HOUSE JUDICIARY STANDING COMMITTEE
February 4, 1998
1:08 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Con Bunde, Vice Chairman
Representative Jeannette James
COMMITTEE CALENDAR
* HOUSE JOINT RESOLUTION NO. 19
Proposing amendments to the Constitution of the State of Alaska
relating to the election and the duties of the attorney general.
- HEARD AND HELD
HOUSE BILL NO. 231
"An Act relating to regulation of snowmobiles."
- RESCINDED ACTION OF 2/02/98; MOVED CSHB 231(JUD) OUT OF
COMMITTEE
HOUSE BILL NO. 12
"An Act relating to civil liability for injuries or death resulting
from equine activities."
- MOVED CSHB 12(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 252
"An Act relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
- HEARD AND HELD
HOUSE BILL NO. 273
"An Act relating to notification of the public concerning sex
offenders."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 19
SHORT TITLE: ELECTION OF ATTORNEY GENERAL
SPONSOR(S): REPRESENTATIVES(S) GREEN, Barnes, Cowdery
Jrn-Date Jrn-Page Action
02/07/97 264 (H) READ THE FIRST TIME - REFERRAL(S)
02/07/97 264 (H) JUDICIARY, FINANCE
03/05/97 550 (H) COSPONSOR(S): COWDERY
04/18/97 (H) JUD AT 2:00 PM CAPITOL 120
04/18/97 (H) MINUTE(JUD)
02/04/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 231
SHORT TITLE: REGULATION OF SNOWMOBILES
SPONSOR(S): REPRESENTATIVES(S) MASEK
Jrn-Date Jrn-Page Action
04/04/97 990 (H) READ THE FIRST TIME - REFERRAL(S)
04/04/97 990 (H) JUDICIARY
04/30/97 (H) JUD AT 1:30 PM CAPITOL 120
04/30/97 (H) MINUTE(JUD)
05/07/97 (H) JUD AT 1:30 PM SENATE FINANCE 532
05/07/97 (H) MINUTE(JUD)
05/08/97 (H) JUD AT 1:00 PM CAPITOL 120
05/08/97 (H) MINUTE(JUD)
02/02/98 (H) JUD AT 1:00 PM CAPITOL 120
02/02/98 (H) MINUTE(JUD)
BILL: HB 12
SHORT TITLE: IMMUNITY FOR EQUINE ACTIVITIES
SPONSOR(S): REPRESENTATIVES(S) DAVIS
Jrn-Date Jrn-Page Action
01/13/97 30 (H) PREFILE RELEASED 1/3/97
01/13/97 30 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 30 (H) JUDICIARY, FINANCE
01/30/98 (H) JUD AT 1:00 PM CAPITOL 120
01/30/98 (H) MINUTE(JUD)
02/02/98 (H) JUD AT 1:00 PM CAPITOL 120
02/02/98 (H) MINUTE(JUD)
BILL: HB 252
SHORT TITLE: REGISTRATION OF SEX & CHILD OFFENDERS
SPONSOR(S): REPRESENTATIVES(S) RYAN
Jrn-Date Jrn-Page Action
04/16/97 1122 (H) READ THE FIRST TIME - REFERRAL(S)
04/16/97 1122 (H) JUDICIARY, FINANCE
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
05/05/97 (H) MINUTE(JUD)
05/08/97 (H) JUD AT 8:30 AM CAPITOL 120
05/08/97 (H) MINUTE(JUD)
10/24/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
10/24/97 (H) MINUTE(JUD)
10/24/97 (H) MINUTE(JUD)
02/04/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
JEFF LOGAN, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-6841
POSITION STATEMENT: Presented HJR 19 on behalf of sponsor.
GRANT WOODS, Attorney General
State of Arizona
1275 West Washington
Phoenix, Arizona 85007
Telephone: (602) 542-8010
POSITION STATEMENT: Testified about Arizona's experience relating
to HJR 19.
HERB SIMON
(No address provided)
Nelchina, Alaska
Telephone: (907) 822-3059
POSITION STATEMENT: Testified on HJR 19.
REPRESENTATIVE GARY DAVIS
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
Telephone: (907) 465-2693
POSITION STATEMENT: Sponsor of HB 12.
REPRESENTATIVE JOE RYAN
Alaska State Legislature
Capitol Building, Room 420
Juneau, Alaska 99801
Telephone: (907) 465-3875
POSITION STATEMENT: Sponsor of HB 252.
ROBIN BOWEN
We Against Sexual Predators (WASP)
P.O. Box 91788
Anchorage, Alaska 99509
Telephone: (907) 522-1517
POSITION STATEMENT: Testified in support of HB 252 (and HB 360).
SUZANNE MANNIKKO
We Against Sexual Predators (WASP)
HC 33, Box 2859A
Wasilla, Alaska 99687
Telephone: (907) 376-6562
POSITION STATEMENT: Testified in support of HB 252 (and HB 360).
SYLVIA DAVEY
P.O. Box 873248
Wasilla, Alaska 99687-3248
Telephone: (907) 376-6780
POSITION STATEMENT: Testified in support of HB 252.
W. ANN EDEN-MENEZES
P.O. Box 4159
Palmer, Alaska 99645
Telephone: (907) 746-4389
POSITION STATEMENT: Testified in support of HB 252.
ANNE 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 252; suggested amendments.
BARBARA BRINK, Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
Telephone: (907) 264-4400
POSITION STATEMENT: Testified on HB 252.
DEL SMITH, Deputy Commissioner
Office of the Commissioner
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4322
POSITION STATEMENT: Testified in support of HB 252.
JAYNE ANDREEN, Executive Director
Council on Domestic Violence and Sexual Assault
Department of Public Safety
P.O. Box 111200
Juneau, Alaska 99811-1200
Telephone: (907) 465-4356
POSITION STATEMENT: Testified in support of HB 252, with one
caution.
DAVID PREE, Legislative Assistant
to Representative Joe Ryan
Alaska State Legislature
Capitol Building, Room 420
Juneau, Alaska 99801
Telephone: (907) 465-3875
POSITION STATEMENT: Answered questions on HB 252.
ACTION NARRATIVE
TAPE 98-9, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Members present at the call to order
were Representatives Green, Porter, Rokeberg, and Croft.
Representative Berkowitz arrived at 1:10 p.m., and Representatives
Bunde and James were excused.
HJR 19 - ELECTION OF ATTORNEY GENERAL
Number 0042
CHAIRMAN GREEN announced the first item of business, HJR 19,
proposing amendments to the Constitution of the State of Alaska
relating to the election and the duties of the attorney general.
As prime sponsor of HJR 19, Chairman Green called upon staff member
Jeff Logan to introduce the resolution.
Number 0050
JEFF LOGAN, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, came forward to present HJR 19. The
resolution had been scheduled for a hearing April 18, 1997;
however, there was no quorum at that meeting. [Mr. Logan indicated
on the record that there may have been brief testimony by Jim
Baldwin, assistant attorney general for the state of Alaska, on
that date. However, there is no tape for that meeting, and the
minutes show the meeting was cancelled due to lack of a quorum.
Mr. Baldwin informed the committee secretary on February 17, 1998,
that he has no recollection of providing testimony on that date.]
Number 0096
MR. LOGAN provided some background prior to the testimony of Grant
Woods about how the system works in Arizona. Attorney General
Woods is an elected attorney general, as are 43 other attorneys
general. Arizona, a Western state like Alaska, entered the Union
directly preceding Alaska's doing so, although several years
before. Therefore, like Alaska, Arizona is a relatively young
state.
MR. LOGAN explained that they had not spoken directly with Attorney
General Woods nor asked him to speak in favor of HJR 19. Instead,
they had asked him to be available to help the committee understand
how a system works where the people's chief law enforcement is
elected rather than appointed; Attorney General Woods would also
testify about what he sees as some of the merits and drawbacks.
Number 0215
GRANT WOODS, Attorney General, State of Arizona, testified via
teleconference from Phoenix, saying he believes there is a reason
why 43 states elect their attorneys general. He believes a basic
role of the attorney general should be providing an office that can
truly represent the public's concerns across the board in applying
the law, without regard for political pressure, and without regard
for who may be pleased or displeased by a particular opinion. He
emphasized the importance of applying the law evenly and the
importance of the person in this position being free to make the
call on the law without worrying about serving at the pleasure of
anybody except the people who elected the attorney general.
Number 0314
ATTORNEY GENERAL WOODS advised members that the Alaskan model is
basically the same as the federal model, which people see the
difficulty with today. Nationally, he said, we continue to
struggle to find an answer to how to investigate the executive
branch while maintaining the public's confidence in the integrity
of the investigation when there is an appointed attorney general.
ATTORNEY GENERAL WOODS said given that dilemma nationally, "we came
up with this idea of a special independent prosecutor or counsel,
and I think many people - and certainly I - feel that that's gotten
totally out of control and ... not at all what our Founding Fathers
or anybody had in mind, as far as the relationship between law
enforcement and the executive branch." He suggested that is one
problem inherent in the system where the chief law enforcement
officer serves at the pleasure of the President, in the federal
model, or the Governor, in the state model.
Number 0439
ATTORNEY GENERAL WOODS told members he had served with two
governors in Arizona, both of whom were in the Republican party, as
he himself is. The former governor had numerous problems with the
law that required investigation by Attorney General Woods and his
office, as well as by the federal government. "He was just
sentenced to 30 months in federal prison two days ago," Attorney
General Woods added. He believes it was important, in dealing with
a governor who needed to be investigated, that as attorney general
he could be independent, with no particular ties to the governor,
and could call it as he saw it.
Number 0516
ATTORNEY GENERAL WOODS pointed out a big difference between how HJR
19 proposes the election of the attorney general and how most
states do it. Section 29 indicates the attorney general would run
on a ticket with a governor; a vote for the governor is also a vote
for the attorney general. Attorney General Woods said he doesn't
know whether anybody does it that way. While he believes it is
preferable to an appointed system, it is clearly inferior to being
totally independent.
ATTORNEY GENERAL WOODS explained that in Arizona, candidates just
run for the party's nomination in both offices. There can be a
governor and an attorney general from two different political
parties. Although candidates can state a preference or declare
support for a particular governor or attorney general, nobody is
bound by that. "And yet, you would be bound here under your
proposal," he cautioned. "Maybe this is a compromise between the
two systems; I don't know."
ATTORNEY GENERAL WOODS said he clearly thinks that electing the
attorney general puts it in the hands of the people. He suggested
it would be better to simply eliminate that one particular part of
this resolution so that whoever gets the most votes wins,
regardless of whether they support or don't support the person who
wins the governor's race.
Number 0660
ATTORNEY GENERAL WOODS advised members that he is familiar with two
other models. In Maine, the legislature elects the attorney
general, which Attorney General Woods doesn't recommend, as it
seems to be the most political. And in Tennessee, the supreme
court appoints the attorney general for, he believes, an eight-year
term; he said he thinks that is preferable to the system where the
governor appoints but is clearly inferior to having an independent
election by the people for their attorney general.
Number 0708
CHAIRMAN GREEN commented that HJR 19 tries to avoid what has been
characterized by some as almost a direct conflict. When he'd lived
in California, it seemed there was always an attorney general from
one party and a governor from another party who were adversarial.
As a result, things didn't go as well as they might have. Chairman
Green asked whether in Arizona there have been issues - other than
the governor doing time - where the attorney general and the
governor had contrary views even though they were from the same
party.
Number 0768
ATTORNEY GENERAL WOODS replied, "Well, definitely." He said in
discussing this with the other attorneys general, he believes it
depends less on party and more on personality and on the issues
involved. He said he believes that many, many attorneys general
would say they have actually have had a smoother time when there
was a governor of the opposite party. He commented, "They just
respected each other and got the job done."
ATTORNEY GENERAL WOODS agreed that the problem Chairman Green
mentioned is certainly possible; the governor is inevitably going
to look at the attorney general as a potential opponent. He noted,
however, that that happens even when the two are in the same party.
ATTORNEY GENERAL WOODS said there will almost always be politics.
An attorney general running on a ticket would provide some tacit
understanding and would not be a political opponent of the
governor. He commented, "So, maybe you would help solve that. But
I think as far as people being in opposite parties, that doesn't
necessarily mean anything. You could have lots of problems with
people in your own party, or you might not have any problems with
a person in the other party."
Number 0861
REPRESENTATIVE ERIC CROFT asked what it costs to run a campaign for
attorney general and where those campaign contributions typically
come from.
ATTORNEY GENERAL WOODS replied that he believes Arizona is an
average state as far as expenditures. To run for governor there,
an average expenditure would be $2 million. To run for attorney
general in 1990, he himself had spent around $400,000; in 1994,
he'd had weak opposition and therefore hadn't spent any money or
even put up a sign. He added, "In 1998, this race to succeed me,
I think they will probably spend around $400,000; so, I think
that's about what you're looking at here."
ATTORNEY GENERAL WOODS advised members that contributions come
primarily from lawyers and special interest groups that contribute
to "whoever is in the game, basically, legislators or governors or
anybody else that might be able to help them, they think, at some
point in time." He said he believes the difference in an attorney
general race is that "you see an awful lot of lawyers contributing;
they're interested."
Number 0963
REPRESENTATIVE BRIAN PORTER asked whether Arizona became a state
with that in its constitution.
ATTORNEY GENERAL WOODS said Arizona has always had an elected
attorney general.
REPRESENTATIVE PORTER asked whether that is the usual situation.
ATTORNEY GENERAL WOODS said he doesn't know the answer. He then
specified that he doesn't know of any state which has changed from
having an elected attorney general to having an appointed one.
Number 1011
REPRESENTATIVE ETHAN BERKOWITZ said he was thinking of an attorney
general who graduated to become governor and is now President of
the United States. He expressed concern that when an elected
attorney general has political aspirations, politics might somehow
cloud the decision making.
ATTORNEY GENERAL WOODS replied that he thinks that is certainly a
risk. As with any other elected office, the occasion is there to
play politics with whatever situation the person is confronted
with. He suggested it would be unrealistic to say that somebody
would just be oblivious to the politics of a situation. He
explained that what he has tried to do, which he believes is the
best model, is to not take the politics into consideration but to
be aware of the politics, "so you know what you're getting into,
but you go ahead and do it anyway, regardless of the consequences."
ATTORNEY GENERAL WOODS stated, "Having said that, there are some
elected attorneys general who are extremely political." He said
given that they deal on the criminal side with people's lives and
freedom, that is a difficult situation. And on the civil side,
they deal with a lot of money and people's basic rights; that's not
a great situation, either.
Number 1096
ATTORNEY GENERAL WOODS pointed out, however, that the vast majority
of criminal actions around the country are prosecuted by district
attorneys and county attorneys, almost all of whom are elected.
Sheriffs are generally elected, as well. Attorney General Woods
commented that yes, that invites politics, and politics does get in
the way sometimes. But he believes that is outweighed by the
desire that most states have to let the people make these
decisions.
ATTORNEY GENERAL WOODS also pointed out that the role of the
attorney general in most states, including Alaska, has evolved
greatly, especially in the 1990s. At the time of Alaska statehood
and in the following decades, the attorney general was really more
of a lawyer doing the state's work, without getting involved in
that many issues which Attorney General Woods believes that the
public would be interested in. Now, however, most attorneys
general are involved in consumer protection in a major way.
ATTORNEY GENERAL WOODS noted that Alaska is one of the states that
has sued the tobacco companies and has been involved in a variety
of consumer issues. He said many attorneys general are involved in
environmental, civil rights and victims' rights issues, which he
thinks is important because those issues are more directly related
to the public's desires; it is easier to campaign upon those themes
and to give the public a choice as to what they want from the
office than if the role of the attorney general is to just do the
legal paperwork for the state, in which case the public doesn't
necessarily know who the best lawyer is.
ATTORNEY GENERAL WOODS concluded, "But if you're talking about
these sort of issues, and whether or not you're interested in those
issues, then I think the public should have a say in whether
Alaska, for example, is going to be very active in consumer
protection from the attorney general's office or not. And that
would depend on who was there."
Number 1246
REPRESENTATIVE BERKOWITZ referred to Attorney General Woods'
mention of policy decisions made by an elected attorney general.
He stated, "And the way it's set up in Alaska now, that's something
within the purview of the governor, subject to the check and
balance of the legislature. But it seems to me that when you have
an elected attorney general, you've in essence created a fourth
branch of government outside the control of the governor but still
subject somewhat to ... the budgetary constraints of the
legislature."
ATTORNEY GENERAL WOODS replied that the legislature definitely has
the ability to constrain the attorney general's actions or to
encourage or require the attorney general's actions in certain
areas. He explained, "You will always control the budget. As long
as you don't cross the line in basically getting rid of the office
or in usurping all the normal powers and duties of an attorney
general's office, then it would be up to you."
ATTORNEY GENERAL WOODS told members that Arizona has a very
conservative Republican legislature. However, the people view
civil rights as an American issue, not a liberal-versus-conservative or Republi
they've given us jurisdiction here in the '90s to do fair housing,
for example, to do ADA [Americans with Disabilities Act] on a state
-- have the state do that prosecution, rather than relying on the
feds totally. That was up to them. If they would say 'no' on
that, then we couldn't do that. So, ... I think the legislature
will always have a key role in determining what the attorney
general is or is not allowed to do. There is some room there,
though, definitely, to make policy. I have emphasized some areas
that my predecessor did not and my successor may not. And I think
... that is what's decided by the electorate."
Number 1354
CHAIRMAN GREEN referred to the possibility of politics entering
into the position. He asked, "What about the other seven AGs that
are appointed by the governors? Do you find that in any of those
cases, the attorneys general may be responding to the wishes of the
governor, at some times at odds with the wishes of the people that
he would otherwise be representing?"
Number 1381
ATTORNEY GENERAL WOODS said there have been cases of that many
times in individual states' histories, "in that you didn't really
have anybody to stand up for the people's interest, as reflected in
either the Constitution of the United States or of the particular
state or of the laws of that state, because it was at odds with a
particular policy or a particular interest of the governor." He
said that is a difficult situation, leading to the choice of either
resigning or "just doing what you're told."
ATTORNEY GENERAL WOODS said that again, he thinks it is a better
situation in Tennessee, where the supreme court makes the
appointment, because then there is independence to do what the law
requires.
Number 1442
CHAIRMAN GREEN referred to the other 43 states and asked: If the
attorney general for the state is an elected official, who
represents the governor? He further asked what happens if there
are two different legal opinions, between the attorney general
perhaps representing the people and a special counsel for the
governor or the administration.
ATTORNEY GENERAL WOODS replied that the attorney general is a
lawyer for the state; therefore, the attorney general would
determine the position for the state of Arizona, for example. He
said they had just allowed, in the l990s, the governor to have his
own private counsel, one lawyer; Attorney General Woods said he'd
supported that, but he noted that in many states, more than one
lawyer has been allowed. He explained that this private counsel is
someone that the governor can confide in without worrying about
politics, leaks, or things of that nature. He stated, "If the
governor's counsel today in Arizona comes up with an opinion - on
a particular issue concerning the governor - different than the
attorney general's opinion, then it really doesn't matter. It's
the attorney general's opinion that counts."
ATTORNEY GENERAL WOODS noted that in addition, the attorney general
determines the state's position in regards to litigation. Although
he would hope that would be done - on particular issues - in
consultation with the legislature and the governor, ultimately it
is the attorney general's call. He added, "And, again, that is
regardless of whether the governor likes it or doesn't like it."
Number 1539
ATTORNEY GENERAL WOODS said they had a situation in Arizona
involving school capital finance, an issue which many states have
faced. While the superintendent of schools took one position, the
former governor and the legislature took another position in
relation to a lawsuit filed by a special interest group. The
superintendent basically agreed with the plaintiff, and the
legislature and the governor thought there really wasn't a problem.
ATTORNEY GENERAL WOODS stated, "In that case, technically I could
have chosen to (indisc.) the governor and the legislature to be
unrepresented, because I chose to represent the superintendent of
schools. But it seems to me that would have been unfair, so we
allowed them to hire their own counsel to represent their
positions; and they did, and they argued their case and that went
on. They lost, but ... they at least got to make their argument."
Number 1589
REPRESENTATIVE PORTER indicated he was operating under an
assumption that in Arizona - as he assumes it is with other states
that have an elected attorney general - the department of law
handles all the civil litigation for the state, as in Alaska, and
the criminal prosecution for the state would be under the attorney
general's office.
ATTORNEY GENERAL WOODS said that is correct.
Number 1614
CHAIRMAN GREEN asked whether in Arizona, then, there is a
department of law serving the attorney general as well as a
department of law serving the administrative side.
ATTORNEY GENERAL WOODS replied, "No, that's us as well. Everything
is under us. We've done a pretty good job ... at keeping the
attorney general's office intact." He noted that many states allow
agencies to have their own counsel; he said that is an age-old
debate. He stated, "Although we have a couple of exceptions that
have happened over the years, for the most part the agencies ...
are represented by the attorney general's office. The attorney
general's office does basically everything here. There's a couple
of exceptions that have snuck through - not on my watch but in
years past. But you should realize that we have a population here
of something like - it's growing so fast - let's say 4 million
people." He said they have around 300 lawyers, and it is one of
the larger such offices in the country.
Number 1679
REPRESENTATIVE BERKOWITZ asked, on behalf of Representative Croft,
who was having difficulty speaking because of illness, what other
statewide officers are elected in Arizona.
ATTORNEY GENERAL WOODS answered that they are all elected,
including a secretary of state. He commented, "They don't do much
except succeed the governor [there was laughter], which in Arizona
is a pretty big deal because that's happened four times in the last
20 years, unbelievably, and it just happened again. Our new
governor was the secretary of state. ... They have administrative
duties, notaries and things like that. But that is, again,
independently elected, so you could have a situation where if a
governor had to leave, then the person to succeed him would be
someone in the other party."
ATTORNEY GENERAL WOODS advised members that also independently
elected are the attorney general, the state treasurer, the
superintendent of public instruction, and three corporation
commissioners who "do utilities and the like." He added that for
some reason, they have a state mine inspector who is on the ballot
as well. He mentioned that all the statewide offices are currently
held by Republicans.
Number 1768
CHAIRMAN GREEN noted that some states elect both the governor and
lieutenant governor independently. He asked how that is done in
Arizona.
ATTORNEY GENERAL WOODS explained that Arizona doesn't have a
lieutenant governor. The secretary of state runs on his or her
own, and may or may not wind up being in the same party as the
governor. For example, during Attorney General Woods' first term
and the former governor's first term, the secretary of state was a
Democrat. He ran for the United States Senate instead of running
for re-election. However, had he not done so, that person would be
governor today. Attorney General Woods commented that he favors
the lieutenant governor idea, especially in a state like Arizona,
where they keep having these successions.
Number 1823
CHAIRMAN GREEN asked how Attorney General Woods would describe the
relationship between law enforcement and himself, as an elected
attorney general, as opposed to those few attorney generals who are
appointed. He also asked whether Attorney General Woods had
received any feedback from the latter.
ATTORNEY GENERAL WOODS answered that he doesn't think it makes much
difference there. In Arizona, the majority of people in charge of
law enforcement agencies are elected, meaning district attorneys
and sheriffs and the like. He stated, "Now, local police and city
police chiefs, the state police - those are all appointed
positions." He said just because someone is appointed or elected,
it doesn't mean that person is competent; it depends on the
situation and the personality of the person involved. He restated
that he doesn't think it makes much difference around the country
whether the attorney general is appointed or elected. "It's like
anything else," he added. "You deal with whoever you've got to
deal with to get the job done."
ATTORNEY GENERAL WOODS advised members that many attorneys general
around the United States do not have criminal jurisdiction. Many
do no criminal work other than appellate work. For example, in
Alaska, the attorney general is involved in all aspects of criminal
prosecution, he said. In Arizona, however, they have defined areas
where they do original prosecution, mainly white collar crime,
public corruption and a few other areas; but almost all of the
street crime is done by district attorneys and not by the attorney
general's office.
Number 1920
REPRESENTATIVE NORMAN ROKEBERG asked how many personal lawyers the
governor of Arizona has.
ATTORNEY GENERAL WOODS said she is only supposed to have one, which
is the case. While the former governor had lots of lawyers around
town and around the country, they were private; the taxpayers only
provided one lawyer for him. Attorney General Woods pointed out
that there are ways around that, such as hiring lawyers as staff
without calling them lawyers; while he doesn't think that is
preferable, he does think the governor should be able to have a
lawyer on staff to provide personal advice. Other than that, the
attorney general should be the person who makes the legal calls for
the state.
ATTORNEY GENERAL WOODS commented, "The governor's got plenty to do.
They tend to want to do everything, everything that has anything
whatsoever to do with the state, but there are defined duties for
the governor, and I would think that would be plenty if they'd just
stick with those."
Number 1985
CHAIRMAN GREEN asked whether there were other questions, then
thanked Attorney General Woods for taking time to address the
committee.
ATTORNEY GENERAL WOODS concluded by telling members he had worked
closely with several attorneys general in Alaska. He expressed
confidence that those people could be elected in their own right,
and he said he is a big fan of the current attorney general. He
added, "You all have done so many great, innovative things. And I
would just urge you to take a hard look at this one and ultimately
put your faith in the public to be able to discern who the best
candidates are. And I think generally, as in other areas, they'll
do the right thing."
Number 2039
HERB SIMON testified via teleconference from Nelchina, expressing
gratitude for Attorney General Woods' enlightening comments. He
said he wonders why it has taken the state of Alaska so long to put
this together; as a longtime Alaskan, he has believed for a long
time that the state should elect the attorney general.
MR. SIMON advised members that he had reviewed HJR 19, as well as
the companion Senate bill, which he said is identical; he stated
his belief that it would get the job done. However, he had passed
on comments to Kevin Jardell, legislative assistant to
Representative Green, the previous day.
MR. SIMON told members he believes the language is ambiguous on
page 2, line 24. He recommended changing it to incorporate that
the attorney general shall defend the Constitution of the United
States and the Constitution of the State of Alaska, which he
believes would eliminate ambiguity. Mr. Simon then referred to
Attorney General Woods' testimony and said there is a tendency at
times for an appointed attorney general to support political
agendas regardless of personal civil rights issues or state
constitutional issues. He specified that that is the only
criticism he would have for this legislation.
MR. SIMON strongly recommended that both the Senate and House
versions be put on fast-track. He said he wished it could have
been done the previous year, so the state could elect an attorney
general this coming November.
CHAIRMAN GREEN asked Mr. Simon what his affiliation is.
MR. SIMON replied that he is the owner and operator of Little
Nelchina Farm in Nelchina.
Number 2179
CHAIRMAN GREEN announced HJR 19 would be held over.
Number 2201
REPRESENTATIVE ROKEBERG asked whether there would be testimony on
the fiscal note when it was brought up again.
CHAIRMAN GREEN said yes, adding that he didn't necessarily
subscribe to the existing fiscal note. [HJR 19 was held over.]
HB 231 - REGULATION OF SNOWMOBILES
Number 2222
CHAIRMAN GREEN brought before the committee HB 231, "An Act
relating to regulation of snowmobiles." On February 2, 1998, CSHB
231(JUD)[version 0-LS0501\F, Ford, 5/5/97, as amended] had passed
out of committee, but the committee had retained possession of the
documents. Chairman Green advised members that they needed to do
some housekeeping on this bill and that there was a new proposed
committee substitute, Version H.
Number 2256
REPRESENTATIVE PORTER made a motion to rescind the committee's
action in passing from committee CSHB 231(JUD). There being no
objection, it was so ordered.
CHAIRMAN GREEN pointed out that on line 1 of Version H, the title
says "regulation"; he indicated this is a return to the original
language prior to amendments to Version F made on February 2, 1998.
He said there were legal opinions that "regulation" would cover
registration as well, whereas just having "registration" may create
problems on the last two pages, where regulations are discussed.
Number 2256
REPRESENTATIVE PORTER made a motion to adopt Version H [0-LS0501\H,
Ford, 2/4/98] as a work draft. There being no objection, Version
H was before the committee.
Number 2305
CHAIRMAN GREEN explained that page 1, lines 7 and 8, says,
"Registration under this section is not required for a snowmobile
owned by the United States." In addition, on page 2, line 4, the
vendor would not necessarily have to do anything, if there was no
registration or fee.
Number 2326
CHAIRMAN GREEN advised members that on page 2, lines 24 and 25, it
says the department may, upon request, issue a registration without
payment of a fee if the snowmobile is owned by the United States.
He characterized these changes as housecleaning to conform to the
committee's earlier discussion at length.
Number 2345
REPRESENTATIVE PORTER made a motion to move from committee version
0-LS0501\H, Ford, 2/4/98, with individual recommendations and any
attached fiscal notes.
REPRESENTATIVE BERKOWITZ objected to request an at-ease.
CHAIRMAN GREEN called an at-ease at 1:52 p.m. He called the
meeting back to order at 1:55 p.m.
REPRESENTATIVE BERKOWITZ removed his objection.
Number 2368
CHAIRMAN GREEN noted that there being no further objection, CSHB
231(JUD) was moved from the House Judiciary Standing Committee.
HB 12 - IMMUNITY FOR EQUINE ACTIVITIES
Number 2376
CHAIRMAN GREEN announced the next item of business, HB 12, "An Act
relating to civil liability for injuries or death resulting from
equine activities." The bill had been introduced briefly on
February 2, 1998, but no testimony had been taken.
REPRESENTATIVE GARY DAVIS, sponsor, came forward to present HB 12,
specifying that he represents District 8, Soldotna to Seward. When
he had introduced this legislation a couple of years ago, there had
been a couple of hearings; it generated a lot of interest around
the state from people who run businesses relating to horses,
including rodeos, riding stables and so forth. He advised members
that he had been reasonably impressed with the problems those
people brought before the committees during debate. Therefore,
although the previous bill hadn't made it through the committee
process, he had again introduced this legislation.
REPRESENTATIVE DAVIS said this bill came about after a constituent
traveling in the Lower 48 and attending horse shows saw waivers
posted at some of the activities; there was a state statute cited.
The constituent had asked Representative Davis whether he would
check on it, which Representative Davis did. "And it pretty much
is what is included in this legislation," he added.
REPRESENTATIVE DAVIS noted that while the legislation indicates
equine activities, he mostly equates it with horse shows. He
pointed out that many things can happen around animals. A lot of
the riding stables and people who handle and deal with horses have
a hard time getting proper insurance. It has been suggested that
reducing some of the liability with legislation such as HB 12 will
assist these people greatly.
REPRESENTATIVE DAVIS emphasized that a couple of years before, for
the prior legislation, there had been a lot of testimony. He said
he hadn't lined up that testimony yet for this bill.
TAPE 98-9, SIDE B
Number 0001
REPRESENTATIVE DAVIS referred to his sponsor statement and advised
members of the inherent risk of handling horses, including horses'
reactions to loud sounds, for example, which are no fault of the
owner if an injury occurs. He said in essence, HB 12 reduces the
liability of the owners on accidents for which they have no
responsibility.
Number 0043
CHAIRMAN GREEN asked, in light of the previous year's tort reform
legislation that tries to protect owners from ridiculous lawsuits,
why this is needed. He also asked why something specific is needed
for equine activities, as opposed to snowboarding or skateboarding,
for example. He acknowledged that Representative Davis may not be
prepared to answer at the current meeting.
REPRESENTATIVE DAVIS confirmed that he wasn't prepared to do that.
He advised members that he had given that some thought and had
initiated research on what inclusions in the tort reform
legislation may relate to this. He noted that one draft of the
tort reform legislation had included outdoor recreational
activities, but it was deleted; he said he had not introduced HB 12
earlier because of that inclusion.
Number 0097
REPRESENTATIVE DAVIS recalled that a couple of years ago, there had
been legislation relating to reducing liability of ski resort
owners; he said this is similar. "But a good point, Mr. Chairman,
and I will do that," he concluded.
Number 0107
REPRESENTATIVE CROFT referred to a letter in committee packets from
the Echo Ranch Bible Camp, which says, "When accidents occur
resulting from negligence on the part of the sponsoring
organization, then the organization should take responsibility."
Representative Croft then read from paragraph 3 of the sponsor
statement, which says in part, "If the owner or trainer is
negligent in properly caring for the horse or uses faulty equipment
(such as the saddle), they would not be immune to civil liability."
He asked, "Are those your understandings of that, of what we're
trying to achieve with this?"
REPRESENTATIVE DAVIS replied that it is a good point. He
acknowledged there were some misstatements in the sponsor
statement. He said it is certainly not the intent to take all the
responsibility away from the owner of the organization, "only
through negligence on ... other persons' part, but ... not on
negligence on their part."
Number 0152
REPRESENTATIVE ROKEBERG asked whether this is the same bill "in
form" that was before the House Labor and Commerce Standing
Committee in the Nineteenth Legislature.
REPRESENTATIVE DAVIS said yes.
REPRESENTATIVE ROKEBERG commented that it is a really wonderful
bill. He pointed out that this is very similar to the "ski resort-type exculpa
this body before. He asked whether Representative Davis had
contacted any stables or equestrian academies in the Anchorage or
Matanuska-Susitna area about this bill.
REPRESENTATIVE DAVIS said he had not this year, but there are horse
associations and equine associations around the state that they
have contacted in the past.
Number 0201
REPRESENTATIVE ROKEBERG said he knows this committee wants to do
its job, but he'd be happy to make a motion to move the bill.
CHAIRMAN GREEN pointed out that there are two new members who
didn't hear the previous legislation.
Number 0217
REPRESENTATIVE PORTER recalled that there had been a bill that
addressed a general inherent-risk-type of limited liability for
outdoor recreational activities; he said he'd been told there is
interest in having another such bill. He suggested that rather
than hit the legislature with skateboard facilities, equine
facilities, roller rinks and kayak operations, for example, they
should just put them together and vote on it, once it is in the
right form.
Number 0245
REPRESENTATIVE DAVIS responded that he had given that some thought
even before pursuing this legislation. He said he would certainly
support an all-inclusive bill of outdoor recreational activities.
However, he had thought that would probably hit a major snag - not
that this may not - in other committees.
Number 0285
REPRESENTATIVE PORTER said, as sponsor of the tort reform
legislation and to set Representative Davis's mind at ease a
little, that this didn't get into the tort reform bill because at
that point they didn't need new ideas. It was not a qualitative
indication of the outdoor recreational liability bill. "It was
just that we couldn't handle any more issues in that one bill," he
added.
Number 0308
REPRESENTATIVE DAVIS restated support for that concept. However,
he noted, there may be additional legislation coming forward that
addresses other individual outdoor recreational activities. He
requested, with the committee's approval, making any suggested
improvements to this and then moving it to the House Finance
Standing Committee or someplace where it might sit until they see
what the action and movement on a comprehensive bill might be.
Number 0380
REPRESENTATIVE CROFT said if that is the sponsor's wish, he is not
opposed to moving it; however, he would suggest a conceptual
amendment similar to the one they had done on the skateboarding
bill. He explained, "I think both the skateboarding and this bill
make a lot of sense in helping to define the inherent risks of an
activity and clarifying that that is not a source of liability.
But we did, in the skateboard bill, say that the negligence of the
operator - if they're keeping a bad skateboarding place or letting
it rust or whatever the situation is - we didn't mean to do that.
We meant to clarify the inherent dangers of either riding a horse
or riding a skateboard, but not to relieve them of liability for
their negligence."
REPRESENTATIVE CROFT continued, "So, the only amendment I'd have is
one page 1, line 11. And I have discussed this with the sponsor,
though he can state his own opinion. It's just to remove 'gross'
there, to say negligence or recklessness or intention misconduct is
not immunized, but keep the other parts that talk about the
inherent risk."
CHAIRMAN GREEN suggested this would relieve the burden of trying to
prove gross negligence.
REPRESENTATIVE CROFT replied, "Right, and conform to the
statements, the understanding that at least one of the supporters -
and I think the sponsor - had of the intent of the bill."
Number 0403
REPRESENTATIVE DAVIS said he had no objection to that, noting that
his non-objection is based on the definitions provided, which he
said are from Black's Law Dictionary. He indicated he assumes that
people dealing with cases on this would be referring to that
dictionary.
Number 0415
REPRESENTATIVE PORTER said to balance that out, and, again, not
thinking this would move that day, in the preceding paragraph (a),
they establish some immunity from a civil suit because of the
inherent risk, not because of negligence. He stated, "We exclude
employees and agents, while we allow them to get sued in the next
paragraph. So, I would suggest we'd want to put employees and
agents in the protected group, as well as in the exposed group."
He read from page 1, line 8, saying, "They 'may not recover civil
damages from an equine activity sponsor, an equine professional, or
an equine owner.' And I would think that you would want to extend
that to employees and agents."
Number 0475
REPRESENTATIVE CROFT offered a conceptual amendment to "remove the
word 'gross' on page 1, line 11, and that we copy from page 1,
lines 12 through 13, starting with 'equine professional, or equine
owner,' through 'activity sponsor,' and move that into page 1, line
8, after 'sponsor,' so that the - if I understood Representative
Porter's idea - that those definitions will be moved up and
correspond together."
CHAIRMAN GREEN asked whether there was any objection. There being
none, that conceptual amendment was adopted.
REPRESENTATIVE ROKEBERG said he could attest to the fact that there
was significant testimony about this in the Nineteenth Legislature.
Number 0539
REPRESENTATIVE ROKEBERG made a motion to move HB 12, as amended,
from committee with individual recommendations and attached fiscal
notes.
CHAIRMAN GREEN pointed out that unfortunately, they had no fiscal
notes. He advised Representative Davis that it would be helpful if
he could get a fiscal note in the House Finance Standing Committee.
Number 0557
REPRESENTATIVE BERKOWITZ objected to the motion, saying he was
maintaining the same objection that he'd had to tort reform. He
suggested these questions are for juries.
REPRESENTATIVE DAVIS responded, "I understand the objection, but it
certainly wasn't just last year when these concerns were brought
up."
Number 0627
CHAIRMAN GREEN requested a roll call vote. Voting for moving the
bill out of committee were Representatives Croft, Porter, Rokeberg
and Green. Voting against it was Representative Berkowitz.
Representatives Bunde and James were absent. Therefore, CSHB
12(JUD) moved from the House Judiciary Standing Committee by a vote
of 4-1.
HB 252 - REGISTRATION OF SEX & CHILD OFFENDERS
[Also contains some testimony in support of HB 360, following log
number 0847.]
Number 0645
CHAIRMAN GREEN announced the next item of business, HB 252, "An Act
relating to criminal records; relating to notice about and
registration of sex offenders and child kidnappers; and amending
Rules 11(c) and 32(c), Alaska Rules of Criminal Procedure."
Number 0654
REPRESENTATIVE JOE RYAN, sponsor, came forward to present the bill,
specifying that he represents District 21. He advised members that
considerable work had been done since the hearing in the interim,
and there is a new proposed committee substitute.
REPRESENTATIVE RYAN read from the sponsor statement, saying the
bill is offered to intensify sex offender and child kidnapper
registration statutes and the registration process in order to
better protect our citizens from criminals. Numerous citizens will
be protected, including vulnerable adults and children. The intent
is to comply with recent changes to the law, including the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act ("Wetterling Act"), and to remain eligible for
$200,000 in funds granted to states that comply with this Act.
REPRESENTATIVE RYAN advised members that under the bill, failure to
register as a sex offender or child kidnapper, or to properly
register, results in a class C felony, which is an increase from a
misdemeanor so as to induce persons to register and to do so
properly. By reducing reporting times, HB 252 reduces the time
that an offender is unregistered and unsupervised, and it reduces
the time that a sex offender or child kidnapper has to report a
change of address. It also provides for annual or quarterly
verification of addresses of sex offenders or child kidnappers.
REPRESENTATIVE RYAN said that furthermore, HB 252 adjusts the
length of time a sex offender or child kidnapper must register to
meet the requirements of 42 U.S.C. 14071. It requires the
Department of Public Safety (DPS) to notify the Federal Bureau of
Investigation (FBI) if a sex offender or child kidnapper does not
register or cannot be found. Or, if such a person moves to another
state, the FBI and that state are notified. He said they receive
written judgments and notice of duration of registration.
REPRESENTATIVE RYAN advised members that HB 252 provides for
registration at the time of conviction, to allow public knowledge
of who these offenders are and where they live. It ensures that
fingerprints and photographs are taken at a place where other
photographs and fingerprints are taken. It also provides clear
requirements for sex offenders and child kidnappers to register
upon moving into or out of Alaska. And it provides for offenders
and kidnappers to provide proof of unconditional discharge to the
Department of Corrections; this is a shift from the department to
the offender or child kidnapper.
REPRESENTATIVE RYAN continued, "It provides for expanded identity
information to be collected and used in the registry. It provides
for additional agency to fingerprint and photograph the offender or
kidnapper. It provides for 15 years' registration time for the
first offense, and life registration for the second, of sexual
assault or kidnapping. It provides for the continuation of the
registration period for one year at the instance of each failure to
register timely or properly. And it provides for notification of
other jurisdictions. It provides a definition of 'sex offender'
and 'child kidnapper,' a definition of 'sex offense,' a definition
of 'aggravated sex offense.' It provides for the Department of
Public Safety to maintain a sex offender and child kidnapper
registry, and provides for the Department of Public Safety to enter
and maintain information gathered from sources other than the
offender or the kidnapper."
REPRESENTATIVE RYAN continued, "It provides for public access to
information without making public record of the person asking for
the information. And it provides for notification of relevant
authorization when an offender/kidnapper escapes incarceration,
along with appropriate identifying information."
Number 0799
CHAIRMAN GREEN asked whether there were any questions.
REPRESENTATIVE RYAN requested permission to distribute information
they had acquired [mostly newspaper articles].
Number 0818
REPRESENTATIVE BERKOWITZ asked which version they were addressing.
Number 0847
CHAIRMAN GREEN called an at-ease at 2:16 p.m. He called the
meeting back to order at 2:20 p.m. and announced that because of
the lateness in receiving Version Q [0-LS0818\Q, Luckhaupt,
2/4/98], they would now take testimony.
ROBIN BOWEN, We Against Sexual Predators (WASP), testified via
teleconference from Anchorage, thanking Representative Ryan and his
staff for their diligence in presenting HB 252 and HB 360. She
said Alaska is indeed fortunate to have a representative so
concerned for Alaska's children. Ms. Bowen stated, "We ask simply
for the total support of these bills. Alaska's children deserve no
less. Equipping our judges with tough, clear, (indisc.) laws
ensures a greater level of safety for our children. We will
endeavor to continue to monitor specific cases during the trial and
sentencing of these offenders, to keep a line of communications
open and provide a means of accountability during these matters.
The children are now being heard and will continue to be heard."
Number 0933
CHAIRMAN GREEN asked Captain Ted Bachman, Division of Alaska State
Troopers, Department of Public Safety (DPS), whether he wished to
testify via teleconference from Anchorage; Captain Bachman deferred
to Anne Carpeneti in Juneau, who agreed to wait until after
testimony was taken from people on teleconference. In addition,
Diane Schenker, Criminal Justice Planner, Division of
Administrative Services, DPS, indicated via teleconference that she
was available for questions.
Number 0977
SUZANNE MANNIKKO, We Against Sexual Predators (WASP), testified via
teleconference from the Mat-Su Legislative Information Office
(LIO). She stated, "Eight years ago, I watched our system fail my
daughter and I. I'm as angry today as I was then. I watch our
courts run sex offenders in one door and out the other. Judges who
blame legislators, and legislators who blame judges. Sex offenders
who have a dozen charges pending before them play the 'DA game';
they hold out, plea down to lesser charges. Attorneys who defend
them with vigor, knowing that they are guilty. Troopers who say it
would be too heavy a burden to enforce our registration laws. A
correction department that cries 'foul' because they haven't time
or space. It sounds like empty excuses."
MS. MANNIKKO continued, "I don't believe any one of you could have
walked in my shoes these past years and be proud of the protection
we offer our most vulnerable members of our society - our children.
(Indisc.) was given the mandatory seven-year sentence. He again
played the system and walked out, serving only three and a half
years, leaving us mentally, physically and financially devastated.
To this day, I struggle to hold on to what little I have left."
MS. MANNIKKO continued, "Sex offenders have lost the trust of our
community and therefore must be responsible for past actions. They
laugh in our faces, refusing to register, giving false information
and hiding behind what they call their rights. What happened to
the rights of the victims and their families? What Alaskan child
should ever bear the hardship of an abortion at the age of 11? And
then to hear the perpetrator was given a sentence of only seven
years."
Number 1056
MS. MANNIKKO said she believes that any civilized society could not
find this acceptable. She said it saddens her to see one of the
wealthiest states not take up the cause for Alaskans' future, and
she characterized the system as caring more about the dollar than
about providing protection. Ms. Mannikko stated, "You must make
Alaska's sex offenders accountable for the pain, hardship [and]
financial devastation these people force us to endure." She asked
members to support HB 252 and HB 360, which toughen the stand
against sex offenders.
Number 1127
SYLVIA DAVEY also testified via teleconference from the Mat-Su LIO,
stating support for HB 252 and advising members that she works for
a day care center. She read the following into the record:
"Pedophiles. It leaves a bitter taste in my mouth just saying it.
When I hear that word, pictures of children being raped flash
through my mind. I see them crying, crying from physical and
emotion pain. What these pedophiles do to the children in this
country sickens me.
"So, I hear some law enforcement officers don't have the time or
the money to enforce Bill Number 252. Would you want your child or
grandchild to be their next victim? The pedophile moving in next
door, you not knowing they had raped a child before. The child
molester gets a cute puppy to lure your child over toward their
yard. Oh, I forget, if you wanted to, being an officer of the law,
you could have your buddies find out all you need to know about
your new neighbor.
"Well, the public relies on the sex offender list to know where
they are moving into. Do we not list owners of (indisc.) dogs in
the local paper? Well, I hold the lawmakers responsible for
enforcing laws needed to protect our children, because these
criminals are handed over to you to deal with. Are you standing up
on behalf of children or the child molester? Our laws will reflect
on whom you decide. Thank you."
Number 1207
W. ANN EDEN-MENEZES testified via teleconference from the Mat-Su
LIO, specifying that she was speaking not from a script but from
her heart. She stated, "When I was a child, my life was shattered,
all because of a sex predator. When my mother tried to get help,
he, the predator, cried insanity - he cried her insanity. And as
a result - through two years of in and out of institutions, where
they did shock therapy on her brain to try to erase her memories,
because she was Indian, he was of the European ethnic background -
my mother was shattered. I never saw my mother again. (Indisc.)
provided that my mother wasn't there.
MS. EDEN-MENEZES continued, "I was separated from siblings. I
spent nights weeping and crying, wondering where my family was, and
trying to find that thing that was robbed from me that I could no
longer pull back, that sense of protection, that sense of purity,
that sense that I was special. And to find that we have in our
capability to be able to require these people to register --
because had my predator been required to register, many other
children would have grown up safely. But no, they listened to him.
They believed him. And they shattered so many lives, and there are
still others that are being shattered."
MS. EDEN-MENEZES continued, "Sex predators appear harmless, and to
the normal adult, they are harmless, because they do not have the
gumption to face the real people. They pick on children. They are
like devouring slugs. They're underground. They're nipping at the
roots of something very precious. You have it in your power to
protect the garden or to protect the slugs. Which will it be?"
Number 1326
CHAIRMAN GREEN thanked Ms. Eden-Menezes for sharing that
regrettable incident, acknowledging that it took a lot of courage
on her part. He then thanked the other testifiers and asked that
anyone with written testimony send it or fax it to the committee.
Number 1354
ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Crim
history. Jacob Wetterling was an 11-year-old boy who lived in St.
Joseph Minnesota; he was abducted by a masked man with a gun and
was never seen again. The police investigated; the case was
similar to one that happened in the next community, and they
assumed it was a sex offender who had taken him.
MS. CARPENETI told members that as a result of this and other
crimes of this nature, Congress passed the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act,
which requires states to adopt a registration program for people
who commit certain crimes against children and certain sex
offenses. When this was passed, Alaska already had a good sex
offender registration program, which was adopted in 1994. Ms.
Carpeneti said that makes it easier for Alaska to comply with the
Wetterling Act than for other states, by adding certain new
offenses to those required to be registered in Alaska - for
example, kidnapping of children under the age of 18. She noted
that for one particular offense, sexual contact by a person over 18
in a position of authority with a 16-year-old or 17-year old, the
state cannot comply with the Wetterling Act without a major change
in statute.
Number 1459
MS. CARPENETI advised members, "The main thing that we need to do
to comply with Wetterling is to have people who are convicted for
the second time, or of serious offenses, to register or verify
their address every 90 days with an agency of the state. And this
bill - it's similar to the Governor's bill - requires that people
... who are convicted of these serious offenses or for a second
time have to verify their address every 90 days with the police."
MS. CARPENETI told members the Wetterling Act was amended by
Megan's Law, named after a seven-year-old child who was raped and
killed by a sex offender living across the street from her. Ms.
Carpeneti explained, "What that did was Wetterling had originally
provided that the information that the states gain at the time of
registration was confidential and could only be used by law
enforcement. Megan's Law provided that ... the states can decide
whether or not to disseminate the information; and they are, in
fact, required to disseminate information that is important to the
public safety."
MS. CARPENETI expressed appreciation for the work Representative
Ryan has done. Again noting that HB 252 is similar to the
Governor's bill, she advised members that it does bring the state
into compliance with the Wetterling Act and with Megan's Law. She
said there are a few little "fixes" that the department would
recommend, and she specified that she had been working from Version
P. [A copy of Version Q was then provided to her.]
Number 1540
MS. CARPENETI pointed out that HB 252 raises to a class C felony
failure to register as a sex offender, and it adds some other
behavior such as failure to verify one's address quarterly for a
person required to register for life. She stated, "It will
probably be a presumptive term, because ... most registerable
offenses are offenses. This will be a second felony offense, which
will be a two-year presumptive term, so you should be aware that
... that's what we're getting into by making it a C felony."
Number 1587
REPRESENTATIVE PORTER stated his understanding that the Department
of Corrections had changed the procedure for registration so that
a person is registered prior to release, as opposed to being
released and then having to come back to register.
MS. CARPENETI replied, "That's correct. And actually, ... that's
in the Governor's child protection bill, and we're putting it into
law. In practice now, that's exactly what they're doing." She
said unfortunately, Title 33 is a little confusing.
Number 1618
REPRESENTATIVE PORTER asked, "Have the fiscal notes as regards
failure to register been adjusted to that policy?"
MS. CARPENETI said she wasn't sure. She stated, "But in addition
to failure to register, this bill provides that if you fail to
verify your address quarterly, and if you -- every year, that sex
offender registration requires you to, every year, check in, sort
of, with the Department of Public Safety and tell them either that
any of the information has changed or, in fact, that it hasn't
changed. So, failure to do that would be a C felony under this
bill."
CHAIRMAN GREEN asked, "If you did that more than once, if it's
quarterly, would that be a repeat offense? Would that be a third
felony then?"
MS. CARPENETI said yes.
Number 1659
REPRESENTATIVE BERKOWITZ said it also seems that if there is any
problem with failure to register, there is potentially a perjury
charge if false information is provided.
MS. CARPENETI replied, "Yes, the bill also provides that providing
false information on the sex offender registration or verification
is punishable by perjury, which is a class B felony."
Number 1683
REPRESENTATIVE BERKOWITZ asked, "If this was required to be sworn
testimony, would it in any event be perjury?"
MS. CARPENETI replied, "I think if you'd write the right things on
the forms, you can make it perjury for putting false information -
knowingly putting false information - on a registration form."
Number 1699
REPRESENTATIVE BERKOWITZ suggested that in essence, someone who
attempts to camouflage his or her whereabouts by providing false
information would already be committing a felony.
MS. CARPENETI responded, "Without this bill, no, I think it would
be unsworn falsification on this point. ... It depends on what the
form says. But we have been pursuing unsworn falsification for
people who lie on their registration materials. This bill would
make it a perjury, and they'd have to rewrite their forms so that
it was clear that providing false information ...."
REPRESENTATIVE BERKOWITZ said in essence, at the very least at this
point it is two misdemeanors, unsworn falsification and failure to
register, which stacked have a two-year term.
MS. CARPENETI concurred.
Number
Number 1752
REPRESENTATIVE ROKEBERG said he noticed throughout the bill that
the additional crime of child kidnapping is added. He asked
whether that is mandated by the federal statutes.
MS. CARPENETI said yes. She added, "Jacob Wetterling requires us
to register people who kidnap children under 18."
REPRESENTATIVE ROKEBERG asked about Ms. Carpeneti's statement that
the Wetterling Act is amended by Megan's Law.
MS. CARPENETI explained that Megan's Law only amended the provision
in the Wetterling Act that addressed what information, once they
get it, the states can disseminate to the public.
Number 1796
REPRESENTATIVE ROKEBERG asked whether because of the federal
requirement, there is a time deadline that Alaska has not acted
upon, or whether recent changes in federal law have spurred this.
MS. CARPENETI replied that the budget bill last year that Congress
passed had some provisions, which they called the Jacob Wetterling
Improvement Act [Jacob Wetterling Crimes Against Children and
Sexually Violent Offenders Registration Improvement Act of 1997].
She stated, "The federal government has not yet issued guidelines
telling us exactly what these provisions mean. It looks like
they're going to be loosening up the requirements a little bit, but
not very much."
Number 1835
CHAIRMAN GREEN asked whether it would constitute kidnapping if a
19-year-old boy took a 17-year-old girl home from school, she
wanted to get out of the car, they got in an argument and he
detained her, for example.
MS. CARPENETI said it would depend on the particular facts. She
indicated HB 252 doesn't change the substance of the law regarding
kidnapping at all.
Number 1873
REPRESENTATIVE BERKOWITZ said it seems that a 16-year-old who
kidnaps a 17-year-old would be guilty of child kidnapping under
this interpretation and would be required to register.
MS. CARPENETI replied that unless juveniles are tried as adults,
they haven't been registered as sex offenders. She asked whether
he was talking about a juvenile prosecuted as an adult.
REPRESENTATIVE BERKOWITZ said yes, for kidnapping someone.
MS. CARPENETI said yes, then, that is correct.
Number 1949
REPRESENTATIVE ROKEBERG said he would love to debate about what
child kidnapping should be, but apparently it is the federal law.
He suggested that many parents without custody of their children
are involved in child kidnapping; he said under this bill, those
people would be registered. He asked whether that is correct.
MS. CARPENETI explained, "Generally, our kidnapping statutes do not
apply to parents who move their children from one place to another.
... That's considered custodial interference, and that is not a
basis for registration as a sex offender."
Number 2008
REPRESENTATIVE ROKEBERG referred to Section 12, Version Q, page 7,
beginning at line 7. He asked whether "solicitation" refers to
prostitution. Noting that it indicates that engage or inducing
someone 16 or 17 years of age in prostitution is a sex offense for
the purpose of this statute, he asked whether solicitation alone
wouldn't be a sex offense as well.
MS. CARPENETI indicated that because they are required to by the
federal government, they have added as a registerable offense the
offense of a person in a pimp position getting a child to engage in
prostitution.
Number 2114
REPRESENTATIVE BERKOWITZ commented that drawing on past experience,
he interprets "solicitation" in this context to mean soliciting
someone to commit this crime.
Number 2141
REPRESENTATIVE ROKEBERG said he wasn't that familiar with the bill
or the statute. However, he was concerned that the different
levels of what constitutes a sex crime for the purpose of this
registration are all treated equally. He asked whether that is
mandated by federal law or state law. He mentioned indecent
exposure as an example on one end of the spectrum.
MS. CARPENETI explained that most registerable offenses are
felonies. It is directed in some part by federal law, but the
crimes required to be registered are the more serious sex offenses,
at least as opposed to indecent exposure, which is a misdemeanor.
Number 2249
CHAIRMAN GREEN stated his understanding that they are talking about
offenses done to children, not adults.
MS. CARPENETI clarified that the offenses that require registration
don't depend on whether the victim is a child, except in a couple
of instances such as child kidnapping or the offenses referenced in
Version Q, page 7, lines 13 through 15. A person convicted of
sexual assault on an adult is required to register under the sex
offender registration provision. Ms. Carpeneti commented, "And I
guess these decisions were made in 1994, when the bill was passed,
that ... the people who commit these offenses are dangerous enough
to require this registration procedure."
Number 2337
REPRESENTATIVE ROKEBERG asked whether there are instances in the
statutes where a threat without actual contact could lead to a
prosecutable sexual assault.
Number 2434
MS. CARPENETI replied that conviction of an offense is what
triggers a person's responsibility to register as a sex offender.
"We have to prove beyond a reasonable doubt that the behavior ...
proscribed by the legislature in our statutes has in fact
occurred," she stated, adding that beating someone up is not a
registerable offense if there is no sexual act.
TAPE 98-10, SIDE A
Number 0006
REPRESENTATIVE ROKEBERG asked whether attempted sexual assault
would be a sex crime under this law.
MS. CARPENETI said yes.
REPRESENTATIVE BERKOWITZ added, "B felony."
MS. CARPENETI said it depends on the level of the offense.
Number 0052
REPRESENTATIVE ROKEBERG expressed concern and asked again whether
there are ways to make distinctions between the types of crimes, or
whether this is mandated by the federal code.
MS. CARPENETI said she hated to give this answer, then stated that
she assumes Congress, when it made its assumptions as to who should
be registered, was looking at the seriousness of the offense and
had some good reasons to include them as registerable offenses.
Ms. Carpeneti added, "Actually, what this legislature passed in
1994 was pretty similar to what the Wetterling [Act] requires us to
register, with a couple of exceptions, and that is a child
kidnapping, a kidnapping of a child under 18, and ... sexual abuse
of a minor. And maybe I wasn't clear enough. Sexual abuse of a
minor is included here, so -- in the sense that those victims are
minors."
CHAIRMAN GREEN said, "But not limited to that."
MS. CARPENETI said, "It's not limited to that. We also had to
include, under the Wetterling Act, ... the crime where an
individual who is 18 years of age or older has sexual contact with
a 16- or 17-year-old and is three years older and is in a position
of authority in relation to that 16- or 17-year-old. ... That is
required by the ... federal law. But otherwise, most of these
provisions were already in our sex offender registration statutes."
Number 0205
MS. CARPENETI continued, "The next suggestion we have is found on
page 2. And we've talked to the sponsor about it, and he has his
reasons, which I think are good ones. We would suggest, rather
than requiring registration at the time of conviction, to require
registration of people who are incarcerated for their offense right
before they are released from jail, within the 30-day period of
release from jail, for a couple of reasons. Their photograph is
going to be more recent. And people change over a period ... of
five or six or seven years in jail, their appearance changes. And
it's best to get the most recent picture. And if they're in jail
already, they're really not posing a danger to the community.
That's one reason."
MS. CARPENETI continued, "Once they register, we want to find out
every year ... if they've moved. And there's no reason to do that
if they're in jail, because they're not moving to a place, or
they're not in a place that presents a danger to the community.
Number 0278
MS. CARPENETI continued, "The third reason is that practically,
requiring them to register at the time of conviction presents some
problems, because a person is convicted at the time ... that they
are sentenced for the offense, ... and to register as a sex
offender, you have to register with the police, or, if you're in
jail, the Department of Corrections will register you. But it
would require -- I don't know exactly what we would do. We would
require a police officer or some state official to be there, if
that's how it's interpreted, to register at the time of conviction.
It just seems to make a lot more sense to us to register once,
right before release, so that we have a recent picture, the person
has more idea where he or she is going to be living when ... he or
she is released. And the Governor's child protection bill requires
the person ... to register within the 30-day period ... from their
release from jail, and to have the Department of Corrections do
that. And we would suggest that's a better approach."
CHAIRMAN GREEN asked whether she was suggesting within 30 days or
at the time of release.
Number 0360
MS. CARPENETI clarified, "Within the 30-day period before release,
so that it gives Corrections some time to take their fingerprints
and their photograph and make sure everything is ...."
REPRESENTATIVE ROKEBERG noted that it would be everything except
their address, because they don't know where they're going to be.
MS. CARPENETI replied, "Well, they might know at that time, but
they'd probably know a lot better when they're released than when
they're first convicted."
CHAIRMAN GREEN said he'd wanted to make sure it was within 30 days
before, not within 30 days after.
Number 0393
MS. CARPENETI affirmed that and specified that in Title 33, the
Alaska Statutes now provide that. She added, "Unfortunately,
there's confusion because ... our statutes in Title 12 say 'within
seven days of release,' and that's a problem because, you know,
people may not go register. And we don't want that to happen."
Number 0419
MS. CARPENETI provided suggested amendments to Version Q. First,
on page 8, line 1, Section 14, she suggested adding the word
"registration" between the words "receives" and "information" at
the beginning of that line.
MS. CARPENETI next referred to page 8, line 3, and stated, "We
appreciate the sponsor adding this; this was at our suggestion.
But ... after reading it this morning, we thought it'd be clearer
to say, 'Unless the sex offender provides proof that he is out of
state or has already complied with the time limits,' so that it's
clear that the department isn't putting information on the central
registry ... when they know that the person no longer has to
register or ... when they have proof that they're out of state."
MS. CARPENETI said they are trying to make it easier for the
Department of Public Safety, and she indicated Diane Schenker could
address that. Ms. Carpeneti then explained that when people don't
register and the state gets information from court judgments or
other sources, they can put it on the registry. She added, "If we
think these people are around, the public should know it, even if
they haven't registered." She said she could provide this proposed
amendment to the committee staff.
Number 0518
MS. CARPENETI then made what she called a minor suggestion, on page
11, line 8, to add the words, "sex offender central registry" after
the phrase, "the Department of Public Safety". She explained that
this is so that local police departments and the Department of
Corrections send this information to the registry, rather than to
Alaska State Trooper headquarters or some other place where it
would have to be passed along.
Number 0697
MS. CARPENETI said those are her main suggestions. She told
members, "We've been working with Representative Ryan and his
staff; they've been very cooperative with us, and we'd be glad to
continue to do so."
Number 0714
CHAIRMAN GREEN suggested that the sponsor review these suggestions
with Ms. Carpeneti and then return with another proposed committee
substitute or formal amendments to offer. This would also give the
committee a chance to review Version Q. He noted that there were
still people signed up to testify, and he thanked Ms. Carpeneti.
Number 0767
BARBARA BRINK, Director, Public Defender Agency, Department of
Administration, came forward to testify, reminding members that she
had also testified about some of her concerns the previous October.
She indicated she had received more information since then.
MS. BRINK stated, "My main concern at that point was with
increasing the penalty from a misdemeanor to a felony, and with
increasing the numbers of times a person has to register within a
year cycle, and with increasing the amounts of information one must
provide, that there was the potential for many more violators to
inadvertently be caught within this net. I did learn, since my
worries about ... how many people that might be, that last year the
Department of Law prosecuted 127 people for failure to register.
It certainly has an impact upon my agency and upon how we are able
to do business, whether we're representing 127 misdemeanors versus
127 felonies - and, as Ms. Carpeneti pointed out, 127 felonies with
mandatory two-year sentences."
MS. BRINK pointed out that felonies are much more time-consuming
and labor-intensive than misdemeanors. Therefore, she had adjusted
her fiscal note and wanted to bring that to the committee's
attention. She added, "But I think it's still a very conservative
adjustment. I've only asked for half an attorney position, which
I don't think will be sufficient, because as you continue to roll
the requirement for registration and verification, four times a
year every year for 15 years, the potential for having many people
charged for inadvertent failures to register is very great. And
... I also had a figure from the Department of Public Safety; I
don't want to impose upon their testimony, because I know they're
present, but my understanding was that out of 1,700 people who did
faithfully register, last year when the time for the annual
verification or renewal came around, I believe 690 people didn't
make it."
MS. BRINK continued, "And my concern is that a great percentage of
those people are not the ones that you're really after. I mean, I
understand being after the stealth criminal, the person who's
hiding, manipulative, conniving, evasive, and because of that, he
is a serious danger. My concern is that we are sucking in a
population that just isn't very good about following meticulous
rules, isn't -- they don't get their cars registered on time,
either. And certainly this is a much more serious problem. But if
there could be an effort to sort of narrow the field, I think that
your concerns about protecting the community and registering those
people that we really want to know about can be induced to do that
with perhaps a change in the severity of the offense or in the
requirements."
Number 0926
CHAIRMAN GREEN asked whether a more severe penalty would better get
the attention of the people that have inadvertently failed to
register. He suggested it was different from failure to register
a car.
MS. BRINK replied that it is hard to say. Increasing penalties for
some offenses has shown a deterrent effect; she cited the three-day
minimum penalty for driving while intoxicated (DWI) as an effective
tool for those people who actually think about consequences. She
stated, "So, for that population that maybe isn't just putting it
on the right priority scale, I think a slightly more severe penalty
may have an effect. It may be that once law enforcement starts
prosecuting a few more of those and the message gets out, that may
have a more deterrent effect. I wish I knew the answers to those
questions. That would certainly make drafting criminal legislation
a lot easier."
Number 1002
CHAIRMAN GREEN asked how they defend clients who have failed to
register.
MS. BRINK said her own experience is rather limited because she is
not personally representing those misdemeanants. However, in
talking with her staff attorneys, it is a rare situation where
somebody is willfully doing that to be evasive. She stated, "And,
in fact, there is a case pending, as I understand it, right now in
Southeast Alaska in the Kake district court, where the whole
question is: Was this failure to register intentional or willful,
or was it completely an accident or mistake or negligence, and how
does that affect the charge? Is the state required to prove that
this was intentional? Or is it sufficient to just show that they
missed their deadline? And so, it's a sticky legal question."
MS. BRINK indicated the limited cases she has seen personally have
not involved intention, evasion or deliberateness. For example,
she had just represented someone who registered three times in a
row successfully but missed his fourth time and was charged. Ms.
Brink stated, "And my impression of that individual wasn't that he
meant to miss it but that other things took priority. And I agree
with you that's wrong. But by demonstrating that he had registered
successfully three times, my impression was that it was a mistake."
Number 1091
CHAIRMAN GREEN asked whether failure to register requires intent.
MS. BRINK replied that the definition is "knowingly." She said it
is kind of a factual question of what was going on in that person's
mind at the time.
REPRESENTATIVE PORTER asked whether the Kake case is being handled
by the Public Defender Agency.
Number 1112
MS. BRINK said no, it is an Office of Public Advocacy (OPA)case.
Referring to an earlier question of Representative Rokeberg's, she
then noted that Version Q, page 7, Section 12, refers to AS
11.51.130, which is contributing to the delinquency of a minor.
She indicated she had just received Version Q a few minutes
beforehand.
CHAIRMAN GREEN asked whether Ms. Carpeneti had information to add.
Number 1196
MS. CARPENETI clarified that that definition of a serious offense
is in Title 12, Chapter 62; it is not a registerable offense. It
is a definition that has to do with what records can be given to
people who are looking to hire a babysitter or somebody who is
going to be working with vulnerable adults or children, for
example. A person who is convicted of that offense does not have
to register as a sex offender.
Number 1172
MS. BRINK stated, "I understand the legislature's concern about
protecting the public, and I understand the legislature's concern
about complying with the Wetterling Act. I just wanted to
reemphasize two things. The Wetterling Act does not require that
we change this into a felony-level offense. And, number two, even
the Department of Justice - the National Institute of Justice
Section of the U.S. Department of Justice - says everybody's
jumping on this bandwagon. We now have 43 states that require
registration, and presumably all 50 will soon be in compliance.
But there still is no empirical evidence that that reduces the rate
of recidivism. We're trying something; we don't know whether it
works."
Number 1273
CHAIRMAN GREEN asked whether Ms. Brink has a feel for the way the
43 states handle this and whether it is a felony or a misdemeanor
in those states.
MS. BRINK said she didn't have that information off the top of her
head. She said she knows that so far, New Jersey is the only state
that requires this every 90 days.
CHAIRMAN GREEN asked whether that is a felony or a misdemeanor.
MS. BRINK said she didn't know but would get that information.
Number 1298
REPRESENTATIVE ROKEBERG stated his belief that testimony indicated
the 90-day or quarterly registration is part of the Wetterling Act.
MS. BRINK said that is what she understands from the Department of
Law.
Number 1468
DEL SMITH, Deputy Commissioner, Office of the Commissioner,
Department of Public Safety, came forward to testify, expressing
support for HB 252. He said he wanted to make it abundantly clear
that throughout his law enforcement career, he has not been
concerned about what the punishment is for any particular crime.
"My job, then and now, was to apprehend people," he said. "I might
have personal feelings about what the punishment should be, but the
Department of Public Safety doesn't want to argue about whether it
should be a felony or not. There are certainly things that go
along with being a felony that cost more than it does currently,
and it's been fairly well-articulated here, so I don't want to
belabor that point. But there are other things that I think could
be done if you chose not to make it a felony, such as some kind of
mandatory minimums for misdemeanors and those kind of things."
DEPUTY COMMISSIONER SMITH pointed out that approximately 3,300
people are currently required to register, if they are in the
state. At one point last year, 1,700 were registered. As Ms.
Brink had indicated, 690 had failed to re-register within the 30
days prior to their birthdays.
DEPUTY COMMISSIONER SMITH stated, "That was about two weeks ago
that I got that information; we're down to 590 now, as we slowly
track down, charge people and do that. For some reason, that
dropped off. That's nearly a third of what we had registered.
Clearly, ... somebody's thinking that it's not a big deal if they
don't. So, I would say that that certainly bears some attention on
the part of the legislature regarding this."
Number 1421
DEPUTY COMMISSIONER SMITH told members the other issue he certainly
supports in this is the availability of names of others than those
people who choose to obey the law and come in to register. "And we
can't put that out as part of the sexual offender registry, under
our interpretation of the current law," he explained. "And there
is a section of this that certainly would allow us to do that,
getting the information from other sources."
DEPUTY COMMISSIONER SMITH continued, "We can't put it out if we
don't know they're in the state. And it is a very, very time-intensive process
trooper was assigned for a week down here about two weeks ago, in
Juneau - not a lot of road system here - but tracked down eight
people in five days, from going from address to address; so, it is
very labor-intensive."
Number 1458
CHAIRMAN GREEN said he was hearing that while it may be more
expensive, at least certain portions would be helpful.
DEPUTY COMMISSIONER SMITH replied, "I think some enhanced
punishment for not complying with the law might be in order here.
I don't know what drove those folks to say, 'Gee, I recognized the
one time that I had to register; now I don't.' I don't think all
600 left the state."
Number 1478
REPRESENTATIVE BERKOWITZ referred to Section 18, which contains a
requirement that the sex offender or child kidnapper must provide
fingerprints. He suggested it might be helpful for them to also
provide a DNA (deoxyribonucleic acid) sample. He asked whether any
thought had been given to that.
DEPUTY COMMISSIONER SMITH replied, "Not specifically, but ... there
is a requirement that we get DNA samples for people convicted of
certain offenses now, that passed two years ago, and we are
collecting DNA samples. Whether it's all of these sex offenders,
I cannot tell you off the top of my head. But it certainly would
not hurt in the long run."
Number 1525
CHAIRMAN GREEN suggested that would add both to the cost and to the
proof, at least. He asked, "Would it help you any in finding
these? You mentioned the labor-intensiveness and so on. It would
certainly eliminate any mistakes."
DEPUTY COMMISSIONER SMITH responded, "It would certainly eliminate
any mistakes, but hopefully the fingerprints do also. We take a
set of registration fingerprints (indisc.) to help us do that. As
relative to the DNA - I was advised the other day - we take blood
currently, but it's also possible, given the two years that have
passed, that we can just do a swab of saliva also, which help us
capture DNA samples." Mr. Smith said it would not be particularly
problematic to do that.
Number 1561
REPRESENTATIVE ROKEBERG asked whether, if someone was in breach of
a series of class A misdemeanors, that could become a felony; he
asked whether any such laws now exist.
REPRESENTATIVE PORTER pointed out that there are other offenses
where a third or fourth or fifth conviction becomes a felony, such
as for a DWI; however, those are not simultaneous offenses.
DEPUTY COMMISSIONER SMITH agreed, saying a third-time felony DWI
comes to mind.
Number 1654
JAYNE ANDREEN, Executive Director, Council on Domestic Violence and
Sexual Assault, Department of Public Safety, came forward to
testify. She stated, "I think it goes without saying that the
council is consistently interested in seeing whatever we can do
take place to protect victims of sexual assault and child abuse.
Therefore, we do support this bill."
MS. ANDREEN continued, "There is one caution that we have, that we
want to look into further - we've talked to the sponsor's aide
about that - and that's the concern that victims of domestic
violence who flee to protect themselves and their children would
not be captured under this child kidnapping. I understand that
that's most often treated as a custodial-interference-type of
thing. But that's the only caution we have, and otherwise, we
support the bill."
Number 1691
REPRESENTATIVE CROFT said that was a concern he had as well. He
said he had looked up the statute on kidnapping, which makes as an
affirmative defense that the defendant was a relative of the
victim, the victim was under 18, and the primary intent was to
assume custody.
CHAIRMAN GREEN advised members that the testimony was concluded.
Number 1712
REPRESENTATIVE PORTER noted that the sponsor had been asked to look
at some things. He asked that perhaps a look be taken at failure
to register or failure to provide an address, for example, with the
idea that a mandatory minimum for a first offense misdemeanor be
considered, with perhaps a felony for repeat offenses. He
expressed concern over the effect of the high fiscal notes when
this bill gets to the House Finance Standing Committee.
Number 1752
REPRESENTATIVE CROFT referred members to his proposed amendment L.2
[0-LS0818\L.2, Luckhaupt, 2/2/98, in committee packets]. He
suggested it is another approach that makes it a C felony if it can
be shown that a person failed to register "with the intent to
escape detection to do this crime." He indicated there would be
two levels, the first of which is negligence.
REPRESENTATIVE PORTER suggested it may be worth checking with the
Department of Law as to their opinion on the case in Kake. He said
if the standard now is "knowingly failing to register," there is a
good chance there might be some requirement of intent in that. He
stated, "And so, in effect, there might be a problem in the statute
in any event that needs to be looked at." He suggested at one
level, malum prohibitum, it could be a misdemeanor with a mandatory
minimum for failing to register, period; it would not be knowingly.
Then, if there is a standard of "knowingly," perhaps there could be
a felony under that standard or for repeat offenses of just failing
to register.
CHAIRMAN GREEN asked whether for a standard of "knowingly," the
degree of proof is as severe as for a standard of "intentionally."
REPRESENTATIVE PORTER said yes, it is basically the same.
CHAIRMAN GREEN noted there was disagreement from others.
Number 1815
REPRESENTATIVE CROFT said he could look into it further, but there
has to be some level of culpability beyond just not registering.
For example, if a person does everything that should be necessary
to register - sending in the form, walking it there, and so forth -
but there is a glitch or error in entry, that person has failed to
register in fact. Representative Croft suggested there must be
some level of culpability, some requirement, beyond just not doing
it.
Number 1839
REPRESENTATIVE PORTER replied, "I'll agree that technically you can
articulate differences between knowingly and intentionally,
although I would suggest that most folks would imply intention with
knowingly, because you have to prove that you knew it; so,
intention is implied. There's basically two levels of offenses:
malum prohibitum and malum in se. Malum prohibitum means it's
against the law whether you knew about it or no; if you go through
a stop sign you didn't see, tough, it's malum prohibitum, it's
against the law, you get a ticket, you pay your money. Malum in se
requires the proof of intent, knowing, whatever you want to call
it, but it's basically intent. My suggestion would be that you
make malum prohibitum failing to register, or failing to furnish
the quarterlies, and make it a mandatory minimum misdemeanor.
That'll get their attention. But, quite frankly, ... these fiscal
notes don't bode well in Finance if you don't try to ...."
Number 1890
REPRESENTATIVE RYAN said perhaps 3,300 people are convicted. Of
those, 1,600 show up on the Department of Public Safety's list.
Approximately 600 of those are not registered correctly.
Representative Ryan stated, "My aide ran the first hundred on the
list this morning and found 31 percent were incorrectly registered;
they're either lacking information, outdated information, so forth.
So, obviously, 31 percent of these guys are blowing it off, out of
the first hundred, and ... only 1,600 out of 32 [thousand] or 33
[thousand]; that's 50 percent blowing it off. We're not getting
very good policy."
REPRESENTATIVE RYAN indicated someone from the Office of the
Attorney General had talked with him about reducing this from a
felony and making it a little stiffer misdemeanor. Representative
Ryan stated, "And what my aide's research found out was the people,
if they were apprehended, they were registered, they came to the
judge, the judge says, 'Well, are you registered or not?' 'Yeah,
we registered.' 'Good. Case dismissed.' It doesn't seem to do
it."
REPRESENTATIVE RYAN advised members that the reason he made this a
class C felony was to put a hammer there, without probation or
parole, as an inducement to register. Then the citizens in the
community can find out who these guys are and keep the light on
them, he concluded.
Number 1950
REPRESENTATIVE PORTER asked how many of those failures were as a
result of the felon registering himself, as opposed to the new
policy of the Department of Corrections. He said he didn't know
when that policy went into effect.
REPRESENTATIVE RYAN deferred to David Pree to answer.
Number 1960
DAVID PREE, Legislative Assistant to Representative Joe Ryan,
Alaska State Legislature, said he didn't know that he could answer
the question, but he could explain what he had done. He stated, "I
took just simply the first 100 names that I encountered in the sex
offender registration that's on the Internet, and I printed them
out. And I ... began noticing quickly that 'not in compliance' was
noted on these. And when I was finished, I separated those in
compliance and those not. As far as I can tell from this form, it
doesn't specify why they're not in compliance, just they are not."
REPRESENTATIVE PORTER suggested that statistically that would mean
that most of those were done by the individuals, rather than by the
department.
Number 2002
REPRESENTATIVE BERKOWITZ said, "We're going to have a couple of
policy imperatives here. The first is we want folks to register,
in order to provide for community safety. The second is ... we're
going to have to do this within the constraints of other cases that
are ongoing, in terms of the resources required for the Department
of Law, the Department of Public Safety, the Department of
Corrections." He said on one hand, they want to ensure that
everyone registers and that there is a big enough hammer. But on
the other hand, they want to be able to move these cases through
the system in a way that doesn't compromise public safety. He
suggested they could come up with a way to separate out those who
pose no additional danger to society but just are not good with
forms, for example, from those who are intentionally trying to
evade. He suggested the additional hammer may work for the latter.
Number 2169
REPRESENTATIVE RYAN commented that he is a critic of the discretion
that prosecuting offices have to plea bargain, dismiss cases, and
so forth. He suggested part of the problem is that the more
difficult cases slide. He expressed concern about people who are
flagrantly blowing the system off. He stated, "The object of this
whole exercise on my part is to satisfy a public cry that I hear,
and we've heard lots of testimony: 'We want to know who these guys
are, and we want to know if they're in our neighborhoods, so we can
watch 'em and keep our kids away from 'em.' And I told the AG's
office [Office of the Attorney General] when they said, 'Well, can
we find a way to get around the class C felony?' I said, 'Okay,
give me a year in jail on a misdemeanor - mandatory year in jail -
and I'll take it.' ... Justice works, and the criminal system
works, when punishment is swift, sure and certain. You know if you
do the crime, you're gonna do the time. That has a deterrent
effect. But if you can go, like in Los Angeles, where you commit
19 crimes for every arrest, and 12 arrests for every conviction,
why, gee, it's good business; the odds are pretty good, you know."
Number 2115
REPRESENTATIVE BERKOWITZ said if jails worked, we wouldn't need
any, which is sort of the rub of the problem. However, jails don't
work for everyone as a deterrent. "But there are hammers out there
with the misdemeanor penalty," he stated. "All these folks that
you're talking about, who are sex offenders, they're facing the
loss of probation time or parole time; so, that additional hammer
is on them. Plus, ... if they fail to comply in the appropriate
way, there could be additional charges stacked on top of just the
failure to register. We've already seen the false information
charges. You could be looking at felony perjury charges. ... It's
not as if the district attorney's office is without tools in this
regard. So, there are hammers available."
REPRESENTATIVE BERKOWITZ continued, "But what the DA's offices are
constrained by, as well as the troopers, it's just a complete lack
of resources. When you give them a choice between prosecuting a
felony - such as a homicide or a dangerous assault or a drug
dealing in a school yard - as opposed to going after someone who
hasn't registered and might not be posing an ongoing threat to the
community, and you've got a choice with limited resources, it's not
a choice. So, we can talk real tough here. And we do talk real
tough here. But until we put the money on the table, so the
troopers and the DAs can do the job, it's just empty talk."
Number 2169
REPRESENTATIVE RYAN indicated they had heard testimony from the
Public Defender Agency about an average time of 41 days for the
people who were arrested. He commented that it isn't much of a
deterrent. [HB 252 was held over.]
ADJOURNMENT
Number 2191
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee
meeting at 3:26 p.m.