Legislature(2009 - 2010)BUTROVICH 205

04/07/2010 08:30 AM Senate JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Continued from 4/5/10 Meeting --
-- Please Note Time Change --
Uniform Rule 23 Waived
Moved CSSB 222(JUD) Out of Committee
Moved CSSB 303(JUD) Out of Committee
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved Out of Committee on 4/5/10
Scheduled But Not Heard
        SB 222-SEX OFFENSES; OFFENDER REGIS.; SENTENCING                                                                    
9:11:40 AM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 222.                                                                             
At ease from 9:11 a.m. to 9:13 a.m.                                                                                             
SB  222 was  heard previously  and a  committee substitute  (CS),                                                               
labeled  26-GS2859\E,  was  adopted  during  the  April  5,  2010                                                               
hearing. Chair  French noted  that he  has three  amendments that                                                               
are  the  result  of  negotiations between  his  office  and  the                                                               
Department of Law.                                                                                                              
9:13:54 AM                                                                                                                    
CHAIR  FRENCH  moved  Amendment  1,  labeled  26-GS2859\E.1,  and                                                               
objected to provide an explanation.                                                                                             
                          AMENDMENT 1                                                                                       
     OFFERED IN THE SENATE              BY SENATOR FRENCH                                                                       
          CSSB 222(JUD), Draft Version "E"                                                                                      
     Page 8, line 11:                                                                                                           
          Delete "associated with the account;"                                                                                 
          Insert "and physical location associated with the                                                                     
     account; and"                                                                                                              
     Page 8, lines 12 - 13:                                                                                                     
          Delete all material.                                                                                                  
     Renumber the following paragraphs accordingly.                                                                             
     Page 8, line 15:                                                                                                           
          Delete ";"                                                                                                            
          Insert "."                                                                                                            
     Page 8, lines 16 - 19:                                                                                                     
          Delete all material.                                                                                                  
CHAIR  FRENCH explained  that the  amendment deals  with the  new                                                               
provision that  gives subpoena power  to the attorney  general in                                                               
cases involving  the use  of an Internet  service account  in the                                                               
exploitation  of  children.  Previous  testimony  indicated  that                                                               
these  administrative subpoenas  might be  challenged because  of                                                               
the type of personal information  they would collect. He read the                                                               
section with  the amendment included  and asked Ms. McLean  if it                                                               
comports with her understanding of the amendment.                                                                               
SUSAN  MCLEAN, Director,  Criminal  Division,  Department of  Law                                                               
(DOL), said yes.                                                                                                                
CHAIR  FRENCH  asked  if  the  Department  of  Law  supports  the                                                               
MS. MCLEAN answered yes.                                                                                                        
CHAIR FRENCH removed his objection to Amendment 1.                                                                              
SENATOR  MCGUIRE asked  Ms.  McLean to  provide  the thought  for                                                               
deleting  a  requirement to  disclose  "local  and long  distance                                                               
telephone connection records, including  records of session times                                                               
and durations for the account."                                                                                                 
MS.  MCLEAN  explained  that  DOL asked  the  Office  of  Special                                                               
Prosecutions  and Appeals  for  an opinion  on  where within  the                                                               
realm of personal  privacy DOL could go without  running afoul of                                                               
the statute  or the Alaska  Constitution. Their opinion  was that                                                               
local and  long distance telephone records,  including records of                                                               
sessions and times  and durations for the  account, would include                                                               
unrelated  personal  telephone  calls   and  that  would  present                                                               
difficulties if someone challenged on  that ground. It was overly                                                               
9:18:03 AM                                                                                                                    
SENATOR MCGUIRE  said she  appreciates the  prosecution's opinion                                                               
about what  they can support,  but she'd  also like to  hear from                                                               
the investigative unit to know if  it might be a missing link not                                                               
to be  able to  associate the  length of time  someone is  on the                                                               
Internet with a particular connection.                                                                                          
CHAIR FRENCH reminded  the committee that this is  just the first                                                               
step. This relates  to the administrative subpoena  that lets the                                                               
officer identify the  suspect. A search warrant would  have to be                                                               
obtained  subsequent  to  that.  He  asked  Sergeant  DeGraaf  to                                                               
provide his perspective.                                                                                                        
DEREK  DEGRAAF, Sergeant,  Alaska State  Troopers, Department  of                                                               
Public Safety,  said not having  the record of the  phone numbers                                                               
associated  with the  account won't  affect their  ability to  do                                                               
their job.  The primary  information that they  want is  the name                                                               
and  physical  address  that  the   IP  address  comes  back  to.                                                               
Obtaining a  phone number or  information about bank  accounts is                                                               
SERGEANT DEGRAAF explained that  having those other records would                                                               
help determine  who else may  or may  not be using  the computer.                                                               
this  would be  helpful because  they have  to be  able to  put a                                                               
person  behind the  keyboard. Those  secondary  records can  help                                                               
provide clarification,  but if removing  those items  helps bring                                                               
everybody to  the same page we'd  go along with that  and support                                                               
the bill with those items removed, he said.                                                                                     
9:21:29 AM                                                                                                                    
SENATOR WIELECHOWSKI  pointed out that this  section only applies                                                               
to the  subpoena power  of the attorney  general and  many people                                                               
would  be rightly  concerned about  giving  the attorney  general                                                               
vast power to  go ahead without any judicial  review. An attorney                                                               
general  is free  to ask  a  court to  issue a  warrant for  this                                                               
information,  but   to  give  the  attorney   general  unfettered                                                               
subpoena power to get this  information is what this amendment is                                                               
directed at. I support the amendment, he concluded.                                                                             
CHAIR FRENCH  said it's  a balance  because the  attorney general                                                               
has  to have  a reasonable  cause  to believe  that the  Internet                                                               
service account  has been used  in the exploitation  or attempted                                                               
exploitation of children.  This is a good place to  start and see                                                               
what kind  of challenges  we get.  We'll stand  those challenges,                                                               
we'll win them and go from there, he said.                                                                                      
Finding no  further objection, he  announced that Amendment  1 is                                                               
9:22:59 AM                                                                                                                    
SENATOR  FRENCH   moved  to  adopt   Amendment  2,   labeled  26-                                                               
GS2859\E.2, and objected for discussion purposes.                                                                               
                          AMENDMENT 2                                                                                       
     OFFERED IN THE SENATE              BY SENATOR FRENCH                                                                       
          CSSB 222(JUD), Draft Version "E"                                                                                      
     Page 6, following line 30:                                                                                                 
     Insert a new bill section to read:                                                                                         
        "* Sec. 16. AS 12.62.130 is amended to read:                                                                        
     Sec.    12.62.130.   Reporting    of   uniform    crime                                                                  
     information. A criminal justice  agency shall submit to                                                                  
     the department, at the time,  in the manner, and in the                                                                    
     form  specified  by   the  department,  data  regarding                                                                    
     crimes committed within  that agency's jurisdiction. At                                                                
     a  minimum, the  department  shall  require a  criminal                                                                
     justice  agency  to  report  each  felony  sex  offense                                                                
     committed   in   the   agency's  jurisdiction.      The                                                                
     department  may withhold  grant funding  to a  criminal                                                                
     justice agency  that fails to  report data  as required                                                                
     by  this section.  The  department  shall compile,  and                                                                
     provide to  the governor  and the attorney  general, an                                                                    
     annual  report  concerning  the number  and  nature  of                                                                    
     criminal  offenses committed,  the  disposition of  the                                                                    
     offenses,  and any  other data  the commissioner  finds                                                                    
     appropriate relating  to the method,  frequency, cause,                                                                    
     and  prevention   of  crime.  In  this   section,  "sex                                                                
     offense" has the meaning given in AS 12.63.100."                                                                     
     Renumber the following bill sections accordingly.                                                                          
     Page 9, lines 6 - 11:                                                                                                      
     Delete all material.                                                                                                       
     Renumber the following bill sections accordingly.                                                                          
     Page 9, line 31:                                                                                                           
     Delete "Sections 17 and 19"                                                                                                
     Insert "Sections 18 and 19"                                                                                                
CHAIR FRENCH  said this provision came  about as a result  of the                                                               
hearing  last  summer  regarding   reporting  by  smaller  police                                                               
departments across the state of  felony sex offenses committed in                                                               
their  jurisdiction. Colonel  Holloway reported  that DPS  wasn't                                                               
getting much data  and therefore didn't know the  actual level of                                                               
sex  offense  activity in  these  smaller  areas. This  provision                                                               
corrects that.  He noted  that his  aide passed  him a  note that                                                               
said that  this is a rewrite  by the Department of  Public Safety                                                               
of that earlier provision.                                                                                                      
MS. MCLEAN  said this  rewrite moves  the proposed  mechanism for                                                               
insuring compliance  from Title  44 to Title  12. The  reason for                                                               
this  is that  AS  12.62.130  applies to  what  kind of  criminal                                                               
justice information  DPS is required  to collect and  it mandates                                                               
that  the local  agencies comply  with the  department's request.                                                               
This also puts the onus on  local agencies to comply when they're                                                               
asked and it  requires the sex offense language  to be mandatory.                                                               
If the local  agencies don't comply, they may  lose grant funding                                                               
that they get through DPS.                                                                                                      
CHAIR FRENCH  removed his  objection to  Amendment 2.  Finding no                                                               
further objection, he announced that Amendment 1 is adopted.                                                                    
9:25:02 AM                                                                                                                    
SENATOR FRENCH moved to adopt Amendment 3, labeled 26-                                                                          
GS2859\E.3, and objected for discussion purposes.                                                                               
                          AMENDMENT 3                                                                                       
     OFFERED IN THE SENATE              SENATOR FRENCH                                                                          
          CSSB 222(JUD), Draft Version "E"                                                                                      
     Page 1, line 2, following "pornography,":                                                                                
          Insert "failure to register as a sex offender,"                                                                     
     Page 2, following line 11:                                                                                                 
          Insert a new bill section to read:                                                                                    
       "* Sec. 3. AS 11.56.840 is repealed and reenacted                                                                    
     to read:                                                                                                                   
               Sec. 11.56.840. Failure to register as a sex                                                                   
          offender or child kidnapper  in the second degree.                                                                  
          (a)  A  person commits  the  crime  of failure  to                                                                    
          register as  a sex offender or  child kidnapper in                                                                    
          the second degree if the person                                                                                       
                    (1)  is required to register under                                                                          
          AS 12.63.010;                                                                                                         
                    (2)  knows that the person is required                                                                      
          to register under AS 12.63.010; and                                                                                   
                    (3)  with criminal negligence fails to                                                                      
                         (A)  register;                                                                                         
                         (B)  file written notice of                                                                            
                              (i)  change of residence;                                                                         
                              (ii)  change of mailing                                                                           
                              (iii)  establishment of an                                                                        
                    electronic or messaging address or any                                                                      
                    change to an electronic or messaging                                                                        
                    address; or                                                                                                 
                              (iv)  establishment of an                                                                         
                    Internet communication identifier or                                                                        
                    any change to an Internet communication                                                                     
                         (C)  file the annual or quarterly                                                                      
               written verification; or                                                                                         
                         (D)  supply accurate and complete                                                                      
               information required to be submitted under                                                                       
               this paragraph.                                                                                                  
               (b)  In a prosecution for failure to                                                                             
          register as a sex offender in the second degree                                                                       
          under (a) of this section, it is an affirmative                                                                       
          defense that                                                                                                          
                    (1)       unforeseeable   circumstances,                                                                    
          outside the  control of the person,  prevented the                                                                    
          person  from registering  under (a)(3)(A)  of this                                                                    
          section  or   filing  or  supplying   the  written                                                                    
          notices,   verification,  and   other  information                                                                    
          required under  (a)(3)(B) -  (D) of  this section;                                                                    
                    (2)      the    person   contacted   the                                                                    
          Department of Public Safety  orally and in writing                                                                    
          immediately  upon   being  able  to   perform  the                                                                    
          requirements described in this section.                                                                               
               (c)  Failure to register as a sex offender                                                                       
          or  child  kidnapper in  the  second  degree is  a                                                                    
          class A misdemeanor."                                                                                                 
     Renumber the following bill sections accordingly.                                                                          
     Page 9, line 29:                                                                                                           
          Delete "Sections 1 - 16"                                                                                              
          Insert "Sections 1 - 17"                                                                                              
     Page 9, line 31:                                                                                                           
          Delete "Sections 17 and 19"                                                                                           
          Insert "Sections 18 and 20"                                                                                           
CHAIR FRENCH said  this amendment relates to what  Ms. McLean has                                                               
repeatedly described  as "the former  Section 3." The  CS removed                                                               
that section  and this  amendment puts  it back  in the  bill. It                                                               
pertains to  the mental state that  the Department of Law  has to                                                               
prove in  order to convict a  person of failure to  register as a                                                               
sex  offender.  He  related  that   after  Ms.  McLean  testified                                                               
yesterday, he  read the  Moffitt case and  concurs with  her view                                                               
that  removing that  section would  leave the  state in  a nearly                                                               
impossible position when trying to  prove failure to appear under                                                               
the Moffitt decision.                                                                                                           
He said he continues to believe  that there has to be some mental                                                               
element,  but  this  puts  it  as low  as  possible  at  criminal                                                               
negligence.  This leaves  DOL in  the best  position while  still                                                               
maintaining  some  mental element  regarding  what  they have  to                                                               
prove about  what's in the  mind of  the offender. He  noted that                                                               
the  same  standard  would  be  used in  the  failure  to  appear                                                               
provision of the bail bill.                                                                                                     
MS. MCLEAN said  DOL asked for this because it's  very helpful to                                                               
have the  Legislature specify mental  states. She  then clarified                                                               
that  although  she talked  about  the  Moffitt case  during  the                                                               
previous hearing, the  most recent decision is  Solomon v. State.                                                               
That  case was  decided March  26 and  it clearly  said that  the                                                               
mental state of negligence survives constitutional challenges.                                                                  
SENATOR WIELECHOWSKI  asked what the current  standard is because                                                               
he thought it was a strict liability standard.                                                                                  
MS. MCLEAN said  this was a compromise. She pointed  out that DOL                                                               
has  always  felt  that  they could  defend  a  strict  liability                                                               
standard with  regard to  failure to register  as a  sex offender                                                               
and has always recognized that the  mental state that they had to                                                               
prove  is  that  the  person  knew that  they  were  required  to                                                               
register  as a  sex offender.  This  means showing  some sort  of                                                               
documentation that  proves that  the person  had notice  of their                                                               
duty to register, and having that  notice they didn't do so. They                                                               
felt that was sufficient and there  has never been a challenge to                                                               
sex offender registration  on those grounds, she  said. But given                                                               
the  Moffitt decision,  they're  trying to  have foresight  about                                                               
possible  challenges and  they're saying  that it  exists because                                                               
there is  no specified mental  state in either of  those [failure                                                               
to appear] statutes.                                                                                                            
9:28:05 AM                                                                                                                    
CHAIR  FRENCH  clarified  that Moffitt  pertains  to  failure  to                                                               
appear in  court, but failure  to appear and failure  to register                                                               
are similar ideas.                                                                                                              
SENATOR  WIELECHOWSKI  asked  for  a  brief  explanation  of  the                                                               
standard that the Moffitt court held.                                                                                           
MS. MCLEAN said it's an  interesting intellectual pursuit because                                                               
the  Alaska statutes  say that  if  a statute  doesn't specify  a                                                               
mental  state, the  general  rule  is that  the  mental state  is                                                               
knowing as to circumstances and  reckless as to conduct. Up until                                                               
the Moffitt  decision, DOL's understanding  of failure  to appear                                                               
was that  the state had to  prove that the person  knew that they                                                               
had  to appear  and  the state  would do  that  by paperwork  the                                                               
person signed or recordings of  the judge telling the person they                                                               
had  to appear.  DOL believed  that they  satisfied the  reckless                                                               
mental state  by showing that the  person was aware of  the court                                                               
date  and disregarded  it. The  Moffitt decision  was a  surprise                                                               
because it  said the state had  to disprove the excuses  a person                                                               
might have for not appearing and that's not possible.                                                                           
CHAIR FRENCH summarized that the  Moffitt decision basically said                                                               
that  the  state  had  to  prove that  at  some  date  after  the                                                               
defendant walked out of court he  or she formed a decision not to                                                               
go to court. "That just struck me as being impossible," he said.                                                                
SENATOR  WIELECHOWSKI questioned  what  would be  wrong with  the                                                               
strict liability standard and if  it would violate Moffitt to say                                                               
that a person who is court  ordered to register as a sex offender                                                               
and does not  do so is guilty of failing  to register, regardless                                                               
of any reason or excuse.                                                                                                        
CHAIR FRENCH said  DOL likes that, but he  was uncomfortable with                                                               
it because  it leaves a little  room - at criminal  negligence or                                                               
below -  for a series  of horrific  incidents that would  leave a                                                               
person unable to register.                                                                                                      
9:30:40 AM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  for  the  technical  definition  of                                                               
criminal negligence.                                                                                                            
MS. MCLEAN provided the following:                                                                                              
     The technical definition of  criminal negligence is the                                                                    
     person was unaware of a  fact of which the person would                                                                    
     have been aware and that the  failure to be aware of it                                                                    
     was  a gross  deviation  from the  standard of  conduct                                                                    
     that  a   reasonable  person   would  observe   in  the                                                                    
     situation.  And,  if the  reason  you're  not aware  is                                                                    
     because you were intoxicated, you're aware.                                                                                
SENATOR  WIELECHOWSKI  posed  a hypothetical  situation  where  a                                                               
person moved  to a new  community and forgot to  register. Noting                                                               
that they're  guilty under  current law  of strict  liability, he                                                               
asked if that's criminal negligence.                                                                                            
MS. MCLEAN said no, that's  strict liability. She reiterated that                                                               
strict liability  is what  DOL has been  proving and  that hasn't                                                               
been  challenged,  but after  the  Moffitt  decision they  became                                                               
concerned and wanted  to codify what they believe the  law is and                                                               
that's  strict liability.  This amendment  was a  compromise, she                                                               
SENATOR WIELECHOWSKI asked if it  would be criminal negligence if                                                               
a  person  were  to  move  to another  community  and  forget  to                                                               
MS.   MCLEAN  replied   she   believes   it's  clearly   criminal                                                               
negligence, but  just forgetting is  an excuse under  the Moffitt                                                               
standard and it's an excuse the  state has to disprove as part of                                                               
its case.                                                                                                                       
SENATOR WIELECHOWSKI expressed discomfort with the amendment.                                                                   
CHAIR FRENCH said  he believes that failure to register  as a sex                                                               
offender is something that should  be punished, but he's a little                                                               
uncomfortable with  strict liability.  That being said,  he would                                                               
accept the will of the committee.                                                                                               
9:33:09 AM                                                                                                                    
SENATOR  COGHILL  asked  how  strict  liability  would  play  out                                                               
practically.  He observed  that Alaska  has the  highest standard                                                               
for many laws, but there's discretion on application.                                                                           
CHAIR FRENCH acknowledged  that the Department of  Law always has                                                               
discretion not to bring a  charge, but strict liability basically                                                               
leaves  you  with absolutely  no  excuse  whatsoever. It  doesn't                                                               
matter  if you've  been in  a debilitating  car accident  or your                                                               
mother  was  shot  last  night,  under  strict  liability  you're                                                               
MS.  MCLEAN pointed  out  that  Section 3  in  the original  bill                                                               
provided  that the  excuse was  an affirmative  defense. That  is                                                               
that the court has to listen to  the defense and the jury gets to                                                               
decide. Strict liability says that  you lose that defense and the                                                               
jury doesn't get to consider it.                                                                                                
She said  that in the original  bill and before DOL  wrote in the                                                               
negligent mental state  in this amendment, they said  you have to                                                               
prove  a mental  state with  regard to  failure to  register. The                                                               
mental state you  have to prove is that the  person knew they had                                                               
to  register. We  accept that  burden;  it's the  same burden  as                                                               
beyond  a  reasonable doubt,  she  said.  If  the person  has  an                                                               
excuse,  their affirmative  defense is  to present  their excuses                                                               
and then the  burden shifts back to the state  to disprove beyond                                                               
a  reasonable doubt  that the  excuses are  valid. That's  how we                                                               
would want  to do  it and  Senator French  has another  idea, she                                                               
SENATOR  WIELECHOWSKI said  he  needs to  read  Moffitt a  little                                                               
more, but he's not comfortable with the amendment at this time.                                                                 
At ease from 9:36 a.m. to 9:37 a.m.                                                                                             
9:37:10 AM                                                                                                                    
CHAIR FRENCH withdrew Amendment 3.                                                                                              
At ease from 9:37 a.m. to 9:38 a.m.                                                                                             
9:38:59 AM                                                                                                                    
CHAIR FRENCH moved to adopt conceptual Amendment 4.                                                                             
                     CONCEPTUAL AMENDMENT 4                                                                                 
     OFFERED IN THE SENATE              BY SENATOR FRENCH                                                                       
          TO: CSSB 222(JUD), Draft Version "E"                                                                                  
     Reinsert Section 3 of SB 222, Version "A"                                                                                  
     Insert a new section that would be parallel to Section                                                                     
      21 as it appears in CSHB 298(JUD), Version "R" that                                                                       
     reads as follows:                                                                                                          
          The uncodified law of the  State of Alaska is                                                                         
          amended by adding a new section to                                                                                    
          LEGISLATIVE  STATEMENT   CONCERNING  CULPABLE                                                                         
          MENTAL   STATE.   In  AS   11.56.840(a),   as                                                                         
          repealed  and reenacted  by  sec.  3 of  this                                                                         
          Act, the only  culpable mental state required                                                                         
          to  be  proven  by  the  prosecution  is  the                                                                         
          "knowing"  requirement  in paragraph  (2)  of                                                                         
          that  subsection.  No other  culpable  mental                                                                         
          state  needs  to  be  proven  for  the  other                                                                         
          elements of that offense.                                                                                             
CHAIR FRENCH announced that without objection, conceptual                                                                       
Amendment 4 was adopted.                                                                                                        
9:40:36 AM                                                                                                                    
SENATOR WIELECHOWSKI  moved to report  CS for SB 222,  version E,                                                               
as amended,  from committee  with individual  recommendations and                                                               
attached fiscal note(s). There being  no objection, CSSB 222(JUD)                                                               
moved from the Senate Judiciary Standing Committee.                                                                             
9:40:59 AM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair French adjourned the meeting at 9:40 a.m.                                                                                 

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