ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 14, 2014
1:41 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Neal Foster
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 370
"An Act relating to employer drug testing; requiring the Alaska
Workers' Compensation Board to adopt regulations relating to the
prescription of controlled substances to employees; and limiting
the prescription of controlled substances to employees."
- MOVED CSHB 370(L&C) OUT OF COMMITTEE
HOUSE BILL NO. 315
"An Act relating to juries in criminal cases; and providing for
an effective date."
- HEARD & HELD
CS FOR SENATE BILL NO. 173(JUD)
"An Act relating to a prohibition on the possession, offer,
display, marketing, advertising for sale, or sale of illicit
synthetic drugs."
- HEARD & HELD
CS FOR SENATE BILL NO. 128(JUD)
"An Act relating to the crime of harassment."
- MOVED HCS CSSB 128(JUD) OUT OF COMMITTEE
SENATE BILL NO. 170
"An Act relating to a defense to the crime of prostitution for
victims of sex trafficking."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR SENATE CONCURRENT RESOLUTION NO. 2(JUD)
Urging the United States Congress to act on the request of the
governor to acquire for the state additional land in the Tongass
National Forest from the United States government by purchase or
negotiation or by seeking amendment to the Alaska Statehood Act.
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 254
"An Act relating to powers of attorney; relating to the uniform
probate code; and providing for an effective date."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 370
SHORT TITLE: AWCB CONTROLLED SUBSTANCE PRESCRIPTIONS
SPONSOR(s): LABOR & COMMERCE
03/03/14 (H) READ THE FIRST TIME - REFERRALS
03/03/14 (H) L&C, JUD
03/19/14 (H) L&C AT 3:15 PM BARNES 124
03/19/14 (H) Heard & Held
03/19/14 (H) MINUTE(L&C)
03/26/14 (H) L&C AT 3:15 PM BARNES 124
03/26/14 (H) Heard & Held
03/26/14 (H) MINUTE(L&C)
04/04/14 (H) L&C AT 3:15 PM BARNES 124
04/04/14 (H) Moved CSHB 370(L&C) Out of Committee
04/04/14 (H) MINUTE(L&C)
04/07/14 (H) L&C RPT CS(L&C) NT 1DP 4NR 1AM
04/07/14 (H) DP: OLSON
04/07/14 (H) NR: CHENAULT, HERRON, REINBOLD, SADDLER
04/07/14 (H) AM: JOSEPHSON
04/07/14 (H) L&C AT 3:15 PM BARNES 124
04/07/14 (H) <Bill Hearing Canceled>
04/11/14 (H) JUD AT 1:00 PM CAPITOL 120
04/11/14 (H) <Bill Hearing Canceled>
04/14/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 315
SHORT TITLE: JURY NULLIFICATION
SPONSOR(s): T.WILSON
02/19/14 (H) READ THE FIRST TIME - REFERRALS
02/19/14 (H) JUD
03/26/14 (H) JUD AT 1:00 PM CAPITOL 120
03/26/14 (H) Heard & Held
03/26/14 (H) MINUTE(JUD)
04/14/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 173
SHORT TITLE: SYNTHETIC DRUGS
SPONSOR(s): MEYER
02/14/14 (S) READ THE FIRST TIME - REFERRALS
02/14/14 (S) JUD
03/05/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/05/14 (S) Heard & Held
03/05/14 (S) MINUTE(JUD)
03/12/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/12/14 (S) Moved CSSB 173(JUD) Out of Committee
03/12/14 (S) MINUTE(JUD)
03/14/14 (S) JUD RPT CS 3DP 1NR 1AM NEW TITLE
03/14/14 (S) DP: COGHILL, MCGUIRE, DYSON
03/14/14 (S) NR: OLSON
03/14/14 (S) AM: WIELECHOWSKI
03/14/14 (S) FIN REFERRAL ADDED AFTER JUD
03/18/14 (S) FIN REFERRAL REMOVED
03/28/14 (S) TRANSMITTED TO (H)
03/28/14 (S) VERSION: CSSB 173(JUD)
03/31/14 (H) READ THE FIRST TIME - REFERRALS
03/31/14 (H) JUD, FIN
04/10/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
04/10/14 (H) <Pending Referral>
04/11/14 (H) JUD AT 1:00 PM CAPITOL 120
04/11/14 (H) Heard & Held
04/11/14 (H) MINUTE(JUD)
04/14/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 128
SHORT TITLE: ELECTRONIC BULLYING
SPONSOR(s): MEYER
01/22/14 (S) READ THE FIRST TIME - REFERRALS
01/22/14 (S) JUD
02/17/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/17/14 (S) Scheduled But Not Heard
02/19/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/19/14 (S) Heard & Held
02/19/14 (S) MINUTE(JUD)
03/03/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/03/14 (S) Heard & Held
03/03/14 (S) MINUTE(JUD)
03/07/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/07/14 (S) Moved CSSB 128(JUD) Out of Committee
03/07/14 (S) MINUTE(JUD)
03/10/14 (S) JUD RPT CS 2DP 1NR SAME TITLE
03/10/14 (S) DP: COGHILL, DYSON
03/10/14 (S) NR: OLSON
04/02/14 (S) TRANSMITTED TO (H)
04/02/14 (S) VERSION: CSSB 128(JUD)
04/03/14 (H) READ THE FIRST TIME - REFERRALS
04/03/14 (H) JUD
04/14/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 170
SHORT TITLE: AFFIRMATIVE DEFENSE TO PROSTITUTION
SPONSOR(s): GARDNER
02/12/14 (S) READ THE FIRST TIME - REFERRALS
02/12/14 (S) JUD
03/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/14/14 (S) -- MEETING CANCELED --
03/17/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/17/14 (S) Heard & Held
03/17/14 (S) MINUTE(JUD)
03/21/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/21/14 (S) Moved SB 170 Out of Committee
03/21/14 (S) MINUTE(JUD)
03/24/14 (S) JUD RPT 4DP
03/24/14 (S) DP: COGHILL, WIELECHOWSKI, MCGUIRE,
DYSON
03/28/14 (S) TRANSMITTED TO (H)
03/28/14 (S) VERSION: SB 170
03/31/14 (H) READ THE FIRST TIME - REFERRALS
03/31/14 (H) JUD
04/09/14 (H) JUD AT 1:00 PM CAPITOL 120
04/09/14 (H) Scheduled But Not Heard
04/14/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
KONRAD JACKSON, Staff
Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking on behalf of Representative Olson,
chair of the House Labor and Commerce Standing Committee,
sponsor, introduced HB 370.
AESHA PALLESEN, Assistant Attorney General
Labor and State Affairs Section
Civil Division (Anchorage)
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing of HB
370.
MIKE MONAGLE, Director
Central Office
Division of Workers' Compensation
Department of Labor & Workforce Development
Juneau, Alaska
POSITION STATEMENT: Provided comments during the hearing of HB
370.
PAMELA GOODE
Delta Junction, Alaska
POSITION STATEMENT: Testified in favor of HB 315 with the
inclusion of certain amendments.
RICHARD SVOBODNY, Deputy Attorney General
Central Office
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Testified in opposition to HB 315;
suggested two changes during the hearing of CSSB 173(JUD);
answered questions during the hearing of CSSB 128 (JUD);
answered a question during the hearing of SB 170.
SARALYN TABACHNICK, Executive Director
Aiding Women in Abuse and Rape Emergencies, Inc. (AWARE)
Juneau, Alaska
POSITION STATEMENT: Expressed concerns about HB 315 as it is
currently drafted; testified in favor of SB 170.
FRANK TURNEY
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 315 with certain
amendments [not provided].
MARIA RENSEL
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 315.
JOHN BRADING
Fairbanks, Alaska
POSITION STATEMENT: Testified during the hearing of HB 315.
ALYSSA WILLIAMS
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 315.
MARK W. ECK
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 315 with certain
amendments.
ALEX MOORE
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of HB 315.
EDRA MORLEDGE, Staff
Senator Kevin Meyer
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking on behalf of Senator Meyer, prime
sponsor of CSSB 173(JUD), provided testimony and answered
questions); speaking on behalf of Senator Meyer, prime sponsor
of CSSB 128(JUD), provided testimony and answered questions.
ELIZABETH RIPLEY, Executive Director
Mat-Su Health Foundation
Wasilla, Alaska
POSITION STATEMENT: Testified in favor of HB 362 and SB 173.
KELLI FARQUER
No city provided, Florida
POSITION STATEMENT: Testified in favor of SB 173.
KATHLEEN STRASBAUGH, Attorney
Legislative Legal Counsel
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing of
CSSB 128(JUD).
QUINLAN STEINER, Director
Central Office
Public Defender Agency
Department of Administration
POSITION STATEMENT: Answered questions during the hearing of
CSSB 128(JUD).
SENATOR BERTA GARDNER
Alaska State Legislator
Juneau, Alaska
POSITION STATEMENT: Speaking as the sponsor of SB 170,
introduced the bill.
STEVEN HANDY, Staff
Senator Berta Gardner
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Speaking on behalf of Senator Gardner,
sponsor, provided background information on SB 170 and answered
questions.
TARA RUPANI, Member
Community United for Safety and Protection
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to SB 170.
KAYT SUNWOOD
Fairbanks, Alaska
POSITION STATEMENT: Testified during the hearing of SB 170.
JON DUKE, Professor
Department of Justice
University of Alaska Fairbanks
Fairbanks, Alaska
POSITION STATEMENT: Testified in favor of SB 170.
MAXINE DOOGAN, Member
Community United for Safety and Protection
Anchorage, Alaska
POSITION STATEMENT: Testified in opposition to SB 170.
RICHARD ALLEN, Director
Office of Public Advocacy
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered a question during the hearing of
HB 370.
ACTION NARRATIVE
1:41:30 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:41 p.m. Present at the call to order were
Representatives Pruitt, Gruenberg, Foster, Lynn, and Keller.
Representative LeDoux arrived as the meeting was in progress.
HB 370-AWCB CONTROLLED SUBSTANCE PRESCRIPTIONS
1:42:57 PM
CHAIR KELLER announced that the first order of business would be
HOUSE BILL NO. 370, "An Act relating to employer drug testing;
requiring the Alaska Workers' Compensation Board to adopt
regulations relating to the prescription of controlled
substances to employees; and limiting the prescription of
controlled substances to employees."
[Before the committee was CSHB 370(L&C).]
1:43:00 PM
KONRAD JACKSON, Staff, Representative Kurt Olson, Alaska State
Legislature, speaking on behalf of Representative Olson, chair
of the House Labor & Commerce Standing Committee, sponsor,
informed the committee HB 370 is an act relating to employer
drug testing and requires the Alaska Workers' Compensation Board
to adopt regulations related to the prescription of controlled
substances. He noted that two sections of the bill are
especially important. One section directs that should an
injured worker require a long-term opiate prescription, after 90
days he/she may be subject to a random urinalysis test to
confirm that they are taking the medication, and to call for an
adjustment in medication, if needed. It has been found that
after 90 days or longer, a patient may not be taking the
prescriptive dose, and adjustments are needed. The intent is
"to really help get those injured workers well sooner." Mr.
Jackson said further studies indicate that the long-term use of
opioids can lead to addiction, and thus there is a need to
ensure that workers receive the medication at the proper
strength. The other important part of the bill deals with the
length of time for which a Schedule 1 drug [defined by the U.S.
Controlled Substances Act] is prescribed, and recommends
reducing the time period to a 30-day prescription. He stressed
that the focus of the proposed legislation is on the return to
good health of the injured worker for the purpose of returning
him/her to productivity.
1:46:53 PM
REPRESENTATIVE LEDOUX asked whether an employer is required to
pay for more than a 90-day prescription of a controlled
substance.
MR. JACKSON explained that after 90 days of taking a Schedule 1
opiate, a drug test may be administered to the worker. If the
worker is not taking the drug, future prescriptions would not be
paid for under the assumption that is the patient's choice and a
change in medication is warranted. Again, the intent is to help
doctors determine the injured worker's level of pain and the
proper prescription.
CHAIR KELLER said he was convinced that there is a problem in
the state related to the use of painkillers, noting that Alaska
has the highest cost for Workers' Compensation.
REPRESENTATIVE LEDOUX asked whether a worker is limited to a
prescription of 30 days or if there can be an additional
prescription after seeing a doctor.
MR. JACKSON said after another visit with the doctor, an
additional prescription can be written. He pointed out that
these steps will "increase some of the oversight and stop the
large quantities of the opiates from being ... in circulation."
1:51:05 PM
REPRESENTATIVE GRUENBERG asked Mr. Jackson whether the drug
Nuvigil is one of the drugs referred to in the bill on page 2,
lines 7-14, subsections (p) and (q).
MR. JACKSON said he did not know.
REPRESENTATIVE GRUENBERG disclosed that he is prescribed the
drug Nuvigil and may have a conflict of interest.
1:52:35 PM
REPRESENTATIVE LEDOUX posed a scenario in which an injured
worker was instructed by a doctor to reduce the amount of
medication whenever possible, and the worker did, but later
there was a need to return to the higher dosage. She said her
understanding of the bill is that if a worker tests negative due
to the lower dosage, the employer may not pay for a return to
the higher dosage.
MR. JACKSON explained that the bill reduces the prescription to
a 30-day supply to ensure closer interaction between patient and
physician. He opined that all doctors wish patients to reduce
the prescribed dosage as soon as possible to help avoid
addiction. However, after 90 days, the worker should again talk
with a doctor as it is expected that the worker would not need
another prescription. The idea [of the bill] is to encourage
patients to restrict their use of "heavy narcotics" as soon as
possible due to possible addiction problems and the high cost of
the drug to the Workers' Compensation system.
CHAIR KELLER asked whether a worker who is selling his/her drugs
could take one pill to pass the random drug test.
MR. JACKSON said that is a possibility and deferred to the
Division of Worker's Compensation, Department of Labor &
Workforce Development, for information on regulations related to
the administration of the test.
1:56:58 PM
REPRESENTATIVE LEDOUX questioned whether the sponsor's concern
is about doctors who are overprescribing medications, and if so,
suggested the committee discuss the problem with the State
Medical Board, Department of Commerce, Community & Economic
Development. She said she did not see the difference between an
injured worker receiving Workers' Compensation and an injured
person who does not.
MR. JACKSON agreed the focus of HB 370 is on workers who are
receiving Workers' Compensation. The societal problem of
addiction and the overuse of opiates should be a serious concern
of everyone; however, this bill seeks to reduce the high cost of
drugs to Workers' Compensation.
CHAIR KELLER mentioned a bill currently in the House Finance
Committee which addresses the problem from a different approach.
REPRESENTATIVE LEDOUX asked whether state medical organizations
have commented on the bill.
MR. JACKSON expressed his belief that the sponsor has not
received any negative comments from the medical community.
Concerns have been received from labor organizations, although
there has been previous testimony in support of the bill in its
current form from representatives of AFL/CIO and Teamsters.
1:59:47 PM
REPRESENTATIVE GRUENBERG asked about the possible self-
incrimination implications of the bill. He suggested that the
committee hear testimony from the Public Defender Agency,
Department of Administration.
MR. JACKSON assured the committee that the bill is not an
attempt to search for criminals but is focused on getting
workers the level of medication needed.
2:01:46 PM
AESHA PALLESEN, Assistant Attorney General, Labor and State
Affairs Section, Civil Division (Anchorage), informed the
committee that the language in the bill states that the negative
drug test could only be used for the purpose of establishing
that the employer may be able to refuse to pay for a future
prescription of the drug.
REPRESENTATIVE GRUENBERG was not satisfied by the foregoing
information because, although other uses are not allowed by the
language in the bill, other uses must be prevented under Alaska
law. He asked if the bill provides that the information is
confidential, and whether the information could "become the
fruit of the poisonous tree."
MS. PALLESEN advised that the state currently has a "pretty
comprehensive scheme addressing drug and alcohol testing by
employers" and the proposed subsection of the bill would be
subject to all of the conditions and restrictions [currently in
law] including a confidentiality provision. To Representative
Gruenberg's second question, she answered that there may be
concerns about the criminal implications of the bill if the test
result information was used for criminal purposes, but the
limitation on the allowed use of the negative drug test is
intended to prevent that.
REPRESENTATIVE GRUENBERG urged for a full exploration of the
possible implications to physician/patient privilege, and to
"the conduit theory."
2:04:19 PM
MIKE MONAGLE, Director, Central Office, Division of Workers'
Compensation, Department of Labor & Workforce Development,
pointed out that Workers' Compensation is generally exempt under
the Health Insurance Portability and Accountability Act of 1996
(HIPPA); therefore, the communication between those conducting
the testing and the employer does not have the same HIPPA
protection that "general health" would have. Typically, in a
Workers' Compensation action, the term "employer" includes the
employer's insurance company or its claims administrator, thus
testing under the proposed provision would be through the case
manager or claims administrator for the employer's insurance
company.
CHAIR KELLER said HB 370 would be set aside for further
testimony.
[The committee returned to HB 370 later in the meeting.]
HB 315-JURY NULLIFICATION
2:06:02 PM
CHAIR KELLER announced that the next order of business would be
HOUSE BILL NO. 315, "An Act relating to juries in criminal
cases; and providing for an effective date."
2:06:26 PM
CHAIR KELLER opened public testimony.
2:07:04 PM
PAMELA GOODE, Delta Junction, informed the committee she was
representing herself as a private citizen. She stated her
support for HB 315 with the inclusion of the following
amendments [to HB 315, Version 28-LS1467\U, on page 1, line 14,
section 1, (c)]:
delete "Notwithstanding any other law;" add "No facts
tried by the jury shall be otherwise reexamined in any
court of the United States, according to the rules of
the common law."
MS. GOODE said with the aforementioned changes she supported the
bill. The bill is necessary for the restoration of justice
because currently there is bureaucratic code that oversteps
statute, statutes that overstep the U.S. Constitution, and
judges who have forgotten their proper lawful authority. She
gave an example of a person who committed a misdemeanor and had
to pay a fine. Ms. Goode opined that a jury of the
misdemeanant's peers would have determined that "he did nothing
wrong."
2:10:27 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law, provided a brief history
of his experience with racial prejudice 40 years ago. He
related current statistics that show over 100 American Indians
have been executed for murdering Caucasians, and the number of
Caucasians who have been executed for murdering American Indians
- in the entire history of the U.S. - is zero. He said, "That
is jury nullification." Mr. Svobodny turned to the procedural
problems associated with the bill and cautioned that if the bill
passes, the effect would be that the rules of evidence are
eliminated if the accused is convicted, and the trial moves to
jury nullification. He said, "Rules of evidence really don't
apply, [and] that's a change not in one court rule, but in all
the rules of evidence." He pointed out that although it is not
specified by the caption of the bill, this change would require
a two-thirds majority vote. Also, the bill changes a number of
rules of criminal procedure, but is not a suspension of rules.
The bill directs that after deliberation, if the jury finds a
person guilty, there is a "switch to whether that was just or
unjust," but the bill is silent on situations such as a hung
jury on the issue of whether the verdict is just or unjust. He
characterized the proposed legislation as ambiguous in that
regard.
2:15:36 PM
MR. SVOBODNY further cautioned about unforeseen consequences;
for example, the vast majority of weapons offenses in Alaska are
prosecuted by the state, not the federal government, thus these
cases would most likely be moved from state court to federal
court, which is counterproductive to the state's efforts to stem
federal overreach. He informed the committee that DOL is
opposed to the bill.
CHAIR KELLER asked whether courts ever levy penalties, fines, or
sanctions against a juror for wrongdoing.
MR. SVOBODNY said yes and no. Jurors can receive sanctions if
they don't show up for jury duty, and the court could sanction
jury members if it had issued an order to not read a newspaper
and a juror disregarded the order. However, he was unaware of
an instance where a court has imposed sanctions on the jurors,
although misconduct by jurors has led to the retrial of a case.
Chair Keller clarified that he was asking about sanctions in
response to a juror's decision, and Mr. Svobodny said "No, ...
the jury's deliberative process is privileged from disclosure."
REPRESENTATIVE LYNN asked whether the principles of the bill are
connected with a recent confrontation in Nevada involving a
cattle rancher whose cattle were seized by the Bureau of Land
Management (BLM), U.S. Department of the Interior, after the
rancher lost two cases in court.
MR. SVOBODNY said misconduct on the part of the federal
government is more transparent than the activities of a jury,
where deliberations are generally confidential. It may be that
the rancher has a moral or just cause - or not - but that does
not nullify the law, which was made by the legislature. [The
bill] is really saying, "The people can ignore the law you
make."
REPRESENTATIVE GRUENBERG stated he would provide to the
committee an article about someone convicted of murder and after
25 years in jail, it was recently determined that he was
innocent.
2:21:42 PM
SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse
and Rape Emergencies, Inc. (AWARE), said that one of her
concerns about HB 315 is that a defendant could subpoena the
testimony of a victim's counselor, thereby disregarding the
statutory victim counselor privilege established in the Alaska
Statutes in 1992. She pointed out that the legislature recently
strengthened the confidentiality statute to include military
counselors. Ms. Tabachnick cautioned that the proposed bill
could have a tremendous impact on whether victims speak
confidentially to advocates. Another concern is that the Rape
Shield Statute [AS 12.45.045] would essentially be repealed, and
this is a statute that was recently expanded by the legislature.
2:23:14 PM
FRANK TURNEY informed the committee he is a jury activist. He
said he was in support of HB 315 "with amendments added"
[amendments not provided]. Mr. Turney agreed with others that
the bill as written leaves too much "wiggle room" and he
expressed his support for amendments that have been provided to
Representative Tammie Wilson. He informed the committee that
the freedoms of religion, speech, and assembly under common law
were established by the "William Penn file of jury acquittals."
Mr. Turney provided a short history of another instance of jury
nullification in 1735 that - he opined - led to the cherished
tradition of freedom of the press in America. He urged for the
committee to not rush to judgment in order to satisfy the
Department of Law, and read from a statement accredited to Judge
Weeks as follows:
You know, jurors don't have the right, but they've got
the power.
MR. TURNEY said having power gives a right, especially when
there is no victim. He further urged the committee to research
this matter. He spoke of his personal experience with juries
over 25 years and stressed that 26 states under the preamble of
free speech recognize jury nullification rights. He concluded
that when the U.S. Constitution was written "they dropped the
ball on jury rights."
2:27:27 PM
MARIA RENSEL said she was speaking for herself in favor of the
bill and "the amendments that were mentioned by [previous
speaker] Pam Goode." She stated that HB 315 is the first step
to restoring jury rights in Alaska, and expressed her belief
that jury nullification does not equal racism. Ms. Rensel
supported adding to the bill a statement "that the judges in
every state shall be bound by the Constitution" and referred to
her written comments that have been forwarded to the committee.
She spoke of her personal experience serving on a jury in
Fairbanks. Ms. Rensel said jury nullification rights began with
the Magna Carta and are also guaranteed by the U.S.
Constitution. Her experience on a jury led her to believe that
"we have been indoctrinated or educated out of our vote, out of
our rights." She provided a brief history of the jury's right
to judge laws as well as the facts, and questioned whether the
government is a government of the people or a government of the
lawyers. Ms. Rensel remarked:
Both the trial jury and the grand jury are the
people's everyday way of reining in governments at
every level. ... The only way that we can ... really
clean up encroachments by our local, state, and
federal governments is to be able to investigate
things and act on juries. ... The elections can only
ensure our democracy but it's really the jury's right
to nullify and judge the law as well as the facts that
will ensure our republic.
2:31:37 PM
JOHN BRADING read several short quotes from a book entitled
"Citizen's Rule Book," published by Whitten Printers, and from
an essay by Lysander Spooner dated 1850. He also referenced two
legal cases: State of Georgia v. Brailsford (1794) and United
States v. Dougherty, 1972.
MR. BRADING asked the committee to restore honor to "we the
people."
2:34:28 PM
ALYSSA WILLIAMS said she was representing herself and read from
a document [not provided]. She said, "Currently in Alaska, if
you are called to jury duty you are expected to forget or
forfeit this responsibility; you are thrown out for knowing that
you were responsible for judging not only the facts, but the
law." Ms. Williams stated that judges and prosecutors are
responsible to protect life, liberty, and property, and "should
not be allowed to sway convictions for their own benefit."
Constitutionality, not tyranny, should be applied in the courts.
Furthermore, the jury is to defend and justly convict the
individual and not protect the government or the law. Ms.
Williams concluded that HB 315 is needed and asked for the
committee's support of the bill.
2:36:30 PM
MARK W. ECK stressed to the committee that jurors are citizens
as are defendants and members of the committee "when they're not
in office." He said the bill would secure the rights of jurors.
When jurors are called to serve, potential jurors are asked if
they believe in the rights of jurors. If the answer is yes,
they are dismissed from the jury, which is "a violation of not
only our rights as jurors, but as people." He quoted from the
Fully Informed Jury Association as follows:
The primary function of the independent juror is not,
as many think, to dispense punishment to fellow
citizens accused of breaking various laws, but rather
to protect fellow citizens from tyrannical abuses of
power by government.
MR. ECK continued to explain that the jury is the final defense
from unjust laws that take away the natural rights of the
people. He said jury duty is an honor, not a chore, because one
puts himself/herself in the position of the defendant and
decides whether the defendant wronged another. However, a
defendant is given another tool of defense against an unjust law
or application of such, and under HB 315, the defendant would be
able to explain the rights of jury duty to the jury, in addition
to instruction from a government official, and the opportunity
is given to the prosecution to rebut the information given to
the jury. The citizens of Alaska need this bill to further
secure their liberty in today's uncertain times. He remarked:
By moving this bill forth, with the people's desired
amendments, you will be setting an example for the
rest of the country and will go down in history as
protectors of liberty and the rights of we the people
of the United States of America and the citizens of
Alaska.
2:39:19 PM
ALEX MOORE said he strongly supports the rights for jury
nullification because all Americans have constitutional rights.
He provided an example of a man who committed a traffic
violation to do what he thought was right. Mr. Moore said, "If
you are trying to remove these rights to have a conscience, and
decide what is wrong and right, then you're not really acting as
a citizen." He strongly urged for the passage of the bill.
[HB 315 was held over.]
SB 173-SYNTHETIC DRUGS
2:42:38 PM
CHAIR KELLER announced that the next order of business would be
CS FOR SENATE BILL NO. 173(JUD), "An Act relating to a
prohibition on the possession, offer, display, marketing,
advertising for sale, or sale of illicit synthetic drugs."
2:43:26 PM
The committee took an at-ease from 2:43 p.m. to 2:44 p.m.
2:44:30 PM
EDRA MORLEDGE, Staff, Senator Kevin Meyer, Alaska State
Legislature, speaking on behalf of Senator Meyer, sponsor of
CSSB 173(JUD), informed the committee that the sponsor has made
no changes to the bill since the previous hearing on 4/11/14;
however, she pointed out that the sponsor worked extensively on
the bill with the Department of Law (DOL); Legislative Legal and
Research Services, Legislative Affairs Agency; the Public
Defender Agency (PDA), Department of Administration; the Office
of Public Advocacy (OPA), Department of Administration; and the
Municipality of Anchorage Legal Department, Criminal Law
(Prosecution). She acknowledged that the bill takes an
unconventional route by targeting the packaging of synthetic
drugs - rather than their chemical compounds - to get synthetic
drugs off the street. This route has been implemented by a town
in Maine without [legal] challenge thus far. The Municipality
of Anchorage (MOA) implemented a related ordinance in January
2014, and has been successful at removing synthetic drugs from
head shops, smoke shops, and convenience stores. In an effort
to ensure that there would not be illegalization of legitimate
substances by the proposed legislation, the bill requires that
packaging meet one criterion from [section 1, subsection (b),
paragraph (1)] of the bill and one criterion from [section 1,
subsection (b), paragraph (2)] of the bill. Ms. Morledge
further explained that the list of names of drugs [subparagraph
G] could be removed from the bill and as long as the drugs met
one of the other criteria in paragraph [(2)] and one of the
criteria in [paragraph (1)], a case could be proven.
CHAIR KELLER clarified that the aforementioned prohibitions are
if the drug meets one criterion of section 1, [subsection (b),
paragraph (1), or one criterion of section 1, subsection (b),
paragraph (2)], of the bill.
MS. MORLEDGE continued to explain that [CSSB 173(JUD)] makes
very clear in the penalty section that a person who violates the
proposed statute is guilty of a violation; therefore, the
involvement of the Public Defender Agency and the Office of
Public Advocacy was removed, which in turn generated new zero
fiscal notes of which are now available.
2:48:25 PM
REPRESENTATIVE LEDOUX inquired as to why the sponsor decided to
propose legislation on the statewide level, rather than have
each municipality make that choice.
MS. MORLEDGE said the sponsor was approached by MOA to proceed
on a statewide level in order to prevent a person from avoiding
prosecution by traveling beyond the municipal boundaries.
2:49:37 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law, surmised that the main
issue between the sponsor, PDA, and OPA is whether the bill
addresses a criminal matter or a civil matter. He directed
attention to the bill on page 3, lines 21 and 22, which read:
(c) A person who violates AS 17.21.010 is guilty of a
violation and, upon conviction, is punishable by a
fine of not more than $500.
MR. SVOBODNY, in order to prevent said violation from becoming a
criminal matter, suggested the following clarifying language:
A person who violates AS 17.21.010 is subject to a
civil penalty of not more than $500.00.
MR. SVOBODNY also suggested the addition of subsection (e) which
read:
(e) The burden of proof is by a preponderance of
evidence.
MR. SVOBODNY opined the aforementioned suggestions "get to the
goal of the sponsor and of the office[s] of public advocacy and
the public defender." In response to Representative Pruitt's
point about the validity of drug street names, he advised one
option is to remove the related section from the proposed
statute for placement instead in the non-codified provisions of
the bill.
2:53:03 PM
REPRESENTATIVE LEDOUX observed that the bill is drafted with the
intention of the violation being civil rather than criminal.
The violation would be decided by a preponderance of evidence,
and thus there is no right to a jury trial or to a public
defender. However, the supporting documents give the impression
that the proposed violation should be criminal. She asked
whether there exists case law related to legislation that
"phrase[s] something in a civil manner which you're really
trying to criminalize and thus makes it so that people don't
have their rights to trial by jury and changes the preponderance
of evidence. Is there any law out there which talks about
whether that's okay to do?"
2:54:49 PM
MR. SVOBODNY said he did not know of any cases; however, he has
examples of similar situations that have not been challenged in
court. He recalled that the legislature, with the specific
intent to eliminate jury trials, for first and second minor
consuming offenses changed the law. The Alaska Court of Appeals
said because the offenses include the loss of a [driver's]
license, the offenders still had a right to an attorney and to a
jury trial. The court of appeals did not say it was improper
for the legislature to change the law. Mr. Svobodny explained
the elimination of the offenses was designed to reduce costs.
REPRESENTATIVE LEDOUX further questioned whether depriving
people of the right to do business could be subject to "the same
kind of arguments."
MR. SVOBODNY gave the scenario in which the legislature
eliminates the offense of tampering with gravestones, making
this offense a civil matter but not changing its effect; he
opined that legislators are policymakers and can decide whether
an action is civil, criminal, or neither.
2:58:08 PM
ELIZABETH RIPLEY, Executive Director, Mat-Su Health Foundation,
stated that she was testifying in favor of HB 362 and SB 173.
She informed the committee that the Mat-Su Health Foundation
shares ownership in the Mat-Su Regional Medical Center and
invests its profits back into the Mat-Su community to improve
the health and wellness of Alaskans living in Mat-Su. Ms.
Ripley said a recent community health needs assessment indicated
that community members rank alcohol and substance abuse the top
health issue in Mat-Su. The medical center has seen an increase
of patients coming to the emergency department who have health
issues due to the use of synthetic drugs. Thrive Mat-Su, the
local substance abuse prevention coalition, helped author the
original state legislation passed in 2011 - which focused on the
composition of the drugs - and which has created challenges for
enforcement as drug dealers introduce new chemicals and
compositions. She advised that youth believe if a product is
legally for sale and can be purchased, it is safe. If there is
not a way to address the alteration of the drugs by dealers, it
is necessary to curtail access to the drugs by youth through a
different law that addresses the sale and marketing of
substances. She said SB 173 is an evidence-based strategy used
in other states to limit access to synthetic drugs and to
decrease their use and their negative impact on individuals and
communities. Importantly, this legislation sends a message to
youth of the efforts to protect them from the dangers of
synthetic drugs. Thrive Mat-Su also supports legislation that
addresses the marketing and sale of synthetic drugs. The Mat-Su
Health Foundation Board unanimously supports the passage of SB
173 and is actively supporting similar legislation at the local
level. Ms. Ripley asked for expedited passage of the bill.
3:00:43 PM
KELLI FARQUER said she was representing herself and voices that
can no longer be heard from children under age who can purchase
substances that are illegal, but that are readily available.
The elimination of this drug can only be accomplished by
eliminating the ability to purchase it, not by making it
illegal. Ms. Farquer said she lost her son in November 2013, in
Wasilla, for no other reason than it was available cheap, which
her son interpreted to mean that the drug was safe. His death
has been deemed undetermined due to the lack of laws against
this type of drug. Her research has revealed that there are
many deaths due to this type of synthetic drug and its high cost
to civilization. Synthetic drugs are a worldwide epidemic and
are mass-produced and sold at a 700 percent profit margin. To
truly remove this drug from the market it must be too expensive
to purchase or sell. There are no benefits to mankind from the
drug. If the drug is illegal it will remain available because
the profit is worth the risk; it is illegal in Florida and is
still widely available. This legislation sets a good precedent
for others to follow because support for this bill will save
lives. Ms. Farquer asked the committee to support the bill and
to urge other civic leaders to do the same in their states.
3:03:51 PM
CHAIR KELLER, after ascertaining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE FOSTER, in response to an earlier question as to
why statewide legislation is being proposed, explained that many
communities in Alaska do not have a municipal structure to make
synthetic drugs illegal locally. He stressed the importance of
statewide legislation to rural Alaska.
3:04:43 PM
REPRESENTATIVE GRUENBERG voiced his concern about the additional
expense of statewide legislation for a program that has been
successful in the Municipality of Anchorage and other
municipalities.
[CSSB 173(JUD) was held over.]
SB 128-ELECTRONIC BULLYING
3:05:06 PM
CHAIR KELLER announced that the next order of business would be
CS FOR SENATE BILL NO. 128(JUD), "An Act relating to the crime
of harassment."
3:06:04 PM
EDRA MORLEDGE, Staff, Senator Kevin Meyer, speaking on behalf of
Senator Meyer, prime sponsor of CSSB 128[JUD], informed the
committee the bill is aimed at reducing electronic harassment,
which is otherwise known as cyberbullying. The proposed
legislation would make this offense a class B misdemeanor and
inserts a new paragraph into Alaska's existing harassment
statute. The current language of the bill (Version G) was
drafted by the sponsor, the Department of Law (DOL), Legislative
Legal and Research Services, Legislative Affairs Agency, and the
Senate Judiciary Standing Committee. The bill protects
individuals under the age of 18 years because, although the
current statute under education requires school districts to
establish policies and procedures for bullying on school
grounds, electronic bullying occurs outside of school in social
media sites, and through texts and email.
3:07:40 PM
CHAIR KELLER directed attention to page 2, line 5, which read:
... manner that causes severe mental or emotional
injury or places the person in ...
CHAIR KELLER expressed his belief that the aforementioned
condition would be hard to define, and he suggested that
removing the words "causes severe mental or emotional injury or"
would strengthen the bill.
MS. MORLEDGE said the sponsor is amenable to the suggested
change.
REPRESENTATIVE LEDOUX asked why the legislation is limited to
protecting persons under 18 years of age. Also, she questioned
why something that "would cause a reasonable fear of physical
injury" is not assault regardless of a person's age.
MS. MORLEDGE explained that the intent of the bill was to
protect school-age children because they are more vulnerable to
harassment.
REPRESENTATIVE LEDOUX restated her point that threatening a
person to cause a fear of physical injury is assault under
existing statutes.
MS. MORLEDGE deferred to the drafter of the bill.
3:10:35 PM
KATHLEEN STRASBAUGH, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, responded that existing statute states that a person
commits the crime of assault in the fourth degree if by words or
other contact, the person recklessly places another person in
fear of imminent physical injury. She directed attention to
page 1, line 4 of the proposed legislation which read:
(a) person commits the crime of harassment in the
second degree if, with intent to harass or annoy
another person, that person
MS. STRASBAUGH pointed out there are two differences between
existing statute and the proposed statute: The first difference
is the intent to "annoy" rather than the intent to injure, and
the second is the threat of "physical injury," not "imminent
physical injury." She stated that the second difference relates
to the fact that imminent does not apply to electronic bullying
because the words or other conduct does not take place in the
presence of a person.
3:12:04 PM
MS. STRASBAUGH, in response to Chair Keller regarding his
suggestion to remove "causes severe mental or emotional injury
or" said that is a policy choice. As to whether the change
would cause difficulties for the prosecution, she deferred to
DOL.
3:12:20 PM
REPRESENTATIVE GRUENBERG, after being told by Ms. Strasbaugh
that the existing statute covering assault in the fourth degree
is AS 11.41.230, noted that assault in the fourth degree is a
class A misdemeanor, and second degree harassment is a class B
misdemeanor, which is up to 90 days in jail. He directed
attention to page 2, lines 3-5 which read:
(7) repeatedly sends or publishes an electronic
communication that insults, taunts, challenges, or
intimidates a person under 18 years of age in a manner
that places the person in reasonable fear of physical
injury.
REPRESENTATIVE GRUENBERG asked whether each communication would
be a separate offense or "if you're sending a communication, or
publish it, you must do it repeatedly."
MS. STRASBAUGH said she was hesitant to make an assertion as to
how each case would be handled.
3:14:23 PM
REPRESENTATIVE GRUENBERG informed the committee the Rule of
Lenity directs that if a statute can be interpreted two ways and
in a criminal case the court will interpret the law in the most
lenient way from the defendant's point of view. He gave an
example in which 50 calls were interpreted as one offense.
MS. STRASBAUGH surmised a series of taunts or insults would be
taken to authorities when it reached "the pain threshold." She
encouraged the committee to ask the prosecuting agency how it
would prosecute the posited case.
MS. MORLEDGE pointed out on page 1, line 10, the word "repeated"
is currently used for telephone calls and thus was the source
for the new language, "repeated sending of an electronic
message."
3:17:12 PM
REPRESENTATIVE LYNN questioned the use of "inconvenient hours"
on page 1, line 10. He observed that some of the language in
the bill is "very, very, vague."
MS. MORLEDGE restated her point that the aforementioned language
is from the existing statute and the proposed bill simply
inserts electronic communication and using consistent language.
REPRESENTATIVE GRUENBERG referred to occupations which require
workers to have "thick skin." He asked whether there is a
definition in the Alaska Statutes of "severe mental or emotional
...."
3:21:18 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law, stated it would be
difficult to prove the language removed by Chair Keller's
proposed amendment [text provided above]. He said if the
language stays in, the answer is up to the jury. In criminal
law definitions, there is no definition of the terms severe
mental or emotional injury to help the jury; in fact, the court
will tell the jury "use ... your ordinary understanding of the
language." Mr. Svobodny said this would probably cause debate
in the jury room. This type of question, along with the meaning
of "repeated" would be up to the jury. He gave an example of a
previous ruling establishing that three threats of serious
physical injury to a person satisfied the term "repeated" -
which is used in the crime of assault in the third degree - as a
matter of law. In response to Representative Gruenberg, Mr.
Svobodny said the offense of terroristic threatening is still a
law, but the language has been changed and the repeated threats
to cause serious physical injury have been moved to assault in
the third degree.
REPRESENTATIVE LEDOUX stated one of her concerns about including
the language "causes severe mental or emotional injury," is
regarding the "eggshell" plaintiff. Some actions that most
people would tolerate may cause injury to those who are
emotionally or mentally fragile. She said this situation is
common in tort cases and courts have ruled that a defendant is
liable for an eggshell plaintiff.
3:25:29 PM
MR. SVOBODNY said the position of DOL is that if a defendant
injures a victim with a disease, their injury could lead to
charges of more serious assault; this is a position that is
consistent with other provisions of law, that "you take your
victim as you find them."
REPRESENTATIVE LEDOUX cautioned that the "causes severe mental
or emotional injury" section is troublesome because there should
not be a prior restraint on the freedom of speech, and she said
she supported the removal of this language.
3:27:43 PM
REPRESENTATIVE LYNN moved to adopt the proposed House committee
substitute (HCS) for CSSB 128(JUD), Version 28-LS1001\H,
Strasbaugh, 4/12/14, as the working document. There being no
objection, Version H was before the committee.
REPRESENTATIVE GRUENBERG stated he was not waiving any rights to
offer an amendment.
3:28:30 PM
CHAIR KELLER, after ascertaining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE GRUENBERG commented that many terms in the bill
are construed according to "common ordinary usage." He urged
for the committee to review related court decisions and warned
that more information on definitions is needed.
3:29:43 PM
CHAIR KELLER reopened public testimony.
REPRESENTATIVE GRUENBERG pointed out the use of "repeatedly" and
"repeated" in the new and existing language of the bill, and
asked how courts interpret the term.
3:30:58 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency, was unsure of the definitive answer to Representative
Gruenberg's question; however, he expressed his belief that
repeated is "more than once."
REPRESENTATIVE GRUENBERG requested further testimony from
agencies on this point.
CHAIR KELLER said his hope is that the committee will make a
decision on the bill at this hearing.
3:31:51 PM
CHAIR KELLER again closed public testimony.
3:32:23 PM
REPRESENTATIVE LYNN moved to report the proposed HCS for [CSSB]
128(JUD), Version 28-LS1001\H, Strasbaugh, 4/12/14, out of
committee with individual recommendations and the accompanying
fiscal notes.
3:32:43 PM
REPRESENTATIVE PRUITT objected. Although he said he agreed with
the motion, he questioned whether a class B misdemeanor is
appropriate in the case of an adult who intimidates a young
child. He then removed his objection.
REPRESENTATIVE GRUENBERG inquired as to whether the proposed
bill is void for vagueness. One prosecutor may decide to divide
ten calls into two counts and another may not; the bill is
silent on this matter, and he asked Mr. Svobodny if DOL has any
charging guidelines related to the bill.
MR. SVOBODNY said DOL does not have guidelines on the number of
calls that are needed to establish "repeated." This issue
arises across all criminal cases and charges are sometimes
determined by, for example, the number of pills, or the number
of bad checks.
REPRESENTATIVE GRUENBERG observed that the existing legislation
has not been struck down.
REPRESENTATIVE PRUITT further asked whether DOL is confident
that the proposed legislation can be enforced.
MR. SVOBODNY said he is very comfortable with the bill.
REPRESENTATIVE PRUITT restated that he removed his objection.
3:38:46 PM
There being no further objection, HCS CSSB 128(JUD) was reported
from the House Judiciary Standing Committee.
SB 170-AFFIRMATIVE DEFENSE TO PROSTITUTION
3:39:18 PM
CHAIR KELLER announced that the next order of business would be
SENATE BILL NO. 170, "An Act relating to a defense to the crime
of prostitution for victims of sex trafficking."
3:39:27 PM
SENATOR BERTA GARDNER, Alaska State Legislator, speaking as the
prime sponsor informed the committee that SB 170 is part of a
national effort to provide as a defense against a prostitution
charge, the chance to demonstrate to the prosecutor that one has
been "trafficked" and forced into prostitution against their
will. The bill also allows the prosecutor to prosecute the
traffickers.
3:40:43 PM
STEVEN HANDY, Staff, Senator Berta Gardner, Alaska State
Legislature, in response to Representative Lynn, said a pimp is
one who traffics the prostitute and is actually the target of
the bill. The purpose is to not "double victimize" the person
who is being trafficked, first by the situation and also
arrested for prostitution.
REPRESENTATIVE LYNN noted that those prostituting do so for many
different reasons, and pimps may be coercive, cooperative, or
violent.
MR. HANDY said if the prostitute - hereafter referred to as the
sex traffic victim - evokes the affirmative defense authorized
by the bill, the sex traffic victim is obligated to work with
the prosecutor and law enforcement to identify the sex
trafficker. The affirmative defense would not get the sex
traffic victim "off the hook" as the decision regarding charges
against the sex traffic victim occurs in court, and not in the
field.
REPRESENTATIVE PRUITT stated that prostitution takes place for
several different reasons, and questioned how the bill would
only apply to those who are sex traffic victims. He said, "If
there's an individual that's in that, they're just trying to
make money ... it's a different scenario ...."
MR. HANDY explained the prosecution would determine whether the
affirmative defense is valid. The sex traffic victim evoking an
affirmative defense would have to identify the sex trafficker,
and there would follow an investigation by law enforcement.
3:45:16 PM
REPRESENTATIVE PRUITT asked for clarification on whether any
instance of prostitution would garner an affirmative defense,
which is the "lowest level of challenge ... on a conviction from
prosecution to address."
MR. HANDY said, "That's a definite no, it would not apply to
somebody who was doing this because that's their choice."
REPRESENTATIVE LEDOUX pointed out that a prosecutor in a sex
trafficking case can choose whether or not to prosecute someone;
therefore, an affirmative defense leaves the decision ultimately
up to a jury.
MR. HANDY explained that the definition of an affirmative
defense is that there are situations outside of the charges that
could excuse the defendant from the charges. The situation
arises after a person is arrested and charged, and the
affirmative defense is a tool to get out of the charge.
3:48:21 PM
CHAIR KELLER opened public testimony.
3:48:44 PM
SARALYN TABACHNICK, Executive Director, Aiding Women in Abuse
and Rape Emergencies, Inc. (AWARE), informed the committee that
often women who are involved in prostitution are victims of
domestic violence and sexual assault who have been coerced into
sex trafficking. Senate Bill 170 creates an avenue for victims
to come forward, to be believed, and treated with respect.
3:49:49 PM
TARA RUPANI, Member, Community United for Safety and Protection,
representing herself, said she is a graduate student at the
University of Alaska Fairbanks (UAF). Ms. Rupani stated that
her research into sex trafficking legislation [House Bill 359]
[passed] in 2012, has only been used against alleged prostitutes
who were charged with prostitution in connection with sex
trafficking cases. For example, in a case with sex trafficking
victims, the victims were arrested and prosecuted for
prostitution, and during 2012 or 2013, all those who were
charged in Alaska under state law were also charged with
trafficking. Ms. Rupani said she was disappointed to learn that
the proposed legislation would not help any of the victims who
have been charged under state law, including Keyana Marshall,
who was charged with federal counts of sex trafficking, and
would not have been able to access an affirmative defense
because multiple sex traffickers were involved. Furthermore,
the bill is not intended to help those who have ever willingly
engaged in the sex industry, but only those who were induced
into prostitution, which creates a fourth legal definition of
sex trafficking and a distinction between some victims who are
deserving of protection, and others who are not; in fact, all
sex trafficking victims in Alaska should have access to
protection without being arrested. Ms. Rupani opined that
allowing victims of sex trafficking access to protection is the
first step to putting sex traffickers in jail, however, "if only
good victims can call the police it's actually going to make sex
trafficking worse.... ... [Because] they target people that they
know who ... already believe that they don't have access to
protection from the police." She stated that those who have
worked in the sex industry should be able to access protection.
She referred to "safe harbor" laws that have been implemented in
California and New York, and stressed that criminalizing victims
is a huge human rights issue that has been addressed by the
United Nations. Ms. Rupani said arresting victims of sex
trafficking violates the Trafficking Victims Protection Act, and
the proposed bill is not the solution to the situation in Alaska
where law enforcement continues to defend its decision to arrest
and charge sex trafficking victims. She concluded that, "A law
that condemns most victims while purporting to protect only a
few victims who are seen as worthy or good is going to increase
sex trafficking rather than decrease it in Alaska."
3:55:23 PM
REPRESENTATIVE LEDOUX asked whether Ms. Rupani's position is
that any prostitute is coerced into prostitution and should not
be prosecuted.
MS. RUPANI said absolutely not.
3:55:51 PM
KAYT SUNWOOD, read Keyana Marshall's statement as follows:
The trauma of being forced, coerced into prostitution
is a scary shameful situation. This can leave a
victim emotionally, mentally, and physically scarred.
To criminalize a victim is extremely cruel, however,
with no protective laws in place. Such
criminalization and punishment is of unethical and
immoral proportions. I am familiar with this scenario
because it happened to me. It wounded me deeply when
members of the APD vice unit ridiculed me for being
pimped. As they arrested me and placed me in a
vehicle, they said something to the effect of: Our
car isn't as nice as the Mercedes Benz your pimp
drives. Or things like: I know he wonders where you
are, or, Get back to him. I was a human trafficking
victim from ages 15 through 21. I have had two
abusers take advantage of me. I am now stuck with
mental memories of their abusive actions and if that
didn't make me feel like I had just no say in my own
actions, prison did. Being a victim of abuse
shouldn't be a crime. Anyone who is being forced into
any prostitution-related activities should not be held
liable for crimes committed in reference to
prostitution or conspiracy, charges involving
prostitution. When we define the word "victim" the
definitions are: (1) an unfortunate person who
suffers from some adverse circumstance; (2) a person
who is tricked or swindled. Unfortunately, I can
easily apply these definitions to myself. I was
trafficked by a woman whom I used to babysit for.
When she disappeared and went to prison, the next
perpetrator was an abusive, angry, violent, male. He
tore down my spirit and I went to prison for
prostitution. These incidents would have not happened
had I not been trafficked, drugged, and abused by this
man. I spent nearly three years in prison after I
agreed to turn state's evidence. I did that hoping
someone would identify the problem. Instead I heard
things like: Crazy, or Sorry that happened to you.
No victims' services were offered to me. I think
passing a bill where victims are protected, rather
than criminalized and re-victimized, is desperately
needed. Please make sure SB 170 truly protects
victims, rather than setting up good victim/bad
victim, and criminalizing some. As is this bill falls
short. If the intent of this bill is to address
trafficking, make it safe for those who are sex
trafficked, to help end sex trafficking.
3:59:44 PM
JON DUKE, Professor, Department of Justice, University of Alaska
Fairbanks, informed the committee he was a retired chief of
police from California and a consultant to Senator Gardner on SB
170. Mr. Duke urged the committee to support SB 170 for several
reasons. The bill changes the way justice is delivered without
weakening tools to control vice. Justice professionals are
bound to enforce the law, and even when aware that victims of
sex trafficking are often forced to break the law, agents of the
state may not be able to exercise leniency. Proposed SB 170 is
needed to enrich justice by increasing the options available.
In addition, SB 170 would raise awareness, reduce stigma and
self-recrimination, reduce victims' shame, and empower victims
to ask for help to escape their plight, and utilize community
resources to heal. Ultimately, victims will feel more
comfortable cooperating with police to prosecute traffickers.
Mr. Duke urged the committee to support SB 170.
4:02:26 PM
MAXINE DOOGAN, Member, Community United for Safety and
Protection, informed the committee the Community United for
Safety and Protection is a group of sex trafficking victims,
current and retired sex workers, and their allies in Alaska.
She said she was born and raised in Fairbanks, and her
organization opposes SB [170] because it is overbroad in that it
puts the burden of proof on the victim who is the defendant in a
criminal proceeding. The bill also creates a loophole of
arbitrary enforcement which allows the prosecutor to reinstate
charges against the sex trafficking victim following the
unsuccessful prosecution of sex traffickers. In addition, SB
170 does not offer immunity from prosecution, and she cautioned
that there may be the unintended consequences of false
accusations. Ms. Doogan said prostitution should not be
illegal, and the bill does not provide a way for sex trafficking
victims to have their convictions vacated. Finally, SB 170 does
not provide any identity protection for sex trafficking victims
who are being prosecuted for prostitution. She urged for the
removal of the criminalization of prostitution in order to
provide access to equal protection under the law, and thereby
reduce incidents of exploitation in Alaska. Ms. Doogan said she
opposes SB 170.
4:05:14 PM
CHAIR KELLER, after ascertaining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE GRUENBERG asked Mr. Svobodny to describe the
quantity of proof required from a defendant to prove an
affirmative defense in a criminal case.
4:06:00 PM
RICHARD SVOBODNY, Deputy Attorney General, Central Office,
Criminal Division, Department of Law, recalled that the
requirement is a preponderance of evidence, and is not "beyond a
reasonable doubt." He said he would confirm his recollection as
soon as possible.
REPRESENTATIVE GRUENBERG cautioned that the bill is written so
that the burden of proof will shift to the defendant to prove
that they are a sex trafficking victim by a preponderance of
evidence - or a level higher - which would be very difficult.
He encouraged the sponsor to consider that that may be an
insurmountable burden in many cases.
REPRESENTATIVE PRUITT agreed that the defendants would be "in a
very difficult spot," and may already have concerns that they
cannot trust the police or the authorities. He said he agreed
with the intent of the legislation, but the bill may put more of
a burden on the victims.
REPRESENTATIVE LEDOUX disagreed. She suggested that the sponsor
and DOL consider adding an element of proof that the prosecutor
needs to prove beyond a reasonable doubt that the defendants are
not sex trafficking victims.
REPRESENTATIVE GRUENBERG reminded the committee of a previously-
heard bill related to an affirmative defense for the crime of
someone who encounters a victim of a drug overdose. The
language used in that bill was that the defendant had to produce
some evidence, and the prosecutor had to disprove beyond a
reasonable doubt.
MR. SVOBODNY interjected that it is a "preponderance of the
evidence."
[SB 170 was held over.]
HB 370-AWCB CONTROLLED SUBSTANCE PRESCRIPTIONS
4:10:10 PM
CHAIR KELLER returned the committee's attention to the further
discussion of HB 370.
[Before the committee was CSHB 370(L&C).]
KONRAD JACKSON, staff, Representative Kurt Olson, Alaska State
Legislature, speaking on behalf of Representative Olson, chair
of the House Labor & Commerce Standing Committee, sponsor, said
at the request of the committee, he contacted the Office of
Public Advocacy, Department of Administration, to answer
questions.
4:11:26 PM
RICHARD ALLEN, Director, Office of Public Advocacy, Department
of Administration, offered to answer questions.
MR. JACKSON recalled that Representative Gruenberg asked about
"fruit of the poison tree" and the possible criminal
implications of the drug testing described in section 1 of HB
370.
REPRESENTATIVE GRUENBERG asked whether there are criminal
implications within the language of HB 370.
MR. ALLEN answered that it is "a real stretch to try to come up
with any sort of scenario where this would play out." There is
the possibility that if a person who had tested negative was
later charged with the distribution of a narcotic, the test
might be used as some sort of circumstantial evidence.
4:14:18 PM
CHAIR KELLER closed public testimony on HB 370.
4:14:24 PM
REPRESENTATIVE LYNN moved to report CSHB 370(L&C) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 370(L&C) was
reported from the House Judiciary Standing Committee.
4:14:43 PM
There followed a short discussion of forthcoming meetings.
4:16:22 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:16 p.m.