Legislature(2003 - 2004)

04/28/2003 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
        SB  85-REPEAT SERIOUS SEX OFFENSES/VICTIM COMP.                                                                     
                                                                                                                                
CHAIR  SEEKINS  announced   SB  85,  version\U,  to   be  up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
SENATOR FRENCH,  sponsor of SB  85, explained the  impetus behind                                                               
this bill is to increase  the penalties for repeat sex offenders,                                                               
the  true repeaters.  The law  today doesn't  distinguish between                                                               
the first felony conviction and he  feels if your first felony is                                                               
a vehicle theft  and the second is a sex  crime, that's okay; but                                                               
if you've  been convicted of a  sex crime and you  commit another                                                               
one, that's  another thing altogether  and you've shown  that you                                                               
didn't get  the message. He  is asking for  a lot more  jail time                                                               
for the second go-around.                                                                                                       
                                                                                                                                
Attachment  A  shows  the  current  sentencing  law.  Presumptive                                                               
sentencing is  applied if  you've been convicted  of a  felony in                                                               
the  past and  you  come  to the  court  on  a second  go-around.                                                               
Unclassified   felonies   are   the  most   serious   crimes   of                                                               
penetration. A first  felony offense carries eight  years; if you                                                               
have a  prior felony and  you commit a  sex assault in  the first                                                               
degree, you  get 15 years.  This law  does not distinguish  as to                                                               
whether or not that first crime was another rape.                                                                               
                                                                                                                                
The other  portion of the bill  is that it takes  away good time.                                                               
Folks get a  one-third good time deduction  for basically minding                                                               
their Ps and Qs in prison,  which means a 15-year sentence can be                                                               
served in  10 years.  However, the federal  system does  not have                                                               
good  time. Our  system  uses  good time  to  encourage folks  to                                                               
behave  well in  prison but  the  repeat offenders  have used  up                                                               
their good time.                                                                                                                
                                                                                                                                
SENATOR FRENCH said  that Alaska has led the nation  for the last                                                               
25 years  in per  capita reported  rapes and, "We  owe it  to the                                                               
folks we  represent to tell them  that we are going  to take this                                                               
seriously and that  people who repeat are going to  go away for a                                                               
long time."                                                                                                                     
                                                                                                                                
He  used the  example  of a  man in  Fairbanks  who recently  was                                                               
convicted  of fondling  his  wife's 15-year  old  sister and  her                                                               
friend after  giving them  alcohol. Maybe that  is the  only time                                                               
he'll go  wrong in his  life, buy maybe  not; maybe when  he does                                                               
his prison  time, he'll do it  again and at that  point, this guy                                                               
"can't  fix  himself."  The  law  is  designed  to  treat  repeat                                                               
offenders, a small hard-core class  differently; it also protects                                                               
women and children.                                                                                                             
                                                                                                                                
SENATOR THERRIAULT  asked him  to explain  the age  difference in                                                               
statute for sexual assault.                                                                                                     
                                                                                                                                
SENATOR  FRENCH replied  that there  has to  be a  three-year age                                                               
difference. If  the girl  is 14, 15,  or 16 and  a male  is three                                                               
years older than  she is, he can't have a  relationship with her.                                                               
So, a  14-year old can have  a relationship with a  16 or 17-year                                                               
old, but not  with an 18 year  old. Those are the  areas that are                                                               
prosecuted the  least, prosecuted with the  most care, prosecuted                                                               
typically with a schoolteacher situation.                                                                                       
                                                                                                                                
SENATOR ELLIS  pointed out as a  side note that there  are public                                                               
service  announcements issued  by the  Department of  Health that                                                               
make   the  point   about   different   ages  and   inappropriate                                                               
relationships.                                                                                                                  
                                                                                                                                
MS. LINDA WILSON, Deputy Public  Defender, praised Senator French                                                               
for addressing  the high per capita  rate of rape in  Alaska, and                                                               
in Anchorage in particular.                                                                                                     
                                                                                                                                
The concerns  of the  agency are the  harshness and  extremity of                                                               
the  solution  he  has  proposed. The  increase  in  the  maximum                                                               
sentences and  presumptive sentences are very  severe, increasing                                                               
by  10  years the  maximum  sentence  for  class  A and  class  B                                                               
felonies for  a sex offense. It  also doubles the sentence  for a                                                               
class C felony.  The concern is with the  disparate treatment and                                                               
equal protection.  Treating sex offenders differently  by pulling                                                               
them  out of  the classification  system they  are in  raises the                                                               
risk that  there will be  a challenge of unequal  protection. She                                                               
explained:                                                                                                                      
                                                                                                                                
     Another section  on page 3,  lines 17 - 18,  shows what                                                                    
     the current  law is,  if you are  convicted of  a first                                                                    
     felony offense (unclassified), if  you possessed a fire                                                                    
     arm or dangerous instrument  or caused serious physical                                                                    
     injury, you would  get 10 years. If  you were convicted                                                                    
     under the  second provision of that,  it's unclassified                                                                    
     for a  sex assault in  the first  degree and you  get a                                                                    
     presumptive 10 years. If you're  convicted of a class A                                                                    
     felony for an attempted sex  assault, on page 4, line 7                                                                    
     -  if it's  a first  felony conviction,  you possess  a                                                                    
     firearm  or  dangerous   instrument  or  cause  serious                                                                    
     physical  injury,  it's  the   same  10  years.  So,  a                                                                    
     presumptive  for  a class  A  and  an unclassified  are                                                                    
     identical.  Whereas  in  another offense  you  wouldn't                                                                    
     have that jumping up so high.                                                                                              
                                                                                                                                
MS. WILSON  said the other  problem is  when you have  a specific                                                               
law  that  deals  with  second felony  sex  offenders,  in  Title                                                               
12.55.155  (c)(21), there  are aggravators  that already  address                                                               
when you have a prior offense or a similar one.                                                                                 
                                                                                                                                
She explained  that Section  6 eliminates  the 10-year  look back                                                               
for prior  convictions. So, no  matter what the  prior conviction                                                               
was, it  doesn't have to be  a prior sexual offense,  there would                                                               
be no 10-year look back limitation anymore.                                                                                     
                                                                                                                                
She  stated  that  totally  eliminating good  time  seems  to  be                                                               
extreme and raises concerns about  the ability to supervise these                                                               
people. She told members:                                                                                                       
                                                                                                                                
     It  seems you  would want  to ease  them back  into the                                                                    
     community and have  the ability to supervise  them in a                                                                    
     community on  mandatory parole, which you're  not going                                                                    
     to be  able to do.  They're going  to have to  do their                                                                    
     entire sentence.  If there's no treatment  available in                                                                    
     the institution, they're going to  get out and not have                                                                    
     any  of the  benefits of  treatment or  the supervision                                                                    
     you would have normally for  people who are released on                                                                    
     mandatory parole.                                                                                                          
                                                                                                                                
TAPE 03-32, SIDE B                                                                                                            
                                                                                                                                
MS. WILSON  pointed out  that another part  of the  statute lumps                                                               
these people  with two other  categories of offenders  that don't                                                               
get  any  good  time.  However, those  people  fall  under  Title                                                               
12.55.125(j) after  they have  served half  of their  sentence so                                                               
they  get an  opportunity  to  go back  before  the  court for  a                                                               
modification  of  their  sentence.  It is  the  same  for  people                                                               
convicted under  Section L  that get  a mandatory  40 to  99 year                                                               
sentence. People  convicted under  this bill  would not  have the                                                               
opportunity to go back before  the court for a modification. They                                                               
would have  no opportunity for  good behavior in  the institution                                                               
assessed for  purposes of pleaing  for some sort  of modification                                                               
or reduction.                                                                                                                   
                                                                                                                                
She  did not  think  they  would have  incentives  that would  be                                                               
helpful for the Department of  Corrections. This bill will have a                                                               
fiscal impact on the operations  of the Public Defender Agency as                                                               
there will  likely be more litigation  and more cases that  go to                                                               
trial when  a person who is  charged with an offense  is going to                                                               
receive such  an increase  in a sentence.  There could  be longer                                                               
and harder trials and more appeals  if a person is convicted. The                                                               
longer sentences  could result in  more suspended  time down-the-                                                               
road and more increases in probation revocations.                                                                               
                                                                                                                                
MS.  LAURI  HUGANIN,  Alaska Network  on  Domestic  Violence  and                                                               
Sexual  Assault, said  she  supported SB  85.  During FY02,  over                                                               
2,000 victims  of sexual assault  came to the  Network's programs                                                               
seeking support services.  One in four girls and one  in six boys                                                               
will be sexually  assaulted before they reach the age  of 18. The                                                               
Network  supports  both  concepts   in  the  bill  of  increasing                                                               
sentences  for repeat  offenders and  eliminating the  good time.                                                               
She continued:                                                                                                                  
                                                                                                                                
     It's important to realize that  the first time somebody                                                                    
     gets in  front of the  court isn't the first  time they                                                                    
     have  committed  a  sexual offense.  You  can  look  at                                                                    
     research,  you can  talk to  inmates, you  can look  at                                                                    
     people  who are  going through  treatment and  find out                                                                    
     that  they have  sexually  assaulted  many more  people                                                                    
     than what they are coming  before the court for even in                                                                    
     their  first  occasion,   particularly  with  children.                                                                    
     You'll  often find  many counts  of abuse  there during                                                                    
     the trial  and afterwards.  So, it's important  to know                                                                    
     that they  are already repeat offenders  the first time                                                                    
     they come....                                                                                                              
                                                                                                                                
     When you look  at treatment, what you  find when you're                                                                    
     reading  studies and  looking  at  recidivism is  often                                                                    
     they'll say, 'Well, if  that person received treatment,                                                                    
     they'll   last   longer   in   the   community   before                                                                    
     reoffense.'  They  don't  say, 'They're  not  going  to                                                                    
     reoffend.'  It's just  that  they're  able to  maintain                                                                    
     themselves  longer in  community  without reoffense  if                                                                    
     they go through treatment.                                                                                                 
                                                                                                                                
MS.  HUGANIN   stated  that  people  who   believe  in  treatment                                                               
acknowledge that  keeping offenders  out of the  community really                                                               
is the  best protection. Other  states do  day-for-day sentencing                                                               
for sex  offenders, like Arizona.  Other felons are able  to have                                                               
their  time reduced  by  15%.  In Tennessee  a  child rapist  and                                                               
multiple  rapist  is  required  to serve  their  entire  sentence                                                               
undiminished by  any sentence reduction  credit; other  felons in                                                               
Tennessee are  able to. In  Oregon, earned time is  not available                                                               
for a specific set of  felons, which includes people convicted of                                                               
sexual  assault  and sexual  assault  of  a minor.  In  Illinois,                                                               
offenders get 50%  off good time for almost  every offense except                                                               
sexual assault  and abuse.  Those offenders are  not able  to get                                                               
more than 4.5 days of good  conduct credit for each month served.                                                               
Iowa's  sentencing   for  repeat   sex  offenders   differs  from                                                               
sentencing  for  repeat offenders  of  other  felonies. A  person                                                               
convicted  a second  time for  a  predatory offense,  which is  a                                                               
felony, has to serve twice the maximum period of incarceration.                                                                 
                                                                                                                                
SENATOR  ELLIS  asked if  Alaskan  statistics  justify that  this                                                               
legislation pass this year rather than next year.                                                                               
                                                                                                                                
MS. HUGANIN replied yes.                                                                                                        
                                                                                                                                
MS.  ANNIE  CARPENETI,  Criminal  Division,  Department  of  Law,                                                               
supported SB 85 for the reasons stated.                                                                                         
                                                                                                                                
SENATOR  THERRIAULT   asked  her  if  the   department  would  be                                                               
submitting a fiscal note.                                                                                                       
                                                                                                                                
MS. CARPENETI replied that they  prosecute these cases vigorously                                                               
as it  is. The  length of  the sentence  wouldn't have  that much                                                               
impact on the department's prosecution efforts.                                                                                 
                                                                                                                                
SENATOR  THERRIAULT said  the Department  of Corrections'  fiscal                                                               
note is zero yet people would  be spending more time behind bars.                                                               
He  asked  Senator  French  if  he spoke  to  the  Department  of                                                               
Corrections about that and why it is not asterisked.                                                                            
                                                                                                                                
SENATOR FRENCH replied that he  had the same concern and expected                                                               
a hefty fiscal  note. However, he had  several conversations with                                                               
Ms.  Parker about  this subject  and the  gist was  because these                                                               
folks tend  to come back in  the system one way  or another, that                                                               
it's hard to quantify how much more they will spend.                                                                            
                                                                                                                                
CHAIR  SEEKINS  said  it  would  also be  hard  to  forecast  the                                                               
chilling effect that serving more time would have on offenders.                                                                 
                                                                                                                                
SENATOR THERRIAULT  said he really  couldn't see any  savings and                                                               
wanted to know more about the fiscal impact beyond five years.                                                                  
                                                                                                                                
SENATOR FRENCH  said he  would get a  better explanation  for the                                                               
Department of Corrections fiscal note.                                                                                          
                                                                                                                                
2:22 - 2:30 p.m. - at ease                                                                                                      
                                                                                                                                
SENATOR THERRIAULT  said the fiscal  note indicates zero  for the                                                               
first  five years,  but  he  was concerned  that  there would  be                                                               
substantial  costs  after  that  and  wanted  the  department  to                                                               
comment.                                                                                                                        
                                                                                                                                
MS.   PORTIA   PARKER,   Deputy   Commissioner,   Department   of                                                               
Corrections, explained that  they had a difficult  time trying to                                                               
project  the potential  impact down  the road,  which would  more                                                               
likely be 15 to 30 years  and certainly not within the first five                                                               
years. She explained:                                                                                                           
                                                                                                                                
     The reason  we chose  to not  even attempt  to estimate                                                                    
     that  is  we had  our  research  division look  at  the                                                                    
     recidivism  rate for  sex offenders  and we  determined                                                                    
     that it might actually save  the criminal justice, as a                                                                    
     whole, money,  because of the  high rate  of recidivism                                                                    
     for  sex  offenders.  I'll give  you  some  statistics.                                                                    
     Currently, in  custody on  a sex  offense, we  have 727                                                                    
     offenders.  In previous  and  released  at some  point,                                                                    
     were 581,  so, about 80%.  The average number  of times                                                                    
     admitted, for all the sex  offenders in our system, was                                                                    
     6.24 times  - arrested,  charged. The  percent admitted                                                                    
     to DOC  10 or more of  that group of sex  offenders was                                                                    
     52%. So,  with the  cost of  offenders coming  back in,                                                                    
     booking,  law  enforcement, court  costs,  prosecutors,                                                                    
     defenders and  then into the Department  of Corrections                                                                    
     and back  out again  was so high  that we  weren't even                                                                    
     sure it would be an increased  cost in the long term to                                                                    
     just leave them in prison.                                                                                                 
                                                                                                                                
     It  might be  a slight  increased cost  to DOC,  but we                                                                    
     couldn't even  really determine that.  If there  were a                                                                    
     higher cost,  maybe for the Department  of Corrections,                                                                    
     there may  be a  savings or  at least  cost containment                                                                    
     down the  road.... That is  why we did not  project out                                                                    
     the cost. It was  indeterminate. We could not determine                                                                    
     whether it would actually be an increase.                                                                                  
                                                                                                                                
CHAIR SEEKINS  asked if she  had any  statistics on how  long the                                                               
repeaters are out on the street before they are back in.                                                                        
                                                                                                                                
MS. PARKER replied that she didn't ask for that information.                                                                    
                                                                                                                                
SENATOR OGAN said  the difference is there are  fewer victims out                                                               
there.                                                                                                                          
                                                                                                                                
SENATOR ELLIS said her figures  put this issue in perspective and                                                               
asked  if  she was  in  favor  of  passing the  legislation.  The                                                               
statistics she mentioned  are people who are  either unwilling or                                                               
unable  to stop  their  bad behavior  and  they keep  victimizing                                                               
again and again.                                                                                                                
                                                                                                                                
SENATOR  THERRIAULT  asked  the   department  to  write  up  this                                                               
discussion and attach it to the fiscal note.                                                                                    
                                                                                                                                
SENATOR OGAN  said he wanted  to know  how many victims  knew the                                                               
perpetrator.                                                                                                                    
                                                                                                                                
SENATOR  FRENCH responded  that far  more know  their perpetrator                                                               
than he would guess. The classic  rapist who drags a stranger off                                                               
in the bushes is rare.  Typically, sex offenders present well and                                                               
behave  in prison,  but  they'll get  out, go  out  and do  their                                                               
grooming behavior.  They'll plan a  long time before  they commit                                                               
the crime.                                                                                                                      
                                                                                                                                
CHAIR SEEKINS said  they would hold the bill for  the work on the                                                               
fiscal note.                                                                                                                    

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