SENATE JUDICIARY COMMITTEE April 3, 1998 1:35 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Drue Pearce, Vice-Chairman Senator Sean Parnell MEMBERS ABSENT Senator Mike Miller Senator Johnny Ellis COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 310(RLS) "An Act relating to the utilization of groundfish; and providing for an effective date." - MOVED CSHB 310 (RLS) OUT OF COMMITTEE SENATE BILL NO. 216 "An Act providing for the civil commitment of sexually violent predators." - HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION HB 310 - See Resource Committee minutes dated 3/25/98. SB 216 - No previous action to report. WITNESS REGISTER Ms. Amy Daugherty Staff to Representative Alan Austerman State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented HB 310 Mr. Joe Kyle Pacific Associates 234 Gold Street Juneau, Ak 99801 POSITION STATEMENT: Supported HB 310 Ms. Chris Blackburn PO Box 2298 Kodiak, Ak 99615 POSITION STATEMENT: Supported HB 310 Mr. Al Burch Alaska Draggers Association PO Box 991 Kodiak, Ak 99615 POSITION STATEMENT: Supported HB 310 Mr. Bill Stoltz Staff to Senator Rick Halford State Capitol Juneau, Ak 99801-1182 POSITION STATEMENT: Presented SB 216 Ms. Anne Carpeneti Assistant Attorney General Department of Law, Criminal Division PO Box 110300 Juneau, Ak 99811-0300 POSITION STATEMENT: Commented on SB 216 Mr. Karl Brimner Department of Health, Education and Social Services Division of Mental Health and Developmental Disabilities PO Box 110620 Juneau, Ak 99811-0602 POSITION STATEMENT: Commented on SB 216 Mr. Bruce Richards Program Coordinator Department of Corrections 240 Main Street suite 700 Juneau, Ak 99801 POSITION STATEMENT: Commented on SB 216 Ms. Margo Waring Alaska Mental Health Board POSITION STATEMENT: Commented on SB 216 Ms. Barb Brink Public Defender's Office 900 West 5th #200 Anchorage, Ak 99501 POSITION STATEMENT: Commented on SB 216 Ms. Kate Das Alliance for the Mentally Ill 4345 York Ave Fairbanks, Ak 99707 POSITION STATEMENT: Commented on SB 216 Mr. Al Aaron Alliance for the Mentally Ill PO Box 74132 Fairbanks, Ak 99707 POSITION STATEMENT: Commented on SB 216 Ms. Julie Webb Attorney, Alliance for the Mentally Ill 221 6th Ave. #11 Fairbanks, Ak 99709 POSITION STATEMENT: Commented on SB 216 Ms. Jeannette Grasto Alliance for the Mentally Ill 1369 Ballaine Road Fairbanks, Ak POSITION STATEMENT: Commented on SB 216 ACTION NARRATIVE TAPE 98-29, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order and announced HB 310 would be the first order of business. HB 310 - UTILIZATION OF GROUNDFISH MS. AMY DAUGHERTY, staff to bill sponsor Representative Alan Austerman, presented the bill as a simple one that merely extends the existing ban on the waste of pollock to include all groundfish. MS. DAUGHERTY explained that the North Pacific Fisheries Management Council has begun to mandate increased utilization of groundfish under their plan titled Increased Retention/Increased Utilization (IR/IU). The authority to do this already exists for offshore processors and vessels, yet onshore processors are left out of the loop. MS. DAUGHERTY concluded this authority needs to be expanded to include onshore processors as well. MR. JOE KYLE, the industry committee chair for the National Pacific Fisheries Management Council said this bill is a simple addition to the federal regulations that has broad support throughout the fishing industry. MS. CHRIS BLACKBURN, representing trawl vessels and shore-based processors, said this rule is being complied with now voluntarily and is widely supported by her constituents. She said the bill is in the tradition of Alaska's long term conservation and will increase care in targeting species for capture. MR. AL BURCH, representing the Alaska's Draggers Association, expressed support for the bill which reflects the current common practice. The bill closes a possible loophole and he urged its passage. CHAIRMAN TAYLOR announced he will entertain a motion to move the bill when he regained a quorum. He then brought up SB 216 as the next order of business. SB 216 - CIVIL COMMITMENT OF SEXUAL PREDATORS MR. BILL STOLTZ, staff to sponsor Senator Rick Halford, came forward and presented the bill as "the third of Senator Halford's crime bills; the trifecta." MR. STOLTZ testified that the bill provides for civil commitment of a certain class of the most heinous, violent sexual predators. MR. STOLTZ said these criminals are antisocial, not amenable to treatment, and likely to engage in sexually violent behavior. This bill allows these criminals to be civilly committed after their term of incarceration expires, and is modeled after the Kansas statute, which was upheld by the U.S. Supreme Court. The Court ruled that civil commitment is not Ex post facto punishment nor does it constitute double jeopardy, and is a legitimate and non-punitive government objective. MR. STOLTZ concluded that this bill was the same as a piece of companion legislation and he has heard and addressed the concerns of the Departments of Law and Corrections as well as the mental health community. Number 164 MR. STOLTZ recalled the primary concern regarded providing separate facilities so that mental health consumers, a vulnerable group of people, would not be exposed to these types of violent predators. MR. STOLTZ said he was unable to address the philosophical concerns of the Office of Special Prosecutions and Appeals, but has worked with MS. CARPENETI and others in an attempt to address some concerns. MR. STOLTZ reported that civil commitment is not expected to be an easy process and will require stringent testing, court proceedings, and the satisfaction of built in safeguards. SENATOR PEARCE remarked that the committee substitute appeared to be narrow. She asked who qualifies. MR. STOLTZ deferred to MS. ANNE CARPENETI, representing the criminal division of the Department of Law, who was available to answer these questions. SENATOR PEARCE asked if Senator Halford had considered including chemical castration in the bill. MR. STOLTZ said the issue had never been raised. CHAIRMAN TAYLOR commented that he had also wondered about this. MS. ANNE CARPENETI explained that this bill is an attempt to deal with those people who cannot stop themselves from victimizing others. MS. CARPENETI agreed the U.S. Supreme Court did uphold this law in other states, but that does not mean the Alaska Supreme Court will also uphold it, and she does anticipate challenges to it. Number 250 Ms. CARPENETI suggested one change to narrow the bill, inserting the word "substantially" to page 10, line four, so the line would read ". . . suffers from a mental illness that makes them substantially likely to commit a sexually violent, predatory act." SENATOR PEARCE asked if the bill employed a medical or a criminal definition of mental illness, and asked if there was a difference. MS. CARPENETI replied it was a criminal definition broad enough to apply to the target group. MR. KARL BRIMNER, representing the Division of Mental Health and Developmental Disabilities, agreed with MS. CARPENETI regarding the definition, which seems more oriented toward crime than mental health. MS. CARPENETI suggested that the definition of predatory should be slightly broadened by including intra-family abuse against children and step-children, as the bill currently only covers children who have been formally adopted or are related by blood. CHAIRMAN TAYLOR agreed this change is necessary, as he has seen cases of this in his own experience. MS. CARPENETI said other states have adopted the law without this provision and have found they cannot prevent this. CHAIRMAN TAYLOR stated this was an appropriate expansion of the scope of the bill. Number 310 MS. CARPENETI said the last criteria of the bill is that the person has committed a sexually violent offense defined in paragraph three. SENATOR PEARCE asked if a pattern or series of crimes is necessary. MS. CARPENETI said that is not necessary, but in other states there generally has been a pattern before the state has filed for civil commitment. CHAIRMAN TAYLOR expressed his concern over the dispute about placement of these people. He asked if the issue was addressed in the bill and MS. CARPENETI replied the committee substitute has a provision to prohibit these offenders from being housed with other civil prisoners or with the general mental health population. MS. CARPENETI reported that this section also explicitly allows contracting out the treatment of these prisoners. MR. BRIMNER clarified that other mentally ill patients are there for treatment and are more amenable to treatment. He said if theses two populations were housed together it might even occur that a criminal would be housed with his or her victim, which would be totally inappropriate. He stressed the need for separate facilities and agreed that the treatment might take place out of state. CHAIRMAN TAYLOR commented that these people would have been mixed in with the general prison population and asked why they couldn't just remain incarcerated. MS. CARPENETI said this civil commitment happens at the end of their sentence and must be in a treatment facility. CHAIRMAN TAYLOR said they would be using a subterfuge of treatment for these people who have been deemed more or less untreatable. MS. CARPENETI replied she hoped it would not be a subterfuge, but regardless, treatment must be provided. CHAIRMAN TAYLOR asked if this specific definition would cover a prostitute with a deadly sexually-transmitted disease who continued to be promiscuous. MS. CARPENETI said it would not, it covers only sex offenses, murder, kidnaping or any attempt of the above. MS. CARPENETI said her department had advised the exclusion of burglary (with intent to rape or commit sexual assault) as the intent would be very difficult to prove if the crime was not actually committed. Number 392 MR. BRUCE RICHARDS, representing the Department of Corrections, informed the committee that the department had conducted a study and determined, based on the original bill, that this bill might apply to about 25-38 people per year. He noted that with the narrower definition in the committee substitute this number is likely to be reduced. CHAIRMAN TAYLOR expressed concern with the standards used to identify these people. He said the bill includes a much higher standard than that used by the parole board. MS. CARPENETI explained that the standard would be employed after the State determined beyond a reasonable doubt that the person was a sexual predator, substantially likely to re-offend. MS. CARPENETI stated that the state of Washington has, since the enactment of this law, filed for civil commitment on only two per cent of sexual predators, and has not been denied any. CHAIRMAN TAYLOR remarked that the entire prison population has a high rate of recidivism. Number 450 MR. BRIMNER said this population has no will to change and are not amenable to treatment and that is why, for public safety reasons, these people need to remain institutionalized for as long as necessary, even if that means for life. CHAIRMAN TAYLOR stated that the intent of the Legislature must be clear on this and the definitions should provide good guidance for future decision makers. MS. CARPENETI indicated that the Department of Law is currently working on commentary that might provide further direction. CHAIRMAN TAYLOR said he would like a chance for that to be included in the record and he did not intend to move the bill today. SENATOR PEARCE asked about the petition for release, questioning how a qualified expert would decide a person is no longer a danger to the public. MR. BRIMNER responded by saying it is a very difficult determination to make, but it is partially influenced by whether or not a person is responsive to treatment. MR. BRIMNER said some psychiatrists have said they would have a hard time ever releasing anyone because of concerns about public safety and liability. CHAIRMAN TAYLOR commented that he advocates liability for the parole board and for the Department of Corrections if they countermand a judge's order. MS. MARGO WARING, representing the Alaska Mental Health Board (AMHB), laid out the assumptions the board brings to their review of this bill. First, consumers of mental health services are brain- disordered, need specialized treatment and are entirely inappropriate to mix with a population of sexual predators. MS. WARING also stated that the money for this should come from the Department of Corrections and not from mental health funds. Also, MS. WARING believed it would be best to look at ways that the criminal justice system could perform this function. MS. WARING appreciated the amendments that have been adopted and address some of her concerns, especially the change assuring separate facilities for sexual predators. Number 542 CHAIRMAN TAYLOR remarked that he had always been torn by the M'Naghten rule that exonerates people for committing crimes depending on their mental state. CHAIRMAN TAYLOR argued that there are many mentally ill people serving criminal time now as anyone who kills another person is insane, no matter what. However, our current law only relieves from liability those who meet a crude standard of mental illness. CHAIRMAN TAYLOR said this seems to have developed into a turf dispute, with each side wanting to protect their resources. CHAIRMAN TAYLOR said historically if people have been unable to be committed, they have been encouraged to commit a petty crime so they could be taken off the street and given some sort of help. He did note that these sexual predators will be housed in a separate facility, but could not say that no mental health funds would be expended for their treatment, as he believes some of these people may fall closer to the mental health side than the criminal. Number 566 MARGO WARING said that the separation of these two populations is very important as mentally ill patients would be easy targets for sexual predators. She added that she hopes the mental health budget won't be an easy target as well. MS. WARING added that these people have antisocial personality disorders and mental health resources are better spent on community services. TAPE 98-29, Side B Number 001 MS. BARBARA BRINK, representing the Alaska Public Defender's Office, said this bill represents a fundamental change in criminal justice philosophy; this will lock people up in anticipation that they may do something wrong in the future. She stated that the Alaska Supreme Court may find this unconstitutional. MS. BRINK cited arguments that suggest psychiatrists cannot clearly identify sexual predators and this bill would be an inappropriate use of scarce mental health resources. MS. BRINK restated the idea that even mental health professionals are unwilling and unable to make this kind of prediction about future behavior. MS. BRINK believes the definition in the bill is still overly broad, as it includes attempts to engage in sexual contact, juvenile offenses and those perpetrated by people who are mentally ill. She suggested that this broad category of people may open the bill to constitutional challenges. MS. BRINK reported that she had not yet prepared a fiscal note, but was working on it. She indicated that it might be more appropriate for the Public Defender's office to handle these cases, rather than the Office of Public Advocacy. MS. BRINK stressed that these people will face a possible lifetime sentence and will require incredibly thorough and expensive proceedings conducted by highly experienced litigators on both sides. The process will be very costly and time consuming, according to MS. BRINK. Additionally, she reminded the committee that there are other offenders currently on parole that may fit into this classification. MS. BRINK concluded that when people realize a sex offense charge may result in a lifetime sentence, defendants will change the way they respond to the initial charge and may want to pursue collateral attacks on previous convictions, and this may change the number the number of cases settled without a jury trial (which is currently 90 per cent). Finally, MS. BRINK noted that the state of Washington recently was placed under a federal injunction for "warehousing" these inmates without treatment. She stressed these people will need treatment, and there will have to be mental health resources spent for it. Number 518 MS. KATE DAS, representing the Fairbanks Alliance for the Mentally Ill, testified via teleconference from Fairbanks opposing the bill to emphasize the point that this population will require a separate facility, as the general mental health population are too fragile to be housed with sexual predators who are likely to abuse them. MR. AL AARON, also representing the Fairbanks Alliance for the Mentally Ill, testified via teleconference from Fairbanks to say a better definition would be needed for a just bill. MR. AARON said the major problem is the confusion of criminal problems with medical problems. MS. JULIE WEBB, an attorney and a member of the National Alliance for the Mentally Ill (NAMI), Fairbanks, stated her support for the purpose of the bill, but her opposition to the bill itself, suggesting a better solution might be to actually treat these people while they are incarcerated. MS. WEBB said those who are not rehabilitated should have longer sentences. She concluded this bill was not the way to go about solving this problem. CHAIRMAN TAYLOR encouraged MS. WEBB to send any recommendations she might have to the committee. MS. JEANETTE GRASTO also testified via teleconference representing NAMI. She shared the concerns that had been expressed and remarked that this bill would further stigmatize the mentally ill who are brain disordered and not generally violent. She reiterated the need for separate facilities and the fact that this is a public safety issue that should be funded with public safety money, not mental health funds. MS. GRASTO suggested the Legislature look at an independent recommendation regarding how to proceed on this issue. She suggests investing more money in research and development of treatment options. BILL STOLTZ recapped his testimony by saying they had addressed the concern of having separate facilities and were prepared to entertain another amendment by the department. MR. STOLTZ said the number of people this bill may apply to must be determined as well as what type of facility would be needed to house them. CHAIRMAN TAYLOR commented that there is a brand new maximum facility being built in Anchorage that might be able to accommodate them. CHAIRMAN TAYLOR suggested the sponsor may consider amending the bill with the knowledge that the first of these cases will invariably go before the Supreme Court. MR. STOLTZ agreed and said the screening process would be excruciatingly thorough. He added that the sponsor's intent was to work toward ironing out the concerns they had heard through the process. CHAIRMAN TAYLOR said he intended to hold the bill and bring it up again. He suggested MR. STOLTZ work with the appropriate parties to create a new committee substitute. Number 400 SENATOR PEARCE said she'd like to see the fiscal note in this committee, before the bill reaches the finance committee, as she anticipates it will be a big one. CHAIRMAN TAYLOR agreed, saying until they have a clear picture of the scope of the bill, they won't be able to draft a fiscal note. He noted that he has some concerns about the precision of some psychiatric judgements. While some are sound, others make the psychiatrists themselves seem bizarre and looney. He expressed hope that medical research will discover some type of chemical treatment to deal with these cases. Number 375 SENATOR PEARCE asked if these people are so dangerous and resistant to treatment why they are not incarcerated for life in the first place. MS. CARPENETI responded that the legislature has recently changed the laws toward this, but for those prisoners already sentenced the system has to plan on what to do when they get out. SENATOR PEARCE moved CSSB 310 out of committee with individual recommendations and without objection, it was so ordered. Having no further business to come before the committee, they were adjourned at 2:55 p.m.