Legislature(1999 - 2000)
04/06/2000 01:50 PM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 368
An Act relating to release of persons before trial and
before sentencing or service of sentence; relating to
custodians of persons released, to security posted on
behalf of persons released, and to the offense of
violation of conditions of release; amending Rule
41(f), Alaska Rules of Criminal Procedure; and
providing for an effective date.
ANNE CARPENETI. ASSISTANT ATTORNEY GENERAL, CRINIMAL
DIVISION, DEPARTMENT OF LAW, stated that the proposed
legislation would address four areas:
Establishes the crime of violating conditions of
release;
Authorizes courts to order performance bonds;
Charges contempt of court for third-party custodian's
failure to report condition violations; and
Authorizes delayed reporting date for jail time.
Ms. Carpeneti continued:
Violation and Conditions of Release. In criminal cases, an
accused has a constitutional right to be released on bail
before trial. Persons who have been found guilty may be
released before sentence is imposed or before ordered to
serve a sentence. When releasing a person, the court may
impose both general conditions, such as requiring that the
accused violate no laws, and conditions specific to the
particular case or defendant, such as forbidding an accused
in a domestic violence case from contacting the victim. The
safety of the victim often depends on the enforcement of
release conditions. Currently, although it is a crime to
willfully fail to appear as ordered by the court, there are
few options for violation of other release conditions except
for incarcerating the person. The legislation provides that
it is a Class A misdemeanor for a person to violate release
conditions if the person is charged with a felony and a
Class B misdemeanor to violate conditions for a person
charged with a misdemeanor.
Performance Bonds. The bill clarifies the law by
specifically authorizing the court to order the accused to
post a performance bond, and requires that the court forfeit
the security if the person violates a condition of no
contact with the victim or witness in a proceeding. The
court may forfeit the security if the accused violates other
conditions. The standard for forfeiture of security in Rule
41(f), Alaska Rules of Criminal Procedure, is amended to
require that security be forfeited unless the defendant
could not comply due to circumstances beyond the control of
the defendant. An example of such circumstances includes
weather conditions that prevent airplane transportation, if
there is no alternative way to travel to court.
Third Party Custodians. Courts often release a defendant to
the custody of a third party either an individual or an
organization. Custodians are required to report to the court
or the police if the defendant violates release conditions,
but often do not. The bill provides that a third-party
custodian can be found in contempt for failing to report
immediately a defendant's violations of conditions of
release ordered by the court, and requires the court to
inform the custodian of the possible consequences of
ignoring the duty to report.
Delayed Reporting Date. The bill specifically gives the
court the authority to order a person sentenced to a period
of incarceration to begin serving the sentence at a date
sometime after it was imposed. With overcrowded correctional
facilities, this is useful to help avoid "bottlenecks" in
admissions b proper scheduling.
Representative Austerman asked the amount of discussion the
bill had had on the third party provision. Ms. Carpeneti
advised that if the person did not know that a violation had
occurred, they would not be responsible to report it. Most
custodians take their responsibly seriously. If the court
takes the risk to release someone and they are not to
contact the victim, that would require the custodian to
notify the police if the defendant does contact the victim.
It is important that they take that responsibility
seriously.
Representative Austerman asked if forfeiture of security
would be a separate bond for being released. Ms. Carpeneti
explained that there would be two types of security if the
bill were passed: there would be the performance bond and
the appearance bonds. The appearance bonds are similar to
the traditional bail bonds.
Representative J. Davies pointed out that bail bond people
are concerned with how much they would need to charge to
provide the "insurance" and the collateral requirements. He
noted that Ms. Carpeneti had indicated that these would be
discretionary. He asked how the legislation would impact a
person's ability to get a bond.
Ms. Carpeneti responded that it would be discretionary to
lose the bond. She added that the bail bondsman could write
appearance bonds or performance bonds. A bondsman could
post a bond for a person who failed to appear. Ms. Carpeneti
stated that judges could tailor the amount of the
performance bond to an amount that a person could personally
come up with. That would give the individual incentive to
abide to the conditions of release.
Representative J. Davies asked if there was a
distinguishment between the mandatory and discretionary
amounts. Representative J. Davies noted that he was more
interested in the "no contact" portion of the legislation.
Ms. Carpeneti explained that the bill provides that if a
convicted person does contact the victim in violation of a
performance bond, then the security would be forfeited.
(TAPE CHANGE, HFC 00 - 105, Side 2)
Co-Chair Mulder noted that currently, when person signs on
as a third party custodian, they assume some
responsibilities. Under the proposed legislation, the only
penalties placed upon a third party would be in the event
that the party disappears. They are then required to report
it. Ms. Carpeneti noted that the bill stipulates that they
must report it immediately.
Co-Chair Mulder asked if the only change from current
practice was that there would be enforcement. Ms. Carpeneti
agreed and added that they could be found in contempt of
court. Co-Chair Mulder wanted to guarantee that this would
not be a "discouragement" to parties contemplating becoming
the third party custodians.
BLAIR MCCUNE, (TESTIFIED VIA TELECONFERENCE), DEPUTY
DIRECTOR, ALASKA PUBIC DEFENDERS AGENCY, DEPARTMENT OF
ADMINISTRATION, ANCHORAGE, commented that the Public
Defender's agency is concerned with the legislation. He
stated that prisoner overcrowding is a big problem in
Alaska. If the number of prisoners increases, there will be
serious consequences for overcrowding.
Mr. McCune noted that the main concern is with performance
bonds and the added offense of violation of prison release.
He disagreed with Ms. Carpeneti's statement that there would
not be any additional consequences for someone who had
violated their conditions of release. Mr. McCune emphasized
that there would be consequences and that those persons
would not be considered for probation. He added that going
back to jail would be a major consequence.
Mr. McCune advised that there are bondsmen that write
appearance bonds in many other areas of the State outside of
Juneau, especially in Anchorage. The bondsmen write these
because they are fairly predictable. Bondsmen have "ways of
persuading" these folks to come to court quickly. He did
not see the private bondsmen writing any of the performance
bonds which would be a business risk. Mr. McCune
acknowledged that the Public Defenders Agency is concerned
that performance bonds would be prevalent and would add
additional work and barriers to having people released. He
reminded members that people in jail and facing bail are not
in a good arguing position.
Mr. McCune pointed out that there are so many conditions of
release. He added that the bonding issue would place
hardships on families that can not afford it. Another
consequence is the violation and conditions of release.
These consequences are real and the agency is concerned that
these would become a plea bargaining tool, making it a Class
A misdemeanor.
Mr. McCune stressed that the current system is a fair
system. People are being released from the jails, whereas,
within the proposed law, unwarranted difficulties will
continue to surface.
Representative Phillips asked if the Public Defenders Agency
supports penalties when there has been a violation of their
conditions of release. Mr. McCune interjected that they do
not support Section #3, the new law which makes it a
misdemeanor to violate conditions. Mr. McCune added that
these people generally do not go unpenalized. If it is a
minor violation, they might not be penalized. If it were a
serious violation, they would be put back in jail. If they
were found guilty, they would have to go before the same
judge that sentenced them and he would again determine the
probation conditions. Mr. McCune emphasized that these are
consequences when you are in jail.
Ms. Carpeneti clarified that there would be no additional
consequences outside of what there is on the original
charge. She countered statements made by Mr. McCune. She
noted that the bill provides that if a person is charged
with a felony and conditions of release are violated, and
then convicted, that would then be considered a Class A
misdemeanor. However, if the person is charged with the
underlying charge, and they violate the conditions of
release and are convicted of that violation, it would then
become a Class B misdemeanor.
Representative J. Davies asked if there would be an
additional consequence if the bond procedure were
established. Ms. Carpeneti explained that the legislation
would encourage people to provide for the conditions of
release in two ways, which are the possibility of being
charged for another crime and monetary consequences if
conditions are violated.
Representative J. Davies asked why the Department would need
both civil penalties. Ms. Carpeneti replied that it is
important for public safety that people released, abide by
the conditions of their release.
Representative G. Davis asked if there were statistics
regarding the economic status of a person and how bonding
would be determined for that person. He asked about the
conditions for the very poorest of people. Ms. Carpeneti
responded that judges are capable of looking at a person's
resources and then making the bond appropriate.
Vice Chair Bunde MOVE to report CS HB 368 (JUD) out of
Committee with individual recommendations and with the
accompanying fiscal note. There being NO OBJECTION, it was
so ordered.
CS HB 368 (JUD) was reported out of Committee with a "no
recommendation" and with a fiscal note by Department of
Corrections dated 2/11/00, the Department of Administration
dated 2/11/00 and a zero note by the Department of Law dated
2/11/00.
| Document Name | Date/Time | Subjects |
|---|