SENATE JUDICIARY COMMITTEE March 20, 2000 1:40 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT Senator Dave Donley COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 259(FIN) "An Act relating to eligibility to be represented by the public defender before and during the probable cause and temporary placement hearing that is held after the state takes emergency custody of a child." -MOVED CSHB 259(FIN) OUT OF COMMITTEE CS FOR HOUSE BILL NO. 67(JUD) am "An Act relating to release of certain persons alleged to have committed certain sexual offenses." -MOVED SCS CSHB 67(JUD)am OUT OF COMMITTEE CS FOR HOUSE BILL NO. 180(FIN) am "An Act relating to the manufacture, use, display, or delivery of controlled substances while children are present." -MOVED CSHB 180(FIN)am OUT OF COMMITTEE SENATE BILL NO. 259 "An Act relating to criminal impersonation." -MOVED CSSB 259(JUD)am OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HB 259 - No previous action to report. HB 67 - See Judiciary Committee minutes dated 3/1/00. HB 180 - No previous action to report SB 259 - See Judiciary Committee minutes dated 2/21/00 and 3/3/00. WITNESS REGISTER Representative John Coghill Alaska State Capitol Juneau, Alaska 99801 POSITION STATEMENT: Sponsor of HB 259 Mr. Blair McCune Public Defender 900 West 5th Avenue, #200 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 259 and SB 259 Ms. Anne Carpeneti Department of Law PO Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified on SB 259 and HB 67 Mr. Conor Sullivan Staff of Representative Cowdery State Capitol Building Juneau, Alaska 99801 POSITION STATEMENT: Read Sponsor Statement for HB 180 Representative Norman Rokeberg Alaska State Capitol Juneau, Alaska 99801 POSITION STATEMENT: Sponsor of HB 67 Ms. Candace Brower Department of Corrections PO Box 112000 Juneau, Alaska 99811-2000 POSITION STATEMENT: Testified on HB 67 Lieutenant David Ray Hudson Department of Public Safety 700 East Tudor Road Anchorage, Alaska 99507 POSITION STATEMENT: Testified on SB 259 Mr. Jim Pound Staff to Senator Taylor State Capitol Building Juneau, Alaska 99801 POSITION STATEMENT: Introduced SB 259 ACTION NARRATIVE TAPE 00-14, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:40 p.m. Present were Senator Torgerson, Senator Halford and Chairman Taylor. The first order of business to come before the committee was HB 259. HB 259-PUBLIC DEFENDER CHILDREN'S PROCEEDINGS REPRESENTATIVE JOHN COGHILL, sponsor of HB 259, stated that under Alaska statute AS 47.10.142 there is a mandated 48 hour hearing. At this point, under current law, people do not qualify for assistance from a public defender until indigence is determined. This bill was introduced because once there is a determination a child needs aid, people need to know what is going on in the court room. SB 259 is an attempt to get counsel for people and apprise the family of what the value of the court hearing is. SB 259 states that if there is a determination the parent or guardian can pay, the court will assess them then. It is a matter of due process, making sure people have good representation or, at least, an understanding of what is happening in the courtroom. SENATOR TORGERSON asked how there can be zero impact with the Public Defender Agency representing children before they go through the formal process. Senator Torgerson commented it appears the bill was amended to take out this concern. Number 330 REPRESENTATIVE COGHILL agreed, and said a "may" provision was added to give them some latitude. He read testimony that was given by the Public Defender Agency in the House State Affairs Committee, "however in predicting the lack of any fiscal impact we are making the following assumptions: First, we assume the bill will be amended so we do not represent non-indigent people." Because of this, a provision was added: Continued representation of the person by the Public Defender Agency after the hearing is held under AS 47.10.142(d) is contingent on satisfaction of the eligibility requirements (a) - (d) of this section, and it further states, If a person who was represented by the Public Defender Agency at public expense without a court order in connection with a hearing held under AS 47.10.142(d) is not determined to be eligible for court-appointed counsel at public expense under applicable laws and court rules, the court shall assess against the represented person the cost to the Public Defender Agency of providing the representation. REPRESENTATIVE COGHILL said that if there is an indigent determination people will be able to continue on, and if there is proof they are not indigent the court can assess costs back to the parent or guardian. This bill simply allows the public defender to get involved in a case earlier than normal. Number 526 MR. BLAIR MCCUNE, Deputy Director for the Public Defender Agency (PD), responded the PD has done a lot of work with Representative Coghill in making sure this legislation will not impact them. Mr. McCune has gone through the fiscal note and set out some of the assumptions that will show no additional cost for the PD. Number 581 SENATOR TORGERSON wondered if the bill is setting up procedure, even though the word "may" is used, that any time there is an emergency the PD will be called. MR. MCCUNE responded the PD will only be involved if there is an actual court proceeding. SENATOR TORGERSON asked if the PD will be responding to every case before a determination is made as to whether or not the parents have the means to pay for the proceeding. MR. MCCUNE commented that the PD has limited responses and an immediate response cannot be made in every case. The "may be represented" gives them some leeway in delaying if there are no lawyers available. SENATOR TORGERSON said the PD's office will probably be back next year asking for a supplemental because the case load has gone up. He sees no fiscal restraint on the bill. There is no determination as to whether or not the PD should be involved in every case as long as it meets the criteria of emergency removal. Senator Torgerson responded he will not be supporting the bill because it leaves a wide open fiscal note. Number 779 MR. MCCUNE noted that eventually the PD is appointed in the majority of these cases, and it is felt that early involvement will allow them to do a better job for the client and enable the system respond better. Number 818 CHAIRMAN TAYLOR asked if problems in past cases could have been avoided with earlier involvement from the PD, and is there in fact a cost savings to the department from early intervention. MR. MCCUNE responded that the actions in the early stages of a case are to take an intake call, get a general idea of what is happening, ask the secretary on the court run to pick up a copy of the petition so they can make sure they know what the parent is saying is accurate, then they can refer them for substance abuse assessments. This is not a lot of work but it is work the PD will eventually do, and he feels comfortable assuring the committee there will be no fiscal impact. SENATOR HALFORD moved CSHB 259(FIN) out of committee with individual recommendations. There being no objection, the motion carried. HB 180-DRUGS WHERE MINORS ARE PRESENT MR. CONOR SULLIVAN, staff to Representative Cowdery, read the following statement: House Bill 180, relating to drugs in the presence of a minor, prohibits an adult from knowingly "allowing, aiding, inducing, causing or encouraging" a minor to "enter or remain" in the "immediate physical presence of the use, manufacture, delivery or display" of drugs. This crime would be punishable as contributing to the delinquency of a minor, which is a class A misdemeanor. To explain further, House Bill 180 adds to the current law that forbids an adult to encourage or aid a child to break the law. The added prohibition forbids knowingly allowing a child to be in the physical presence of controlled substances. This merely tightens the expectations placed on adults and sends a clearer message that children and drugs don't mix. This bill also expands the area in which the co-presence of children and drugs is unallowable. By replacing the phrase in the same room in a building with the phrase in the immediate physical presence of children are protected in outdoor situations like a yard, campsite or a park bench. The other change is where the term sale is changed to manufacture, use, display or delivery, in order to encourage uniformity of application, and to expand the prohibitions from merely selling. House Bill 180 sends a strong message that penalty provisions for mixing children and drugs are getting stiffer. CHAIRMAN TAYLOR asked if this bill is an expansion or re-definition of the "drug free school zone." MR. SULLIVAN responded no. Number 1125 SENATOR HALFORD moved CSHB 180(FIN)am out of committee with individual recommendations. There being no objection, the motion carried. HB 67-BAIL HEARING FOR SEX OFFENDERS CHAIRMAN TAYLOR commented was a previous hearing on HB 67 and a committee substitute is a result of that hearing. REPRESENTATIVE ROKEBERG said he appreciates what the Judiciary Committee has done to put more teeth into the bill. He has worked with the Department of Corrections so there will not be a fiscal note requiring expenditure by the state. He agrees with the committee substitute (version M) and has come up with a proposed amendment which adds additional language on whether or not the sentencing for an appeal should be for a greater period. In other words, time served will not be applicable. Number 1277 CHAIRMAN TAYLOR asked if the same thing is not accomplished with section 2 of the committee substitute as with the amendment, which adds a paragraph saying people will not be released on bail either before sentencing or pending appeal after conviction. REPRESENTATIVE ROKEBERG said he has no objection to this. He asked if this is in light of the amendment. CHAIRMAN TAYLOR responded it looks like the amendment accomplishes the same thing as section 2. Number 1326 REPRESENTATIVE ROKEBERG explained that the amendment gives the court some discretion--this is mandating language under the CS. The amendment tries to give the judge some discretion if he thinks the sentence being imposed is shorter than the time spent waiting for the sentence to be imposed. SENATOR HALFORD noted that the amendment says, "unless the court finds it likely that if not released on bail," and he suggested the amendment say, "unless the court finds that." Senator Halford said this needs to be a real finding by adding "unless the court finds that if not released on bail the person will remain in custody...." REPRESENTATIVE ROKEBERG said he has no authorship in the amendment, this will be in an initial arraignment hearing or bail hearing where it would be the most likely time for this to come up. This is why the first section of the bill makes sure notice is given and the participants in the crime will not have an opportunity to speak to the judge. CHAIRMAN TAYLOR responded that this does not happen in this legislation. This is not for the first hearing, it is before sentencing or pending appeal after conviction. REPRESENTATIVE ROKEBERG said he stands corrected, he has no problem with changing the language. Number 1437 SENATOR ELLIS asked how this bill will work in small town Alaska. It does not look like the CS clarifies this in anyway. Did the committee decided not to address this concern? CHAIRMAN TAYLOR said he could not remember coming up with anything that worked in a small community. The primary thrust of the bill had been one of notification so that the victim, at least, had a chance to say he was living in a small community--maybe this should be taken into consideration prior to conviction or sentencing. The main issue of this legislation is to address people who have been convicted and are still walking around because they filed an appeal or are just awaiting sentence. The Chairman does not remember addressing this topic with a drafter. Number 1535 SENATOR ELLIS addressed section 1(b)(2), that the person reside in a place where the person is not likely to come into contact with the alleged victim of the offense; and. Is this making a public policy that encourages sex offenders to leave rural communities and go to the city? REPRESENTATIVE ROKEBERG noted that section 1 (b), The court may impose any of the following conditions on a person charged with an offense under AS 11.41.410-11.41.438 or 11.41.450 - 11.41.458, "may", is discretionary, which gives the judge the ability to take this under consideration. These points of view are not mandated, this is to remind the judge to look at these types of things. This is something the judge certainly will take into consideration. Number 1535 SENATOR ELLIS asked if the definition of indecent exposure distinguishes between a prank activity and other activity. SENATOR TORGERSON stated he thinks 11.41.458 deals with this issue. He asked if this is not dealt with now with restraining orders and other things. Does "may" do anything different than what is already in law. Senator Torgerson noted that section c seems to be the only section not being repeated by existing law. Number 1725 MS. ANNE CARPENETI, representing the Criminal Division of the Department of Law (DOL), said DOL is concern about the addition of section 2. Section 2 makes it mandatory that a person may not be released on bail pending sentencing or pending appeal in all cases involving sexual assault and abuse--this also covers first time indecencies. With first time indecencies, without a presumptive sentence, the concern is people will be put in jail and not released until after their sentence is decided. The problem is that the Department of Corrections will not give a person treatment for sexual offenses until their appeal has been decided. HB 67 mandates that a person go to jail, and that person will probably be released without there being time for treatment. This is a real concern of DOL. SENATOR HALFORD asked what the minimum time required is for sex offender treatment. Someone from the audience responded 18 months. MS. CARPENETI said the average time for first time class B offenders is about two years, maybe a little more, allowing time for treatment. Number 1826 SENATOR HALFORD noted that under the Rokeberg amendment language, if a person is not released on bail they will remain in custody more than they would otherwise remain in custody. He asked if this doesn't solve the problem. MS. CARPENETI responded it may solve the problem for sentences, but it does not solve the problem for appeals because the sentencing judge has no idea how long it will take the appellate court to rule on a particular case. The average time for deciding an appeal is about two years. This is about the time a person will be serving for a B felony and it is more time than for a class C felony. SENATOR HALFORD asked what the lowest degree pled back for a rape case is? MS. CARPENETI answered it is an unclassified felony, if rape can be proved. Number 1972 SENATOR HALFORD commented the first part of the bill deals with "before a conviction" and the second part of the bill deals with "after a jury has found a person guilty of an offense." He said "then they will be walking around while it is appealed for two years." MS. CARPENETI suggested that conditions of release be considered for this legislation, which will put a few more teeth in DOL's ability to deal with people who violate their conditions of release. In the big picture, this would be a better approach than mandating people go to jail. She is less concerned with pending sentencing than pending appeal because it is an unknown. SENATOR HALFORD stated this is already what the law does with unclassified and class A felons. MS. CARPENETI agreed, but she said "these people serve a lot more time." Number 1972 SENATOR HALFORD noted that HB 67 is only upgrading what is already done to a lower class of crime. MS. CARPENETI agreed. SENATOR HALFORD said he would go along with the language in Representative Rokeberg's bill, but he noted there is a lot of difference between section 1 and 2. Number 2065 SENATOR TORGERSON asked if the language in this bill will give the court the authority to actually relocate someone. MS. CARPENETI responded she does not think the court can order someone out of town. Number 2108 SENATOR HALFORD indicated the court can order someone out of town as a condition of bail--it is done all the time. Senator Halford said "the condition of bail can be third party custodian and if a person does not have one they stay in jail." MS. CARPENETI agreed, the court can have a person stay in jail, but whether or not they can order a person to move out of town would probably depend on the circumstances. SENATOR TORGERSON asked if this is only a condition of bail. CHAIRMAN TAYLOR answered it is release before trial. Number 2126 MS. CARPENETI said there are options available that give DOL more ability to deal with people who violate conditions of release. Presently if a person is released pending sentencing, appeal, or pending trial and they break a condition of release, DOL can put them back in jail but it is on the original charge, so they will get credit for time served on the original charge. HB 67 provides for another offense of violating the conditions of release--which ups the stakes and gives DOL the ability to charge the person with another offense. The court can, at this point, order a person incarcerated pending sentencing and pending appeal--they do not have to let them out. SENATOR HALFORD suggested that the language on line 24 in the CS be replaced with the language in amendment 1-LS0197\M.1 (Luckhaupt, 3/2/00), with the exception that it not include on line 2 of the amendment the words "it likely." (3) a crime under AS 11.41.410 - 11.41.438 or 11.41.450 - 11.41.458, unless the court finds that, if not released on bail, the person will remain in custody before (A) sentencing for a greater period than the term of imprisonment the person is likely to be sentenced to serve: or (B) appeal for a greater period than the tem of imprisonment the person was sentenced to serve. REPRESENTATIVE ROKEBERG commented that the only thing he would be concerned with is the fiscal impact on the appeal process. CHAIRMAN TAYLOR asked if the bill, as amended, impact the fiscal note previously submitted by DOC. Due to a tape malfunction, the following testimony was not recorded. MS. CANDACE BROWER, Department of Corrections, responded that the amendment has taken care of some of the problems and she is not sure what the fiscal impact will be. She commented that she will working on a new fiscal note. MS. BROWER also testified that some offenders can receive relatively short sentences and receive some sex offender pre- treatment or pre-release treatment at the Lemon Creek Correctional Center. If an offender is on appeal status, he is precluded from treatment because he must admit his offense in order to receive treatment. If the person is unable to make bail, pending appeal, they will most likely be released without treatment. SENATOR HALFORD moved SCS CSHB 67(JUD)am, version M. There being no objection, the motion carried. SB 259-THEFT OF IDENTITY MR. JIM POUND, staff of Senator Taylor, stated that SB 259 is an expansion of the previous bill and incorporates some of the federal language regarding civil matters. The current statute only covers fraud, and this bill lays out felony and misdemeanor status for different violations. SB 259 will also include hacking and monetary gain from acts of fraud as a crime. SENATOR HALFORD moved to adopt CSSB 259. With no objection, CSSB 259 was adopted. MS. CARPENETI went through the work draft for CSSB 259 and laid out the following changes: On pages one and two, the term "aural" refers to hearing. The last line of page four and top of page five, (d) Deceptive business practices is a class C felony if the person uses the internet or a computer network to commit the offense. In this subsection, "Internet" means the combination of computer systems or networks that make up the international network for interactive communications services, including remote logins, file transfer, electronic mail, and news groups, raises a class A misdemeanor to a class C felony. DOL was concerned the previous bill was too broad and the purpose of the new language is to raise the penalty and include the internet. On page five, lines 13 and 16, the words "or misleading" were removed because it was too hard to define. The language now reads, introduces false information into a computer, computer system,... Page 6, Sec. 14. AS 11.56.800(a), provides for a class A misdemeanor and covers traffic offenses. This is in reference to a person stealing someone's identification (ID) and then being caught driving with false ID--this would not be criminal impersonation. LIEUTENANT DAVID RAY HUDSON, Department of Corrections (DOC), Division of Public Safety, said DOC supports the effort to strengthen cyber crime and criminal impersonation. He said the fiscal note attached to this bill addresses technological crimes with theft of ID both statewide and nationwide. MR. BLAIR MCCUNE said the public defender is still concerned with the breadth of "access device" on page six, section 16. In section 6, a class B felony is a very strong penalty for the type of crime, and he is glad "misleading" has been taken out of section 11. SENATOR TORGERSON asked about "international network" on page five, line 2. Will this be a crime if the network is not international and does it apply to local networks? MS. CARPENETI responded, to her knowledge, all computer networks are international and it does apply to local networks. This section raises the penalty from a class A misdemeanor to a class C felony. SENATOR TORGERSON said he is still concerned with section 11 because it is hard to interpret. The language on lines 12 through 15 is too broad based--"this sort of thing happens all the time in campaigns." MS. CARPENETI stated that section 11, lines 12 through 15, is current law, and SB 259 adds "financial reputation" to the current wording. SENATOR TORGERSON moved CSSB 256 (JUD), version K, from committee with individual recommendations. With no objection, the motion carried. There being no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 2:56 p.m.