HOUSE JUDICIARY STANDING COMMITTEE April 22, 1999 1:20 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Joe Green Representative Norman Rokeberg Representative Jeannette James Representative Lisa Murkowski Representative Eric Croft Representative Beth Kerttula MEMBERS ABSENT All members present COMMITTEE CALENDAR CS FOR SENATE BILL NO. 11(JUD) "An Act relating to good time credits for prisoners serving sentences of imprisonment for certain murders." - HEARD AND HELD * HOUSE BILL NO. 180 "An Act relating to the possession, manufacture, use, display, or delivery of controlled substances while children are present." - HEARD AND HELD CS FOR SENATE BILL NO. 27(FIN) "An Act relating to school records and driver license records of certain children." - MOVED CSSB 27(FIN) OUT OF COMMITTEE SENATE JOINT RESOLUTION NO. 8 Relating to the 2000 decennial United States census and to the development of redistricting data for use by the state in legislative redistricting. - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: SB 11 SHORT TITLE: PRISON TIME CREDITS FOR MURDERERS SPONSOR(S): SENATOR(S) DONLEY, Leman, Taylor Jrn-Date Jrn-Page Action 1/19/99 16 (S) PREFILE RELEASED - 1/8/99 1/19/99 16 (S) READ THE FIRST TIME - REFERRAL(S) 1/19/99 16 (S) JUD, FIN 2/17/99 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/17/99 (S) HEARD AND HELD 2/17/99 (S) MINUTE(JUD) 2/22/99 (S) JUD AT 1:30 PM BELTZ ROOM 211 2/22/99 (S) MOVED CS (JUD) OUT OF COMMITTEE 2/22/99 (S) MINUTE(JUD) 2/23/99 337 (S) JUD RPT CS 2DP 1NR NEW TITLE 2/23/99 337 (S) DP: HALFORD, DONLEY; NR: TORGERSON 2/23/99 338 (S) ZERO FISCAL NOTE TO SB & CS (COR) 2/24/99 350 (S) INDETERMINATE FN TO SB & CS (ADMINISTRATION) 3/11/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/11/99 (S) SCHEDULED BUT NOT HEARD 3/18/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/18/99 (S) MINUTE(FIN) 4/07/99 (S) FIN AT 6:00 PM SENATE FINANCE 532 4/07/99 (S) MOVED OUT OF COMMITTEE 4/08/99 (S) RLS AT 11:40 AM FAHRENKAMP 203 4/08/99 (S) MINUTE(RLS) 4/08/99 821 (S) FIN RPT 6DP 1DNP 2NR (JUD) CS 4/08/99 821 (S) DP: TORGERSON, PARNELL, PHILLIPS, 4/08/99 821 (S) PETE KELLY, LEMAN, DONLEY; 4/08/99 821 (S) NR: GREEN, WILKEN; DNP: ADAMS 4/08/99 821 (S) PREVIOUS INDETERMINATE FN(ADMINISTRATION) 4/08/99 821 (S) PREVIOUS ZERO FN (COR) 4/09/99 846 (S) RULES TO CALENDAR AND 1 OR 4/9/99 4/09/99 849 (S) READ THE SECOND TIME 4/09/99 849 (S) JUD CS ADOPTED UNAN CONSENT 4/09/99 849 (S) ADVANCED TO THIRD READING UNAN CONSENT 4/09/99 849 (S) READ THE THIRD TIME CSSB 11(JUD) 4/09/99 850 (S) PASSED Y16 N3 E1 4/09/99 850 (S) ELLIS NOTICE OF RECONSIDERATION 4/12/99 884 (S) RECONSIDERATION NOT TAKEN UP 4/12/99 885 (S) TRANSMITTED TO (H) 4/13/99 786 (H) READ THE FIRST TIME - REFERRAL(S) 4/13/99 786 (H) JUD, FIN 4/21/99 (H) JUD AT 1:00 PM CAPITOL 120 4/21/99 (H) SCHEDULED BUT NOT HEARD 4/22/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 180 SHORT TITLE: DRUGS WHERE MINORS ARE PRESENT SPONSOR(S): REPRESENTATIVES(S) COWDERY, Dyson Jrn-Date Jrn-Page Action 4/07/99 671 (H) READ THE FIRST TIME - REFERRAL(S) 4/07/99 671 (H) JUD, FIN 4/22/99 (H) JUD AT 1:00 PM CAPITOL 120 BILL: SB 27 SHORT TITLE: ACCESS TO DRIVING/SCHOOL RECORDS OF CHILD SPONSOR(S): SENATOR(S) LEMAN; REPRESENTATIVE(S) Rokeberg Jrn-Date Jrn-Page Action 1/15/99 21 (S) PREFILED 1/15/99 1/19/99 21 (S) READ THE FIRST TIME - REFERRAL(S) 1/19/99 21 (S) HES, FIN 2/22/99 (S) HES AT 1:30 PM BUTROVICH ROOM 205 2/22/99 (S) HEARD AND HELD 2/22/99 (S) MINUTE(HES) 2/24/99 (S) HES AT 1:30 PM BUTROVICH ROOM 205 2/24/99 (S) MOVED CS (HES) OUT OF COMMITTEE 2/24/99 (S) MINUTE(HES) 2/25/99 362 (S) HES RPT CS 2DP 1NR 1AM SAME TITLE 2/25/99 362 (S) DP: MILLER, PETE KELLY; NR: WILKEN; 2/25/99 362 (S) AM: ELTON 2/25/99 362 (S) ZERO FISCAL NOTE (ADMINISTRATION) 2/25/99 362 (S) INDETERMINATE FN (DOE) 3/16/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/16/99 (S) HEARD AND HELD 3/16/99 (S) MINUTE(FIN) 3/17/99 (S) FIN AT 9:00 AM SENATE FINANCE 532 3/17/99 (S) MOVED CS (FIN) OUT OF COMMITTEE 3/17/99 (S) MINUTE(FIN) 3/18/99 (S) RLS AT 11:40 AM FAHRENKAMP 203 3/18/99 (S) MINUTE(RLS) 3/18/99 598 (S) FIN RPT CS 6DP 1NR SAME TITLE 3/18/99 598 (S) DP: TORGERSON, PARNELL, PHILLIPS, GREEN, 3/18/99 598 (S) LEMAN, WILKEN; NR: ADAMS 3/18/99 598 (S) PREVIOUS INDETERMINATE FN (DOE) 3/18/99 598 (S) PREVIOUS ZERO FN (ADMINISTRATION) 3/22/99 632 (S) RULES TO CALENDAR AND 1 OR 3/22/99 3/22/99 632 (S) READ THE SECOND TIME 3/22/99 632 (S) FIN CS ADOPTED UNAN CONSENT 3/22/99 633 (S) ADVANCED TO THIRD READING UNAN CONSENT 3/22/99 633 (S) READ THE THIRD TIME CSSB 27(FIN) 3/22/99 633 (S) PASSED Y17 N- E2 A1 3/22/99 633 (S) LINCOLN NOTICE OF RECONSIDERATION 3/23/99 651 (S) RECONSIDERATION NOT TAKEN UP 3/23/99 652 (S) TRANSMITTED TO (H) 3/24/99 544 (H) READ THE FIRST TIME - REFERRAL(S) 3/24/99 544 (H) HES, JUD 3/24/99 562 (H) CROSS SPONSOR(S): ROKEBERG 3/30/99 (H) HES AT 3:00 PM CAPITOL 106 3/30/99 (H) MOVED OUT OF COMMITTEE 3/30/99 (H) MINUTE(HES) 3/31/99 622 (H) HES RPT 4DP 2NR 3/31/99 622 (H) DP: MORGAN, DYSON, WHITAKER, COGHILL; 3/31/99 622 (H) NR: BRICE, KEMPLEN 3/31/99 622 (H) SEN INDETERMINATE FN (DOE) 2/25/99 3/31/99 622 (H) SEN ZERO FISCAL NOTE (ADMINISTRATION) 2/25/99 3/31/99 622 (H) REFERRED TO JUDICIARY 4/07/99 672 (H) FIN REFERRAL ADDED 4/22/99 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER SENATOR DAVE DONLEY Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99801 Telephone: (907) 465-3892 POSITION STATEMENT: Sponsor of SB 11. MARGOT KNUTH, Assistant Attorney General Office of the Commissioner-Juneau Department of Corrections 240 Main Street, Suite 700 Juneau, Alaska 99801 Telephone: (907) 465-4338 POSITION STATEMENT: Testified on SB 11. BLAIR McCUNE, Deputy Director Central Office Public Defender Agency Department of Administration 900 West 5th Avenue, Suite 200 Anchorage, Alaska 99501-2090 Telephone: (907) 264-4400 POSITION STATEMENT: Testified on SB 11. JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley Alaska State Legislature Capitol Building, Room 508 Juneau, Alaska 99801 Telephone: (907) 465-3892 POSITION STATEMENT: Testified on SB 11. REPRESENTATIVE JOHN COWDERY Alaska State Legislature Capitol Building, Room 204 Juneau, Alaska 99801 Telephone: (907) 465-3879 POSITION STATEMENT: Sponsor of HB 180. PETER TORKELSON, Researcher for Representative John Cowdery Alaska State Legislature Capitol Building, Room 204 Juneau, Alaska 99801 Telephone: (907) 465-3879 POSITION STATEMENT: Testified on HB 180. GERALD LUCKHAUPT, Attorney Legislative Legal Counsel Legislative Legal and Research Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 Telephone: (907) 465-2450 POSITION STATEMENT: Answered questions on HB 180. ANNE D. CARPENETI, Assistant Attorney General Legal Services Section-Juneau Criminal Division Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Testified on HB 180. MICHAEL PAULEY, Legislative Assistant to Senator Loren Leman Alaska State Legislature Capitol Building, Room 115 Juneau, Alaska 99801 Telephone: (907) 465-2095 POSITION STATEMENT: Presented sponsor statement on SB 27. REAGAN EIDSNESS 330 West 9th Street Juneau, Alaska 99801 Telephone: (907) 586-6821 POSITION STATEMENT: Testified on SB 27. ROBERT BUTTCANE, Juvenile Probation Officer Youth Corrections Division of Family and Youth Services Department of Health and Social Services P.O. Box 110630 Juneau, Alaska 99811-0630 Telephone: (907) 465-2212 POSITION STATEMENT: Testified on SB 27. ACTION NARRATIVE TAPE 99-38, SIDE A Number 0001 CHAIRMAN PETE KOTT called the House Judiciary Standing Committee meeting to order at 1:20 p.m. Members present at the call to order were Representatives Kott, Rokeberg, Murkowski, Croft and Kerttula. Representatives Green and James arrived at 1:36 p.m. and 2:14 p.m., respectively. CSSB 11(JUD) - PRISON TIME CREDITS FOR MURDERERS CHAIRMAN KOTT announced the first order of business is CSSB 11(JUD), "An Act relating to good time credits for prisoners serving sentences of imprisonment for certain murders." Number 0063 SENATOR DAVE DONLEY, Alaska State Legislature, came before the committee as sponsor of SB 11. The bill would reduce good time deduction for people convicted of first- or second-degree murder in the state. It would reduce it from 33 percent to 16 percent. The federal government has adopted an 85 percent standard for all sentences in the federal prison system. The federal law also suggested that all states adopt the standard. Alaska has some of the most liberal good time laws in the nation at 33 percent. He noted that over 30 states have gone to the 85 percent standard. He further noted that there is a great discrepancy amongst the states on how they sentence people for different crimes. The argument has been made that Alaska has strong mandatory sentencing laws, but Alaska is not the only state to give long sentences for first-and second-degree murder. The idea in the bill is to set a dichotomy and to say that at least when a person commits a murder that the state will try and follow the national sentencing standard. He noted that the bill actually requires 84 percent, but that's a lot closer to the national standard than where the state is now. Senator Donley further stated that the real issue seems to involve the families of victims of homicide or those who have been victimized by those who have been convicted of second-degree murder. He explained that he went to a memorial service for families of victims of homicide last year in Anchorage, which is how the bill originated. He was approached by several families who had children murdered who see the murderers walking down the street. He didn't have an answer for them other than the good time provisions in sentencing which allow an inmate to go free one-third the time earlier than what was sentenced. The shortest sentence for second-degree murder in Alaska has been ten years; and, with one-third off for good time, that means a person serves about six and a half years. Most of the sentences are longer than that, but there are many, many sentences that are under thirty years. SENATOR DONLEY further stated that SB 11 is excellent public policy. There aren't any real constitutional questions involved because clearly the state has a right to distinguish between people who kill other human beings and those who do not in terms of sentencing. He noted that there would be some fiscal impact in six to eight years. He hopes that the word would get out that the state would take killing a person even more seriously which would act as a deterrent thereby paying for itself. Number 0469 REPRESENTATIVE ROKEBERG stated the committee just reviewed SB 3, which raised the minimum sentences on offenses against a child including first- and second-degree murder. He asked Senator Donley whether he is familiar with that piece of legislation. SENATOR DONLEY replied SB 3 puts child murderers under the law he wrote about ten years ago that included - for the first time - the 99-years-without-parole provision. Number 0559 REPRESENTATIVE ROKEBERG stated that SB 3 raised the presumptive minimum sentence for second-degree murder from 5 to 20 years. He wondered whether there would be any impact between that bill and this bill for those crimes. Number 0609 SENATOR DONLEY responded, if that is true, it sounds like a good idea. Number 0644 REPRESENTATIVE CROFT noted that SB 3 raises some [offenses] to a 20 year minimum. He further noted that in those cases a person would have to serve 17 years under this bill. Number 0681 REPRESENTATIVE KERTTULA asked Senator Donley whether he has seen any study that says removing good time is a deterrent. SENATOR DONLEY replied no. He doesn't know how that would be calculated without getting into the minds of perpetrators. But having laws that don't tolerate killing other people is a good message. He noted the saying, "you got away with murder." Seeing a murderer walk down the street sends the wrong message to families of victims and others in terms of how serious society takes homicide. Number 0740 REPRESENTATIVE MURKOWSKI asked Senator Donley whether there is any federal incentive that the state would gain by changing the statutes as suggested in the bill. Number 0764 SENATOR DONLEY replied, he thinks, that there might be something that parallels what's going on in juvenile justice. That being, federal dollars available for meeting certain criteria. It depends on how the federal law is written. Sometimes its suggestive and sometimes some money is made available even if a state is just studying and moving in a particular direction. Number 0840 SENATOR DONLEY noted, in response to the questions regarding SB 3, that it is 99 years without parole, if the victim is a child and it is a second-degree murder. Number 0928 MARGOT KNUTH, Assistant Attorney General, Office of the Commissioner-Juneau, Department of Corrections, came before the committee to testify. In response to Representative Murkowski's question, there is a federal act called Violent Offenders Incarceration Act-Truth In Sentencing (VOIA-TIS) which makes extra money available to the states for being tough on crime. The legislature appropriates those funds each year to help pay for the cost of incarceration of the state's inmates in Arizona. Alaska does not qualify for the truth-in-sentencing portion because its good time is 33 percent rather than 15 percent - the maximum that the federal government allows. The state looked at going to 85 percent and quickly decided that it could not afford it. The amount of money paid out of the truth-in-sentencing portion is a small percentage of the additional costs that the state would incur to increase any length of time for incarceration. Furthermore, there were a few states that went to 85 percent in reliance on the federal funds, but President Clinton has proposed to discontinue that funding this year. Those states are very unhappy, which further confirms Alaska's concerns of not going that route. She further noted that Alaska is one of the toughest sentencing states in the U.S. She read the following average sentence figures into the record: Georgia - 144 months Louisiana - 104 months Missouri - 247 months Minnesota - 144 months New Jersey - 432 months New York - 317 months Tennessee - 173 months Virginia - 91 months Washington - 243 months Alaska - 467 months MS. KNUTH noted that the figures are for anticipated time to be served. Therefore, the figure of 467 for Alaska already takes out good time. There are two questions involved: What is the appropriate amount of time for people to be serving for these offenses? and Can the state afford it? The biggest problem with this suggestion is that most inmates are already over 50 years old by the time they are eligible for release, which is considered old in prison populations and means high medical costs. This bill is talking about increasing the length of time being incarcerated beyond the age of 50, which is an expensive proposition. According to her calculations, the state already has 105 first-degree murder prisoners who would be over 50 years of age by the time they are released, and 21 who would be under the age of 50 by the time they are released. There are 58 second-degree murder prisoners who would be over 50 years of age by the time they are released, and 51 who would be under the age of 50 by the time they are released. If the bill were enacted, there would be a total of 183 over the age of 50, and a total of 52 under the age of 50. She referred to an article entitled, "Should Elderly Convicts be Kept in Prison?", and read from it. She noted that down south it costs an average of $20,000 per year for the typical inmate, while in Alaska it costs $50,000. She knows that Senator Donley is truly concerned about the criminal justice system and she believes that he would put the dollars there, but if this had been in law since statehood it would have cost the state $50 million more than what it has spent thus far. It doesn't show up on a fiscal note because these inmates are in for so long that there isn't any sentence that would increase in just five years, but if a sentence was stretched out, there truly would be a large price tag. Number 1529 REPRESENTATIVE KERTTULA asked Ms. Knuth whether it's true that good time is used as a management tool within a prison. She noted that a person doesn't think about it before committing a crime, but once in prison that person measures when he or she is getting out. MS. KNUTH replied that is quite accurate. It's a significant management tool. Some states are concerned that they have lost that tool by going to a higher percentage. It's not much of a tool for murder prisoners, but right now the state's good time is the same time period a person is eligible for discretionary parole. She explained that there are cases that need a significant period of discretionary parole time in order to watch a person after release. Some states are very concerned that they have lost that parole time because it can only be the suspended portion of a sentence. Number 1590 REPRESENTATIVE CROFT noted, according to his calculation, that there would be about a 100-month increase in the average sentence. Number 1627 MS. KNUTH noted the average sentence length for first-degree murder is about 70 years and close to 40 years for second-degree murder. Those figures are deceptive, however, because they only measure those who are currently incarcerated. They don't measure those who have already been released. Number 1679 BLAIR McCUNE, Deputy Director, Central Office, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. When the federal government went down to 15 percent, they did it in conjunction with a comprehensive review of federal sentencing in general. They decreased good time and pretty much did away with the federal parole system. They also decreased some of the national sentences that could be imposed for federal crimes. MR. McCUNE further stated that, by law, when people are released under good time they are released to the jurisdiction of the parole board. He pointed out that people who are released after lengthy sentences have a hard time readjusting to society, even though their behavior isn't bad in prison. They require a close watch to make sure that they are making progress readjusting. MR. McCUNE noted that there may well be an equal protection challenge brought based on the difference in treating those convicted of a first- and second-degree murder and other offenses, thereby raising a fiscal impact on the department. Number 1889 CHAIRMAN KOTT asked Mr. McCune whether there is still a presentence investigation for first- and second-degree murder. MR. McCUNE replied yes. He can't think of a case where a presentence investigation has not been done. Number 1916 CHAIRMAN KOTT asked Mr. McCune whether there would be any motivation for a judge to be lenient on a sentence. MR. McCUNE replied there is a truth-in-sentencing provision that says a judge has to set out on the record how much good time is possible to be earned. A judge should not, however, take that into account when sentencing a person. Number 2041 CHAIRMAN KOTT closed the meeting to public testimony. Number 2045 REPRESENTATIVE CROFT noted, according to his calculation, a person committing a crime at the age of 25 would be in prison until the age of 65. The bill would increase that age by another ten years. The question is, does the state want to keep a person until the age of 65 or 75? Number 2108 REPRESENTATIVE GREEN asked Ms. Knuth whether there is any statistical data that show a plot of the average cost per age. He has a hunch the last 10 years would rapidly increase and might be as much as the prior 40 years. Number 2136 MS. KNUTH replied no she has not been able to find a study addressing that. In general, the average cost-of-care for an inmate increases two and a half times each year after the age of 50. Right now, the state spends $50,000 per year for an inmate, which equates to about $150,000 per year after the age of 50. The legislature has seen the cost for medical treatment, such as heart surgery, as the "wild card" in the Department of Corrections' budget. She noted that the supreme court has told the department it must provide ... to a certain level. Number 2207 REPRESENTATIVE GREEN asked Ms. Knuth whether the delta between a person staying in prison versus a person being released and taken care of by society is significant. Number 2228 MS. KNUTH replied it is a lot more expensive to deal with medical issues while a person is incarcerated because of the need to provide security services. She cited there was an incapacitated inmate due to be released who had no family. As a result, a guardian was appointed and that person was transferred to a nursing home at one-third the cost. Number 2281 CHAIRMAN KOTT asked Ms. Knuth whether the state is bound by the Cleary decision to provide various medical services to inmates. MS. KNUTH replied the state is bound by a statutory provision and a constitutional provision. [She did not specify which ones] Number 2294 REPRESENTATIVE MURKOWSKI said she appreciates the argument of cost, but noted that these people have committed a murder and there are specific sentences for those crimes no matter the cost. Number 2363 CHAIRMAN KOTT asked Representative Murkowski whether she would be happy for all first- and second-degree murderers to have no possibility for parole for good time. REPRESENTATIVE MURKOWSKI replied that's another subject for another time. MS. KNUTH noted that there is a huge population of first-degree murderers who have 99 or more years to serve that would not get out, but there are exceptional situations that get sentenced for less. She cited as an example women who have been battered for years who finally respond lethally. There is a class of offenders who she would be very uncomfortable releasing at any age because they are perfectly able to commit offenses for in perpetuity - sex offenders. Number 2445 REPRESENTATIVE CROFT asked Ms. Knuth whether... TAPE 99-38, SIDE B Number 0001 MS. KNUTH replied there are no murderers in halfway houses, and there is nothing in between. REPRESENTATIVE CROFT asked Ms. Knuth whether the level of incapacitation has to get to a vegetated state. MS. KNUTH replied, if a person was incapacitate and still in the state's custody, a vegetated person could not be in a nursing home. The state would have to keep that person within the confines of a prison or have correctional officers stay around-the-clock at one of the hospitals. Number 0051 REPRESENTATIVE GREEN asked Ms. Knuth whether she knows of anybody who has made it through a 99-year sentence; and, if so, has that person slipped back into a previous behavior pattern. Number 0123 MS. KNUTH replied, she believes, the oldest inmate in the state's custody is around 67 years old. She noted that these people die institutionalized. The department is looking at the population that has sentences of 40 to 50 years. The population that has a sentence of 99 years and up is in essence a life sentence. Number 0157 REPRESENTATIVE GREEN wondered whether the other side of the argument matters. In other words, is this just "window dressing" because the chances are good that it won't matter? MS. KNUTH replied no. The figure of $50 million, mentioned earlier, excludes all of the inmates with a sentence of 99 years and up. The figure is for the inmates that the department expects to see released. She further noted that the figure is based on the cost for care at $50,000 a year. It does not factor in any geriatric medical costs. Number 0193 CHAIRMAN KOTT said the sponsor indicated that the crux of the bill is to get at those murderers walking down the street, not the people with a 99-year-and-up sentence. He asked Ms. Knuth whether a statute can be established discriminating based on age. Number 0227 MS. KNUTH replied no. She noted that for first-degree murder the minimum sentence is 20 years, and for second-degree murder the minimum sentence is 5 years. There are some cases where the court looks at the circumstances and chooses to impose a sentence of 15 years, for example. But the public hears that there has been a murder and the judge only imposed a 15-year sentence. She mentioned the only thing that the legislature can do is increase the mandatory minimum sentence for second-degree murder, but that takes away the opportunity for judges to look at cases individually. Number 0288 REPRESENTATIVE KERTTULA noted she handled two murder cases that got five year sentences. She explained one was for a woman who was caught drinking while driving and killed another person but had no memory of it. It was real clear from the witnesses and circumstances that she had nothing to do with putting herself behind the wheel of the car. The other case involved an abused wife who snapped and killed her husband. It was real clear from the testimony that she would never be a danger to anybody else. She would be reluctant to give up a judge's discretion because the second-degree murder cases that go down to that level are real unique circumstances. She also mentioned that parole and good time work well under those circumstances. Number 0344 JAMES ARMSTRONG, Legislative Assistant to Senator Dave Donley, Alaska State Legislature, came before the committee to give closing statements on SB 11. He said he's not sure of the 9 states Ms. Knuth is referencing because 30 states have done some type of truth-in-sentencing that goes hand-in-hand with serious crimes. He noted that the state of Illinois has eliminated good time credits and requires entire sentences to be imposed on prisoners for first-degree murder. In addition, he mentioned that the House Judiciary Standing Committee heard SB 1 - the "No Frills Prison Act" - a few years ago. At which time, Senator Donley thought that Act gave the Department of Corrections a lot of discretion for severely medically able parole, but according to discussions with the department, there is a case where a cancer inmate cannot be released because he is not bedridden and could possibly commit the crime again. He noted that Senator Donley is considering looking at that statute again. Number 0430 CHAIRMAN KOTT indicated that the bill would be held over for further consideration. HB 180 - DRUGS WHERE MINORS ARE PRESENT CHAIRMAN KOTT announced the next order of business is HB 180, "An Act relating to the possession, manufacture, use, display, or delivery of controlled substances while children are present." Number 0477 REPRESENTATIVE JOHN COWDERY, Alaska State Legislature, came before the committee as sponsor of HB 180. The bill is under the premise that second-hand smoking is dangerous to a person's health; therefore, what does cocaine do to children in their presence? The intent of the bill is to charge a person with child abuse who smokes cocaine or uses a controlled substance in front of an underage child. The intent of the bill is to also charge a person with child abuse who is caught drinking and driving with an underage child and convicted. Number 0545 PETER TORKELSON, Researcher for Representative John Cowdery, Alaska State Legislature, came before the committee to explain the bill further. He explained HB 375, from last year, opened up this very section and set out a new provision. This bill deletes the language from AS 11.51.110 - "Endangering the welfare of a child in the second degree" - and uses that intent and moves it up to AS 11.51.100 - "Endangering the welfare of a child in the first degree." It also expands the sphere of beyond just a dwelling or vehicle. Representative Cowdery is concerned about a campsite or an enclosed yard for example. As a result, the bill reads, "the immediate physical presence of." He noted that the dwelling and vehicle parameters are still maintained. MR. TORKELSON further stated that the bill has two standards. One for younger children, which is harsher, and one for older children. In addition, AS 11.51.130 brings in possession. In other words, maybe it can't be shown that drugs are being manufactured or used in a particular place, but they are there. Number 0678 REPRESENTATIVE MURKOWSKI asked Mr. Torkelson to clarify the age breakdown in the bill. MR. TORKELSON replied the current law only recognizes the endangerment of children around drugs under the age of 10, which is a small group of people. It doesn't hurt a child the age of 11? he asked. At that age, a child is still impressionable. The bill raises the bar to under the age of 16 with a stiffer penalty. The bill also raises the bar to under the age of 18 with a less stiff penalty because at that point a child is less vulnerable. Number 0753 REPRESENTATIVE MURKOWSKI questioned the language removed in Section 2(a). MR. TORKELSON noted that the language was removed because it became redundant once the bar was raised. REPRESENTATIVE GREEN noted in Section 1 the language "display" is used, while in Section 3 the language "delivery" is used. He asked Mr. Torkelson whether there is a reason for the difference. MR. TORKELSON replied the language "display" is from the existing controlled substance laws. He's not sure why the word "delivery" was used instead of "display" in Section 3, however. He noted that the standard of proof in (A) is knowing the possession was occurring, while in (B) it is over actions - manufacture, use and delivery. A reasonable person should be able to recognize when those types of activities are occurring in that person's presence, which is a lower standard of reckless disregard. CHAIRMAN KOTT noted that the difference in verbiage still needs to be clarified. Number 0921 REPRESENTATIVE COWDERY informed the committee that Mr. Del Smith [Deputy Commissioner, Department of Public Safety] thought it was a good idea. He also noted that the attorneys in the Department of Law felt that the penalties would be too hard to prosecute. It was his decision to leave that hardness in the bill because a prosecution is difficult even for easy cases. He is hoping that the penalities would be just enough to get a person's attention. Number 0990 MR. TORKELSON said it is not clear just by looking at the bill to determine the penalty provisions. He explained in AS 11.51.100 the penalty is a class C felony, and in AS 11.51.130 the penalty is a class A misdemeanor. Number 1040 REPRESENTATIVE MURKOWSKI asked Representative Cowdery whether he has considered how this would play into the new laws relating to the medical use of marijuana. REPRESENTATIVE COWDERY replied he hasn't thought about it. Number 1066 MR. TORKELSON noted that there are a couple of pending pieces of legislation that are working in-concert with the medical use of marijuana initiative. Number 1088 CHAIRMAN KOTT asked Mr. Gerald Luckhaupt from the Legislative Affairs Agency whether the medical use of marijuana would be lawful; therefore it wouldn't fall within the parameters of the bill, if it can be determined what is and isn't lawful. Number 1094 GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, came before the committee to answer questions. He replied the bill says knowing that a controlled substance is unlawful. The initiative provides immunity for a person using medical marijuana from any criminal charge, prosecution, or civil sanction. Therefore, it would also provide immunity for the criminal act in the bill, if it could even be argued that it was criminal. It would provide immunity even if the word "unlawful" was not in the bill. Number 1155 REPRESENTATIVE MURKOWSKI said, provided that a person has registered. MR. LUCKHAUPT replied no. The initiative doesn't require a person to register. REPRESENTATIVE MURKOWSKI said she understands that. She explained that she attended a House Health, Education and Social Services Standing Committee meeting where former-Representative Finkelstein - sponsor of the initiative - indicated that in order for a person to have immunity that person had to be registered. Number 1201 MR. LUCKHAUPT said is it pretty clear that the initiative provides immunity for every criminal action for a person who doesn't register. If a person registers, then there is a list of restrictions. He cited a person can't smoke in public, a person can't use it anywhere where that person could be seen in public, and a person can't use it in a way that endangers another person. Those restrictions only apply to people who have registered. There are no restrictions for a person who does not register. He stated that former-Representative Finkelstein was probably incorrect on that point. Number 1262 REPRESENTATIVE GREEN asked Mr. Luckhaupt to explain why the word "display" is used in one section and the word "delivery" is used in another section. Number 1292 MR. LUCKHAUPT replied "use" and "display" were both used in the 1992 initiative to recriminalize marijuana in regards to misconduct involving a controlled substance in the sixth degree. Those terms were not defined in statute, so he had to work them into the bill. The use or display of marijuana is a violation of that statute. He indicated that he probably left out the word "display" from the other section unintentionally. He noted that "delivery" was not included in the other section because he tried to pick out what is being done in sections from current law. It seems, however, that delivery should be included in the manufacturing section along with use, manufacture, or display. Number 1473 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came before the committee to testify. She said it's hard for her to take a position on this bill, especially the first section. The statute - "Endangering the welfare of a child in the first degree" - is unusual because it provides separate penalties for the various ways to violate the law. She cited deserting a child in a dangerous situation, leaving a child with a sex offender, and leaving a child with a child abuser and the child suffers harm as the three ways to violate the statute. The violation for the first two is a class C felony. The violation for the third one depends on the harm suffered to the child - either a class B felony or all the way down to a class A misdemeanor. She mentioned that the sponsor needs to think about how serious this conduct is, at which time, she can give the committee a better idea of the department's position on the bill. She further noted that the conduct covered in Section 1, of the bill, is awfully broad. She's not certain that allowing a child to be in the presence of a person smoking a "joint" should be treated as a felony. Perhaps, it should be a class A misdemeanor. She also mentioned she is concerned about the use of the word "display." It's not very clear, and she's not sure why it should be repeated in this bill. In terms of contributing to the delinquency of a minor, she suggested making it one section and taking out possession. As the bill is written now, it would be illegal to have a "joint" in a person's pocket when around a child. It's fine to have manufacture, use, or delivery under this section, but possession should be removed. Number 1744 REPRESENTATIVE CROFT asked Ms. Carpeneti what the penalty is for using a controlled substance in front of a child. MS. CARPENETI replied it depends on the person's culpable mental state, which is another problem with the bill. It's not clear what conduct comes under each penalty. She thinks, if a person is using a controlled substance in front of a child it falls under endangering the welfare of a child in the first degree. She assumes that the sponsor intended it to be a felony, but there is a class A misdemeanor in that section too. She noted, if a person is holding a child and using drugs unlawfully, it falls under the language, "immediate physical presence." REPRESENTATIVE CROFT asked Ms. Carpeneti what the is penalty for that. MS. CARPENETI replied there is no penalty for that in the bill, which is a problem that needs to be fixed. It might also come under contributing to the delinquency of a minor which is a class A misdemeanor. In that case, the culpable mental state is reckless disregard. REPRESENTATIVE CROFT asked Ms. Carpeneti whether the short answer to his question is that the penalty comes under AS 11.51.130. MS. CARPENETI replied yes. Number 1981 REPRESENTATIVE COWDERY suggested visiting the Anchorage Police Department and riding with a patrol officer on the weekend. That is where this bill started to develop with him. He said, "It's an eye opener." Number 2064 MR. TORKELSON referred to AS 11.51.100 and noted that endangering the welfare of a child in the first degree is a class C felony under (a)(1) or (2). He was advised that a class C felony is the base penalty applied in AS 11.51.100. Number 2138 REPRESENTATIVE CROFT said it seems the more analogous section is a class A misdemeanor and not a class C felony. A class C felony seems to be more than a one level jump. He thinks it is not categorized at all in AS 11.51.100 and it would be an error to categorize it as a class C felony. There appears to be a graduated penalty depending on the violation. He cited it's a "B" if the child dies, a "C" if there's sexual contact or serious physical injury, and an "A" if there's any physical injury at all. Number 2260 REPRESENTATIVE JAMES asked how the existing statute for children in need of aid would tie into this kind of an accusation. The statute is specific in terms of when a child can or cannot be removed from a home. Number 2332 MS. CARPENETI replied, according to her impression, it seems that a person smoking dope in front of a child would be on the low end of priority for the Department of Health and Social Services. It really is a civil division chore. She's doesn't have a good answer. Number 2416 MR. LUCKHAUPT noted that it would have some affect in the foster care area. The amendments that have been made over the last few years to foster care have included offenses against the families under AS 11.51. The problem is there are different offenses listed for the revocation of a license, for denying someone a license, and for the placement of a child. The Senate has a bill to try... TAPE 99-39, SIDE A Number 0001 MR. LUCKHAUPT continued. Right now, the authority to create a license is not in statute because of the changes that have been made over the last few years. It's a real mess. He reiterated this would affect the foster care area because there are specific provisions that include references to offenses against the family in terms of disqualifying a person from being a foster parent. He's not sure whether that would or wouldn't remain in the new draft of the Senate bill. The problem exists in other sections of the title as well. He's trying to solve this one, then he will look at the other sections. Number 0117 REPRESENTATIVE JAMES said the whole issue of children is very troublesome to her. It seems that the legislature wants to make everything perfect for them when it can't. In the process, families are being destroyed. She has had 19 different foster children of her own and has been exposed to the net result of the state getting involved. She is opposed to drug exposure to children, but noted that tobacco and alcohol are lawful "drugs." Number 0257 MR. LUCKHAUPT stated, in response to Representative Croft's question earlier, an earlier version of the bill corresponded to leaving a child someplace and risking injury to that child. Number 0352 REPRESENTATIVE CROFT asked Mr. Luckhaupt whether it would be a class B misdemeanor under Section 1 (a)(4) of the bill. There is a sequence of penalties going down as the physical harm goes down until there is a base level at which point a person has to prove any harm. MR. LUCKHAUPT replied no. If a person violates Section 1 (a)(4), of the bill, it would be a class C felony in all cases. It doesn't depend on whether or not a child suffers any injury. That is also how it works for (a)(1) and (2) - intentionally deserting a child and leaving a child with another person who has been convicted of various things in the past. It's only (a)(3) that depends upon the injury suffered by a child. It was the intent of the sponsor to place (a)(4) in the class C felony range with (a)(1) and (2), but that is not how the bill is written now. Number 0429 REPRESENTATIVE CROFT noted that it's a class A misdemeanor, if a child is left with another person under (a)(3) and that person has previously mistreated or has had sexual contact with another child and causes injury to the child - as long as it's not serious physical injury. But, if somebody smokes a "joint" around a child, it would be a class C felony. MR. LUCKHAUPT replied yes that would be the penalty under (a)(4). REPRESENTATIVE CROFT noted that the person doesn't even have to smoke, but display or have... MR. LUCKHAUPT replied that's correct. It is conduct that probably can't be prosecuted, if it's done in a person's home because Raven is still in law and controlling. Raven allows for the use and display of marijuana in a person's own home as long as the quantities are for personal use. He noted that, even though there is a law against it, the Department of Law has not prosecuted anybody successfully yet under misconduct of controlled substances in the sixth degree. The cases that came after Raven allowed the state to outlaw personal use and possession by minors. He noted that, even though this might be a protected activity under the privacy clause, it isn't something that is protected in front of children. He further noted that, even though it was classified as a violation under last year's child abuse bill, the sponsor feels strongly that it should be penalized somewhat above that. It seemed like a reasonable place to put that as a starting point, since there are only class C felonies in AS 11.51.100 now for conduct that is not based upon harm caused to a child. Number 0644 CHAIRMAN KOTT indicated that the bill would be held over for further consideration. CSSB 27(FIN) - ACCESS TO DRIVING/SCHOOL RECORDS OF CHILD CHAIRMAN KOTT announced the next order of business is CSSB 27(FIN), "An Act relating to school records and driver license records of certain children." Number 0695 MICHAEL PAULEY, Legislative Assistant to Senator Loren Leman, Alaska State Legislature, came before the committee to present the sponsor statement. The bill ensures that parents would have access to important records about their minor children. It also requires school districts to share information with other districts about potentially dangerous transfer students. The motion behind the bill stems from a phone call from a constituent in Anchorage. The constituent contacted the Division of Motor Vehicles [Department of Administration] to check on her daughter's driving record because she suspected that her daughter was driving with a suspended license. The constituent was quite surprised when she was told that her daughter's driving record is private and confidential, and that even a parent does not have the right to know this information. He noted that a parent must give consent before a license is issued and that the law holds a parent responsible for any damage caused by negligence or willful misconduct while a child is operating a vehicle. But the same law denies parents any right to check and see whether their son or daughter is driving safely. It's the sponsor's belief that the provision in statute was unintentional in the context of a parent-child relationship. It is obviously needed protection for adults. MR. PAULEY further noted that the current law allows for law enforcement personnel to access the information, but there is no exemption for parents. The bill corrects that problem by allowing parental access, which would include any report of accidents and convictions of traffic offenses. In addition, the bill provides a provision guaranteeing parental access to school records. Upon researching the bill, the sponsor was surprised to learn that there is no law that guarantees parental access to those records, but a provision was found in statute that guarantees a noncustodial parent access to them. Therefore, Section 1 adds a provision that guarantees parental access to school records for a child under the age of 18. It also ensures that no school in Alaska would become ineligible to receive federal funding: there is a federal law that denies funding for any educational agency or institution that does not allow parental access to the school records of minors. Section 2 requires school districts to transfer certain information about a child who moves from one district to another. He cited an offense punishable as a felony or an offense involving the use of a deadly weapon as information that must be included in a school record. Number 0925 CHAIRMAN KOTT asked Mr. Pauley, hasn't legislation been passed that deals with making available certain types of information about students who are considered dangerous to their peers, teachers, or environment? He wondered whether the bill is just an expansion of that legislation. MR. PAULEY replied the section dealing with the transfer of records was an amendment added by Senator John Torgerson in the Senate Finance Standing Committee. It was not part of the original bill. He's not certain, at this point, what the other statute is that Chairman Kott is referring to, but yes it is an expansion of current policy. Number 1006 CHAIRMAN KOTT said he can't recall the statute either. He remembers legislation dealing with the transferring of students within school districts and making sure certain information is available to teachers and superintendents or something to that effect. Number 1049 REAGAN EIDSNESS came before the committee to testify. She is 15 years old. She doesn't have a driver's permit yet because she has been too busy. She has liked driving since she was four years old. She mentioned down south she would drive on her Mother's lap. She doesn't have an opinion on this bill other than responsible teenagers should be able to drive and adults should be able to check their backgrounds. Number 1102 REPRESENTATIVE MURKOWSKI said she is concerned about one parent using this type of information to his or her advantage against the other parent while the child is trapped in the middle. She asked Mr. Pauley what sort of safeguards are built into the bill. Number 1175 MR. PAULEY replied that was an issue that came up in the Senate. He noted that existing law - AS 25.20.130 - says a parent who is not granted custody under AS 25.20.060 - 25.20.130 has the same access to the medical, dental, school and other records of the child as the custodial parent. It was not the intent of the sponsor to visit that issue, but he did receive some concerns from the Council on Violence and Sexual Assault [Department of Public Safety]. As a result, a provision was included for both records saying that it does not apply to information that - if released - would pose a threat to the health or safety of the child. He cited the child's address as an example. Number 1279 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health and Social Services, came before the committee to testify. In response to Chairman Kott's earlier question, the department is obligated under AS 47.12.310 to provide schools with information that suggests a student poses a threat to other students or school staff. That information goes into the student's school file which is not always transferred to a new school. The sponsor wants to address that issue by requiring schools to make certain that the record is transferred to a new school when there is information involving the use of a weapon or felony offense. CHAIRMAN KOTT said it is unfortunate that those records are not following the students. Number 1358 REPRESENTATIVE CROFT made a motion to move the CSSB 27(FIN) from the committee with individual recommendations and the attached fiscal note(s). There being no objection, it was so moved from the House Judiciary Standing Committee. ADJOURNMENT CHAIRMAN KOTT adjourned the House Judiciary Standing Committee meeting at 3:16 p.m.