Legislature(2007 - 2008)HOUSE FINANCE 519
04/24/2007 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB90 | |
| HB238 | |
| HB164 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 90 | TELECONFERENCED | |
| *+ | HB 238 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 164 | TELECONFERENCED | |
HOUSE BILL NO. 90
"An Act relating to bail."
REPRESENTATIVE RALPH SAMUELS, sponsor, reported that HB 90
is a multi-part bill. He requested that the Committee hear
the bail section of the bill first.
KATHY HANSEN, OFFICE OF VICTIMS' RIGHTS, addressed Section 5
of the bill, which amends the law addressing when a person
arrested for a crime may request a third and subsequent bail
hearing. She explained that hope is that this section would
balance the constitutional rights between the defendant and
the victim in criminal matters. She pointed out that the
section was dealt with during the last legislative session;
however, the Office of Victims' Rights felt that further
limits were needed on the defendant's right to repeat bail
hearings. She related an example of a victim who had to
attend multiple bail hearings. She wanted a defense
attorney to be required to offer one bail proposal at the
beginning of the case and present all information available
at that time, not in several subsequent hearings.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES
SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW,
described the bill as fine tuning several new laws from the
last several years such as SB 218, which expanded the
sentencing period and probation for felony sex offenders.
One of the problems is that mandatory probation for sex
offenders is longer than what is currently in statute for
the maximum period of probation. She pointed out that when
a cold case prosecutor was funded, fine tuning was needed on
the statute of limitation for the prosecution of older
murder cases. She also spoke of a bill prohibiting
electronic distribution of indecent material to children,
which only addressed indecent pictures of children.
Indecent pictures of adults are not covered under current
law and needs to be changed. A section of HB 90 puts into
statute a standard for when a court should order credit
against a term of incarceration for participation in a
treatment program.
Ms. Carpeneti described Section 1, which makes it a new
crime for a sex offender on probation to violate a condition
of probation. This was necessary because a sex offender
could run out of jail time "hanging over their head" under
current probation regulations. It is a class A misdemeanor
if a person violates certain conditions of their probation.
1:53:34 PM
Ms. Carpeneti related that Section 2 prohibits a person from
sending indecent material that depicts adults to minors.
Ms. Carpeneti reported that Section 3 is a conforming
amendment that would allow the forfeiture of property such
as computers used in committing electronic distribution of
indecent materials to minors.
Ms. Carpeneti explained that Section 4 adds "attempt,
solicitation, and conspiracy to commit murder" and
"hindering prosecution of murder" to crimes that may be
brought at any time. The prosecution of cold cases has been
hindered by the statute of limitations for these crimes,
which is five years.
Ms. Carpeneti related that Section 5 is the bail revision
previously described by Ms. Hansen.
1:54:35 PM
Ms. Carpeneti explained that Section 6 relates to Nygren
credit, a case that addressed when a court should grant
credit against a period of incarceration for time spent in a
treatment program before a sentence is served. Credit may
be given for time in a treatment program that is essentially
similar to incarceration. It is important for this to be in
statute to provide fairness and uniformity as to credit for
time served in a treatment program. There are three
criteria: the court orders treatment, the program meets the
standards set forth in the bill, and the director of the
program has informed the court that the person completed the
requirements of the program.
Ms. Carpeneti related that Section 7 changes the mandatory
period of probation from 10 years to 25 years for felony sex
offenses.
Ms. Carpeneti said that Section 8 requires a person
convicted of electronic distribution of indecent material to
minors to register as sex a offender.
Ms. Carpeneti explained that Section 9 requires a person to
bring an action for post-conviction relief that is based on
the claim that the person's attorney in a prior application
for post-conviction relief was ineffective, within one year
after the court's denial of the prior application for post-
conviction relief is final. She reported that a law passed
in 1995 helped cut down on "recreational litigation" by
prisoners. Current law provides several chances for post-
conviction relief; however, Section 9 would impose a time
limit of one year.
Ms. Carpeneti related that Section 10 provides that a
prisoner not be awarded "good time" for any period spent in
a treatment program, a private residence, or while under
electronic monitoring. She maintained that good time should
apply to good behavior during time spent in jail.
2:00:15 PM
Representative Gara voiced concern, on page 6, about not
allowing good time for time spent in a 24-hour intensive
treatment program. He suggested that be allowed if the
treatment program satisfies the criteria described in
Section 6. Ms. Carpeneti related a problem in that
treatment programs do not give good time, the Department of
Correction does. Also, a treatment facility does not equal
jail. Representative Gara maintained that good time for
treatment could be at the discretion of the Department of
Corrections. He stressed that rehabilitation is important.
Ms. Carpeneti said it might work if the treatment program is
similar to incarceration.
2:03:24 PM
Representative Crawford thought that fewer would go into
treatment if it did not count toward good time. Ms.
Carpeneti agreed. She added an example of someone who does
not finish treatment because it does not count toward good
time.
2:04:53 PM
Representative Gara wondered if the Department of
Corrections is currently required to give good time for
residential treatment.
SHARLEEN GRIFFIN, DIRECTOR, DIVISION OF ADMINISTRATIVE
SERVICES, DEPARTMENT OF CORRECTIONS, explained that her
understanding is that the Department currently has the
discretion to determine good time.
Representative Gara said he wants to make it consistent with
what the law currently states. Ms. Carpeneti thought that
it was currently discretionary for good time to be given for
treatment.
2:08:13 PM
MARTI GREESON, ALASKA MONITORING, ANCHORAGE, addressed
Section 6. She spoke about electronic monitoring of non-
violent alcohol-related offenders. She testified in support
of allowing electronic monitoring time counting toward good
time.
Representative Gara voiced confusion about electronic
monitoring credit toward good time. He summarized his
understanding of good time.
Ms. Carpeneti clarified that every prisoner in the state has
the right to good time. It is to encourage them to behave
while in jail. Representative Gara referred to Section 6,
and questioned the court's role. Ms. Carpeneti clarified
that the court does not grant good time. Section 6 deals
with Nygren credit, which is credit for time served. She
gave an example of someone who seeks treatment prior to
conviction. After the person is convicted and the sentence
is imposed, the judge can reduce the time to be served for
the time spent in treatment. Section 6 is intended to
standardize what programs the courts give credit for against
a sentence to begin with. Good time is awarded by the
Department of Corrections, applies to time off for good
behavior after a person is incarcerated, and is a very
effective tool.
2:14:34 PM
Representative Gara asked if Section 6 does not allow for
someone with an electronic monitoring device before
conviction to get credit for time against an imposed
sentence. Ms. Carpeneti said yes.
Representative Gara asked if Section 10 deals with the
Department of Corrections not counting 30 days of
residential treatment against jail time. Ms. Carpeneti said
yes.
2:15:55 PM
Vice Chair Stoltze MOVED to ADOPT Amendment 1:
Page 4, lines 30-31 and page 5, line 1:
Following "appearances" delete all material
Insert the following:
",meetings with counsel, and work required by the
treatment program and approved in advance by the
court;"
Co-Chair Meyer OBJECTED.
Ms. Carpeneti explained that Amendment #1 repairs an
amendment made in House Judiciary regarding the Nygren
credit, which would allow mandatory work done in treatment
programs to qualify for good time credit. The Department of
Law was not in favor of that amendment. Amendment #1
clarifies how the credit is given for work programs.
Co-Chair Meyer WITHDREW his OBJECTION. There being NO
OBJECTION, it was so ordered.
Representative Gara WITHDREW Amendments #2 and #3.
2:18:41 PM
Representative Gara MOVED to ADOPT Amendment #4:
Page 3, lines 28-30:
Delete "(A) the inability to post the required bail;
(B) information that the defendant knew about
but did not present at a previous bail review
hearing"
Insert "the inability to post the required bail"
Page 4, line 2:
Delete "seven days [48 HOURS]"
Insert "48 hours"
Co-Chair Meyer OBJECTED.
Representative Gara explained that Amendment #4 has to do
with whether or not a person can get a subsequent bail
hearing and how.
Representative Gara WITHDREW Amendment #4.
2:19:34 PM
Representative Gara MOVED to ADOPT Amendment #5:
Page 3, lines 29-30:
Delete "knew about but did not present"
Insert "without good cause did not disclose"
Co-Chair Meyer OBJECTED.
Representative Gara explained that the way the bill is
written, another bail hearing is not allowed if the
defendant had information but it was not presented at the
prior bail hearing. The reality is that the client does not
normally talk to the court. Sometimes there is an endless
replacement of public defenders doing bail hearings, and
sometimes all points are not raised. The amendment
disqualifies a person from the extra bail hearing if there
was information that, without good cause, was not disclosed.
2:21:28 PM
Vice Chair Stoltze asked if "defendant" was synonymous with
"lawyer". Representative Gara replied that the amendment
was referring to what the defendant and their lawyer knew.
Vice Chair Stoltze requested further clarification.
Ms. Carpeneti said the purpose of the bill seems to be to
avoid serial bail hearings.
Ms. Hansen clarified that current law reads that the
defendant who wants a repeat bail hearing has to file a
written certification as to why they want a new bail hearing
and what new information the court is going to consider.
The court currently is open to this. She related a personal
experience about a request for separate bail hearings,
without notice, for a third-party custodian appointment and
electric monitoring. She maintained that there needs to be
advance notice for bail hearings. She explained the trauma
experienced by victims each time there is a bail hearing.
Representative Gara sympathized with the victim. He related
that the purpose of bail is for people who are not guilty.
The more bail is limited, the less fair it is to the person
who is not guilty. He wanted to prevent punishing the
defendant due to an incompetent public defender.
2:27:11 PM
QUINLAN STEINER, DIRECTOR, PUBLIC DEFENDER AGENCY,
DEPARTMENT OF ADMINISTRATION, pointed out that the previous
situation could cause litigation, if there is a disagreement
between attorney and client as to what was communicated.
Right to a bail hearing could be lost.
Representative Gara inquired about the new bail hearing
provisions. One, on line 28, is that a client can't get the
subsequent bail hearing based on the grounds that bail could
not be posted under the prior bail hearing. Mr. Steiner
replied that that provision is not much different from what
is in place now. Representative Gara gave an example of a
client who gets $100,000 bail and can't post that much. Mr.
Steiner agreed that it was a real world example. The
question is whether one judge would address the bail order
of another judge. Representative Gara asked how different
the provision that says a bail hearing will not be allowed
if the defendant knew information that wasn't shared at a
prior hearing is from existing law. Mr. Steiner addressed
what was new about the proposal. Representative Gara wanted
to see fair bail provisions under Section 5. He asked Mr.
Steiner for his opinion. Mr. Steiner thought it would lead
to litigation and denial of a third hearing. Representative
Gara wanted a balance, but did not know how to fix Section
5.
2:32:42 PM
Representative Joule related that in rural areas there is a
lack of investigation. He wondered if that impacts the bail
hearing. Mr. Steiner said it does. One of the bail
considerations is the strength of the case. A time-lag is a
detriment and could affect release.
Representative Samuels said there was a previous bill that
said unless you have new information you can't have a new
bail hearing. The point was to try to have all the
information brought out at the first bail hearing so that
the victim does not get called in several times. He said he
understands Representative Gara's point. He thought
Amendment #5 did not help clarify the issue.
2:37:19 PM
Ms. Carpeneti pointed out that the bill addresses a person's
third bail hearing. She opined that there is an out in
current law and the bill is fair the way it is drafted.
Representative Gara argued that granting of a bail reduction
by the prosecutor does not happen very often. He gave an
example of an attorney misrepresenting a client. Ms.
Carpeneti thought the attorney should be presenting the best
case at the first bail hearing.
Representative Gara WITHDREW Amendment #5.
2:40:25 PM
Representative Gara addressed Section 10 and maintained that
a prisoner should get a good time deduction if treatment
meets the criteria on page 4, beginning with line 28. Ms.
Carpeneti thought it would be easier to include this in
definitions. Representative Gara thought the court order
would have to be deleted because it does not order good
time. Ms. Carpeneti proposed wording, "a treatment program
for this section means a program that a person completes and
that is equivalent to incarceration."
Representative Gara added, "a program that the person
completes and that meets the standards stated in .027(c)."
Representative Gara MOVED to ADOPT Conceptual Amendment #6:
Page 6, lines 21-23
Insert language to read
"good time may be granted if the treatment program is:
(1) Completed;
(2) and meets the standards in AS 12.55.027(c)
Representative Hawker OBJECTED.
Representative Samuels asked what happens when there are
thirty days left in a sentence of a sixty-day sentence and
the last thirty days are spent in a treatment program, which
isn't completed. He wondered if the Department of
Corrections would have to re-calculate the sentence.
Ms. Carpeneti said treatment is at the end of the sentence
and time-keeping by the Department of Corrections is a
complicated matter. In order to give good time for a
treatment program, the program should be completed.
Representative Joule wondered how much time the sentence
would be and how effective treatment would be if it comes at
the end of the sentence. Representative Samuels noted it
would be a 90-day sentence with 30 days of treatment. Good
time would have to be predicted by the Department of
Corrections.
2:48:15 PM
Representative Gara related a scenario about treatment plan
possibilities.
Representative Hawker spoke against Section 10 and putting
the Department of Corrections in the position of over-riding
a court sentence.
Representative Gara argued that the amendment does not
violate a court order. He thought treatment was important.
Ms. Griffin said those that need extensive treatment are
sent to residential treatment programs. Anyone who has a
court order for treatment has a probation officer to oversee
it. She did not see that there would be any good time to
give or take away.
A roll call vote was taken on the motion.
IN FAVOR: Crawford, Gara
OPPOSED: Foster, Hawker, Joule, Stoltze, Thomas, Meyer
Representatives Kelly, Nelson, and Chenault were absent for
the vote.
The amendment failed (2-6).
Co-Chair Meyer noted a new indeterminate fiscal note from
the Department of Commerce. He listed the other fiscal
notes.
2:56:44 PM
Representative Joule wondered about fiscal notes #5 and #6.
He wondered when those indeterminate costs would be real
costs.
Ms. Griffin explained the possible costs for the Department
of Corrections by section. She related that in Section 6,
one of the uncertainties is the effect of less pre-trial
electronic monitoring. Section 7, the extended probation,
will not have an impact on the Department. The Department's
concern regarding Section 10 is about not allowing good time
for electronic monitoring and the resulting financial costs.
It is not know how many offenders will refuse electronic
monitoring.
Co-Chair Meyer asked if fiscal notes #5 and #6 are among the
current fiscal notes. Ms. Griffin noted that they were
replaced by a new indeterminate note.
Vice Chair Stoltze MOVED to REPORT CSHB 90 (FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 90 (FIN) was REPORTED out of Committee with a "do pass"
recommendation and with zero fiscal note #2 by the
Department of Law, indeterminate fiscal note #3 by the
Department of Administration, indeterminate fiscal note #4
by the Department of Administration, and with a new
indeterminate fiscal note by the Department of Corrections.
3:03:01 PM
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