CS FOR SENATE BILL NO. 210(FIN) "An Act relating to crimes against children; and providing for an effective date." AMY SALTZMAN, STAFF, SENATOR LESIL MCGUIRE, remarked on some changes that were made in the House Judiciary Committee. She highlighted Sections 1 through 4. Section 1 amends the crime of Assault in the 3rd Degree under AS 11.41.220(a) (1) (C) and 11.41.220(a) (3) by changing the age of the victim from under 10 to under 12 years old. AS 11.41.220(a)(1)(C) currently prohibits a person (18 years or older) from recklessly causing physical injury to a child under 10 years of age that would cause a reasonable person to seek medical care, or causes physical injury on two or more occasions. The bill would change the victim's age to less than 12 years old. Section 2 amends the definition of "serious physical injury" in for purposes of the law prohibiting assault in the 1st, 2nd, 3rd, and 4th degrees and for reckless endangerment. It does so by expanding the definition of serious physical injury as it applies to injury to victims under 12 years old. It adds the following: Physical injury to a person under 12 years of age that causes A) Serious disfigurement; B) Serious impairment of health, by extensive bruising or other injury that would cause a reasonable person to seek medical treatment from a health care professional in the form of diagnosis or treatment; or C) Serious impediment of blood circulation or breathing. This broadened definition will allow for increased criminal liability for crimes committed on children under the age of 12. This change recognizes a child's faster ability to heal from serious injuries that may not be included in the current definition of serious physical injury. Section 3 amends the crime of endangering the welfare of a child in the first degree by adding the prohibition of recklessly failing to provide adequate amounts of food or liquids to a child, causing protracted impairment to a child's health. This change will increase criminal liability for offenders that harm children by withholding food or liquids. Section 4 would adopt a class C felony for the crime of endangering the welfare of a child in the first degree by recklessly withholding adequate amounts of food or liquids to a child. 7:28:48 PM ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, looked at Sections 5 through 18. Sections 5 - 7 amend the law (AS 12.47.040 and 12.47.060) addressing procedures for persons found to be guilty of a crime but mentally ill, by clarifying that the decision that the person is guilty but mentally ill must be made by the jury, by proof beyond a reasonable doubt, unless the defendant waives this requirement. Under AS 12.47.050(d), a person incarcerated and found guilty but mentally ill and still receiving treatment for a mental illness, is not eligible for parole release or furlough. For this reason, Blakely v. Washington, 542 U.S. 296 (2004) (Blakely) requires the decision relating to whether a person is guilty but mentally ill to be made by the jury by proof beyond a reasonable doubt. Section 8 amends AS 12.55.025(i), addressing sentencing procedures, to clarify that while the burden of proof in sentencing proceedings is generally by a preponderance of evidence, under AS 12.55 there are numerous statutes that specify a different burden of proof. Section 9 and 10 provides that when a defendant enters into a plea agreement that calls for a specific term of probation or a specific term of suspended incarceration, the court, in a probation revocation proceeding, cannot unilaterally terminate or reduce those terms, except by the amount of incarceration time imposed for the offense that is the basis of the probation violation. When a court imposes sentence for a probation violation in these cases, the court is not obligated to impose the full amount of remaining suspended time, but rather must consider the nature of the probation violation in light of applicable sentencing law and impose an appropriate sentence, subject to the caveat that its authority to impose an appropriate sentence does not include the authority to terminate or reduce the term of probation or the suspended term of imprisonment. 7:33:42 PM Representative Neuman looked at page 4, lines 4 and 5. He relayed a story about children who were abused by their grandparents. The children chose to live in a van and in the yard outside of their house, because they were so afraid of their grandparents. He wondered if this bill would "cover" this kind of instance. Ms. Carpeneti replied that it would depend on the facts of the case. In order to prove a crime under SB 210, there would need to be proof that the grandparents consciously disregarded the children, and ignored the harm that their conduct had inflicted on the children. It would also depend on their culpable mental state. Representative Neuman looked at Section 6, pertaining to insanity. He felt that people who allowed their grandchildren to sleep outside should be considered mentally ill. 7:37:35 PM Ms. Carpeneti replied that this bill does not address the affirmative defense of insanity. She stressed that the facts needed to be evaluated for each individual case. She stated that many cases had been brought to her attention, and felt that many of the people involved in the case had shocking behavior, especially pertaining to children. Representative Neuman referred to another bill that he was working on that addressed some of the same issues. He remarked than some people who abuse children "feel" their behavior is appropriate, so therefore should be considered "insane." He wondered how the court determined if someone was "insane." Ms. Carpeneti reiterated that insanity was not addressed in the legislation, but offered to read the Alaska statute that addressed the insanity issue. Co-Chair Thomas asked them to speak about the issue after the meeting. He stressed that the focus should be on the subjects in SB 210. Representative Gara was comfortable with most of the bill, but asked about Section 10. He asked for verification that the provision only applied to plea agreements. Ms. Carpeneti responded in the affirmative. Representative Gara surmised that the plea agreement was one-year time-served in jail and four years of probation. If the defendant commits a probation violation, the provision states that the probation period must remain the same as was agreed during the original plea agreement. The court could not intervene during the probation violation hearing to reduce the length of probation below what was agreed at the initial plea agreement. Ms. Carpeneti agreed. Representative Gara concluded that the provision did not grant the court authority to add more probation or sentencing time, other than the jail time accrued for violating the probation. Ms. Carpeneti replied in the affirmative. She elaborated that the provision did not allow the court reduce the suspended time that was original agreed upon, except to the extent that the court may sentence as a result of the probation violation. Representative Guttenberg wondered about the replacement of the words "jury" and "court" with the words "fact finder." He wondered if that change was substantive or technical. Ms. Carpeneti responded that the change was technical, because the law required that the jury find certain find factual matters in sentencing. Often, a defendant will waive the jury determination of a particular fact. Representative Doogan referred to lines 4 and 5 on page 4. He stated that there were several elements to the bill: the behavior must be reckless; and the restriction of food or liquids should be considered "adequate." He felt that the pay-off in the section was resulting in protracting impairment of the child's health; which implies that one could be reckless with a child and restrict nutrition, but if that behavior did not result in a protracted impairment of the child's health the caregiver could not be prosecuted. Ms. Carpeneti replied in the affirmative. She stated that there was another law that addressed "failure to provide support" that was more general. The purpose of raising the conduct to this level in the occasion where there was a result in harm to the child was to distinguish from the current law. There was also a concern regarding the possible issue of parents sending their children to bed without dinner, or similar circumstance. She stressed that it was a class C felony, and therefore "serious behavior." 7:44:16 PM Representative Doogan asked how long the abuse had to occur to be considered "protracted impairment of the child's health." Ms. Carpeneti replied that word "protracted" was part of the definition of "serious physical injury." It was not a new term for criminal law, but agreed to provide further case law that may be instructive. Representative Doogan assumed it would not be illegal for a caregiver to send a child to bed without dinner. Ms. Carpeneti agreed. Representative Neuman asked whether there were ways to strengthen the legislation. Ms. Carpeneti replied that there were many discussions regarding the child protection provisions. She remarked that the terms "physical serious injury" and "serious physical injury" had been a part of Alaska state law since 1978. The Child Protection Task Force had recommended changes, those suggestions were carefully considered. There was an issue regarding how quickly children heal, so sometimes a very serious injury to a child may not be protracted. She pointed out that the Department of Law had worked with the bill sponsor and the House Judiciary Committee, examining the issue with the public defender and the American Civil Liberties Union. The vocabulary in the bill was a compromise. 7:47:26 PM Representative Neuman felt that the issue should be reexamined in the future. Co-Chair Thomas made a comparison between someone who is texting while driving, and the issues in SB 210. Ms. Carpeneti replied that SB 210 addressed assault issues. Co-Chair Thomas thought maybe the texting penalties had been too light. Ms. Carpeneti responded that the texting law containing graduating penalties, so if someone is killed as a result of texting, that person is subject to prosecution for a class A felony. Ms. Carpeneti discussed Sections 11 through 18. Sections 11 and 12 amend AS 12.55.125 (sentences of imprisonment for felony convictions) to clarify that factual findings (1) that result in a mandatory term of imprisonment of 99 years for conviction of murder in the first degree; (2) result in a term that would preclude a defendant from being awarded good time under AS 33.20.010(a) - for example, a person sentenced under the "three strikes" law; or (3) would increase the presumptive sentencing range - for example, a person convicted of a class A felony who possessed a firearm - must be made by a jury by proof beyond a reasonable doubt, unless the defendant waives this requirement. Section 13 provides that if one aggravating factor has been established, either by the court or the jury as required by law, additional aggravating factors may then be determined by the court by clear and convincing evidence rather than by the jury. The finding of one aggravating factor authorizes the court to sentence an individual up to the maximum term provided by law. An additional aggravating factor cannot increase the maximum term anymore; thus the Blakely decision does not require that additional factors to be decided by a jury by proof beyond a reasonable doubt. Sections 14 and 15 make conforming amendments to the changes described in Sections 9 and 10. Sections 16 and 17 describe the indirect court rule changes and the applicability provisions. Section 18 would adopt a task force to study the crimes of human trafficking, promoting prostitution (sex trafficking). It would require that the task force prepare a report describing the number of these cases reported to law enforcement in the state since 2007, the number of cases prosecuted under Alaska law, the number of cases investigated by local and federal law enforcement agencies, and the services available to victims of human trafficking. Ms. Saltzman explained that the task force would consist of representatives from the Department of Law, the Department of Public Safety, the Department of Health and Social Services, and two members appointed by the governor representing non-governmental health and social service agencies that provide services to victims of human trafficking. The task force would report to the legislature on January 15, 2013, and would provide the following information: the number of human trafficking cases reported to the state and local law enforcement agencies since 2007; the number of human trafficking cases prosecuted under Alaska state law; the number of human trafficking cases state and local law enforcement agencies have investigated in cooperation with the federal law enforcement agencies; and the services that are currently available in the state for victims of human trafficking, including services provided by state agencies, federal agencies, non- governmental agencies, and other assistance related to safe housing and legal services. She remarked that there was separate legislation on human trafficking, and noted that the addition of the task force in SB 210 was to greatly inform the legislature in order to help the victims. Ms. Carpeneti furthered that the House Judiciary Committee had amended the task force provision to become a "fact finding" task force, for human trafficking and sex trafficking. Vice-chair Fairclough hoped that the task force would work with the Immigration Project and other agencies to examine the human trafficking issues. She relayed a story about a man who had been convicted of sex trafficking. 7:55:16 PM Co-Chair Thomas CLOSED public testimony. Vice-chair Fairclough discussed the fiscal notes: Department of Corrections indeterminate, Department of Administration zero, Court System indeterminate, Department of Administration indeterminate; Department of Public Safety zero, Department of Law indeterminate, Department of Administration indeterminate. She discussed the possibility of zeroing out the fiscal notes. Co-Chair Stoltze was content with the indeterminate fiscal note. Representative Doogan wondered if there was financing for the task force. He did not see the cost anywhere in the fiscal notes. Ms. Carpeneti replied that the duty was assigned to the Department of Law. She explained that the task force was intended for fact gathering. She remarked that a few thousand dollars were usually used for travel for the members of the task force. Co-Chair Stoltze surmised that travel was probably included in the Department of Law's budget. 7:59:57 PM Representative Neuman felt it was appropriate to zero out the fiscal notes, because the Department of Law should be creating task forces on their own. He called it "a part of (their) job." Vice-chair Fairclough opposed the idea of zeroing out the fiscal note. She elaborated there were back-up documents to explain why the fiscal notes were indeterminate. Representative Edgmon agreed with Vice-chair Fairclough. Representative Doogan understood why the fiscal notes were indeterminate. The law was being changed in a way that should cost more money. He did not believe it was a "blank check", to continually request indeterminate notes. As long as the bill did what it was intended, he did not care about the cost. Co-Chair Thomas had closed public testimony earlier. 8:05:29 PM Representative Gara wondered if he could ask a question to the public defender. Co-Chair Thomas replied that the public defender was unavailable. Vice-chair Fairclough MOVED to report CSSB 210(JUD) out of committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered CSSB 210(JUD) was REPORTED out of committee with a "do pass" recommendation and with one new indeterminate fiscal note from Department of Corrections and four previously published indeterminate notes: FN1 (DOA), FN2 (DOL), FN4 (DOA), FN5 (CRT); and two previously published zero notes: FN3 (DPS), FN6 (DOA).