Legislature(2003 - 2004)

05/08/2003 09:00 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
     CS FOR SENATE BILL NO. 85(STA)                                                                                             
     "An Act relating to sentencing and to the earning of good time                                                             
     deductions for certain sexual offenses."                                                                                   
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
Co-Chair  Wilken  stated  this bill  "increases  the  penalties  for                                                            
repeat  sex offenders.  In  addition repeat  sex  offenders are  not                                                            
eligible to reduce their prison time for good time behavior."                                                                   
                                                                                                                                
Co-Chair  Wilken noted  new  fiscal notes  were submitted  for  this                                                            
legislation.                                                                                                                    
                                                                                                                                
SENATOR  HOLLIS FRENCH,  sponsor,  testified that  Alaska has  "long                                                            
held the unfortunate  position as  leading the nation in  per capita                                                            
reported rapes." He asserted  that a small portion of the population                                                            
create a majority  of this problem  and therefore, this legislation                                                             
addresses repeat sex offenders.                                                                                                 
                                                                                                                                
Senator  French  explained  that upon  conviction  of  a second  sex                                                            
offense, this  bill imposes a separate  and more stringent  category                                                            
of presumptive  sentencing and removes the "good time".  He remarked                                                            
that this bill  is punitive and designed  to treat repeat  offenders                                                            
in a "more  serious manner" by sentencing  them to longer  terms and                                                            
keeping them in prison  longer. He noted the provisions would affect                                                            
unclassified, A, B and C felony classification.                                                                                 
                                                                                                                                
Senator French  qualified that this  bill would result in  increased                                                            
costs  to the  State; however,  he asserted  that  these repeat  sex                                                            
offenders  "cycle through  the  system" at  a significant  rate.  He                                                            
exampled that of the over  700 sex offenders currently incarcerated,                                                            
over half  have been incarcerated  ten or  more times. He  suggested                                                            
that some savings  could therefore occur in the "transaction  costs"                                                            
of releasing and the reincarceration of these offenders.                                                                        
                                                                                                                                
Senator  Bunde  noted  he  was involved  in  a  previous  effort  of                                                            
drafting Alaska's "three  strikes" statutes. He asked if the sponsor                                                            
had reviewed  these statutes  and whether they  could be applied  to                                                            
repeat sex offenders.                                                                                                           
                                                                                                                                
Senator  French replied  that the  statutes would  address the  more                                                            
serious cases  of sexual assault;  however, the qualifying  previous                                                            
conviction criterion is  stringent and therefore difficult to apply.                                                            
He stated  that the proposed  legislation  specifically relating  to                                                            
sexual offenders  would avoid  the sentencing  other offenders  to a                                                            
40-year term upon conviction of a C felony.                                                                                     
                                                                                                                                
Senator  Bunde wanted  to work with  the sponsor  to readdress  this                                                            
issue.                                                                                                                          
                                                                                                                                
Senator French  assured the Committee  of his willingness  to do so.                                                            
                                                                                                                                
BARBARA  BRINK,  Director,  Public Defender  Agency,  Department  of                                                            
Administration,  testified   via  teleconference  from  an  off  net                                                            
location  in Anchorage,  in favor  of efforts to  reduce repeat  sex                                                            
offences.   However,   she  expressed   concerns   with  the   bill,                                                            
particularly  with  the elimination  of the  good  time credit.  She                                                            
questioned  the  rationalization  of holding  certain  offenders  in                                                            
prison for  longer terms  because of concern  of future crimes  they                                                            
might  commit. She  suggested  that this  could be  in violation  of                                                            
equal protection rights  because it singles out a particular offense                                                            
rather than a class of offenses.                                                                                                
                                                                                                                                
Ms. Brink cautioned  that although the Public Defender  Agency (PDA)                                                            
fiscal note is  in an indeterminate amount, she stressed  that costs                                                            
would be incurred.  She predicted increased litigation  would result                                                            
due to the more  serious consequences and the removal  of discretion                                                            
for the prosecution  to negotiate  sentencing. She pointed  out that                                                            
many clients  of the PDA are rural  indigent Natives, and  that many                                                            
of the offenses include  serious substance abuse issues that are not                                                            
addressed in this legislation.                                                                                                  
                                                                                                                                
Senator French acquiesced  that the prospect of additional trials is                                                            
possible; however by increasing  the severity of all classifications                                                            
of repeat  sex offenses,  the bill  would allow  the prosecution  to                                                            
negotiate  a lesser offense.   He  informed that  sexual abuse  of a                                                            
minor  cases  are  "notoriously"  difficult   to prosecute   because                                                            
typically the  only witness is a child who usually  has some type of                                                            
relationship with  the accused. In such cases with  other convincing                                                            
evidence,  he stated  that the  offender  could be  convicted of  an                                                            
unclassified  felony and  receive a  maximum sentence  of 30  years.                                                            
However,  he continued  that  in cases  with an  incentive to  avoid                                                            
trial, such  as extensive  trauma to the  child, or difficulty  with                                                            
other  witnesses  or evidence,  the  prosecutor  could  negotiate  a                                                            
lesser charge.  He stated that although  the offender would  receive                                                            
"an enormous  break" with regard to  the potential prison  sentence,                                                            
the  actual  sentence  would  still  be  significant.  He  therefore                                                            
predicted more cases would be settled.                                                                                          
                                                                                                                                
Senator Bunde  commented that similar arguments of  increased trials                                                            
were made in  opposition to the three  strikes legislation;  however                                                            
the court system has not been overloaded.                                                                                       
                                                                                                                                
Senator Taylor  clarified  that the standards  of the three  strikes                                                            
statutes  is high  and  subsequently  difficult for  prosecutors  to                                                            
invoke.                                                                                                                         
                                                                                                                                
Senator French  agreed and detailed  that to invoke this  provision,                                                            
an offender  must  be convicted  of three  unclassified  or Class  A                                                            
felonies in separate cases.  He noted that upon a second conviction,                                                            
an offender would  receive a significant jail term  and probably not                                                            
be out of prison to commit  a third major crime. He pointed out that                                                            
this provision is normally  reserved for the most serious offenders,                                                            
those who commit homicide, first-degree rape, etc.                                                                              
                                                                                                                                
Senator  Taylor commented  that Alaska historically  imposes  longer                                                            
sentences  than   most  other  states  for  comparable   crimes  and                                                            
therefore the three strikes statute is not often invoked.                                                                       
                                                                                                                                
PORTIA PARKER,  Assistant Commissioner,  Department of Corrections,                                                             
described the Department  fiscal note, which was calculated based on                                                            
the high recidivism  rate of sex offenders.  She listed that  of the                                                            
727 sex offenders  currently interned,  581 or 80 percent  have been                                                            
"through  the State system"  at least once  before, with an  average                                                            
recidivism rate of 6.24  times. Of the 80 percent, she furthered, 52                                                            
percent  of the inmates  have been  previously  incarcerated ten  or                                                            
more times. She  informed that bookings, inmate transfers  and other                                                            
costs related  to processing inmates  in and out of custody  are the                                                            
highest  costs to  the Department.  She  pointed out  this does  not                                                            
include  other costs  to  the judicial  system,  including  arrests,                                                            
court time, prosecutors  and public defenders. Therefore, she stated                                                            
this legislation  would reduce those expenses and  result in minimal                                                            
increases.                                                                                                                      
                                                                                                                                
Senator  Taylor  noted  the  significant  recidivism  rates  of  sex                                                            
offenders. He  asked if data was available to predict  the number of                                                            
offenders who  would be impacted by this legislation  within a given                                                            
period of time.                                                                                                                 
                                                                                                                                
Ms. Parker replied that  upon further research, an estimate could be                                                            
produced. She noted that  many current inmates serving sentences for                                                            
sex  offenses had  committed  different  crimes resulting  in  their                                                            
previous convictions. She  stated that 15 percent of the 727 inmates                                                            
serving time for a sex  offence have a prior sex offense conviction.                                                            
                                                                                                                                
                                                                                                                                
Senator  Taylor  clarified  that  15 percent  is  serving  a  second                                                            
sentence for a sexual crime.                                                                                                    
                                                                                                                                
Ms. Parker affirmed.                                                                                                            
                                                                                                                                
Senator Taylor  asked the length of sentence these  inmates received                                                            
for their second sex offense.                                                                                                   
                                                                                                                                
Ms. Parker did not have this information.                                                                                       
                                                                                                                                
Senator Taylor  requested this information,  commenting that  before                                                            
changes are  made to the  current process,  it should be  determined                                                            
whether  changes are necessary.  He suggested  that these  offenders                                                            
could already be receiving comparable sentencing.                                                                               
                                                                                                                                
Senator Taylor  did not oppose the  legislation and did not  want it                                                            
delayed, however  he expressed concern  with the argument  that this                                                            
could result in violations of equal protection.                                                                                 
                                                                                                                                
Senator French  noted similar  legislation  has been adopted  in six                                                            
other states  and is under  consideration  in additional states.  He                                                            
opined  that the  equal  protection  challenge would  be  "thwarted"                                                            
because  other provisions  are directed  at repeat  drunken  driving                                                            
offenders.  He  explained  that  these  provisions  do not  treat  a                                                            
specific  class unfairly,  but rather demonstrate  a rational  basis                                                            
for the State's actions,  that being high recidivism and significant                                                            
harm caused by these crimes.                                                                                                    
                                                                                                                                
Senator  Taylor directed  the record must  reflect Senator  French's                                                            
comments in  the event this legislation  is challenged in  court. He                                                            
furthered that  the provisions identify specific violations  as well                                                            
as a unique character  and personality type. He remarked  that these                                                            
offenders  could be treated  as a "definable  and a separate  group"                                                            
without violating  the equal protection clause of  either the Alaska                                                            
or the US Constitution.                                                                                                         
                                                                                                                                
LAURIE  HUGONIN,  Alaska Network  on  Domestic Violence  and  Sexual                                                            
Assault,  testified   in  Juneau   that  during  fiscal   year  2002                                                            
approximately  2,000  victims of  sexual assault  sought  assistance                                                            
from various programs in  Alaska. She cited the Child Welfare League                                                            
data that one  in four girls and one  is six boys would be  sexually                                                            
assaulted before  the age of 18. She  furthered that sex  offenders,                                                            
particularly  child  abusers,  usually  commit  multiple  violations                                                            
before entering  the judicial system. While treatment  is beneficial                                                            
to reduce recidivism, she  stressed that the safest course of action                                                            
to prevent repeated sexual  assaults is to keep offenders out of the                                                            
community.  She referenced studies  showing that treatment  does not                                                            
completely  change an  offender's  behavior, but  rather delays  the                                                            
amount of time before re-offending occurs.                                                                                      
                                                                                                                                
Ms.  Hugonin  understood  the benefits  of  encouraging  inmates  to                                                            
behave while  serving their  sentences; however,  the safety  of the                                                            
community  is more  important  and repeat  sex offenders  should  be                                                            
incarcerated for as long as possible.                                                                                           
                                                                                                                                
Ms. Hugonin noted that  other states that do not allow for good time                                                            
for  sexual offenders  despite  extending  good time  provisions  to                                                            
other  classifications  of  prisoners.  She  listed  Arizona,  which                                                            
utilizes  this  provision  for  sex offenders;   Tennessee  requires                                                            
offenders convicted  of child rapists and multiple  rapists to serve                                                            
the  entire sentence  imposed  by  the court  "undiminished  by  any                                                            
sentence  reduction credits";  Oregon does  not allow "earned  time"                                                            
for a class  of crimes including sexual  assault and sexual  assault                                                            
of  a  minor;  and  Illinois  reduces  the  amount  of  "good  time"                                                            
available   for  sex  offenders.   She  also   informed  that   this                                                            
legislation would not impose  the strictest provisions, as the State                                                            
of Iowa  requires offenders  convicted  more than  once of a  felony                                                            
sexual  predatory  offense  to serve  twice  the maximum  period  of                                                            
incarceration.                                                                                                                  
                                                                                                                                
Senator Taylor  expressed that although  he supports the  concept of                                                            
this  legislation,  DNA  evidence  and other  events  have  occurred                                                            
resulting  in exoneration  of convicts.  He  told of  a case in  the                                                            
State of Washington  in which a group  of people who operated  a day                                                            
care center  were, "persecuted  by a zealous  district attorney  who                                                            
attempted  to show  a valid  case of  child sexual  abuse."  Senator                                                            
Taylor stated this situation,  in which the defendants were cleared,                                                            
should be avoided in Alaska.                                                                                                    
                                                                                                                                
Senator  Taylor charged that  legislation  relating to sex  offender                                                            
registers and  increased penalties  for "sex oriented crimes",  "and                                                            
to be blunt,  it's a sexy  thing to do for  a Legislator because  it                                                            
carries a  lot of political  hammer out there  with the public."  He                                                            
qualified  that the  public intends  the Legislature  to make  every                                                            
effort  to punish  and reduce sexual  offense,  which he  supported.                                                            
However, he  cautioned that "responsibility  and integrity"  must be                                                            
invested in district attorneys and prosecutors.                                                                                 
                                                                                                                                
                                                                                                                                
SFC 03 # 83, Side A 10:33 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Senator Taylor  continued that  each time he  has requested  data on                                                            
child sexual  abuse cases investigated  by the Department  of Health                                                            
and Social  Services, the annual statistics  indicate an  average of                                                            
70  percent of  all  investigations  found no  "basis  in fact".  He                                                            
contended  that during these  investigations,  children are  removed                                                            
from families  and "arrests  are made." He  was therefore  concerned                                                            
with increased penalties and sex offender registration lists.                                                                   
                                                                                                                                
Senator  Taylor offered  a  motion to  report  CS SB  85 (STA)  from                                                            
Committee with  individual recommendations  and accompanying  fiscal                                                            
notes.                                                                                                                          
                                                                                                                                
Without objections  CS SB  85 (STA) REPORTED  from Committee  with a                                                            
zero fiscal note #1 from  the Department of Law, a zero fiscal note,                                                            
dated  4/29/03   from  the   Department  of   Corrections,   and  an                                                            
indeterminate  fiscal  note dated  4/29/03  from the  Department  of                                                            
Administration.                                                                                                                 
                                                                                                                                
Co-Chair Wilken  comment on need to  keep tomorrows debate  focused.                                                            
                                                                                                                                

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