CSSB 3(RLS) - CRIMES OF MURDER & CHILD MURDERS CHAIRMAN-DESIGNEE GREEN announced the next order of business is CSSB 3(RLS), "An Act relating to the crimes of murder, solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, manslaughter, and criminally negligent homicide; relating to homicides of children; relating to registration as a sex offender or child kidnapper; relating to the crime of interference with custody of a child or incompetent person; and providing for an effective date." Number 0330 REPRESENTATIVE ROKEBERG made a motion to adopt the proposed House committee substitute for CSSB 3, Version 1-LS0028\H, Luckhaupt, 3/9/99 as a working document. There being no objection, it was so adopted. REPRESENTATIVE ROKEBERG explained the proposed House committee substitute raises the offenses to felonies and deletes misdemeanors under AS 11.41 - page 3, lines 20-22. Number 0418 REPRESENTATIVE CROFT asked whether the sponsor agrees with the changes. Number 0432 JULI LUCKY, Researcher for Senator Rick Halford, Alaska State Legislature, stated the sponsor agrees with the changes made to the proposed House committee substitute. Number 0518 REPRESENTATIVE ROKEBERG made a motion to consider Amendment 1 [1-LS0028\H.2, Luckhaupt, 3/12/99]. There being no objection, it was before the committee. It reads as follows: Page 3, line 20: Delete "AS 11.41" Insert "AS 11.41.100 - 11.41.300 or 11.41.410 - 11.41.458" Page 3, line 22: Delete "AS 11.41" Insert "AS 11.41.100 - 11.41.300 or 11.41.410 - 11.41.458" REPRESENTATIVE ROKEBERG explained the amendment excludes the crimes of custodial interference in the first and second degrees. The sponsor is lukewarm on the idea, so he thought it should be discussed by the committee. Number 0588 REPRESENTATIVE CROFT stated "it" was already limited to a felony and now this amendment takes out custodial interference as well. REPRESENTATIVE ROKEBERG stated custodial interference in the first and second degrees is still a felony. REPRESENTATIVE CROFT stated all of the misdemeanors have already been taken out and this amendment would take out a couple of the felonious custodial interferences. Number 0616 REPRESENTATIVE ROKEBERG stated "we" didn't want to delete Section 5 because it is an important fix for the Department of Law. He said, "I guess my concern was, if you have--if you have a case that come up with the DWI plus custodial interference makes you into--or the--you have a death on a DWI death, it raises it to second-degree murder. And that's where I..." Number 0659 REPRESENTATIVE MURKOWSKI asked Representative Rokeberg, if her husband takes her kids to Turkey for six years and goes underground with them, whether it would still be considered a felony. REPRESENTATIVE ROKEBERG replied not under the intent of SB 3. Number 0711 MS. LUCKY stated the amendment would take out felony custodial interference, as well as robbery in the first degree, robbery in the second degree, extortion, and coercion. She is not sure whether that is the intent of the sponsor of the amendment. REPRESENTATIVE ROKEBERG stated, if that's the case, it is a drafter's mistake. MS. LUCKY further stated the proposed House committee substitute took out custodial interference as a misdemeanor (custodial interference in the second degree), but left in custodial interference in the first degree - kidnapping one's own child and going underground, for example. A felonious custodial interference in the first degree is usually charged to get a warrant for extradition. Criminal negligence is not only drunken driving, but shaken baby syndrome, abusing a child until its death, and starving a baby. This is exactly the type of person this bill is trying to get - a history of abuse against children, acting recklessly towards children, taking a child against an order, or kidnapping a child across state lines, and then through criminal negligence kill another child through shaken baby syndrome or abuse. That's the type of person the bill is looking for. It is her understanding that somebody who takes a child on vacation would not be charged with felonious custodial interference. If somebody accidentally killed that child through drunken driving, that would not fit into the fact-pattern of this section of the bill. The sponsor believes that taking out custodial interference waters down this section of the bill. The sponsor is also concerned about the other sections that the amendment deals with that are obviously a drafting error. Number 0891 CHAIRMAN-DESIGNEE GREEN asked Representative Rokeberg which of the numbers he didn't want in the amendment. REPRESENTATIVE ROKEBERG replied the amendment was intended for AS 11.41.320 and 11.41.330. MS. LUCKY noted that AS 11.41.330 would have already been taken out of the bill with the misdemeanor change. The only substantive custodial interference change would be in AS 11.41.320. The sponsor would want to include the following felony offenses: AS 11.41.500, 11.41.510, 11.41.520 and 11.41.520. Number 0943 REPRESENTATIVE ROKEBERG withdrew his amendment. Number 0978 REPRESENTATIVE KERTTULA made a motion to consider Amendment 2 from the attorney general's office. REPRESENTATIVE ROKEBERG objected. CHAIRMAN-DESIGNEE GREEN called on Anne Carpeneti from the Department of Law to explain the amendment. Number 1003 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, stated the amendment would avoid costly litigation in the future. It defines "conviction" to include a person convicted of a sex offense then given a suspended imposition of sentence (SIS) for that conviction for the purposes of sex offender registration. In 1994, when the legislature adopted the sex offender registration Law, it went back to 1980 to gather those who were convicted of a sex offense and required them to register for 15 years after their depravation of parole was finished. The Department of Public Safety defined conviction in regulation to include those convicted of a sex offense and given an SIS, but in 1988 the legislature changed the law to forbid a court from giving an SIS to a person convicted of a sex offense. Looking back at the sentences imposed in the late 1970's and 1980's the courts gave SIS's to those convicted of a first-degree sexual assault, first-degree sexual abuse of a minor, and less serious offenses. An SIS was originally designed and practically imposed on people who have been convicted of less serious offenses, but the legislature found that sex offenders have a higher rate of recidivism. The amendment is being offered because two people have convinced the courts that they shouldn't have to register and two other judges have found that they should have to register under similar circumstances. It would be helpful to set it straight. Number 1204 CHAIRMAN-DESIGNEE GREEN asked Ms. Carpeneti whether the amendment would prevent the problem in the future or is it retroactive. MS. CARPENETI replied it would define conviction to exclude SIS for all those who were given SIS's in the past. It is not really necessary for the future because the law prohibits the use of SIS's now. Number 1225 REPRESENTATIVE CROFT stated they should have to register. He is uncomfortable with avoiding litigation, however. Number 1236 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether it includes all levels of sex offenders, and what is the time period for the SIS's. MS. CARPENETI replied the sex offender registration law applied to people who were convicted or still under legal obligations prior to and after 1984. If a person was free of any legal obligation and condition before 1984, that person did not have to register. Number 1282 REPRESENTATIVE ROKEBERG wondered whether there is a distinction between class A, B or C felonies. These people are being swept up in one big net. He asked Ms. Carpeneti whether it is correct that an SIS is not on a record after a certain period of time, if there is no wrong doing. MS. CARPENETI replied correct. REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether a person who has already reached that person's agreed upon SIS terms would be stuck on the sex offender registry after the fact. MS. CARPENETI replied that person should have already been registered. There isn't a distinction between the different felonies and how many people were given SIS's during that period of time. There were at least 200 people given SIS's between 1984 and 1988. Some of whom were convicted of two sex offenses and given SIS's. One of whom was convicted of three sex offenses and given an SIS for all three. Some of them were first-degree sexual abuses of a minor and second-degree sexual assaults. Number 1360 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether or not at that time there were certain terms and conditions put on an SIS, and if they were not met that person would go back to jail. MS. CARPENETI replied yes. Usually, a judge imposes conditions of jail time, for example. REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether there would be an instance where the full force of a conviction would have been met and agreed to by both the state and individual that would get trapped in this net. MS. CARPENETI reiterated that they should have been registered this whole time, according to the law as the Department of Law interprets it. REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, isn't that the point of the amendment? Is there a split in the cases? MS. CARPENETI replied two people have convinced the courts that they should not have to register. REPRESENTATIVE ROKEBERG asked Ms. Carpeneti, because they paid their debt to society? MS. CARPENETI replied there were a variety of reasons. REPRESENTATIVE ROKEBERG stated he is concerned about an inequity. He said, "It seems to me that it's who they're going to throw this net out and capture--get if they've already in essence have completed their debt to society and all of a sudden because of the retrospective aspect of the law, they're being asked to do something and then they've already completed their routine in which their actual offense is lifted off the record, if that's if--if I'm not mistaken." Number 1475 CHAIRMAN-DESIGNEE GREEN stated the intent is to get those people anyway. They slipped through because of a couple of liberal judges. Number 1487 REPRESENTATIVE JAMES stated she wants to get everybody on this list who ought to be on it. But, she finds it difficult to make legislation to change court cases. She asked Ms. Carpeneti whether anything will happen to those four cases. MS. CARPENETI replied they are on appeal. REPRESENTATIVE JAMES asked Ms. Carpeneti, if the law is changed with this amendment, will it affect their appeal. MS. CARPENETI replied, "I hope so." She hopes that the court will be instructed to see the clarification in the law to require people who were convicted in the 1980's and who were given an SIS to be registered. REPRESENTATIVE JAMES asked Ms. Carpeneti to explain how the amendment is a clarification as opposed to a change in the law. MS. CARPENETI replied when the sex offender registration law was passed in 1994, the legislature gave the Department of Public Safety the authority to adopt regulations to implement it. As part of the regulations, the definition of conviction included every finding of guilt that was not turned over by a court including pleas, and findings of guilt by a court or jury. This amendment takes that definition and puts it in statute. It also includes an intent section to clarify the confusion evident by the judges that made those decisions. Number 1608 REPRESENTATIVE KERTTULA noted that the person is still convicted. For every change of plea that she has done, the person understood that he/she was convicted, that they had an opportunity under the SIS to go back, but the conviction still stood. CHAIRMAN-DESIGNEE GREEN stated that person wouldn't be registered. REPRESENTATIVE KERTTULA replied at this point the courts are split. The amendment is to clarify the conviction. Number 1656 REPRESENTATIVE CROFT stated AS 12.63.020 says if it's not an aggravated sex offense, it is only 15 years from the date of conviction. If it's an aggravated sex offense, it is a lifetime obligation, and in that case that person is caught in the net. If a person is clean for 15 years, then that person can drop of the list. MS. CARPENETI stated, if a person does not check in with the Department of Public Safety or a police department every year to update information in the registry, then that person doesn't get credit for that year. REPRESENTATIVE CROFT stated if a court has determined that they don't have to, then they wouldn't be charged for... MS. CARPENETI said correct. Number 1740 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti what constitutes an SIS. Would a conviction be removed from the books upon completion of the conditions? MS. CARPENETI replied when a SIS is imposed a person has to fulfill the obligations that a court has imposed, but a conviction really isn't removed from every single aspect. "12.55.085 specifically provides that you cannot get an SIS if you have a prior conviction and it also provides that convictions in terms of that section of whether--so whether or not you have a prior conviction includes conviction where you were given an SIS. So, if you're convicted of a theft as a young person and were given an SIS and provided--did everything you were suppose to do and got your conviction off the record, and ten years later if you committed another theft, under the law of SIS's the court could go back--has to go back and look at that. And, you can't get another one because conviction for purposes of law of SIS does not include an SIS provision." Number 1851 REPRESENTATIVE ROKEBERG noted that Megan's Law has withstood constitutional tests at the U.S. Supreme Court level, but many states have a two tier system where the severity of a sex offense is balance with the crime and the length time on a registry. Alaska doesn't have that. Therefore, a sex offender convicted of assault in the fourth degree is in the same boat of a sex offender that committed assault in the first degree. He takes exception to that as a matter of public policy. He asked Ms. Carpeneti whether there would be a distinction in terms of severity when that net is thrown back out. He also asked Mr. Carpeneti whether the net would be thrown back over offenders who have completed their conditions. In addition, a person in that case would have to say that he/she has never been convicted, but that he/she is on a sex offender registry when completing a job application, for example. It is a weird set of circumstances. Number 1920 MS. CARPENETI replied Alaska does have a two tier sex offender registration program. People convicted of an aggravated sexual assault and kidnapping are required to register for life, even if it a first offense. People convicted of sexual abuse of a minor in the first degree, and people convicted twice of any sexual offense also have to register for life. People convicted of other sexual offenses have to register for 15 years. In addition, she has never believed that a person can answer truthfully about a conviction on a job application, even if through an SIS that conviction has been set aside. Number 1990 REPRESENTATIVE ROKEBERG asked whether the sponsor has any objection to this amendment since it piggybacks SB 62. MS. LUCKY replied the sponsor does not have an objection to the amendment. Number 2038 REPRESENTATIVE ROKEBERG withdrew his objection. CHAIRMAN-DESIGNEE GREEN asked whether there is further objection. There being none, Amendment 2 was so adopted. Number 2062 REPRESENTATIVE ROKEBERG made a motion to move the proposed House committee substitute for CSSB 3, as amended, from the committee with individual recommendations and the attached fiscal note(s). There being no objection, HCS CSSB 3(JUD) was so moved from the House Judiciary Standing Committee.