CSHB 90(FIN)-CRIMES/CRIM PROCEDURE/SENTENCING  2:46:01 PM CHAIR FRENCH announced the consideration of HB 90, and noted that CSHB 90(FIN) was before the committee. ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law (DOL), said the bill was introduced by Representative Samuels with a bail provision intended to fine- tune a statute that was passed last year to avoid serial bail hearings. In addition, it fine tunes other legislation that has been passed in the last 4 or 5 years. She explained that section 1 of CSHB 90(FIN) creates a new crime: violation by a sex offender of condition of probation or parole. The reason is when SB 218 was adopted last session where someone who has been released on parole or probation will run out of "time hanging over their heads" to enforce their conditions of probation or parole - like taking periodic polygraphs and making sure they don't move into another area. This bill adds an enforcement mechanism for felony sex offenders who are on probation or parole who do not abide by the conditions of parole that are considered to be important in order to safeguard the public and to at least try to delay re- offense. CHAIR FRENCH said the bill isn't adding to their sentence or a new condition to probation. MS. CARPENETI agreed, and said the bill only applies to sex offenders with no time remaining on their original sentence. 2:48:53 PM She explained that section 2 improves the definition of the crime of the sending of indecent electronic material. Section 3 is a conforming section, regarding the forfeiture of equipment like computers. Section 4 is a provision for cold-case prosecutor funding. This would be helpful for pressing charges although there is a statute of limitations. Section 5 limits serial bail hearings by requiring a person to provide as much information as possible at the initial hearing. 2:50:38 PM MS. CARPENETI said that section 6 puts standards for when a judge can award time against a sentence for a period of time spent in a treatment program into statute. This would make sentencing more uniform across the state. The three basic requirements for credits are that the court must order a person to a program, treatment programs must meet certain standards, and credit is only issued for days the program director approves. CHAIR FRENCH asked if the bill is in any way related to electronic monitoring or home arrest. MS. CARPENETI replied that it is not. 2:52:25 PM MS. CARPENETI explained that section 7 provides fix-it elements needed in response to SB 218 that adopted mandatory minimum terms of 15 years of probation for felony sex offenders; but current statute sets out 10 years maximum probation for all crimes. This would allow the court to impose the 15 years mandatory minimum or more for sex offender probation. Section 8 adds language regarding sex-offense registration for electronic distribution of illicit materials to a minor. Section 9 addresses applications for post-conviction relief. She explained that the state over the past 10 or 12 years has made good progress in eliminating lawsuits filed by prisoners by adopting a limit of one post-conviction application after a conviction is upheld on direct appeal. She explained that the courts have held that fairness requires a person to be able to bring a second application for post conviction relief so that a person can litigate a claim when his or her attorney's first petition was not effective. This section provides that the person in the second application has to file within a year of the final decision on the first one. Section 10 provides that a person may not be awarded good time by the Department of Corrections (DOC) when in a treatment program, in a private residence or under electronic monitoring. CHAIR FRENCH said that a person who is sentenced to 20 days in jail has to do 20 days of treatment or 20 days of home arrest or 20 days of electronic monitoring. The person does not the one- third deduction that he or she would get in a correction facility. MS. CARPENETI agreed and added that Ms. Griffin has testified that there are no treatment programs that DOC sends a person to that isn't in connection with probation and parole. So you wouldn't be getting good time for that anyway; this is not a change in current practice. 2:55:27 PM SENATOR MCGUIRE noted that in the past the reason for using electronic monitoring was to cut costs. She asked if that was the goal for the policy. MS. CARPENETI explained that good time awards have always been a tool to encourage good behavior in jail. It doesn't apply to someone who has been released to serve a part of his or her sentence at home under electronic monitoring. CHAIR FRENCH noted that Senator Therriault had joined the committee. 2:56:19 PM CHAIR FRENCH asked about the applicability of section 11. MS. CARPENETI replied it applies to sentences imposed on or after the effective date of the act. It could apply to crimes committed before that date, but only to sentences imposed afterwards. Section 9, the section on limitation on post- conviction relief applications, applies to persons who are in jail and were convicted before, on, or after the affected date. 2:57:50 PM CHAIR FRENCH moved Amendment 1, which was offered in the House. AMENDMENT 1  Offered in the House to CSHB 90(FIN) Page 3, line 28: Delete "(A)"  Page 3, lines 29 - 30: Delete all material SENATOR WIELECHOWSKI objected. CHAIR FRENCH said that the amendment removes a reference to information the defendant knew about but did not present in a previous bail hearing. The reference could present a series of conflicts. He noted that the amendment is supported by the sponsors. SENATOR WIELECHOWSKI removed his objection. SENATOR THERRIAULT suggested it should be a conceptual amendment to accommodate grammar and drafting. CHAIR FRENCH read the amendment. SENATOR THERRIAULT said he had no objection. CHAIR FRENCH, seeing no further objection, announced that Amendment 1 is adopted. SENATOR WIELECHOWSKI moved Amendment 2. 25-LS0331\O.1 Luckhaupt AMENDMENT 2 OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI TO: CSHB 90(FIN) Page 3, line 15, following "age": Insert ";  (6) kidnapping" CHAIR FRENCH objected for discussion purposes. SENATOR WIELECHOWSKI explained that the amendment would make the statute of limitations for kidnapping unlimited. CHAIR FRENCH removed his objection and announced that without further objection Amendment 2 is adopted. At ease from 3:01:18 PM to 3:01:38 PM. SENATOR WIELECHOWSKI moved Amendment 3. 25-LS0331\O.3 Luckhaupt AMENDMENT 3 OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI TO: CSHB 90(FIN) Page 1, line 5, following "time;": Insert "relating to DNA samples collected for  inclusion in the DNA identification registration  system;" Page 6, following line 23: Insert a new bill section to read: "* Sec. 11. AS 44.41.035 is amended by adding a new subsection to read: (q) The department shall process each sample collected and include the identification data resulting from the testing of the sample in the identification registration system within 90 days after receiving the sample." Renumber the following bill sections accordingly. CHAIR FRENCH objected for discussion purposes. SENATOR WIELECHOWSKI explained that the amendment would help find people earlier by requiring DNA samples to be processed within 90 days. 3:02:51 PM SHARON FOSTER, representing herself, said that this amendment gives law enforcement the tools it needs to fight crimes and keep offenders from committing more crimes. If DNA can be taken upon arrest and processed within 90 days, it would help. She commented on a personal tie to the matter, and said that the state needs to set standards and ensure the information is in place within 60 days. It's costly and heartbreaking to not do so. 3:08:59 PM SENATOR MCGUIRE said she supports both amendments and she thinks there is a real problem that needs to be addressed. There are 2,000 DNA buccal swabs that are not yet in the data base and she was calling on the commissioner of the Department of Public Safety (DPS) to take action. She said it could happen in two ways. First, there needs to be better education to municipal police officers about how to process the swabs in a timely manner. Second, the backlog needs to be addressed with another full time criminalist position in the crime lab. 3:11:35 PM CHAIR FRENCH added that Senator Bunde allowed his bill to be folded into the current one. He removed his objection. 3:12:11 PM LAUREN RICE, Legislative Liaison, Department of Public Safety (DPS), stated support for the amendment. The department wants the 90-day limit. Addressing Senator McGuire's comments, she said DPS knows about the federal grants and should the amendments pass, the DPS fiscal note will include four lab technicians. To make sure there is a smooth transition in implementation, she asked that this particular section have a 2009 effective date. Even if she started recruiting for this position now, the department would need at least six months for training followed with some supervision. Although DPS wants the effective date of the collection to be immediate, they want the 90-day requirement for processing to be two years out. Also, on line 8 following "shall" DPS would like the language "make every effort to" to be inserted. The concern is that if a lab technician is unavailable or if a critical piece of equipment is broken, there would be problems if the processing took longer than 90 days. CHAIR FRENCH thanked her and said the suggestions would be incorporated into a Senate CS. 3:15:08 PM MS. CARPENETI suggested that the 90-day limitation apply to samples taken from individuals and not from a crime scene. CHAIR FRENCH asked her to work with Senator Wielechowski on the language. He removed his objection and seeing no further objection, announced that Amendment 3 is adopted. 3:16:14 PM SENATOR WIELECHOWSKI moved Amendment 4. 25-LS0331\O.4 Luckhaupt AMENDMENT 4 OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI TO: CSHB 90(FIN) Page 1, line 5, following "time;": Insert "relating to DNA samples from persons  charged with certain offenses;" Page 6, following line 23: Insert new bill sections to read:  "* Sec. 11. AS 44.41.035(b) is amended to read: (b) The Department of Public Safety shall collect for inclusion into the DNA registration system a blood sample, oral sample, or both, from (1) a person convicted in this state of a crime against a person or a felony under AS 11 or AS 28.35 or a law or ordinance with elements similar to a crime against a person or a felony under AS 11 or AS 28.35, (2) a minor 16 years of age or older, adjudicated as a delinquent in this state for an act that would be a crime against a person or a felony under AS 11 or AS 28.35 if committed by an adult or for an act that would violate a law or ordinance with elements similar to a crime against a person or a felony under AS 11 or AS 28.35 if committed by an adult, (3) a voluntary donor, (4) an anonymous DNA donor for use in forensic validation, forensic protocol development, quality control, or population or statistical data bases, [AND] (5) a person required to register as a sex offender or child kidnapper under AS 12.63, and (6) a  person charged in a criminal complaint, indictment,  presentment, or information with a crime against a  person or a felony under AS 11 or AS 28.35, or a law  or ordinance with elements similar to a crime against  a person or a felony under AS 11 or AS 28.35. The department also may collect for inclusion into the DNA registration system a blood sample, oral sample, or tissue sample from crime scene evidence or from unidentified human remains. The DNA identification registration system consists of the blood, oral, or tissue samples drawn under this section, any DNA or other blood grouping tests done on those samples, and the identification data related to the samples or tests. Blood samples, oral samples, and tissue samples not subject to testing under this section, and test or identification data related to those samples, may not be entered into, or made a part of, the DNA identification registration system.  * Sec. 12. AS 44.41.035(i) is amended to read: (i) The Department of Public Safety shall, upon receipt of a court order, destroy the material in the system relating to a person. The court shall issue the order if the person's DNA was included in the system  under  (1) (b)(1) or (2) of this section and the  court [IT] determines that (A) [(1)] the conviction or adjudication that subjected the person to having a sample taken under this section is reversed; and (B) [(2)] the person (i) [(A)] is not retried or readjudicated for the crime; or (ii) [(B)] after retrial, is acquitted of the crime or, after readjudication for the crime, is not found to be a delinquent; or  (2) (b)(6) of this section and the court  determines that the criminal complaint, indictment,  presentment, or information has been dismissed.  * Sec. 13. AS 44.41.035(l) is amended to read: (l) The Department of Public Safety may not include in the DNA registration system a blood sample, oral sample, or tissue sample of the victim of a crime, unless that person would otherwise be included under (b)(1) - (6) [(b)(1) - (5)] of this section." Renumber the following bill sections accordingly. CHAIR FRENCH objected for discussion purposes. SENATOR WIELECHOWSKI explained that the amendment tracks a bill that was filed by Senator Bunde with minor differences. It requires that DNA samples be taken from a person charged in a criminal complaint, indictment, presentment, or if there is information with a crime against a person or a felony under AS 11 or AS 28.35 or ordinances with similar elements. The goal is to get immediate DNA samples from those who are indicted for felonies. There is a provision that the information is to be destroyed if a person upon court order has been adjudicated to be not guilty. This is a safety valve to protect civil rights. 3:17:33 PM MS. RICE asked the committee to change the word "charged" to "arrested". Currently the DPS computer system is set up with an interface for arrestees, but not for individuals who are charged. This would allow implementation without a computer system overhaul. MS. CARPENETI said there are two ways to look at the matter. A criminal complaint means that usually somebody has reviewed the evidence and elements of the offense and filed a charge. It's one step removed from an arrest. The practical problem with a criminal charge is that DPS doesn't know when a person has been charged. "If you peg it to a charge, they may be summoned into court; they may never be arrested. They come into court, they answer the charges. There's nobody there to take it and if there were, there would be chain-of-custody problems with the evidence itself." She said she supports the DPS suggestion. The alternative would require setting up a new system for gathering buccal swabs from people who are charged and not arrested. Then there would need to be a system for getting the swabs to the police in a way that would be upheld in court. 3:19:43 PM CHAIR FRENCH said it's clearly easiest to give the swab to the police officer who is arresting someone. The aim is the arrest. If the charges are later dismissed, it's likely that will happen before the sample is processed and the person wouldn't have his or her DNA analyzed. He questioned how to rewrite the amendment to achieve the goal. SENATOR WIELECHOWSKI said changing "charged" to "arrested" will solve one problem and he'd be happy to work with DPS on other areas of concern. CHAIR FRENCH said further change is needed because it reads strangely. 3:22:00 PM SENATOR BUNDE, sponsor of SB 33, agreed with Senator Wielechowski that the swab should be done at the time of arrest. He referred the committee to the CS for SB 33, which includes st the term "arrest". He described the buccal swab as the 21 century version of fingerprinting. It's not a huge step to go from the fingerprint to the DNA sample, he said. CHAIR FRENCH said the difference is that in a security breach if his finger print gets out into the world it's one thing, but if his DNA gets out, he and his family could suffer adverse consequences for medical insurance, for instance. That is a concern. SENATOR BUNDE explained that this type of DNA testing does not get into medical history. It's just enough for identification. CHAIR FRENCH removed his objection and announced that with no further objection Amendment 4 is adopted. 3:24:35 PM SENATOR BUNDE offered his CS to help draft the new CS. MS. FOSTER added that federal money has already been allocated to Alaska to deal with the backlog, but the only issue now is that people at the crime lab are not allowed to work overtime. If they had the opportunity to use those funds for overtime, the backlog could be dealt with quickly. CHAIR FRENCH thanked her and closed public testimony. He said that a CS would be prepared. 3:26:20 PM SENATOR THERRIAULT asked why language on lines 25 and 26, page 2, was deleted. MS. CARPENETI explained that the acts described in AS 11.41.455(a) (1)- (7) are similar to the acts described in paragraphs (A)(B)(C)(D)(E) and (F). It clarifies that it's a violation for an adult to send illicit pictures of him or herself to another adult or a minor. CHAIR FRENCH said the list in AS 11.41.455(a) (1)-(7) is the same list they was just enumerated in the bill. MS. CARPENETI added that there is no substantive change, but the way Section 455 is draft now, one could argue that it only applies to depictions of children doing these particular acts. 3:28:35 PM CHAIR FRENCH set HB 90 aside.