ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 23, 2005
8:04 a.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CONFIRMATION HEARING(S)
Chief Administrative Law Judge
Terry L. Thurbon - Douglas
- CONFIRMATION(S) ADVANCED
HOUSE BILL NO. 187
"An Act establishing the Alaska capital income account within
the Alaska permanent fund; relating to deposits into the
account; relating to certain transfers regarding the Amerada
Hess settlement to offset the effects of inflation on the Alaska
permanent fund; and providing for an effective date."
- MOVED HB 187 OUT OF COMMITTEE
HOUSE BILL NO. 188
"An Act establishing the State of Alaska Capital Corporation;
authorizing the issuance of bonds by the State of Alaska Capital
Corporation to finance capital improvements in the state; and
providing for an effective date."
- MOVED HB 188 OUT OF COMMITTEE
HOUSE BILL NO. 91
"An Act relating to indecent exposure."
- MOVED CSHB 91(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 219
"An Act relating to crimes and dangerous instruments."
- MOVED HB 219 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 187
SHORT TITLE: AMERADA HESS INCOME; CAPITAL INCOME ACCT.
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/28/05 (H) READ THE FIRST TIME - REFERRALS
02/28/05 (H) JUD, FIN
03/09/05 (H) JUD AT 1:00 PM CAPITOL 120
03/09/05 (H) Heard & Held
03/09/05 (H) MINUTE(JUD)
03/10/05 (H) CORRECTED GOVERNOR'S TRANSMITTAL LETTER
03/16/05 (H) JUD AT 1:00 PM CAPITOL 120
03/16/05 (H) Scheduled But Not Heard
03/18/05 (H) JUD AT 1:00 PM CAPITOL 120
03/18/05 (H) Scheduled But Not Heard
03/23/05 (H) JUD AT 8:00 AM CAPITOL 120
BILL: HB 188
SHORT TITLE: STATE OF AK CAPITAL CORP.; BONDS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
02/28/05 (H) READ THE FIRST TIME - REFERRALS
02/28/05 (H) JUD, FIN
03/09/05 (H) JUD AT 1:00 PM CAPITOL 120
03/09/05 (H) Heard & Held
03/09/05 (H) MINUTE(JUD)
03/10/05 (H) CORRECTED GOVERNOR'S TRANSMITTAL LETTER
03/16/05 (H) JUD AT 1:00 PM CAPITOL 120
03/16/05 (H) Scheduled But Not Heard
03/18/05 (H) JUD AT 1:00 PM CAPITOL 120
03/18/05 (H) Scheduled But Not Heard
03/23/05 (H) JUD AT 8:00 AM CAPITOL 120
BILL: HB 91
SHORT TITLE: INDECENT EXPOSURE TO MINORS
SPONSOR(S): REPRESENTATIVE(S) COGHILL
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) JUD, FIN
03/23/05 (H) JUD AT 8:00 AM CAPITOL 120
BILL: HB 219
SHORT TITLE: STRANGULATION CRIMES
SPONSOR(S): REPRESENTATIVE(S) HAWKER
03/15/05 (H) READ THE FIRST TIME - REFERRALS
03/15/05 (H) JUD, FIN
03/23/05 (H) JUD AT 8:00 AM CAPITOL 120
WITNESS REGISTER
TERRY L. THURBON, Appointee
Chief Administrative Law Judge
Douglas, Alaska
POSITION STATEMENT: Testified as appointee to the position of
Chief Administrative Law Judge.
KAREN LIDSTER, Staff
to Representative John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 91 on
behalf of the sponsor, Representative Coghill.
DEBBIE JOSLIN
Delta Junction, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
91 and asked the committee to consider passing the bill.
TAMARA de LUCIA, Associate Victims' Rights Advocate
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 91, provided
comments and urged passage of the bill; during discussion of HB
219, provided comments and urged passage of the bill.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 91 and suggested
an amendment; testified in support of HB 219 and responded to
questions.
REPRESENTATIVE MIKE HAWKER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 219.
TARA HENRY, R.N., S.A.N.E.-A. (Sexual Assault Nurse Examiner)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 219
and responded to questions.
PEGGY BROWN, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
219.
CAREN ROBINSON, Lobbyist
for the Alaska Women's Lobby
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 219.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 8:04:24 AM. Representatives
McGuire, Anderson, Coghill, and Dahlstrom were present at the
call to order. Representatives Kott, Gruenberg, and Gara
arrived as the meeting was in progress.
^CONFIRMATION HEARING(S)
^Chief Administrative Law Judge
8:05:10 AM
CHAIR McGUIRE announced that the committee would first consider
the appointment of Terry L. Thurbon to the position of Chief
Administrative Law Judge.
TERRY L. THURBON, Appointee, Chief Administrative Law Judge,
relayed that she is currently serving as the acting Chief
Administrative Law Judge for the Office of Administrative
Hearings, Department of Administration (DOA); that she has found
it to be as challenging as she anticipated it would be; and that
the opportunity to start the program, to get it off on the right
footing - to work on the regulations projects, the case
management, and the development of office procedures - is what
drew her to the position. She also noted that she has a
background in administrative law as well as in some of the
ancillary functions of the office such as training, and felt
that her background was driving her in the direction of the
position for which she is seeking appointment.
CHAIR McGUIRE noted that Ms. Thurbon's resume is in members'
packets, and remarked that it details an amazing set of
accomplishments.
REPRESENTATIVE COGHILL thanked Ms. Thurbon for being willing to
accept the challenge of being the Chief Administrative Law
Judge. He remarked that the legislature's intention was to
create an administrative hearing process that would provide a
good venue. He said he would like Ms. Thurbon to report back to
the legislature with her insights as to how the technical
aspects of the new system are or aren't working.
MS. THURBON said she would be happy to return. She noted that
the legislation authorizing the position of the Chief
Administrative Law Judge requires her office to provide an
annual report to the legislature and the governor by January 31,
and that the first report was "kind of skimpy" because her
office had only been in operation for about a month. She said
she fully anticipates watching throughout the course of the
coming year and every year thereafter for suggestions for
statutory and other changes that will make the process more
efficient.
REPRESENTATIVE COGHILL expressed a preference for having her
report back to the legislature personally in addition to
providing the written report.
CHAIR McGUIRE noted that she'd served as chair of the Joint
Committee on Administrative Regulation Review, and expressed
hope that the new process will work.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on the confirmation hearing.
REPRESENTATIVE COGHILL made a motion to advance from committee
the nomination of Terry L. Thurbon as appointee to the position
of Chief Administrative Law Judge. There being no objection,
the confirmation was advanced from the House Judiciary Standing
Committee.
HB 187 - AMERADA HESS INCOME; CAPITAL INCOME ACCT.
HB 188 - STATE OF AK CAPITAL CORP.; BONDS
8:09:37 AM
CHAIR McGUIRE announced that the next order of business would be
a hearing on two bills: HOUSE BILL NO. 187, "An Act
establishing the Alaska capital income account within the Alaska
permanent fund; relating to deposits into the account; relating
to certain transfers regarding the Amerada Hess settlement to
offset the effects of inflation on the Alaska permanent fund;
and providing for an effective date."; and HOUSE BILL NO. 188,
"An Act establishing the State of Alaska Capital Corporation;
authorizing the issuance of bonds by the State of Alaska Capital
Corporation to finance capital improvements in the state; and
providing for an effective date."
CHAIR McGUIRE relayed her intention to move the bills forward,
noting that they'd only been referred to the House Judiciary
Standing Committee for the purpose of having the issue of bias
addressed and this has been done. She said she has asked
members to agree, notwithstanding their reservations, to move
the bills forward to the House Finance Committee where they will
receive a full fiscal analysis. She noted that individual
committee members do have concerns about the bills and want to
know more about them, and predicted that the committee report
will reflect this.
8:11:33 AM
REPRESENTATIVE COGHILL moved to report HB 187 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 187 was reported from the
House Judiciary Standing Committee.
8:11:50 AM
REPRESENTATIVE COGHILL moved to report HB 188 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 188 was reported from the
House Judiciary Standing Committee.
[HB 187 and HB 188 were reported from the House Judiciary
Standing Committee; the hearing on HB 187 and HB 188 resumed
later in this meeting.]
HB 91 - INDECENT EXPOSURE TO MINORS
8:12:13 AM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 91, "An Act relating to indecent exposure."
REPRESENTATIVE COGHILL, speaking as the sponsor, relayed that he
would be having one of his staff members give the introduction
to HB 91, which was engendered by a situation wherein someone
exposing himself to a minor "plea bargained" down to a
misdemeanor.
8:13:30 AM
KAREN LIDSTER, Staff to Representative John Coghill, Alaska
State Legislature, sponsor, on behalf of Representative Coghill,
paraphrased from the sponsor statement, which read [original
punctuation provided]:
Several young girls in Delta Junction were subjected
to a man exposing himself to them in the parking lot
of a local store last summer. He was apprehended and
arrested. In a background check it was reported that
he had a prior conviction of a similar incident in
Arizona. A customer noticed the man following a
little six-year-old girl and began to follow him. He
followed the girl to the toy section and pulled his
pants down. The customer contacted store officials,
the police were called, and the man was arrested. The
police report stated he matched the description of a
man reported for the same activity several times but
they could never catch him.
In the Delta Junction incident, the local magistrate
charged him with three felonies but because of the
circumstances, he could not be convicted of a felony.
He plea-bargained down to one misdemeanor.
Children are more vulnerable and innocent than adults
and children fall prey to sex offender more easily
than adults. This legislation makes repeat
convictions of indecent exposure within the
observation of a person under the age of sixteen a
felony.
MS. LIDSTER explained that HB 91 adds the following language to
AS 11.41.458(a): "(2) the offender has been previously
convicted under this section or AS 11.41.460(a) or a law or
ordinance of this or another jurisdiction with elements similar
to a crime under this section or AS 11.41.460(a)".
CHAIR McGUIRE, referring to a recently publicized crime that
occurred in Florida involving the murder of a young girl, noted
that the perpetrator's "gateway crime" was indecent exposure,
and noted that she'd heard the view expressed that someone
should have anticipated the kind of crime the perpetrator's
behavior was leading up to. She also referred to testimony
provided during the Department of Corrections' presentation
regarding the containment model that illustrated that those who
engage in the crime of indecent exposure get a great deal of
gratification out of their behavior and are therefore very
likely to repeat it as well as very likely to engage in more
serious deviant behavior.
MS. LIDSTER, noting that she is the grandmother of a young boy,
said that she views HB 91 as very important legislation.
REPRESENTATIVE COGHILL noted that AS 11.41.460(a), which is
referenced in the new language being proposed via HB 91, reads:
Sec. 11.41.460. Indecent exposure in the second
degree.
(a) An offender commits the crime of indecent
exposure in the second degree if the offender
knowingly exposes the offender's genitals in the
presence of another person with reckless disregard for
the offensive, insulting, or frightening effect the
act may have.
(b) Indecent exposure in the second degree before
a person under 16 years of age is a class A
misdemeanor. Indecent exposure in the second degree
before a person 16 years of age or older is a class B
misdemeanor.
REPRESENTATIVE COGHILL said that HB 91 will make that behavior a
felony crime if the person has previously been convicted of that
behavior. He relayed that he doesn't typically enjoy ratcheting
up crimes to the felony level, but this crime seem to warrant
such a change.
8:18:43 AM
DEBBIE JOSLIN said she was sorry to have to testify on HB 91,
but it was her children, ages two and seven, who the
aforementioned man exposed himself to. She went on to describe
the incident, and noted that because the man's hand never
touched his genitals, his behavior did not constitute
masturbation and so he was only convicted of a misdemeanor even
though he'd been engaging in similar behavior for some time.
Ms. Joslin mentioned that her two-year-old is still afraid to go
back to the place where the incident took place, and pointed out
that her children are not going to be able to easily rid
themselves of the picture that man presented while engaging in
that behavior. She noted that another man in Fairbanks who was
engaging in similar behavior was out purposely looking for
children in front of whom to commit his acts. She said that
she, too, is now aware that the man who committed the murder of
the young girl in Florida had been previously convicted of
indecent exposure to children. Such behavior should be a red
flag that such individuals have even more heinous crimes in mind
for the future. In conclusion, she opined that the behavior
addressed by HB 91 should be made a felony crime because robbing
a child of his/her innocence is such a serious matter.
CHAIR McGUIRE asked whether it was brought up at trial that the
man had been convicted in the past.
MS. JOSLIN said yes, but added that when he was convicted in
Arizona, he only had to get counseling; when convicted in
Alaska, counseling was ordered again. She said she is not
against having the man get counseling, but offered her belief
that this is a crime that deserves some real punishment. She
went on to say:
I was told that I was overreacting, that I should
ratchet it down and stay more calm about this. In
fact, the [district attorney's] office told me that I
should just explain to my children that some people do
naughty things. But I haven't come to the [district
attorney's] office or to this legislature ... for
advice on how to parent my children. I'm asking you
to help me ... explain to them why should a man walk
away free after he's done that to little kids. And
that's the thing I had trouble explaining to them. So
I would just ask for you to consider passing this
bill; I think it's very important, and I think that
the State of Alaska needs to take a very dim view of
this kind of activity.
8:22:51 AM
REPRESENTATIVE GARA offered his view that the bill seems fairly
tailored and fine as written.
TAMARA de LUCIA, Associate Victims' Rights Advocate, Office of
Victims' Rights (OVR), Alaska State Legislature, relayed that
the OVR worked on the aforementioned case, which engendered HB
91. Noting that the offender had previous convictions for
indecent exposure in another jurisdiction, she relayed that in
the Alaska case, the actual conduct did not qualify for felony
level conduct because the law at that time was very particular
with regard to what conduct constituted a felony, even though
the individual was increasing his predatory conduct and was
clearly a danger to the community. The concept of increasing a
penalty to a felony for committing more than once what would
otherwise be a misdemeanor offense is not unique in Alaska. She
opined that a misdemeanor conviction for indecent exposure to a
minor does not provide enough of a penalty, particularly in
situations where the sexual predator has a history of sexual
offenses. Research has shown that such offenders do ratchet up
their offenses and will continue to increase their predatory
conduct, particularly when children are involved; children are a
very vulnerable population that should be protected. She urged
the body to pass HB 91.
8:25:19 AM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that the DOL supports HB 91. However, she added, she has
noticed that a technical change might be in order so as to have
[those with multiple convictions for indecent exposure] covered
under the sex offender registration statute; to accomplish this,
she suggested the bill also alter AS 12.63.100(6)(C)(iv) so as
to include those convicted under proposed AS 11.41.458(a)(2).
Such a change will ensure that anyone who is convicted of
indecent exposure when they have prior convictions, regardless
of the age of the victim, will have to register as a sex
offender.
REPRESENTATIVE ANDERSON made a motion to adopt Conceptual
amendment 1, to add the crime outlined under proposed AS
11.41.458(a)(2) to AS 12.63.100(6)(C)(iv).
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 1.
REPRESENTATIVE COGHILL said he doesn't have any objections to
Conceptual Amendment 1, but does wonder, though he thinks it
unlikely, whether it will have a fiscal impact.
CHAIR McGUIRE, after ascertaining that there were no objections,
announced that Conceptual Amendment 1 was adopted.
8:27:08 AM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 91.
REPRESENTATIVE DAHLSTROM moved to report HB 91, as amended, out
of committee with individual recommendations and the
accompanying zero fiscal notes. There being no objection, CSHB
91(JUD) was reported from the House Judiciary Standing
Committee.
HB 187 - AMERADA HESS INCOME; CAPITAL INCOME ACCT.
HB 188 - STATE OF AK CAPITAL CORP.; BONDS
CHAIR McGUIRE resumed the hearing on: HOUSE BILL NO. 187, "An
Act establishing the Alaska capital income account within the
Alaska permanent fund; relating to deposits into the account;
relating to certain transfers regarding the Amerada Hess
settlement to offset the effects of inflation on the Alaska
permanent fund; and providing for an effective date."; and HOUSE
BILL NO. 188, "An Act establishing the State of Alaska Capital
Corporation; authorizing the issuance of bonds by the State of
Alaska Capital Corporation to finance capital improvements in
the state; and providing for an effective date."
8:27:56 AM
REPRESENTATIVE GARA, acknowledging that HB 187 and HB 188 have
already moved from committee, asked to make comments on them.
He said:
I think I agree with the chair that those two bills -
that had to do with using permanent fund earnings, the
[earnings from the settlement of the State v. Amerada
Hess, et al. 1 JU-77-847 Civ. (Superior Court, First
Judicial District) case], to fund a road construction
bond - largely ... [have] a finance implication; the
judiciary implications, I think, were pretty narrow,
so I see sending [them to the House Finance Committee]
as an appropriate thing.
But I do want to state on the record - I spent a lot
of time with the folks from the [Alaska Permanent Fund
Corporation] and Department of Revenue on this bill -
that [the] bond is essentially going to be funded this
way: for roughly a [$320 million] road bond, we're
going to take what's going to average about [$30
million] a year of permanent fund earnings out of the
Amerada Hess "account" to fund this bond. Over the
course, it's going to be a 17-year bond, roughly. So
that's [$30 million] a year, 17 years, it's going to
be about [$500 million] in permanent fund earnings to
fund this bond.
I think the way they've structured it, they're going
to get a good bond rate, and so that part doesn't
concern me. What concerns me is spending a half
billion dollars out of the permanent fund. I can't
envision, at this point, supporting this bill when it
reaches the [House] floor; that's a lot of money to
use from the permanent fund, at a time where I don't
think we have to, without a public vote. So I do have
concerns about both of those bills, and somebody might
try and talk me into changing my mind but, at this
point, I don't think it's a wise thing to do.
Just one other thing - we've talked about this Amerada
Hess account, and the way the law is written, that
Amerada Hess money isn't supposed to be used for the
permanent fund dividend [PFD]. And that's fine. But
that is not a green light to use ... that permanent
fund money for state spending. Those are two separate
questions. It's okay if you can't use the money for
the dividend but I don't think it's okay to take the
money out of the permanent fund ....
REPRESENTATIVE DAHLSTROM said she appreciates Representative
Gara's comments, adding:
I echo many of the same things that you have just
expressed. And the reason I was comfortable letting
it go out of committee was because of the narrow
purview that we do have with the judiciary issue, and
I'm confident that [the House Finance Committee] will
do the necessary research. I don't know how I will be
voting on that bill. I have deep concerns about the
permanent [fund], have made commitments to my
constituents; I have been told in my office from folks
from Cheryl Frasca's office that ... there is not a
penny coming out of permanent fund earnings, [that]
it's all Amerada Hess and it's a totally separate
fund. I will continue to research that, but I do feel
confident that we did our job in committee with the
narrow scope that we have ....
REPRESENTATIVE COGHILL said that it certainly is a reasonable
question, when there is something invested in the permanent
fund, whether those earnings are the same earnings that pay out
the dividend. He added:
I expect to hear, in the [House Finance Committee], a
little further vetting of that particular issue. But
to say that they [are] just earnings of the permanent
fund ... [and] have never been commingled with the
earnings that have paid out [dividends] does raise
enough question in my mind [to say] that we need to
look at it. Now the bonding issue, that's a totally
different question, in my view, of: why would we go
into debt when we could pay off a debt. And I think
that's one of the questions we'll be asking in [the
House Finance Committee]. ... They are definitely
earnings that are vested from the permanent fund, but
they're not commingled with what is normally
considered earnings of the permanent fund. And so
that is a pretty clear distinction at this point, I
think. ...
REPRESENTATIVE GRUENBERG indicated that he is doing some
research on the term "the fund" as it is used in [the
legislation], and noted that it doesn't clarify whether the
money is being taken out of the corpus or out of the earnings.
He said he thinks that that is an aspect of poor drafting, and
so may have some concerns to raise on the House floor after
further review. He went on to say:
I also have some problems with them doing "that"
quickly without really vetting that with the people of
this state. I have suggested that they visit
community councils and [things] ... like that, because
people may very well think that that is an attempt to
get into the permanent fund without a vote of the
people. And this is something that we have never
done, never used the money in the permanent fund to
collateralize - they don't like that term, but that's
what it is, well, it's not technically - to put up in
some manner, to finance in some manner, the issuance
of a large amount of bonds, and it's a significant
precedent. So at this point, until I ... complete
those [research] steps and am satisfied, politically
and legally and economically ..., I don't plan to
support ... it on the [House] floor.
CHAIR McGUIRE characterized the points made by members as good
points, and offered her belief that at some point, the
legislature will need to decide whether or not the Amerada Hess
money will be used for something, because, currently, it is
clear that that money is separate from the [PFD] and has been
kept separate and just continues to earn money "on top of
itself." She noted, though, that if the legislature does decide
to make use of the Amerada Hess money, it won't be necessary to
spend all the money. If and when the money is used, she
surmised that the questions surrounding that issue will include:
"How much do we want in the way of a capital budget?" "Is $340
million the appropriate figure?" "Is that the figure simply
because that's the amount in the Amerada Hess fund, or is it the
figure because it's the right figure?" On the issue of bonding
and the question of why the state should issue debt, she noted
that it does serve the purpose of being able to get more out of
the state's money at a time when interest rates are "really
good, like they are right now." With regard to the comment
about bringing the issue before the voters, she predicted that
the public will get an opportunity to express their thoughts on
the matter via their elected officials, adding that she
questions the practice of asking the public to do the
legislature's job with regard to budget issues.
REPRESENTATIVE GRUENBERG remarked:
It's not just the question of getting into the
permanent fund. ... This is a way of getting,
floating, a lot of bonds that would normally be
[general obligation (GO)] bonds, and under a different
provision of the [Alaska State Constitution], because
[if] they put up the full faith and credit, they'd
have to go ... to the people. So this is a way of
"end running" votes to the people under two different
theories.
CHAIR McGUIRE said that is a good point.
REPRESENTATIVE GARA offered his recollection that it has been
presented that somehow the Amerada Hess money is different than
permanent fund money and therefore it's okay "to bond" with this
money. He offered his belief, however, that it isn't different
and therefore he opposes it use. He offered his understanding
that the Amerada Hess money, which came to the state as a result
an oil tax settlement, was always intended to be part of the
permanent fund but was instead kept separate in order to avoid a
potential legal argument. That is a separate question, he
opined, than whether the money is part of the fund; it was
always intended, back then, to be part of the fund, it is part
of the fund, and the only reason it's segregated now is because
of the legal argument that existed many years ago about whether
or not the money should go into the dividend and therefore
possibly influence the judge and the jurors in the Amerada Hess
litigation. So the question, he opined, is really whether it is
time to spend permanent fund earnings, regardless of whether it
is Amerada Hess money.
CHAIR McGUIRE remarked that if the Amerada Hess money is part of
the permanent fund earnings and it can't go towards PFDs, then
that raises the question of what should be done with it, and
whether it should simply be sitting there earning interest for
no logical purpose.
REPRESENTATIVE GRUENBERG mentioned that he was a member of the
House Judiciary Standing Committee when the original legislation
came before that committee, and characterized the passage of
that bill onto the House Finance Committee as a mistake. That
bill was considered a finance issue, and so it was allowed to
move on to that committee without the House Judiciary Standing
Committee considering the issue of whether to have the rule of
necessity incorporated into it. "We should have dealt with it
like that, rather than this tortured, non-fish-nor-foul thing
that we did with this large pot of money, and the only reason
I'm saying that to the members of this committee is because if
we move very quickly on things that aren't normally in our
purview, without really knowing what we're doing, then it could
have a lot of consequences 20 years later," he concluded.
[HB 187 and HB 188 were reported from the House Judiciary
Standing Committee earlier in this same meeting.]
HB 219 - STRANGULATION CRIMES
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 219, "An Act relating to crimes and dangerous
instruments."
8:42:28 AM
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, sponsor,
relayed that a constituent of his who is a forensic nurse had
described to him situations that prompted him to sponsor HB 219.
Currently it is very difficult to establish the "serious injury"
criteria in situations involving strangulation, which is a major
element in domestic violence crimes, so as to be able to
prosecute such situations as a felony. There is not always
physical evidence that strangulation has occurred, and HB 219
proposes to assist the legal community in such cases, which
currently are being prosecuted as misdemeanors.
CHAIR McGUIRE acknowledged the amount of work that has gone into
HB 219.
8:46:40 AM
REPRESENTATIVE GARA complimented Representative Hawker for his
work on the issue, and characterized the bill as well written
and narrow. He cautioned, however, that sometimes there is a
tendency for [legislators] to go through the criminal code and
attempt to increase a sentence for a particular crime even
though any current sentence has been well thought out, well
debated, and is consistent with sentences for similar crimes; he
opined that sentences should only be increased for a very
compelling reason.
REPRESENTATIVE HAWKER acknowledged all the work done by his
constituent, his staff, the Department of Law, and Legislative
Legal and Research Services in developing HB 219.
8:50:11 AM
TARA HENRY, R.N., S.A.N.E.-A. (Sexual Assault Nurse Examiner),
indicated that she is a forensic nurse consultant and, as such,
performs examinations on men and women who've been victims of
sexual assault, child abuse, and domestic violence, as well as
assists the state medical examiner's office with the forensic
examinations of homicide victims in such cases. Strangulation
is a very serious, sometimes fatal, physical force and can
result in death very quickly without leaving any outward sign.
Because a victim can be strangled to the point of
unconsciousness quickly, oftentimes there is no sign of any
visible physical injury, and so it can be difficult to convince
a jury that the victim came very close to dying, that he/she did
indeed suffer a life-threatening event.
MS. HENRY said that historically, such assaults have been
charged as misdemeanor fourth degree assaults. She relayed that
she has spent the last few years educating doctors, nurses, law
enforcement, prosecutors, and advocates to the pathophysiology
and signs and symptoms of strangulation, as well as educating
prosecutors that there are symptoms present even when there is
no visible sign present on the neck of the victim. Since then,
particularly recently, many prosecutors have been prosecuting
such situations as felonies, though doing so is very difficult
because an expert must be called in to explain to the jury why a
person can be strangled and yet not show any outward signs of
such. She mentioned that she's been involved in cases wherein
the victims were strangled to death without there being any
external injuries.
MS. HENRY added:
I recently was involved in a case [in which] the judge
dismissed the grand jury indictment because the victim
had testified about strangulation but there wasn't
anybody else there to explain why it was serious, so
the prosecutor had to go back and re-indict that case
with me testifying as to seriousness. Basically, if I
put my hands around your neck, and I prevent oxygen
from getting to your brain, or carbon dioxide from
getting out of your brain, I am literally controlling
whether you live or die. And so if you pass this
bill, it's going to help the prosecutors be able to
... charge [these cases as] ... felonies, prosecute
them more easily. This is not a fourth degree
misdemeanor assault - it's not a simple slap on the
arm - this is a life threatening assault.
CHAIR McGUIRE thanked Ms. Henry for her work.
8:53:53 AM
REPRESENTATIVE COGHILL asked what the signs of strangulation
are.
MS. HENRY said that when there are visible injuries, prosecutors
have taken those cases forward as felonies, but when there are
no visible injuries, prosecutors haven't always realized that
there are other signs that they can rely on to show that
strangulation has taken place. Such signs include difficulty
breathing, hyperventilation, vomiting, loss of bladder control,
loss of bowel control, loss of voice, hoarseness, and neck
swelling. Also, even though strangulation presents an immediate
risk of death, the victim is also at risk of dying days or weeks
later due to cellular damage in the brain as a result of oxygen
deprivation or due to the throat swelling as a result of trauma
to the internal muscles and tissues of the neck. Additionally,
pregnant women who are strangled often suffer from miscarriages.
When interviewing victims of strangulation, law enforcement and
prosecutors must start asking victims whether they have
experienced any of the aforementioned symptoms. She mentioned
that internal injuries aren't always reflected on the skin
surface with signs of bruising; sadly, it is often only during
an autopsy that signs of internal injury, such as hemorrhaging
in the tissue, become visible.
8:56:28 AM
REPRESENTATIVE COGHILL characterized the information Ms. Henry
has provided as important.
REPRESENTATIVE GRUENBERG noted that hands can be dangerous
instruments, and characterized the bill as speaking to the issue
that certain types of assaults are difficult to prove because of
a lack of physical evidence. He asked whether there are other
types of [assaults] that could cause death but which are as
difficult to prove.
MS. HENRY said not that she has come across. She offered her
understanding that current law says a dangerous instrument is
anything that can be used, is threatened to be used, or is
attempted to be used to cause serious physical injury. The bill
is saying that by using one's hands, forearm, or ligature to
control the oxygen going to another's brain, then one is
creating a substantial risk of death.
REPRESENTATIVE GRUENBERG noted that the bill is not limited to
hands, and surmised that it is instead focusing on a particular
type of injury.
MS. HENRY said that what the bill is focusing on is the fact
that external pressure is being applied to the neck to occlude
oxygen exchange in the brain - acts of strangulation and
suffocation.
REPRESENTATIVE GRUENBERG asked whether crimes involving poison
should be included in the bill, and offered an example of a case
he was familiar with.
MS. HENRY pointed out that a toxicology sample can show the
presence of poisons in the system, but such cannot be done in
cases of strangulation.
REPRESENTATIVE GARA offered his understanding that the bill
addresses cases where the person does not die and so a crime
involving strangulation might just be prosecuted as a
misdemeanor; he opined that the bill proposes to treat
strangulation as felony behavior in a wise way.
9:03:06 AM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
simply that the DOL supports HB 219.
TAMARA de LUCIA, Associate Victims' Rights Advocate, Office of
Victims' Rights (OVR), Alaska State Legislature, said that as a
former domestic violence prosecutor and as a current victim
advocate, she personally feels very strongly about HB 219.
Strangulation, particularly in a domestic violence context, is
undercharged and underprosecuted, she assured the committee,
because the injuries are not readily discernable. She added
that the lack of physical evidence has caused many strangulation
cases to be treated as minor incidences, similar to a slap in
the face, and to be prosecuted as misdemeanors, particularly in
a domestic violence context. However, strangulation is one of
the most deadly methods of controlling a victim.
MS. de LUCIA relayed that the Journal of Forensic Science
published an article in 1985 on strangulation injuries and
reported that it takes 11 pounds of pressure on the carotid
artery for 10 seconds to cause unconsciousness; she
characterized 11 pounds of pressure from an adult hand as hardly
any pressure at all, adding that brain death will occur in 4 to
5 minutes if that pressure persists. Strangulation is a pretty
swift method of controlling one's victim, she remarked, adding
that strangulation injuries are very difficult to see upon
initial officer contact because the telltale signs such as
difficulty swallowing, symptomatic voice changes, and other
signs only show up a day or two after the event.
MS. de LUCIA pointed out that there are also mental changes that
can manifest as restlessness and combativeness as a result of
temporary brain anoxia and severe stress reaction. Thus, often,
when an officer gets to the scene, the "hysterical" victim is
dismissed as unable to give a coherent statement of what
happened; really what the victim is experiencing is a very
normal symptom of being strangled. That is why the bill is so
important, she remarked, because it doesn't require the
prosecutor to show physical injuries in order to charge felony
conduct, adding her belief that this behavior should be
considered felony conduct.
MS. de LUCIA reiterated that strangulation is one of the most
lethal forms of domestic violence, and concurred with Ms. Henry
that internal injuries may only manifest several days later and
may cause death; domestic violence perpetrators use
strangulation to silence their victims, and this behavior should
be charged not only as a felonious assault but also as attempted
murder. Strangulation is a form of power and control and it has
devastating psychological effects on victims in addition to a
potentially fatal outcome. She relayed that the Federal Bureau
of Investigation's Uniform Crime Reporting Data - which was
analyzed in 2004 by the Violence Policy Center in Washington, DC
- indicates that Alaska is number one in the nation for domestic
violence deaths. That's just not a statistic to be proud of,
she concluded. She asked the committee to raise the penalty for
the crime of strangulation to the level of severity that it
deserves and to give the prosecution the tools to prosecute
these crimes in the manner in which they deserve.
9:06:19 AM
PEGGY BROWN, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), said that the ANDVSA
supports the bill, remarked that it has been a long time coming,
and characterized the bill as addressing the very root of
domestic violence - taking someone to within an inch of his/her
life is all about power and control. Shelter programs across
the state deal with this issue every day, both in rural areas
and urban areas. In conclusion, she called the act of
strangulation abhorrent, and said the ANDVSA appreciates what
the bill attempts to do.
REPRESENTATIVE GRUENBERG said he supports the bill but noted
that it brings up the issue of whether there are other items
that should be added to the bill, for example, certain types of
poisons. He asked Ms. Carpeneti to comment.
9:09:06 AM
MS. CARPENETI suggested that Ms. Henry is in a better position
to address that issue, adding that she is not aware of any other
crimes that are as difficult to prove as strangulation. She
relayed that she would be willing to research the issue further.
REPRESENTATIVE GARA asked why strangulations are not being
prosecuted now.
MS. CARPENETI explained that there is often a lack of physical
evidence, and so the question of whether a serious physical
injury has occurred can't be proven beyond a reasonable doubt.
In response to a further question, she relayed that prosecutors
are now attempting to prosecute strangulations as felonies, but
are not that successful and always have to have an expert
witness testify as to why there aren't any visible signs of
strangulation. She opined that HB 219 will help with such
evidentiary matters.
9:11:21 AM
CAREN ROBINSON, Lobbyist for the Alaska Women's Lobby, said the
Alaska Women's Lobby supports HB 219, appreciates the sponsor
bringing the bill forward, and would appreciate the committee
moving the bill from committee.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 219.
9:12:00 AM
REPRESENTATIVE DAHLSTROM offered compliments to the sponsor and
characterized HB 219 as a good bill.
REPRESENTATIVE DAHLSTROM moved to report HB 219 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 219 was reported from the
House Judiciary Standing Committee.
ADJOURNMENT
9:12:21 AM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 9:12 a.m.