SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING  9:11:40 AM CHAIR FRENCH announced the consideration of SB 222. At ease from 9:11 a.m. to 9:13 a.m. SB 222 was heard previously and a committee substitute (CS), labeled 26-GS2859\E, was adopted during the April 5, 2010 hearing. Chair French noted that he has three amendments that are the result of negotiations between his office and the Department of Law. 9:13:54 AM CHAIR FRENCH moved Amendment 1, labeled 26-GS2859\E.1, and objected to provide an explanation. AMENDMENT 1  OFFERED IN THE SENATE BY SENATOR FRENCH CSSB 222(JUD), Draft Version "E" Page 8, line 11: Delete "associated with the account;" Insert "and physical location associated with the account; and" Page 8, lines 12 - 13: Delete all material. Renumber the following paragraphs accordingly. Page 8, line 15: Delete ";" Insert "." Page 8, lines 16 - 19: Delete all material. CHAIR FRENCH explained that the amendment deals with the new provision that gives subpoena power to the attorney general in cases involving the use of an Internet service account in the exploitation of children. Previous testimony indicated that these administrative subpoenas might be challenged because of the type of personal information they would collect. He read the section with the amendment included and asked Ms. McLean if it comports with her understanding of the amendment. SUSAN MCLEAN, Director, Criminal Division, Department of Law (DOL), said yes. CHAIR FRENCH asked if the Department of Law supports the amendment. MS. MCLEAN answered yes. CHAIR FRENCH removed his objection to Amendment 1. SENATOR MCGUIRE asked Ms. McLean to provide the thought for deleting a requirement to disclose "local and long distance telephone connection records, including records of session times and durations for the account." MS. MCLEAN explained that DOL asked the Office of Special Prosecutions and Appeals for an opinion on where within the realm of personal privacy DOL could go without running afoul of the statute or the Alaska Constitution. Their opinion was that local and long distance telephone records, including records of sessions and times and durations for the account, would include unrelated personal telephone calls and that would present difficulties if someone challenged on that ground. It was overly broad. 9:18:03 AM SENATOR MCGUIRE said she appreciates the prosecution's opinion about what they can support, but she'd also like to hear from the investigative unit to know if it might be a missing link not to be able to associate the length of time someone is on the Internet with a particular connection. CHAIR FRENCH reminded the committee that this is just the first step. This relates to the administrative subpoena that lets the officer identify the suspect. A search warrant would have to be obtained subsequent to that. He asked Sergeant DeGraaf to provide his perspective. DEREK DEGRAAF, Sergeant, Alaska State Troopers, Department of Public Safety, said not having the record of the phone numbers associated with the account won't affect their ability to do their job. The primary information that they want is the name and physical address that the IP address comes back to. Obtaining a phone number or information about bank accounts is secondary. SERGEANT DEGRAAF explained that having those other records would help determine who else may or may not be using the computer. this would be helpful because they have to be able to put a person behind the keyboard. Those secondary records can help provide clarification, but if removing those items helps bring everybody to the same page we'd go along with that and support the bill with those items removed, he said. 9:21:29 AM SENATOR WIELECHOWSKI pointed out that this section only applies to the subpoena power of the attorney general and many people would be rightly concerned about giving the attorney general vast power to go ahead without any judicial review. An attorney general is free to ask a court to issue a warrant for this information, but to give the attorney general unfettered subpoena power to get this information is what this amendment is directed at. I support the amendment, he concluded. CHAIR FRENCH said it's a balance because the attorney general has to have a reasonable cause to believe that the Internet service account has been used in the exploitation or attempted exploitation of children. This is a good place to start and see what kind of challenges we get. We'll stand those challenges, we'll win them and go from there, he said. Finding no further objection, he announced that Amendment 1 is adopted. 9:22:59 AM SENATOR FRENCH moved to adopt Amendment 2, labeled 26- GS2859\E.2, and objected for discussion purposes. AMENDMENT 2  OFFERED IN THE SENATE BY SENATOR FRENCH CSSB 222(JUD), Draft Version "E" Page 6, following line 30: Insert a new bill section to read:  "* Sec. 16. AS 12.62.130 is amended to read: Sec. 12.62.130. Reporting of uniform crime  information. A criminal justice agency shall submit to the department, at the time, in the manner, and in the form specified by the department, data regarding crimes committed within that agency's jurisdiction. At  a minimum, the department shall require a criminal  justice agency to report each felony sex offense  committed in the agency's jurisdiction. The  department may withhold grant funding to a criminal  justice agency that fails to report data as required  by this section. The department shall compile, and provide to the governor and the attorney general, an annual report concerning the number and nature of criminal offenses committed, the disposition of the offenses, and any other data the commissioner finds appropriate relating to the method, frequency, cause, and prevention of crime. In this section, "sex  offense" has the meaning given in AS 12.63.100."    Renumber the following bill sections accordingly.   Page 9, lines 6 - 11: Delete all material. Renumber the following bill sections accordingly. Page 9, line 31: Delete "Sections 17 and 19" Insert "Sections 18 and 19" CHAIR FRENCH said this provision came about as a result of the hearing last summer regarding reporting by smaller police departments across the state of felony sex offenses committed in their jurisdiction. Colonel Holloway reported that DPS wasn't getting much data and therefore didn't know the actual level of sex offense activity in these smaller areas. This provision corrects that. He noted that his aide passed him a note that said that this is a rewrite by the Department of Public Safety of that earlier provision. MS. MCLEAN said this rewrite moves the proposed mechanism for insuring compliance from Title 44 to Title 12. The reason for this is that AS 12.62.130 applies to what kind of criminal justice information DPS is required to collect and it mandates that the local agencies comply with the department's request. This also puts the onus on local agencies to comply when they're asked and it requires the sex offense language to be mandatory. If the local agencies don't comply, they may lose grant funding that they get through DPS. CHAIR FRENCH removed his objection to Amendment 2. Finding no further objection, he announced that Amendment 1 is adopted. 9:25:02 AM SENATOR FRENCH moved to adopt Amendment 3, labeled 26- GS2859\E.3, and objected for discussion purposes. AMENDMENT 3  OFFERED IN THE SENATE SENATOR FRENCH CSSB 222(JUD), Draft Version "E" Page 1, line 2, following "pornography,": Insert "failure to register as a sex offender," Page 2, following line 11: Insert a new bill section to read: "* Sec. 3. AS 11.56.840 is repealed and reenacted to read: Sec. 11.56.840. Failure to register as a sex  offender or child kidnapper in the second degree. (a) A person commits the crime of failure to register as a sex offender or child kidnapper in the second degree if the person (1) is required to register under AS 12.63.010; (2) knows that the person is required to register under AS 12.63.010; and (3) with criminal negligence fails to (A) register; (B) file written notice of (i) change of residence; (ii) change of mailing address; (iii) establishment of an electronic or messaging address or any change to an electronic or messaging address; or (iv) establishment of an Internet communication identifier or any change to an Internet communication identifier; (C) file the annual or quarterly written verification; or (D) supply accurate and complete information required to be submitted under this paragraph. (b) In a prosecution for failure to register as a sex offender in the second degree under (a) of this section, it is an affirmative defense that (1) unforeseeable circumstances, outside the control of the person, prevented the person from registering under (a)(3)(A) of this section or filing or supplying the written notices, verification, and other information required under (a)(3)(B) - (D) of this section; and (2) the person contacted the Department of Public Safety orally and in writing immediately upon being able to perform the requirements described in this section. (c) Failure to register as a sex offender or child kidnapper in the second degree is a class A misdemeanor." Renumber the following bill sections accordingly. Page 9, line 29: Delete "Sections 1 - 16" Insert "Sections 1 - 17" Page 9, line 31: Delete "Sections 17 and 19" Insert "Sections 18 and 20" CHAIR FRENCH said this amendment relates to what Ms. McLean has repeatedly described as "the former Section 3." The CS removed that section and this amendment puts it back in the bill. It pertains to the mental state that the Department of Law has to prove in order to convict a person of failure to register as a sex offender. He related that after Ms. McLean testified yesterday, he read the Moffitt case and concurs with her view that removing that section would leave the state in a nearly impossible position when trying to prove failure to appear under the Moffitt decision. He said he continues to believe that there has to be some mental element, but this puts it as low as possible at criminal negligence. This leaves DOL in the best position while still maintaining some mental element regarding what they have to prove about what's in the mind of the offender. He noted that the same standard would be used in the failure to appear provision of the bail bill. MS. MCLEAN said DOL asked for this because it's very helpful to have the Legislature specify mental states. She then clarified that although she talked about the Moffitt case during the previous hearing, the most recent decision is Solomon v. State. That case was decided March 26 and it clearly said that the mental state of negligence survives constitutional challenges. SENATOR WIELECHOWSKI asked what the current standard is because he thought it was a strict liability standard. MS. MCLEAN said this was a compromise. She pointed out that DOL has always felt that they could defend a strict liability standard with regard to failure to register as a sex offender and has always recognized that the mental state that they had to prove is that the person knew that they were required to register as a sex offender. This means showing some sort of documentation that proves that the person had notice of their duty to register, and having that notice they didn't do so. They felt that was sufficient and there has never been a challenge to sex offender registration on those grounds, she said. But given the Moffitt decision, they're trying to have foresight about possible challenges and they're saying that it exists because there is no specified mental state in either of those [failure to appear] statutes. 9:28:05 AM CHAIR FRENCH clarified that Moffitt pertains to failure to appear in court, but failure to appear and failure to register are similar ideas. SENATOR WIELECHOWSKI asked for a brief explanation of the standard that the Moffitt court held. MS. MCLEAN said it's an interesting intellectual pursuit because the Alaska statutes say that if a statute doesn't specify a mental state, the general rule is that the mental state is knowing as to circumstances and reckless as to conduct. Up until the Moffitt decision, DOL's understanding of failure to appear was that the state had to prove that the person knew that they had to appear and the state would do that by paperwork the person signed or recordings of the judge telling the person they had to appear. DOL believed that they satisfied the reckless mental state by showing that the person was aware of the court date and disregarded it. The Moffitt decision was a surprise because it said the state had to disprove the excuses a person might have for not appearing and that's not possible. CHAIR FRENCH summarized that the Moffitt decision basically said that the state had to prove that at some date after the defendant walked out of court he or she formed a decision not to go to court. "That just struck me as being impossible," he said. SENATOR WIELECHOWSKI questioned what would be wrong with the strict liability standard and if it would violate Moffitt to say that a person who is court ordered to register as a sex offender and does not do so is guilty of failing to register, regardless of any reason or excuse. CHAIR FRENCH said DOL likes that, but he was uncomfortable with it because it leaves a little room - at criminal negligence or below - for a series of horrific incidents that would leave a person unable to register. 9:30:40 AM SENATOR WIELECHOWSKI asked for the technical definition of criminal negligence. MS. MCLEAN provided the following: The technical definition of criminal negligence is the person was unaware of a fact of which the person would have been aware and that the failure to be aware of it was a gross deviation from the standard of conduct that a reasonable person would observe in the situation. And, if the reason you're not aware is because you were intoxicated, you're aware. SENATOR WIELECHOWSKI posed a hypothetical situation where a person moved to a new community and forgot to register. Noting that they're guilty under current law of strict liability, he asked if that's criminal negligence. MS. MCLEAN said no, that's strict liability. She reiterated that strict liability is what DOL has been proving and that hasn't been challenged, but after the Moffitt decision they became concerned and wanted to codify what they believe the law is and that's strict liability. This amendment was a compromise, she said. SENATOR WIELECHOWSKI asked if it would be criminal negligence if a person were to move to another community and forget to register. MS. MCLEAN replied she believes it's clearly criminal negligence, but just forgetting is an excuse under the Moffitt standard and it's an excuse the state has to disprove as part of its case. SENATOR WIELECHOWSKI expressed discomfort with the amendment. CHAIR FRENCH said he believes that failure to register as a sex offender is something that should be punished, but he's a little uncomfortable with strict liability. That being said, he would accept the will of the committee. 9:33:09 AM SENATOR COGHILL asked how strict liability would play out practically. He observed that Alaska has the highest standard for many laws, but there's discretion on application. CHAIR FRENCH acknowledged that the Department of Law always has discretion not to bring a charge, but strict liability basically leaves you with absolutely no excuse whatsoever. It doesn't matter if you've been in a debilitating car accident or your mother was shot last night, under strict liability you're guilty. MS. MCLEAN pointed out that Section 3 in the original bill provided that the excuse was an affirmative defense. That is that the court has to listen to the defense and the jury gets to decide. Strict liability says that you lose that defense and the jury doesn't get to consider it. She said that in the original bill and before DOL wrote in the negligent mental state in this amendment, they said you have to prove a mental state with regard to failure to register. The mental state you have to prove is that the person knew they had to register. We accept that burden; it's the same burden as beyond a reasonable doubt, she said. If the person has an excuse, their affirmative defense is to present their excuses and then the burden shifts back to the state to disprove beyond a reasonable doubt that the excuses are valid. That's how we would want to do it and Senator French has another idea, she said. SENATOR WIELECHOWSKI said he needs to read Moffitt a little more, but he's not comfortable with the amendment at this time. At ease from 9:36 a.m. to 9:37 a.m. 9:37:10 AM CHAIR FRENCH withdrew Amendment 3. At ease from 9:37 a.m. to 9:38 a.m. 9:38:59 AM CHAIR FRENCH moved to adopt conceptual Amendment 4. CONCEPTUAL AMENDMENT 4 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSSB 222(JUD), Draft Version "E" Reinsert Section 3 of SB 222, Version "A" Insert a new section that would be parallel to Section 21 as it appears in CSHB 298(JUD), Version "R" that reads as follows: The uncodified law of the State of Alaska is amended by adding a new section to read: LEGISLATIVE STATEMENT CONCERNING CULPABLE MENTAL STATE. In AS 11.56.840(a), as repealed and reenacted by sec. 3 of this Act, the only culpable mental state required to be proven by the prosecution is the "knowing" requirement in paragraph (2) of that subsection. No other culpable mental state needs to be proven for the other elements of that offense. CHAIR FRENCH announced that without objection, conceptual Amendment 4 was adopted. 9:40:36 AM SENATOR WIELECHOWSKI moved to report CS for SB 222, version E, as amended, from committee with individual recommendations and attached fiscal note(s). There being no objection, CSSB 222(JUD) moved from the Senate Judiciary Standing Committee. 9:40:59 AM There being no further business to come before the committee, Chair French adjourned the meeting at 9:40 a.m.