03/25/1996 01:30 PM Senate JUD

           SB 268 PRETRIAL RELEASE FOR DRUG OFFENSES                          
                                                                              
 LAURIE OTTO, representing the Department of Law (DOL), addressed              
 the proposed committee substitute.  DOL feels the committee                   
 substitute strengthens the bill and more closely parallels the                
 conditions of release currently requested by the department.                  
 Referring to item (4) on page 2, Ms. Otto noted current bail                  
 condition language states, "to not have in the defendant's                    
 possession or control, ..." which she believes is stronger                    
 language. Similarly, on line 31, page 2, DOL would prefer the                 
 language, "to not have a firearm or a knife in the defendant's                
 possession or control."  A current bail provision prohibits the               
 defendant from having any weapon, including a firearm or knife, to            
 prevent drug offenders from being armed when out on bail.                     
                                                                               
 SENATOR TAYLOR and MS. OTTO discussed the semantic problem of                 
 including the word "knife" since a knife is an ordinary household             
 item.  SENATOR TAYLOR was concerned that the language be                      
 enforceable from a practical standpoint, since the defendant would            
 be prohibited from having a knife in a vehicle or his/her                     
 residence.  MS. OTTO pointed out the list of conditions currently             
 used were developed by prosecutors in Anchorage who deal with drug            
 offenders daily and are imposed to protect the public.                        
                                                                               
 MS. OTTO suggested the following changes:                                     
                                                                               
 on page 2, line 31, and page 3, line 1:                                       
                                                                               
  (1) to not have a firearm in the defendant's possession or                   
 control in any vehicle over which the defendant has control, or in            
 the defendant's residence, or a knife on the defendant's person;              
                                                                               
                                                                               
 and on page 3, line 5:                                                        
                                                                               
  (13) to not engage in any conduct or to refrain from any                     
 conduct that the court considers reasonably necessary to protect              
 the public, and to assure the appearance of the person in court.              
                                                                               
 Number 132                                                                    
                                                                               
 MS. OTTO offered two other amendments to CSSB 268.  On page 3,                
 lines 2-3 and 15-19 require the defendant to attend drug, alcohol,            
 or personal counseling as conditions of bail.  That condition is              
 similar to a condition contained in a domestic violence bail                  
 condition statute and when imposed has resulted in court appeals              
 based on Fifth Amendment rights.  DOL has, as a matter of policy,             
 asked prosecutors not to request that condition because of the                
 constitutional problem of requiring the defendant to confess to               
 conduct that he/she has not been convicted of.  DOL has spent                 
 considerable time in the last year reviewing appropriate conditions           
 for domestic violence cases because the current conditions in                 
 statute are inadequate.  She asked the committee to consider                  
 amending the domestic violence statute to fix it, rather than to              
 include the same problematic conditions in a new bill.                        
 SENATOR TAYLOR asked Ms. Otto to submit suggested language to                 
 committee staff so that the proposed committee substitute could be            
 redrafted.                                                                    
                                                                               
 Number 217                                                                    
                                                                               
 SENATOR ADAMS inquired whether Section 2 of the proposed CSSB 268             
 coincides with the Governor's domestic violence legislation.  MS.             
 OTTO clarified she is requesting the committee to add the domestic            
 violence bail conditions from the Governor's bill to CSSB 268.                
                                                                               
 MS. OTTO acknowledged DOL supports CSSB 268 and appreciates the               
 sponsor's willingness to work with department staff.                          
                                                                               
 SENATOR TAYLOR noted his continuing concern that by specifying bail           
 conditions in statute, the legislation might imply to the court the           
 list is complete or final.  MS. OTTO observed DOL shares that                 
 concern, especially in light of the fact that the department is               
 currently receiving the bail conditions it has requested.  The                
 broader concern is that three classes of offenses will have been              
 designated in statute for which specific bail conditions apply. The           
 court may interpret that specification to mean the same conditions            
 do not apply to other offenses by omission.  She interpreted the              
 listing of conditions as the legislature's attempt to deal with               
 specific problems identified, but in every other respect,                     
 appropriate bail conditions are left to the court's discretion for            
 offenses other than those in CSSB 268.                                        
                                                                               
 Number 268                                                                    
                                                                               
 SENATOR GREEN questioned whether other statutory language addresses           
 weapons in a more general way than just firearms or knives.  MS.              
 OTTO replied bail conditions are not normally specified in statute;           
 conditions are usually tailored, by the court, to the individual.             
 DOL often requests, in cases where there is a risk of violence, for           
 bail conditions that restrict an individual's access to weapons.