SB 234-CRIMINAL LAW/PROCEDURE: OMNIBUS BILL    2:22:13 PM CHAIR FRENCH announced the consideration of SB 234. He asked for a motion to adopt the draft committee substitute (CS). SENATOR WIELECHOWSKI moved to adopt CS for Senate Bill 234, labeled 25-GS2038\C, as the working documents. 2:22:53 PM CHAIR FRENCH objected for discussion purposes. He informed members that his intention is to work on the bill today and Wednesday and hopefully move it from committee that day. At ease from 2:24:04 PM to 2:27:59 PM. CHAIR FRENCH said the idea for Sections 1 and 2, which was discussed in the crime summit, is to require electronic reporting of pawn shop transactions in communities that have more than 5,000 people. Transactions from garage sales, used book stores, and the Salvation Army wouldn't be reportable, but transactions from places that loan money on secondhand articles would be reported to law enforcement in an electronic and searchable format. This will make items that frequently end up in pawn shops as a result of burglaries and robberies more locatable. CHAIR FRENCH, noting that Anchorage pawn shops already report electronically, asked Sergeant Pickerel to explain how this works and what benefit it provides. 2:29:09 PM DOUG PICKEREL, Sergeant, Anchorage Police Department, relayed that there are about 3,500 pawn transactions per week in Anchorage. Many of those transactions include items that have been reported stolen and because of the reporting requirement, many of the items are recovered. Electronic reporting has made it easier for the police department since it's no longer necessary to visit each pawn shop to pick up the transaction lists. CHAIR FRENCH asked what sort of push-back there's been from the pawn shops. SERGEANT PICKEREL replied all but one of the pawn shops report electronically. He believes it's easier for shop owners as well as the police. 2:30:44 PM CHAIR FRENCH asked how many of the 3,500 items per week have been stolen. SERGEANT PICKEREL estimated 5 percent, maybe as high as 10 percent. CHAIR FRENCH said if it's 5 percent that means that 175 items per week could be returned to the rightful owner because of this simple recordkeeping requirement. SERGEANT PICKEREL reevaluated and said it's not that many, but a good number of items are recovered. It does provide leads in an investigation and aids in prosecutions. This has been a big help to the Anchorage Police Department and he's sure other jurisdictions will find it helpful as well. SENATOR WIELECHOWSKI referred to page 1, Section 1, and asked for a definition of "A person who lends money on second hand articles…." 2:32:28 PM JERRY LUCKHAUPT, Legislative Counsel, Legislative Legal and Research Services Division, Legislative Affairs Agency, explained that it's not defined. Provisions in Title 8 don't regulate pawn shops per se, but they talk about loaning money on items and the record keeping that must occur. "We refer to pawn shops but we always talk about whether or not it's a person that engages in the business of buying and selling second articles or lending money on second hand articles." 2:34:17 PM SENATOR WIELECHOWSKI reviewed AS 08.76.010(a), which isn't in the committee substitute (CS), and said he was concerned about inadvertently extending the reporting requirement to anyone who might lend $10 to another person. MR. LUCKHAUPT said he doesn't see that the intent is to have this apply to persons who loan money to friends. He believes the section is referring to someone who is receiving an item in exchange for money and holding that item until the money is repaid. CHAIR FRENCH asked if used book or clothing transactions would fall under this section. MR. LUCKHAUPT replied he doesn't believe so because money isn't loaned on those items in exchange for holding them for redemption. Similarly, transactions from a consignment shop wouldn't fall under this section. He doesn't know that current statute has ever been applied to those items. AS 08.76.040 was added in 1981 and it does use the term "pawnbroker" but the term isn't defined and it only relates to what happens when someone doesn't redeem their pawned item. 2:37:27 PM CHAIR FRENCH directed attention to the language on page 2, line 3, and said the phrase "accessible on the Internet" will be changed to reflect that the information will be "electronically available." The idea is to have the transaction lists emailed to law enforcement rather than to have a database of pawned items that the public can search. This will comport with the suggestion made by Wasilla Police Chief Long. 2:38:20 PM SENATOR McGUIRE remarked this is long past due and she's pleased this will be included. 2:39:16 PM QUINLAN STEINER, Director, Alaska Public Defender Agency, said his biggest concern relates to the involuntary commitment proceedings. Preferable language was discussed in the House, but it's not reflected in version C. He offered to provide that language. CHAIR FRENCH urged him to submit any suggestions to his office as soon as possible because he'd like to move the bill on Wednesday. MR. STEINER said the commitment proceedings have been discussed at length with DOL and the issues have been fairly well hammered out. He summarized that Sections 9, 10, and 11 relate to involuntary commitment when a criminal defendant is found incompetent. The concern was that there was no outlet for cases that didn't really require commitment for an evaluation. Criminal trespass cases, for example, are relatively minor and the person may have been found incompetent numerous times. This provision could lead to almost a year commitment. Typically when a person's conduct isn't threatening or dangerous they would only receive 10 days. Language was drafted to require a coinciding finding of dangerousness, which would take care of the concern about more dramatic cases such as arson, he said. MR. STEINER said there was also debate about Section 11, which is a rebuttable presumption of mental illness of someone who is found incompetent. That is somewhat inconsistent with a possible basis for incompetency, which could be a disability rather than mental illness. There was no agreement on that issue, but it's worth review because someone could be found incompetent without being mentally ill. For example it could be due to mental retardation, developmental disability, or autism. 2:43:41 PM CHAIR FRENCH asked his view on Section 8. MR. STEINER said he believes that the reason that was written in was to ensure that all warrants are not called in. He asked the committee to consider that even in a state the size of Alaska, sometimes a judge should look at things. CHAIR FRENCH asked if he had other comments. MR. STEINER highlighted Section 3, which makes the third domestic violence assault a felony offense. The House changed this section substantially based on the concern that the two misdemeanor predicate crimes could be non-assaultive as could the C felony offense. That body established that all the offenses had to be physical assaults and he believes a 10-year look back was included. He suggested the committee consider the broad definition of household member with respect to domestic violence and getting a restraining order. Under current statutes household members could include college roommates, people living on a fishing boat, or cannery workers. 2:47:35 PM CHAIR FRENCH questioned whether a cannery worker who lives down the hall really would be considered a domestic partner. MR. STEINER replied not with the common understanding of domestic partner, but there would be a legitimate argument for people sharing a house or rooms in a boarding house. He doesn't think that's the intent with regard to domestic violence but it does make sense in a protective order situation. There you're trying to maximize protection under a short timeframe. In the criminal environment where there's more time to examine culpability then the broad definition makes less sense. An interesting part of the definition of household member is dating. He doesn't have a good definition for that but it could mean widely different things depending on location and perception of the people who are dating. One person may call it a date while another may not. It's totally undefined but it's worth considering when looking at using that for the purpose of criminal culpability. 2:49:53 PM RON ADLER, CEO and Director, Alaska Psychiatric Institute (API), said he too is concerned with the references to incompetency due to mental illness. He explained that someone could be incompetent to stand trial because their maladaptive behavior is a result of a developmental disability. But someone who is mentally ill could commit a crime and not be able to understand the charges because they're responding to internal stimuli. 2:51:24 PM CHAIR FRENCH asked if his concern centers on the new Section 11 that talks about a defendant who is rebuttably presumed to be mentally ill. MR. STEINER said that's correct. CHAIR FRENCH questioned why a rebuttable presumption isn't the way to go. If the DA goes into court and says someone is mentally ill and has been found to be incompetent, a doctor could stand up and rebut the statement and end the dispute. MR. STEINER asked where the defendant would be during the rebuttal. If he or she is already at API, there will be a capacity issue at the hospital with respect to bed space. API only has a 10-bed medium security forensic unit and all 10 beds are currently occupied. CHAIR FRENCH asked what happens now if a district court judge finds someone to be incompetent to proceed and thus rebuttably presumed to be mentally ill. MR. STEINER explained that the hospital would notify the licensing and certification agency about the extra person. Probably the seclusion and restraint room would be used to house the extra person. "It would create serious problems if we go over 11." In that event the fire marshal would also have to be notified, he said. 2:54:58 PM CHAIR FRENCH asked how many times API has exceeded capacity in the last two years. MR. STEINER estimated it's happened three times. His concern is that this bill could increase the number of referrals to the 10- bed medium security forensic unit. CHAIR FRENCH asked if API tracks the number of defendants in the criminal system found to be incompetent to proceed. Data from the last several years would be useful information for the committee to have, he said. MR. STEINER agreed to get the numbers to the committee before the next hearing. 2:55:44 PM JOSHUA FINK, Director, Office of Public Advocacy (OPA), Department of Administration, echoed the comments by Mr. Steiner and Mr. Adler. He suggested the committee look at the definition of "household" because the application is far too broad. For example, two MatSu Valley cellmates recently got into a scuffle and initially they were going to be charged with domestic violence. This caused a situation because one of the definitions is "live with or ever lived with" so that includes cellmates, people in assisted living homes, and college roommates. This is a real issue. He agrees that when the definition was written in Title 18 it was to give the court broad discretion in fashioning a restraining order. It wasn't intended to define a domestic relationship for criminal liability purposes. MR. FINK relayed that the House version of this legislation sets up a new section that defines domestic violence relationships and limits it to the present tense. The idea is to get to the familial and romantic relationships versus the broad definitions in Title 18. 2:57:34 PM CHAIR FRENCH asked if he's comfortable with the three strikes language contained in the bill by Representative Holmes. MR. FINK replied that bill has good language: the predicate crimes are assaultive in nature, there's a 10-year look back, and the definition of household is narrowed. "It's a tight bill and it gets at the public policy she wants implemented," he said. CHAIR FRENCH told the committee that it's been his intention that the current Section 3 is a placeholder for the language Representative Holmes has developed. She's worked on it extensively so that everyone is more or less happy. He expects to have that language by Wednesday. CHAIR FRENCH directed attention to Section 4, which addresses detaining people who leave a commercial establishment with large amounts of merchandise in plain view. Previously merchandise had to be concealed for a store security guard to have authority to detain a person until the police arrive. This broadens that definition to allow theft to serve as a predicate. SENATOR WIELECHOWSKI asked about the suggestion to add Lunestra [zopiclone] to the list of controlled substances in Section 6. 2:59:55 PM ANNE CARPENETI, Assistant District Attorney, Criminal Division, Department of Law (DOL), said Lunestra is on the federal schedules said DOL doesn't object to adding it here. CHAIR FRENCH agreed that it's a good idea to include it in the bill. 3:00:37 PM MS. CARPENETI emphasized that Section 3 is very important to the Department of Law. She urged the committee to consider that the governor's bill didn't have an enhanced penalty for domestic violence offenses. It's not the most popular approach but it's more practical and it makes more sense for prosecutors to just provide that the third conviction of assault in the fourth degree be a class C felony if the person has been convicted of assaultive behavior within the last 10 years. She explained that there are different ways to consider what the predicate offenses are, but in Alaska law there isn't a crime involving domestic violence. It's not an element of any offenses so with each case it'd have to be proved to a jury beyond a reasonable doubt that the crime involved domestic violence. She believes that Mr. Steiner and Mr. Fink will say that the governor's approach is much cleaner and more preferable. Leaving that element out will still capture all the people you're trying to capture. In fact there's a good reason to apply this enhanced penalty to bullies on the street who beat up non family members. She urged the committee to consider Mr. Luckhaupt's draft that made another way to commit assault in the third degree by having committed non fear assaults in the first and second degree with various predicates. 3:03:25 PM SENATOR WIELECHOWSKI expressed the view that it's cleaner and more practical to do what Ms. Carpeneti suggests. People who have assaulted others three times shouldn't be on the street. MS. CARPENETI reminded the committee that some people have convictions for 10 and 12 assaults in the fourth degree. They're not all domestic violence, she added. SENATOR McGUIRE echoed a similar sentiment. Someone who is exhibiting fourth degree assaultive behavior on a consistent basis is ratcheting up and it's time to say that behavior is a felony. "I'm supportive of just keeping it general," she said. 3:04:47 PM CHAIR FRENCH asked her view on the sections about mentally ill and incompetency. MS. CARPENETI observed that Mr. Steiner wasn't looking at the latest version of the bill. He and Mr. Fink worked with DOL on the provisions in version C, she said. CHAIR FRENCH agreed, adding that he knows that his staff sent out the latest version. "We went out of our way to make certain that before the hearing he had the language. We'll try it again for Wednesday." He said his sense was that there had been conversations. MS. CARPENETI agreed that they've spent hours together working on this language. "It would be interesting for you to get Mr. Fink's and Mr. Steiner's testimony because they've both represented to me that they liked the governor's version. It's a whole lot cleaner …." 3:05:54 PM SENATOR WIELECHOWSKI asked if she's considered extending this to other types of recidivist offenders. It would aim at those people who have 30, 40 and 50 offences. They're a menace to society and clearly they aren't correcting their behavior. At some point these people have to be sent to sit in a cell to think about their actions. He asked if she would support an amendment to that effect. MS. CARPENETI replied she'd always be willing to consider it, but she knows that the price tag would be considerable. "This is a really good start in terms of people who beat up on other people, whether they be a domestic partner or a total stranger," she said. 3:07:41 PM CHAIR FRENCH highlighted the fiscal note shows the cost of these provisions in 2012 to be $9 million per year and nearly $17 million per year in 2014. MS. CARPENETI stated a preference for taking it one step at a time. CHAIR FRENCH directed attention to Section 17, page 6, that relates to returning a search warrant. Although Mr. Svobodny made a fairly good case for relaxing the current 10-day rule, he said he'd prefer putting an upper-end limit on the number of days you'd have to wait for a search warrant to be returned. He asked her view on extending the limit to 30 days. MS. CARPENETI said 30 days is reasonable as long as there's a statement about the possibility of going to the court and asking for an extension. That's what happens now and judges are generally good about cooperating, she said. She talked to Mr. Svobodny earlier and he indicated that 30 days with some extension provision would be acceptable. CHAIR FRENCH reread the current provision and agreed that just two 10-day extensions are allowed. He said he wants to give the court guidance with regard to number of days. "We'll work on keeping some reasonable lid on that and we'll also give the public defender a chance to respond," he said. CHAIR FRENCH held SB 234 in committee.