She stated that each taxpayer dollar spent
on a cognitive-behavioral treatment program with adult sex
offenders returns between $1.19 and $5.27 in victim and taxpayer
benefits.
REPRESENTATIVE COGHILL asked about other transition measures.
MS. HEIL stated that some programs focus on treating the
individuals in the location that they're going to be returning
to in order to set up a concrete plan for how they should manage
their risk. She noted that this takes effort and resources, but
if the individual is not under supervision and not under
treatment, it will be very easy to drift back into the old
behavior.
3:09:39 PM
MS. HEIL relayed that in Colorado, family meetings were offered
around the state so that as many people as possible can attend.
She mentioned that another option would be to have the offender
make a video taped message for his/her family.
CHAIR McGUIRE noted that lawmakers have discussed that perhaps
offenders should just be incarcerated for life because the
recidivism rates are so high. She asked if the studies will be
helpful to lawmakers when they consider the issues of sentencing
and deterrence methods.
MS. HEIL pointed out that it is very expensive to keep a person
locked up for life, but there are offenders that will never be
safe in the community. Colorado has instituted lifetime
supervision, and the offender can earn their way off of lifetime
supervision with 10-20 years of compliance with probation. She
opined that this is a more cost-effective program because
offenders can be contained and continually tested.
3:14:14 PM
REPRESENTATIVE COGHILL likened the problem to alcoholism issues.
CHAIR McGUIRE noted that Alaska ranks high in the categories of
rape, sexual assault, and alcoholism. She stated that evidence
shows that perpetrators seek to reoffend.
REPRESENTATIVE GARA asked if offenders are less likely to
reoffend if they are under treatment and supervision.
MS. ENGLISH replied affirmatively.
REPRESENTATIVE GARA commented that it would be worth it to
consider the lifetime parole idea, but it might be difficult in
certain parts of the Alaska.
CHAIR McGUIRE agreed that the lifetime parole idea was a
possibility.
3:18:49 PM
REPRESENTATIVE COGHILL opined that polygraph accountability is a
"better leash than many things."
REPRESENTATIVE KOTT asked [what the State of Colorado would do]
if, during the course of an evaluation when an immunity
arrangement has been worked out, it is discovered that the
individual committed an offense in another state.
MS. HEIL replied that there are no immunity arrangements in
Colorado, and she stated that the location of the crime is what
determines whether the crime will be prosecuted.
REPRESENTATIVE GRUENBERG asked if there are other states with
similar programs.
MS. ENGLISH replied that locations in Illinois, Oregon, Texas,
Utah, Arizona, California, Vermont, New York, and Massachusetts
use similar programs.
3:23:43 PM
MR. JENKS showed the committee a computer printout of a test
taken recently by a sex offender in order to demonstrate how the
polygraph works.
REPRESENTATIVE GRUENBERG asked whether there has been any change
in the trend which holds that results from polygraphs are
inadmissible in court.
MR. JENKS answered that there has not been any change,
indicating that he prefers it that way. He listed what he views
would be the pitfalls of having the results of polygraphs be
admissible in court.
REPRESENTATIVE GRUENBERG asked if there are situations whereby
stipulation polygraph tests are admissible.
MR. JENKS replied affirmatively.
HB 103 - CLAIMS AGAINST THE STATE
3:31:53 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 103, "An Act requiring an actionable claim
against the state to be tried without a jury."
CHAIR McGUIRE noted that HB 103 also has a House Finance
Committee referral.
REPRESENTATIVE ANDERSON moved to report HB 103 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE GARA objected for the purpose of discussion. He
asked Ms. Voigtlander, Department of Law, for a rough estimate,
encompassing the last few of years, of the state's payments for
the type of tort cases that are being addressed by HB 103.
GAIL VOIGTLANDER, Chief Assistant Attorney General - Statewide
Section Supervisor, Torts and Worker's Compensation Section,
Civil Division (Anchorage), Department of Law (DOL), said she
didn't have that such information available, but indicated that
she would research what those amounts were for the last couple
of years. She added, "This bill would also implicate some other
types of cases, and so I will try to make a cut as to cases that
fall within [AS] 09.50.250, what that universe is in terms of
state payouts for the last two to three years."
REPRESENTATIVE GARA opined that the bill cuts both ways with
regard to cases involving the state in that sometimes the state
will do better in front of a jury and sometimes the state will
do better in front of a judge. He asked Ms. Voigtlander whether
she thinks that the state might actually do better in front of
jury when the case involves a claim brought by a prisoner.
MS. VOIGTLANDER said she is not comfortable venturing an opinion
on that issue, though she is prepared to answer factual cases
about the bill.
3:36:18 PM
REPRESENTATIVE GRUENBERG offered his understanding that AS
09.50.250 generally pertains to "non-contractual claims."
MS. VOIGTLANDER concurred with his understanding, but noted that
some other types of cases would be affected by AS 09.50.250,
such as certain employment actions filed against the state -
like wrongful discharge actions - and some counterclaims
pertaining to certain types of condemnation actions.
REPRESENTATIVE GRUENBERG asked whether, if the bill passes, one
would be able to bring a contractual claim against the state and
have it be heard by a jury, and whether such can be done now.
MS. VOIGTLANDER, characterizing her area of practice as
isolated, declined to venture a response.
REPRESENTATIVE GRUENBERG asked Ms. Voigtlander to provide
information regarding "who has requested jury trials - have they
been the state or the other party."
MS. VOIGTLANDER explained that such information would not be
available short of pulling up everyone's case, file by file,
because such information is not collected into a database.
However, based on her experience, just in seeing the paperwork
flow in, she said that it is the exception for a plaintiff to
not ask for a jury.
3:39:21 PM
REPRESENTATIVE KOTT asked whether there is any factual or
statistical information which shows that a trial-by-jury
decision is rendered faster than a decision made by a judge.
MS. VOIGTLANDER relayed that she is struggling with an answer to
that question because the work in her section almost exclusively
involves jury trials, since plaintiffs generally ask for a jury
trial, and therefore she doesn't have experience with court
trials.
CHAIR McGUIRE pointed out that the Alaska Court System's fiscal
note indicates a potential savings to the state because of a
reduction in yearly jury costs.
3:41:04 PM
REPRESENTATIVE GARA offered the following reasons that a trial
by jury is better than a trial by a judge: having 12 - or, in
some instances, 6 people - together is more likely to result in
a just decision, since an individual judge is no better than
individual jurors are at remembering facts; regardless of
whether the case is against a private party or the state, "a
victim" has the right to a trial by his/her peers; the right to
a jury trial is an important right, one that is democratic,
wise, and works better than having a decision rendered by one
person. He added:
It's six of one and a half dozen of the other when you
talk about which one results in a bigger verdict, and
I think there are some plaintiffs who'd rather have a
trial in front of a judge. I think if you're a
prisoner or somebody with a background that's not very
sympathetic, you'd rather have a trial in front of
judge, not a jury, and in those cases I think the
state would request a jury trial, but ... won't be
able to under this bill anymore.
REPRESENTATIVE GARA said that his experience has shown him that
as a judge gets more and more cases, a judge's decision can be
delayed for a long time - sometimes for months - whereas a jury
must make a decision right at the end of trial, generally within
one to three days. He again expressed a preference for the jury
trial process.
CHAIR McGUIRE noted that the procedure that HB 103 proposes to
institute had been in place in Alaska prior to 1975, and offered
her understanding that such a procedure has been characterized
as more efficient. And although there are times when a jury
trial is more appropriate, she remarked, it is also a more
expensive procedure. She also offered her understanding that
the procedure was changed for the benefit of the University of
Alaska, which, in University of Alaska v. National Aircraft
leasing, Ltd., 536 P.2d 121, 128-29 (Alaska 1975), had asked for
a jury trial and been denied. She remarked that a lot of other
states have a similar procedure in place, and suggested that
Representative Gara's argument regarding "six of one half a
dozen of another" actually speaks for the bill. In conclusion,
she said she doesn't think that the rights of Alaskan's are
going to impaired greatly by the passage of HB 103, and
expressed confidence that Alaska's judges will make the right
decisions [in cases against the state].
REPRESENTATIVE GRUENBERG noted that when the Magna Charta was
signed, one of the most important rights that was granted to the
English people was the right of a jury trial. That is a
fundamental right, he opined, and a fundamental tenet of "our"
system of government. One of the only areas in which the right
of a jury trial was denied, and which he characterized as a
legal antiquity, was the right to sue "the Crown" because the
king can do no wrong. But that's not the way it should be, he
argued, because "the king" can obviously do wrong and is found
to do wrong every time there's a judgment against the king - or
the queen, or the state, or the country.
REPRESENTATIVE GRUENBERG offered his understanding that the
Eleventh Amendment to the U.S. Constitution has been interpreted
as prohibiting the U.S. Government from being sued without its
consent, adding that Congress has largely granted that consent,
and opined that this is why the Alaska State Constitution says
that the state can be sued if the legislature consents, which it
has done. He offered his belief that no one has sited any
instance where the right of a jury trial has been granted by
waiving sovereign immunity and then subsequently taken away from
the people. "This is a very serious step; I am unaware of any
circumstance, anywhere, where the right of a jury trial has been
given and then subsequently denied, ... particularly here,
without any showing at all that [the right] has been abused," he
added.
CHAIR McGUIRE said that Representative Gruenberg's points are
well taken, but suggested that he is straying a bit beyond the
topic of the bill and into the area of sovereign immunity. She
pointed out that when the state is sued, it is the people
themselves who are being sued. She opined that HB 103 does not
restrict the right to sue the state, rather it merely proposes
that when one does sue the state, the decision will be made by a
judge, not a jury; the bill addresses the question of what is
the more efficient method of exacting justice in a way that can
be met by the state's resources.
REPRESENTATIVE GRUENBERG offered his belief, however, that
taking away the right to a jury trial does restrict one's right
[to sue the state].
CHAIR McGUIRE countered, "It doesn't restrict your right to sue,
and that's the area you were treading into in terms of suing
'the Crown.'"
3:49:26 PM
A roll call vote was taken. Representatives McGuire, Anderson,
Kott, and Dahlstrom voted in favor of reporting HB 103 from
committee. Representatives Gruenberg and Gara voted against it.
Therefore, HB 103 was reported from the House Judiciary Standing
Committee by a vote of 4-2.
CHAIR McGUIRE asked Ms. Voigtlander to forward to the entire
committee any additional information she obtains regarding the
issues discussed.
[HB 103 was reported from committee.]
ADJOURNMENT
3:50:00 PM
The House Judiciary Standing Committee was recessed at 3:50 p.m.
to a call of the Chair. [The meeting was never reconvened.]