SENATE JUDICIARY COMMITTEE March 11, 1998 1:30 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Mike Miller Senator Sean Parnell Senator Johnny Ellis MEMBERS ABSENT All members present. COMMITTEE CALENDAR CS FOR SENATE BILL NO. 323(JUD) "An Act relating to sexual offenses, to those who commit sexual offenses, and to registration of sex offenders; amending Rule 6(r)(2), Alaska Rules of Criminal Procedure; and providing for an effective date." - MOVED CSSB 323(JUD) OUT OF COMMITTEE SENATE JOINT RESOLUTION NO. 36 Proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature, and repealing as obsolete language in the article setting out the apportionment schedule used to elect the members of the first state legislature. - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION No previous action to report. WITNESS REGISTER Mr. James Baldwin Department of Law PO Box 110300 Juneau, Ak 99811-0300 POSITION STATEMENT: Commented on SJR 36 Mr Glen Klinkhart Anchorage Police Department 1901 Jarvis Ave. Anchorage, Ak 99515 POSITION STATEMENT: Supported SB 323 Mr. Terry Vrabec 612 Yukon Drive Fairbanks, Ak 99775 POSITION STATEMENT: Supported SB 323 Mr. Paul Sweet PO Box 1562 Palmer, Ak 99645 POSITION STATEMENT: Commented on SB 323 Mr. Don Bowman 5700 East Tudor Rd. Anchorage, Ak 99507 POSITION STATEMENT: Supported SB 323 Mr. Ralph Bennett Staff to Senator Robin Taylor State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented SJR 36 Mr. Jeff Logan Staff to Representative Joe Green State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Commented on SJR 36 ACTION NARRATIVE TAPE 98-17, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:30 and called SB 323 as the first order of business. SB 323 - SEX OFFENSES & OFFENDER REGISTRATION SENATOR PEARCE came forward to present SB 323, saying the use of children in the production of sexually explicit material is a form of sexual abuse than can result in physical and psychological harm to the children involved. SENATOR PEARCE said individuals who are attracted to children often seek out this type of sexually explicit material. Access to the Internet has become one of the preferred methods of obtaining this kind of pornography and law enforcement agencies across the country are finding thousands of pieces of child pornography in their investigations. SENATOR PEARCE noted that Congress passed the Child Pornography Prevention Act in 1986 and several states are taking action to strengthen their pornography laws. SENATOR PEARCE explained that the Alaska penalty for distribution of child pornography is not more than five years, and law enforcement officers are having trouble proving distribution and are having to charge offenders with lesser crimes, such as possession of child pornography, which is merely a class A misdemeanor. SENATOR PEARCE stated that SB 323 increases the penalties for both possession and distribution of child pornography to class B felonies, punishable by not more than 10 years in prison. SB 323 also creates the crime of indecent exposure in the first degree if an offender knowingly masturbates within the observation of a person less than 16 years of age. SENATOR PEARCE said this offense would also be a class B felony, and the existing offense of indecent exposure becomes a class C felony when committed before a person less than 16 years of age, and a class A misdemeanor when committed before a person 16 years of age or older. SENATOR PEARCE said the bill also requires sex-offender registration for the offenses of indecent exposure in the first and second degree, and the possession of child pornography. Currently, only offenders convicted of the crime of distribution of child pornography have to register. SENATOR PEARCE remarked that the existence and distribution of child pornography creates the opportunity for many types of harm in a community and presents a clear and present danger to all children. She stated this bill is intended to help protect children by inhibiting the creation and distribution of child pornography. Strengthening the penalties for these crimes will send a clear message that the degradation and exploitation of children will not be tolerated. SENATOR PEARCE added that the original idea for the bill came from an Anchorage police officer frustrated with the difficultly of proving distribution of child pornography. SENATOR PEARCE said this individual officer has seen thousands upon thousands of different pictures in the possession of a single child pornographer. SENATOR PEARCE said the bill brings in some other areas due to the fact that the drafter thought some of the ancillary crimes should be looked at in order to maintain consistency in sentencing. Number 095 CHAIRMAN TAYLOR commented on the frustration he experienced, as a judge, sentencing people guilty of these same crimes. He said, in one particular case, an offender was apprehended in what appeared to be the execution of an even more serious crime and CHAIRMAN TAYLOR sentenced him to the maximum available penalty, ninety days. CHAIRMAN TAYLOR said, after imposing this maximum penalty, he was disqualified by every public defender in Anchorage for this act. CHAIRMAN TAYLOR said this law would provide another level of consideration when faced with this type of offenders, who are often serial offenders. He believes this is an important piece of legislation and thanked SENATOR PEARCE for bringing it forward. SENATOR PEARCE noted that the drafter had made an error in drafting the bill, she offered amendment #1 as a technical change, addressing this error. SENATOR MILLER moved amendment #1. Without objection, it was so ordered. Number 177 OFFICER GLENN KLINKHART testified via teleconference from Anchorage and thanked SENATOR PEARCE for the bill. He said his involvement with the prosecution of these crimes began three years ago when he joined the police force. Up until then, he was totally unaware of the volume of child pornography and pedophiles out there. He said, unfortunately, he could be kept continuously busy working these cases. OFFICER KLINKHART said the U.S. Customs officers have also reported a marked increase in this type of crime. OFFICER KLINKHART reported about a man in Eagle River who plead guilty to possession of child pornography in addition to other charges and was found to possess pornographic pictures equivalent to the volume of 17 reams of paper. OFFICER KLINKHART said these pedophiles trade pornographic pictures like baseball cards and, at any given time, several Alaskans can be found downloading pornographic pictures in Internet chat rooms. OFFICER KLINKHART said several reasons explain why this type of crime is found in Alaska: the young population, coupled with a high percentage of home computers and widespread Internet access makes this an easy crime to commit. OFFICER KLINKHART said this type of material used to be distributed through the mail from Europe and dealt with by the U.S. Customs service. OFFICER KLINKHART spoke of different varieties of crimes committed by pedophiles and stressed the need for officer training in order to more effectively fight this type of crime. He said with more training, there will be more arrests. As it is now, OFFICER KLINKHART generally has to bring in federal authorities to charge cases, as they have stricter statutes. He does not mind doing this but the process is sometimes slow. Number 269 SENATOR PEARCE asked about the fiscal note from the Public Defender's Office and OFFICER KLINKHART replied that the reason there are only two cases pending is due to the fact that they are generally charged as federal cases, since a misdemeanor charge is not adequate to punish these crimes. MR. TERRY VRABEC testified via teleconference from Fairbanks and agreed with the testimony provided by OFFICER KLINKHART. MR. VRABEC also mentioned the fact that, in order for these pictures to be taken, children were sexually abused. He agrees with increasing the penalties for this type of crime, and requiring offenders to register as sex offenders. MR. VRABEC said if there were more police officers working on this type of case, they could catch more offenders. MR. PAUL SWEET testified via teleconference from Mat-Su. MR. SWEET asked about disqualification from holding a teaching certificate under this bill, he wondered how private school teachers, without certification, would be dealt with. CHAIRMAN TAYLOR remarked he was not sure they could restrict hiring by a private enterprise. MR. SWEET said then only certified teachers would fall under the bill. SENATOR PEARCE commented that, in schools where the state does not require certification, it is up to the parent of students to ensure the school performs background checks. CHAIRMAN TAYLOR added that the bill does require registration of offenders and this list is accessible to any interested parties. Number 340 PAUL SWEET said there are currently about 3,500 sex offenders in the state required to register and only about 450 of them are actually signed up. If these people are not signed up and he is unable to get information on them until they do, he sees this as a problem. CHAIRMAN TAYLOR responded that those who worked on the passage of the original sex offender registration legislation were dismayed to find out about the glitch in the law that allowed for misinterpretation. He said the intent was that the Department of Corrections would register them before they were set loose, and they have another law working its way through the process to mandate this. CHAIRMAN TAYLOR said he shares MR. SWEET's frustration in this regard. MR. SWEET asked about parolees who are not included. CHAIRMAN TAYLOR said he believed they were required to register and that was one of the many things they were trying to work on. MR. SWEET suggested that if they published a few names of those offenders who failed to register, the rest of them would come running. CHAIRMAN TAYLOR said there are lots of devices that could be used, they're trying to do it through legislation. MR. SWEET mentioned one sex offender who was restricted from unsupervised conduct with children less than 14, but whose court order explicitly allowed him to teach above the seventh grade. MR. DON BOWMAN testified via teleconference from Anchorage and simply stated that the Department of Public Safety and the Alaska State Troopers support SB 323. SENATOR ELLIS expressed concern about the definition of child pornography. He cited a case in Oklahoma where police seized copies of an academy-award winning film, which fell under their state's definition of child pornography. He asked if this might happen here, under Alaska's definition of child pornography. SENATOR ELLIS also asked about the definition of indecent exposure, and how it might relate to breast-feeding. He also asked about "mooning" and how it might be looked upon. SENATOR PEARCE mentioned there was no intention to change any present definitions, only to address the problem of prosecuting these crimes. MS. ANNE CARPENETI, representing the Department of Law, came forward and said "mooning" falls under the crime of disorderly conduct, a class B misdemeanor. Number 450 MS. CARPENETI explained that the definition of child pornography defines it as audio or visual content meeting certain criteria. SENATOR ELLIS clarified that it is not based on the gratification of the viewer and MS. CARPENETI agreed. SENATOR ELLIS said he wondered as he had just sent a postcard depicting kids in the bathtub, he considered it cute but wondered how it would be viewed by another state. SENATOR PEARCE read the definition of pornography as material that visually or aurally depicts conduct including sexual penetration, lewd touching, masturbation, bestiality, sadism and masochism. SENATOR ELLIS replied it seemed to exclude kids in the bathtub and MS. CARPENETI agreed it wasn't babies on bear rugs. OFFICER KLINKHART said SENATOR ELLIS made a good point and said in his work, they use a standard of "lewd and lascivious," and look to see what the focal point of a picture is. He concluded that he did not think the movie incident would occur here in Alaska. Number 504 SENATOR PEARCE commented on the wide availability of this material through the Internet and asked OFFICER KLINKHART if they were seeing an increase in this type of crime by adolescent males. OFFICER KLINKHART replied the offenders were primarily males over the age of 30. He sees this crime as a precursor to child molestation. SENATOR PEARCE moved CSSB 323(JUD) from committee with individual recommendations and accompanying fiscal notes. Without objection, it was so ordered. SJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING Mr. RALPH BENNETT, staff to CHAIRMAN TAYLOR, presented the sponsor statement for SJR 36, saying the bill proposes an amendment to articles six and fourteen of the Alaska Constitution. According to MR. BENNETT, these changes will reflect rulings by the U.S. and Alaska Supreme Court and will enshrine single-member districts in the Alaska Constitution. MR. BENNETT said certain supreme court rulings established a "one person one vote" rule and, as a result, all legislative bodies in the U.S. are apportioned on the basis of population. He added that the Alaska Constitution, as originally written, bases Senate districts partly on population and partly on geography. MR. BENNETT said certain Alaska Court rulings have established an equal basis for both civilian and military population. MR. BENNETT explained that Section three of the bill removes the authority of the Governor to reapportion, and affords the Governor only the authority to redistrict. He pointed out two memos in the member's packets that address the difference between the two terms. MR. BENNETT stated that section four of the bill establishes single-member legislative districts for the House, essentially, constitutionalizing what is already happening. Single member districts seem to work well in Alaska, according to MR. BENNETT. MR. BENNETT informed the committee that section eight eliminates references to reapportionment and specifically allows for judicial review of a Governor's acts or failure to act. He said this section also gives priority to redistricting cases that are brought before the Superior or Supreme Courts. Section ten repeals sections five and seven in article six and article 14 of the Alaska Constitution. RALPH BENNETT explained that article 14 sets out the original reapportionment schedule, now obsolete. CHAIRMAN TAYLOR stated that this is basically the same as a piece of legislation moving through the House. SENATOR MILLER moved the adoption of the Workdraft "E" version as a committee substitute in lieu of the original bill. SENATOR ELLIS objected and asked about the difference between the two versions. MR. BENNETT explained that some changes were made as the bill passed through the process in the House. Section four specifically mentions the number of house and Senate seats. Section eight establishes the priority for a judicial review and redistricting is changed to reapportionment throughout the bill. MR. BENNETT said the terms are similar but defined very differently. SENATOR ELLIS asked MR. BENNETT to read the definitions for the record. RALPH BENNETT said Black's Law Dictionary defines apportionment as "the process by which legislative seats are distributed among units entitled to representation or for reapportionment, or a new apportionment of seats in the House of Representatives among states according to their respective numbers." He said districting is defined as "the establishment of precise geographic boundaries of such units or constituency. He again referred to the memos in the member's packets and suggested it might also be helpful in understanding the differences between these two words. SENATOR ELLIS asked, simply stated, what the change in the bill results in. MR. BENNETT replied that, under the new bill, more of an emphasis is placed on population and geography, not a formula. TAPE 98-17, SIDE B Number 001 MR. JEFF LOGAN, Staff to Representative Joe Green, said that the change from redistricting to reapportionment due to the suggestion of the bill drafter, who believes redistricting is more a term of art and more accurately reflects what the Governor is doing by changing lines within the state. Reapportionment takes place among the states and is more directed by population and geography. SENATOR ELLIS asked if the drafter's opinion was that the framers of the Alaska Constitution had used the wrong word. MR. LOGAN replied he was not sure, he only knew that it was their opinion the change describes the process more accurately. MR. JIM BALDWIN, representing the Attorney General's office, came forward and agreed that the change in wording was not intended to change the process, but only alters the label given to it. He said this is his understanding and nothing to the contrary has come to light in the testimony on the companion house bill thus far. He said there are many alarming things about this bill but, unless the change in wording does more than it seems to, these changes do not alarm him. MR. BALDWIN said his main concerns begin with the preclearance requirements of the Voting Rights Act. He said that when the state comes up with a plan, it must be submitted for preclearance. He thinks certain aspects of this resolution may also require preclearance and the fiscal note his department has not yet, but intends to provide, will reflect this. He said the bill also requires reapportionment be done in single member districts, as it was done in the 1990 reapportionment. MR. BALDWIN says this reapportionment was upheld by the courts, although some questions were raised about single-member districts in Southeast Alaska. MR. BALDWIN commented that multi-member districts have been used in prior plans and have been validated. He said the court decision cited in previous testimony do not mandate single-member districts, though they do express a preference for them. He said redistricting and reapportionment are difficult for the large geography and sparse population of our state. MR. BALDWIN said the flexibility that multi-member districts can give the Governor in the case of retrogression is useful. He fears we may face a retrogression situation in regards to minority voters in the next plan. He said retrogression in some districts might be avoided by the use of multi-member districts, in others he feels it may be unavoidable. MR. BALDWIN speculated that the ability to go to a multi-member district also might help meet preclearance requirements, but said he can't say for certain. CHAIRMAN TAYLOR asked if the preclearance requirements based on the Voting Rights Act were partially thrown out by the federal court, specifically the portion relating to racial quotas. JIM BALDWIN responded that some plans, in some states, were invalidated. CHAIRMAN TAYLOR asked if it was because of an attempt to quantify and include a certain percentage of racial groups within the areas. MR. BALDWIN explained that the reason they were thrown out was because the court believed there was too much emphasis on race, and not enough placed on typical redistricting standards. When race is figured in equally with other factors like compactness and contiguity, a plan will be upheld. When race is placed above all else, plans will fail, as has happened. CHAIRMAN TAYLOR commented that our last reapportionment considered race above other factors, saying linguistics was even considered in attempting to draw the lines. He believes Alaska is subject to the same type of litigation as the other states mentioned. He said this is why he was surprised to hear MR. BALDWIN referring to the retrogressive effect that single-member districts might have, since it is retrogressive only racially. MR. BALDWIN clarified that he was not saying single-member districts are themselves retrogressive, he meant that the state will have to deal with the fact that the native population in proportion may have reduced representation. One way to remedy this would be to set up "influence districts", which may help also with preclearance. SENATOR MILLER asked if the recent court rulings didn't tend more toward the "one person, one vote" idea. He also recalled that in the 80's when there was a combination of single and dual-member districts, the dual-member districts were all in the urban areas and the single-member districts were in the rural areas. SENATOR MILLER said he was having a hard time reconciling this with the argument that single-member districts work against rural Alaska. MR. BALDWIN replied it is simply a tool that might be used if they found themselves in a retrogression situation as he predicts. He thinks it is wise to refrain from cutting themselves off from this useful tool. CHAIRMAN TAYLOR said he thought that whoever had advocated that theory before the court was severely chastised by the courts. MR. BALDWIN interjected that these same people played a strong role here the last time and CHAIRMAN TAYLOR agreed and asked Mr. BALDWIN to define "retrogressive." MR. BALDWIN replied it is defined as the loss of representation for minority voters from one reapportionment to the next. SENATOR PARNELL asked if that was a function of how the boundaries were drawn. SENATOR MILLER added that Alaska is a growing state, though the minority population is staying the same. He said the result of this is a loss of representation, but this would be due more to "one person, one vote" than to how you draw the lines within the state, even when striving to give minority districts the most voting power possible. He restated that if there is a shrinkage in seats, it's probably due to the "one man, one vote" rule and he does not think this can be corrected. JAMES BALDWIN agreed, saying also once you get outside the urban areas, it is a difficult task. CHAIRMAN TAYLOR commented he believes that Southeast Alaska will lose a house seat due to industrial and population decline and the Mat-Su valley will gain one to go along with their population boom. He said this may have a retrogressive effect, but does not have anything to do with someone going out and causing something to happen, it is solely a factor of one person, one vote. CHAIRMAN TAYLOR asked if the state would have to be sure that, if they drew single-member districts, one of them was Jerry Mackie's old "iceworm" district in order to satisfy preclearance requirements. MR. BALDWIN replied they have to be very careful, establish a good record and have a good justification for making drastic changes in plans. He noted we are still being monitored and SENATOR ELLIS explained it is due to past discrimination against natives. CHAIRMAN TAYLOR said he never understood that ruling and found it very insulting. MR. BALDWIN remarked that it is a burden and requires much time and effort to satisfy. CHAIRMAN TAYLOR agreed and expounded on that theme, asking if they will have to get preclearance on whether or not they can pass the Governor's sell- out of this state's sovereignty to the U.S. government. He allowed some people may characterize this differently than he does, but emphasized the heavy burden of preclearance. MR. BALDWIN said anything affecting voting must be precleared under the federal act. He mentioned he did not seem to be making inroads on single-member districts and would therefore move on. CHAIRMAN TAYLOR said everthing he sees in the House bill indicates they are not utilizing a panel constructed out of the courts. JEFF LOGAN indicated that this was a different bill CHAIRMAN TAYLOR was referring to, HJR 44 which restructures the reapportionmnet board. CHAIRMAN TAYLOR asked if they couldn't be rolled together and MR. BALDWIN replied that the bill in front of them was looking better and better. JIM BALDWIN said section three, which says that redistricting shall be based on census, is changed by removing the word "civilian", resulting in the inclusion of military people who temporarily reside in the state. He said surveys were done to try and establish who was an actual resident, and adjustments made to remove the non- resident military personnel. MR. BALDWIN said he believs that this bill takes away the ability to remove and adjust for non-resident military personnel and this is problematic. He said although this was not done in the last reapportionment, the court ruled that if it is too difficult to be done, it need not be done, but the court still requires proof of an attempt to do it. MR. BALDWIN said with the recent base alignment and closures,the allocation of more military personnel (he estimates 9,000 plus dependents) could create an entire district. This would be an urban district, and MR. BALDWIN suggested it could have a voting rights affect, and become a preclearance issue. He addmitted it is a policy call for the Legislature to decide if they want to do this, but he thinks it is better to leave it as it stands now. SENATOR MILLER, who represents a base, asked MR. BALDWIN if he feels military people are less deserving of equal representation than others. He finds this offensive. SENATOR ELLIS clarified that military personnel who are residents get the same representation in state elections as non-military residents, MR. BALDWIN was only referring to the ability to exclude non-resident military persons. SENATOR MILLER replied that JIM BALDWIN had used the term non- voting, which is very different. He said there are many non-voting people in rural Alaska as well. MR. BALDWIN clarified that was, in fact, what he meant. SENATOR ELLIS said he thinks it is important that the people in rural Alaska are held to the same criteria. CHAIRMAN TAYLOR asked what would happen if the state held an election without being granted preclearance. MR. BALDWIN replied that someone would make a motion to enjoin the state. CHAIRMAN TAYLOR asked if that meant we could not hold the election ansd MR. BALDWIN responded that the law mandates we receive preclearance for any changes requiring preclearance before an election is held. CHAIRMAN TAYLOR said it would be an interesting thing to watch. SENATOR PEARCE commented that she did not think the staate had preclearance for the last time and CHAIRMAN TAYLOR explained that the entire ballot must be stated before preclearance, and this requires knowing everything that will appear on the ballot. MR. BALDWIN noted that precinct changes must be precleared also. SENATOR PEARCE mentioned that when the courts threw out our reapportionmnet plan the election was not nullified and MR. BALDWIn said this was because there was preclearance of the interm plan, which was left in place until preclearance of the final plan was granted. CHAIRMAN TAYLOR interjected that all this oversight smacks of reconstruction bigotry. He characterized it as liberal elitism and said it is getting a little old. He wanted to know when some one would take the federal government on and stand up for Alaska. MR. BALDWIN said the law requires that ten years elapse without an objection, and the objection to the 1990 plan set Alaska's clock running again. SENATOR MILLER remarked that any reapportionment plan will draw an objection and the state will never get out from under preclerarance requirements, he added that it may be a good idea to reapportion every twenty years instead. CHAIRMAN TAYLOR said this type of bigotry should be thrown out and is insulting to the people of Alaska. He commented that there has been no discrimination against natives by Alaska's government since territorial days when the federal quthorities were in charge. SENATOR MILLER said he thinks both redistricting and the reapportionment board should be addressed together, preferably in one constitutional amendment rather that two. CHAIRMAN TAYLOR agreed and asked staff to bring them back a committee substitute that rolls the two bills together. MR. JEFF LOGAN mentioned that there are a few documents the committee may find instructive. He read from one of these documents that suggested there may be as few as 6,201 military and military dependents recorded in the 1990 census. MR. LOGAN remarked that the advisory board concluded there were not enough people to worry about, and they were unlikely to make a difference. Additionally, MR. LOGAN relayed to the committee a determination made by the former Attorney General Charlie Cole was that single member districts do not result in retrogression. CHAIRMAN TAYLOR asked if MR. LOGAN would assist in rolling the two bills together and MR. LOGAN agreed he would, to the extent he could. With nothing further to come before the committee, they were adjourned.