SENATE CS FOR CS FOR HOUSE BILL NO. 90(JUD) "An Act relating to the purchase of alcoholic beverages and to access to licensed premises; relating to civil liability for certain persons accessing licensed premises; requiring driver's licenses and identification cards to be marked if a person is restricted from consuming alcoholic beverages as a result of a conviction or condition of probation or parole and relating to fees for the marked license or card; relating to the information contained on driver's licenses; requiring the surrender and cancellation of driver's licenses and identification cards under certain circumstances; relating to the reporting of certain crimes; relating to prostitution; relating to the DNA registration system; relating to credit toward service of a sentence of imprisonment; relating to violation of probation and parole conditions by sex offenders; relating to bail; relating to distribution of certain materials to minors; relating to time limitations for prosecution of certain crimes; relating to sex offender registration; relating to the maximum time for probation; relating to certain post- conviction relief applications; relating to good time; and providing for an effective date." This was the first hearing for this bill in the Senate Finance Committee. Co-Chair Stedman expressed that this bill proposes a fairly substantial policy change. 10:35:21 AM REPRESENTATIVE RALPH SAMUELS, co-sponsor of the bill, considered the majority of the changes proposed in the bill as small policy changes. Most were proposed by the Governor Sarah Palin Administration to address loopholes in the State's criminal justice system. The Department of Law would provide more in- depth information on the more substantive changes included in the bill 10:36:33 AM Representative Samuels reviewed the key components of the bill. It would allow a sex offender who violated certain conditions of their probation or parole to be charged with a class A misdemeanor. This provision was requested by the law enforcement community. Representative Samuels stated that the bill would also expand the penalty for sending indecent material to minors. Currently this is only a crime if the material being sent portrays minors. This bill would expand that to include pornographic material depicting adults. Representative Samuels stated that the bill would also allow for the forfeiture of property such as computers that might be used to electronically distribute indecent material to minors. Representative Samuels advised that the bill would also add murder, attempted murder, and kidnapping to the list of crimes exempted from the State's statute of limitations. 10:37:34 AM Representative Samuels stated that expanding the list of crimes exempted from the statute of limitations would assist the State's cold case investigative unit's activities. This unit, which has received increased funding from the Legislative in recent years, has had success in solving several old murder cases including the "infamous case" about the murder of a woman named Bonnie Craig. Representative Samuels stated that other changes include further defining what would be considered "new information" as it relates to bail hearings and disallowing electronic monitoring time in a private residence from qualifying as a credit toward a person's sentencing time. 10:38:56 AM Representative Samuels continued his review of the bill. It would increase the maximum time a person convicted of a sex offense could be on probation to 25 years. This would allow conformity with sex offender legislation adopted the previous year. Representative Samuels also pointed out that the bill would change current law to require individuals convicted of distributing indecent materials to minors electronically to register as a sex offender. 10:39:35 AM Representative Samuels stated that a new provision of the bill also addressed post-conviction relief. This refers to the situation where a person would "go to court yet again to try and get" their conviction mitigated after they had been convicted and the appeals they filed failed. Representative Samuels explained that this provision resulted from a victims' rights movement that started after a 1985 murder in Anchorage that was "perpetrated by a 15 year old girl and a 19 year old man". The daughter of a woman who was involved in that case, and who has since died, is still "being dragged into court 22 years later" due to continuing post-conviction relief proceedings. This legislation would further efforts to tighten up post-conviction relief hearings. 10:40:31 AM Representative Samuels stated that the bill also specifies that a person could not receive "good time" sentencing deductions for time spent in a treatment program. This would apply to programs outside of the Department of Corrections programs which are conducted in house. 10:40:56 AM Representative Samuels advised that the changes he would now address might be more appropriately addressed by the Department of Law or by Senator Dyson's staff as they had assisted in their development. Representative Samuels continued. Changes were made to statutes through which individuals accused of victimizing women and children by forcing them into prostitution, are prosecuted. This provision, which had been proposed in a separate bill, had been "rolled in" to this bill by the Senate Judiciary Committee. He and the bill's co-sponsor, Representative Bill Stoltze, support that provision's addition. Representative Samuels advised that the Senate Judiciary Committee also added language to the bill that would allow for deoxyribonucleic acid (DNA) genetic testing collection at the time of arrest. The DNA language in this bill mirrors that of legislation enacted a few years prior which has allowed the State's cold case prosecutors to use DNA evidence to arrest a man in the case of Bonnie Craig, an 18-year old University of Alaska Anchorage student who was murdered. Representative Samuels informed the Committee that this bill "would allow DNA to be collected like a fingerprint" at the time of arrest. This could be further addressed by the Department of Law. Representative Samuels qualified that the DNA sample would be destroyed if there was no conviction. 10:42:37 AM Representative Samuels continued. The Senate Judiciary Committee also added a provision to the bill, referred to as Kiva's Law, which would require a person who witnesses a crime against a child to report it. 10:43:01 AM Representative Samuels informed the Committee that the Senate Judiciary Committee also rolled in language from HB 14-RESTRICT ACCESS TO ALCOHOL which had recently passed the House, into this bill. This language would require the driver's license or other legal identification of a person who was ordered by the court not to purchase alcohol to be marked with some identifying color. This would alert an establishment not to sell alcohol to that individual. This language would not hold an establishment liable and would in fact, allow the establishment to bring a $1,000 civil penalty case against such a person. Representative Samuels concluded his review. The Department of Law would review the more legal and technical nature of the bill. Other than the DNA testing, the majority of the bill could be considered an effort to clean up the laws. 10:44:24 AM REPRESENTATIVE BILL STOLTZ, co-sponsor of the bill, communicated that the primary goal of this bill was to close existing loopholes in sex offender laws and further victim's rights. The bill was expanded to assist with such things as cold case investigations. He and Representative Samuels consider the bill "a pretty good omnibus measure". 10:45:23 AM RICK SVOBODNY, Deputy Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law, informed the Committee that the Department supported the bill with one exception. That being Sections 5 through 9, page 4 line 27 through page 7, line 13 which pertain to the Kiva's Law provisions. This language would "criminalize" an innocent bystander were they to witness a crime against a child and not report it. Mr. Svobodny stated that incorporating this requirement into the bill "is not necessarily a bad change" since people should be "socially responsible" particularly in regards to situations incurring serious harm to children. However, there is concern that this provision would create "difficult problems" for the prosecutor who tries the murderer or a rapist in that case in court. This is because a witness not reporting the crime would themselves be charged with a crime and would thereby "have the Fifth Amendment privilege not to testify". Mr. Svobodny clarified however that this could be accommodated because the Legislature has provided the Attorney General "the authority to grant immunity to a witness". Mr. Svobodny informed the Committee that he had once been the person designated by the Attorney General to make the witness immunity decisions. In his 30 years as a prosecutor, that "was the hardest thing to do". 10:48:04 AM Mr. Svobodny explained that the problem was not "that the person witnessed a crime but didn't call"; it is because determining whether to grant immunity to a witness with Fifth Amendment privileges is "a guess". The system established in this State allows the witness to tell the court, in secret, information specific to their involvement in the case. The judge in turn tells the Department of Law designee whether the witness's action was "a serious felony, a felony, a misdemeanor, or the person doesn't have the privilege". Mr. Svobodny stated that making the immunity determination, particularly in the middle of a murder trial, is difficult. It also delays trials and the issue often arises when a trial is occurring. He recounted some of the scenarios he experienced when having to make a witness immunity decision. Mr. Svobodny restated the position that requiring someone to report a crime against a child is a good social policy. It would however, incur problems for prosecutors, for victims whose trials might be delayed as a result of the process, and would increase expenses to the public defenders office due to such things as conflict of interest matters. Mr. Svobodny suggested that "an easy solution" to the problem could be to change the penalty from being a Class C felony to being a violation. This would maintain the social obligation of reporting the crime but would not incur Fifth Amendment privileges. This is the recommendation of the Department of Law. 10:50:26 AM Mr. Svobodny concluded by stating that the Department of Law supports the bill with the exception of the witness reporting provision. Co-Chair Stedman asked whether Mr. Svobodny wanted to review in more detail any other section of the bill. Mr. Svobodny reiterated that the Department was in support of other sections in the bill. He was more familiar with some sections than others, specifically those proposed by Senator Dyson and the two bill sponsors. 10:50:59 AM Mr. Svobodny noted, for instance, that he was not very familiar with the provision prohibiting a person on probation from purchasing alcohol. Nonetheless, he would attempt to answer any questions the Committee might have. 10:51:17 AM Senator Elton directed attention to language in Section 24 subsection (d) page 13 lines 1 and 2 which would not allow the time an individual spent being electronically monitored or in a private residence to count toward their sentencing. During Committee discussion on a separate bill regarding electronic monitoring, testimony had touted electronic monitoring "in lieu of incarceration". It was also "less expensive". 10:52:09 AM Mr. Svobodny surmised that the bill being referenced related to the electronic monitoring of gangs. Mr. Svobodny informed the Committee that the State's appellate courts have determined that people who are in the "functional equivalent of jail" as a result of a court order "should get credit for that time served". The provision in this bill would establish a procedure through which the courts could make a determination as to whether the circumstances of the electronic monitored or restricted to home individual to whom this bill applied met established "functionally equivalent" criteria; if not, the time would not be credited. 10:53:35 AM Mr. Svobodny shared that one such alcohol treatment program was held in the Sergeant Preston Hotel bar outside of Anchorage. The argument was that a person attending that program was stuck in the hotel for the three days the program was being conducted. Some judges allowed that time to be credited against the sentence and some did not. The language in this bill would not allow "good time credit" for attending that program. Good time credit is a jail "administrative tool" in that if a person behaves in jail they would receive one day off for every three days served. "You aren't in jail if you're at home or on electronic monitoring. 10:54:33 AM Co-Chair Stedman asked Mr. Svobodny to address the drunk-driving provisions in the bill. Mr. Svobodny asked whether the provisions in question were those in Sections 1 through 3 of the bill. Co-Chair Stedman affirmed. 10:54:47 AM Mr. Svobodny expressed that these sections were not necessarily drunk driving provisions. They would, however, restrict a person on probation or parole from drinking alcohol by prohibiting them from being in a bar and purchasing alcohol. A mark on their identification would identify them as a person prohibited from drinking alcohol. 10:55:32 AM Co-Chair Stedman asked for further information about the DNA provisions. 10:55:38 AM Mr. Svobodny noted that the State presently collects DNA from individuals convicted of felony offenses or a crime against a person. That action would not be altered by the provision proposed in this bill. This bill would however, align Alaska with other states that "have changed when they go through that collection process," in that the DNA collection would be taken at the time of arrest just as fingerprinting and photographing the individual are currently done. Mr. Svobodny noted that the DNA collection is a simple process in which fluid is collected by swabbing the inside of a person's mouth with a Q-tip. The sample is then sent to the State crime laboratory where it is processed and stored in the national law enforcement Combined DNA Index System (CODIS). If the person is acquitted or the case dismissed, their DNA profile would be removed from the database. He noted that this is not the case with fingerprints: they are retained in the database. Mr. Svobodny further noted that the national DNA collection standard is specific to only 13 of the millions of DNA markings that could be analyzed. Those 13 loci have been determined to have "no known information other than identifiers". For example, they could not provide information as to whether the individual "was at greater risk of having breast cancer" than another. The national standard was designed so that only identifying loci could be captured for forensic purposes. Mr. Svobodny informed the Committee that Alaska law makes it a crime for someone to use DNA collected in this manner, for other than forensic purposes. The limited loci collected, makes it difficult to use for any other purpose anyway. 10:58:44 AM Mr. Svobodny informed the Committee that the bill would add a new provision to State law in that it would require DNA to be processed and updated into CODIS within 90 days. Because this will be a challenge to the State crime lab to accommodate, this provision would not go into effect until 2009. The difficulty is that in order to do DNA processing, the processor must undergo a six month training period and then a six month supervised in the field training period. The Department of Public Safety fiscal note addressing this issue anticipates that four additional staffers would be required to address the added workload this provision would produce. Mr. Svobodny specified that the Bonnie Craig murder case was resolved due to DNA information maintained in the CODIS national database. DNA taken at the crime scene was processed and stored in CODIS. A hit was made in CODIS when another state, which collects DNA from individuals when they are arrested, loaded an arrested person's DNA to CODIS. Mr. Svobodny stated that, as is standard practice, the State then ran new DNA samples to verify the information. 11:00:58 AM Senator Thomas supported the concept of the "good time" administrative tool as well as the electronic monitoring tool, particularly in regards to individuals with a history of gang associations. Therefore, he was concerned that the opportunity for early release would be affected by this legislation. He inquired whether this restriction might have resulted from the concern that individuals released early might have a tendency to re-associate with gang-members. 11:01:52 AM Mr. Svobodny considered the provisions in this bill to differ from the concept of good time associated with individuals convicted of gang-related crimes. Those individuals complete their jail term and then are electronically monitored while on probation. The process established in this bill would assist in determining whether, for example, time a person spent being electronically monitored should count toward their sentence. The provisions in this bill would not have any affect on gang crime sentencing. Senator Thomas stated that the further questions he had regarding the DNA provisions in the bill could be addressed outside of this hearing. Co-Chair Stedman ordered the bill HELD in Committee. [NOTE: This bill was readdressed later in the hearing. See Time Stamp 1:53:34 PM.] 11:03:35 AM SENATE CS FOR CS FOR HOUSE BILL NO. 90(JUD) "An Act relating to the purchase of alcoholic beverages and to access to licensed premises; relating to civil liability for certain persons accessing licensed premises; requiring driver's licenses and identification cards to be marked if a person is restricted from consuming alcoholic beverages as a result of a conviction or condition of probation or parole and relating to fees for the marked license or card; relating to the information contained on driver's licenses; requiring the surrender and cancellation of driver's licenses and identification cards under certain circumstances; relating to the reporting of certain crimes; relating to prostitution; relating to the DNA registration system; relating to credit toward service of a sentence of imprisonment; relating to violation of probation and parole conditions by sex offenders; relating to bail; relating to distribution of certain materials to minors; relating to time limitations for prosecution of certain crimes; relating to sex offender registration; relating to the maximum time for probation; relating to certain post- conviction relief applications; relating to good time; and providing for an effective date." The bill was again before the Committee. Co-Chair Stedman announced that a new committee substitute has been developed for consideration. 1:53:54 PM Co-Chair Hoffman moved to adopt Senate Finance committee substitute, Version 25-LS0331\N, Luckhaupt, May 12, 2007, as the working document. Senator Dyson objected. 1:54:23 PM Senator Dyson pointed out that the Version "N" committee substitute eliminated [unspecified] language which had been supported by two members of the Senate Bipartisan Working Group. He considered that language to be a valuable component of the bill. 1:54:34 PM Co-Chair Stedman clarified that Sections 5 through 9 of SCS CS HB 90(JUD) had been struck from the Version "N" committee substitute. 1:54:56 PM RICK SVOBODNY, Deputy Attorney General, Legal Services Section- Juneau, Criminal Division, Department of Law, advised the Committee that the deletion of this language "aids in the prosecution of criminal cases." Language in Sections 5 through 9 would have hindered the Department's ability to prosecute cases. While requiring people who witness a crime to report it, "sounds good" and is essentially a "good social goal", the granting of immunity to individuals charged for non-reporting would place "the prosecution at a disadvantage because the defense can always challenge a witness." Mr. Svobodny explained that a person testifying in a case who has been granted immunity means that that person has "done something bad" and is "getting away with it". For instance, a drug dealer testifying in a murder case might be granted immunity because the murder was a worse crime that their drug dealing. Retaining this language in the bill would also "criminalize the average citizen." Mr. Svobodny provided numerous arguments against retaining this language in the bill, including such things as delays in trials and allowing someone to go free who otherwise would be held accountable for their deviant behavior. 1:58:48 PM Senator Dyson considered legislators' actions in establishing laws to reflect the values and conduct that communities in the State support. The deletion of Sections 5 through 9 is contrary to the behavior western civilization has supported for centuries. That being that when someone sees someone in harms way they "have either a responsibility to help or report". Senator Dyson contended that the adoption of Version "N" would be detrimental to that responsibility. This language, particularly the legal ramifications, "was widely debated" during hearings on this bill in the Senate Judiciary Committee. Their decision was to retain the language in the bill. Senator Dyson had particular respect for the Chair of the Senate Judiciary Committee [Senator Hollis French] and his extensive criminal law background. Since he "passionately believes in this", Senator Dyson "would accede to his wisdom, knowledge, values, and I want it to stay in." 2:00:56 PM Mr. Svobodny did not "disagree with the philosophy". However, it could be argued that if it was considered to be such "a good policy", perhaps it should be expanded to all crimes. Thus, a legislator witnessing something bad on the Chamber Floor would have to report it immediately to federal authorities and a mother who sees her 18 year old hit his 16 year old brother must report it to the authorities. 2:01:45 PM Co-Chair Stedman interjected to note that another bill in Committee, SB 5-FAILURE TO REPORT CRIMES, would address the issue being deleted from this bill. That bill would be a better vehicle to address this issue than this bill. 2:02:40 PM A roll call was taken on the motion. IN FAVOR: Senator Elton, Senator Huggins, Senator Olson, Senator Thomas, Co-Chair Hoffman and Co-Chair Stedman OPPOSED: Senator Dyson The motion PASSED (6-1) Committee substitute Version "N" was ADOPTED as the working document. 2:03:20 PM Senator Thomas directed attention to language in Section 5, page 4 line 27 through page 5 line 8. He interpreted the language to indicate that a person who was at least 18 years of age, who transmitted a picture of a female breast to a minor could be charged with a sexual offense. Furthermore, if that person was convicted they would be required to register as a sexual predator for 15 years. 2:04:43 PM Mr. Svobodny affirmed that was correct. If it was the person's first offense, they would be required to register for 15 years. They would be required to register for life for a repeat offense. 2:04:57 PM Senator Thomas understood that this situation would be limited to the transmittal of stated material via the internet. Mr. Svobodny confirmed that Section 5 was specific to the electronic transfer of such material. The determination was that a person stalking or "grooming" a child would likely transmit adult material as opposed to child pornography. Mr. Svobodny had conferred with Anne Carpeneti, Assistant Attorney General in his Division, about this. She informed him that the issue of transmitting adult pornography to a child over the internet had not specifically been addressed before. 2:06:05 PM Mr. Svobodny understood that prosecuting a young adult for this action might be of concern. To that point, he reminded the Committee that the Legislature had separately enacted provisions relating to "young offenders" and the sexual abuse of a minor. Those provisions specified that the perpetrator be at least 18 years or older and be at least four years older than the person they offended against. Such language could be incorporated into this bill if deemed necessary. 2:06:58 PM Senator Thomas considered the majority of the offenses identified in Section 5 substantial enough to warrant the penalty. The lone area of concern however was the question of whether "the offense" of transmitting an image of a female breast over the internet "fit the crime". 2:07:22 PM Mr. Svobodny understood the concern. 2:07:41 PM Senator Dyson contended that historically, judges and juries in our country "have been reasonably understanding about the extenuating circumstances and I'm not worried about the overly harsh penalties being levied against people that are trafficking this kind of material on the internet." To that point, he emphasized that the entirety of Section 5 dealt with the distribution of the identified material "to minors, not to adults." Senator Dyson assumed that a person would not be prosecuted for material that "inadvertently got to a minor". The act must be intentional in order for someone to be prosecuted. 2:09:20 PM Senator Olson asked whether people in the medical profession would be exempt from the language in the bill. 2:09:44 PM Mr. Svobodny affirmed that medical contact would be exempt. "Sexual contact, including sexual penetration, "excludes recognized medical treatment". 2:10:10 PM Mr. Svobodny furthered clarified that Section 5 contains language that currently exists under Alaska's Child Pornography and Child Exploitation Statutes. 2:10:31 PM Senator Olson pointed out that some of the language in Section 5 was new language as it was indicated as such. 2:10:42 PM Mr. Svobodny clarified his remarks. While the language currently exists under the aforementioned Statutes, it was new language for the Statute addressed in this bill. 2:11:09 PM Co-Chair Stedman asked the Department of Public Safety to speak to their fiscal note. DAVID SCHADE, Director, Division of Statewide Services, Department of Public Safety, testified via teleconference from an offnet location. The DNA collection provision specified in this bill is new and would increase the workload of the Department. The Department had previously utilized federal grant money to support DNA collections from convicted offenders. Those samples were sent to a federal laboratory. Mr. Schade stated that the Department recently became pro-active and began processing samples in-house. This enables them to get results faster and allow "for earlier intervention into criminal careers". 2:12:23 PM Mr. Schade stated that in order to accommodate the increased workload, the Department would be required to dedicate four people to the program as a tremendous amount of time would be required to track the samples. For example, if there was no conviction, the samples must be removed from CODIS. He reviewed the responsibilities of each of the four positions that would be required. Mr. Schade also noted that new computer programs and supplies would be acquired. A 70 percent increase in samples is anticipated. 2:14:12 PM Co-Chair Stedman specified that the Department had submitted a $540,000 fiscal note. Senator Elton asked what would occur were a "hit" to occur on a DNA sample that should have been destroyed due to a lack of a conviction; specifically whether that hit would be admissible as evidence in the other case. Mr. Svobodny stated that the case would get litigated. This issue is not addressed in the bill. Consideration could be given to adding language to the bill that would hold the State harmless in such an event. 2:15:58 PM Representative Samuels voiced no objection to the adoption of the Version "N" committee substitute. The deletion of the Kiva Law language was done at the recommendation of the Department of Law. 2:16:35 PM Co-Chair Hoffman moved to report committee substitute, Version 25-LS0331\N from Committee with individual recommendations and accompanying fiscal notes. There being no objection, SCS CS HB 90(FIN) was REPORTED from Committee with previous zero fiscal note #2 from the Department of Law Administrative Services Division; indeterminate fiscal note #3 from the Department of Administration Office of Public Advocacy; indeterminate fiscal note #4 from the Department of Administration Public Defender Agency; indeterminate fiscal note #7 from the Department of Corrections; and new $540,000 fiscal note from the Department of Public Safety, dated May 11, 2007. RECESS TO CALL OF THE CHAIR 2:16:53 PM \ 5:19:19 PM