Legislature(2007 - 2008)HOUSE FINANCE 519
02/20/2008 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HJR2 | |
| HB307 | |
| HB3 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 3 | TELECONFERENCED | |
| + | HB 307 | TELECONFERENCED | |
| + | HB 351 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 2 | TELECONFERENCED | |
1:56:07 PM HOUSE BILL NO. 307 An Act relating to penalizing certain misdemeanor domestic violence offenses as felonies. REPRESENTATIVE LINDSEY HOLMES, SPONSOR, explained that HB 307 seeks to increase penalties for repeat offenders by rd making a 3 misdemeanor case a felony. The bill is narrowly crafted, pertaining only for crimes against a person involving domestic violence. The repeat offenders will be subject to felony charge after their first two misdemeanors. The penalty will act as a deterrent for those persons who are repeat offenders. She maintained that there needs to be a serious deterrent to stop the cycles of violence. Alaska has one of the highest domestic violence rates in the nation. In 2005, there were over 6,000 reported cases of st domestic violence in the State. Alaska ranks 1 in the Nation with the highest rate of female victims killed by male perpetrators, many of which are in the context of domestic violence. rd HB 307 clarifies that for the 3 actual conviction on a domestic violence misdemeanor charge, a Class A misdemeanor is increased to a Class C felony. Representative Holmes clarified that the bill does not address the question of filing a protective order. The bill targets only the repeat offenders. Representative Holmes urged support for the legislation. 1:58:51 PM Representative Kelly asked how many other states have adopted these recommendations. Representative Holmes responded that 18 other states have the penalty in law. Vice-Chair Stoltze inquired if there were any retroactive provisions included in the bill. Representative Holmes advised that was the subject of debate in the House Judiciary Committee. She understood that the bill was prospective and that it requires the misdemeanor to have been a domestic violence offense. As of now, domestic violence has not been an element proven. To make it retroactive would require proof that prior offenses were domestic violence, which would be difficult. She recommended the Department of Law address that. 2:01:05 PM Representative Hawker mentioned that these issues raise a personal conflict for him. He referenced the "sweeping" definition of domestic violence in statute and listed possible situations where there could be crimes categorized as domestic violence. He thought the legislation might be overly encompassing, worrying that after three strikes, someone could be looking at a felony conviction. Representative Holmes acknowledged that there has been in- depth discussion with the prosecution and defense encouraging that definitions be left broad enough that they can be proven rather than convicting those not intended to be taken. She agreed the issue is real. Currently, the definition of domestic violence is in statute. She said she shares concerns voiced by Representative Hawker, adding that she is currently taking language into consideration to help narrow the concern. th Representative Holmes referenced crimes of assault in the 4 degree and "fear assault", which is recklessly placing someone in fear of imminent physical injury. She understood st that fear assault is not brought forward on a 1 time charge but is used when there has been a pattern of actual physical assaults. It is important to retain the language for the purpose of the domestic violence context. 2:06:26 PM Representative Hawker understood Representative Holmes desire to "trust the system". He questioned the consequences placed on the Department of Corrections. He pointed out that without any new laws passed, the Department is looking at a billion dollar General Fund commitment. Representative Holmes acknowledged that there are a number of pieces of legislation increasing penalties for offenders and that HB 307 is one of them, which could lead to a penalty range for a Class C felony from zero to five years and might lead to longer jail sentences. HB 307 requires conviction, not just the charge of three separate times. She was comfortable with the request to increase penalties. Representative Hawker acknowledged that the argument had been compelling. 2:09:02 PM Representative Nelson reiterated the bill charges only after three separate incidences, noting her support for the standard established through the legislation. By the third offense, it is clear that there is a pattern of anger, rage or abuse and that the offender needs treatment or counseling. Representative Joule inquired if the other eighteen states had seen a deterrent with adoption of similar legislation. Representative Holmes did not have those numbers. Representative Joule discussed the impact to the operating budget for the Department of Corrections; he worried about the long-term effect on the budget. 2:12:46 PM Representative Thomas hoped that any future abuser would realize what they will be loosing, with a felony on their record. He encouraged that if the legislation is implemented, the public must be educated regarding possible retributions. Representative Holmes agreed that discussion is critical as to what the extent is a deterrent and what extend is it punishment. She stated that one goal is in conjunction with the Task Force on Domestic Violence and Sexual Assault. The issue that continually comes forward is the need for education & awareness. She hoped that the legislation would help change attitudes and not simply to lock people up. She agreed that it is important that people know, the behavior is not to be tolerated. 2:15:18 PM Co-Chair Chenault asked if a person could be arrested, prosecuted & convicted for verbal assault, domestic violence. Representative Holmes did not believe so; however, there is something called fear assault, which recklessly places another person in fear of imminent physical injury. She deferred to the Department of Law. 2:17:32 PM JOSH FINK, (TESTIFIED VIA TELECONFERENCE), PUBLIC ADVOCATE, OFFICE OF PUBLIC ADVOCACY, DEPARTMENT OF ADMINISTRATION, offered to answer questions of the Committee. Vice-Chair Stoltze asked if there could be a prosecution without acquiescence of the victim in a situation where the victim recants or does not want to press charges. Mr. Fink responded that it is not uncommon to see a victim recant and the State still move forward. Vice-Chair Stoltze asked if that would count as one of the misdemeanor convictions. Mr. Fink replied it could if the State obtained a conviction. 2:19:52 PM Co-Chair Chenault asked if in a case where the wife and children were verbally or physically assaulted, how many misdemeanors could that one incident total. Mr. Find understood that it would be one occasion of conduct and would be one strike. Representative Thomas asked the number of times Mr. Fink saw a recanting domestic violence situation. Mr. Fink thought about 15%-20% of the assault cases recant. There are cases in which the person does not realize that situation constitutes domestic assault. 2:22:27 PM PEGGY BROWN, EXECUTIVE DIRECTOR, ALASKA NETWORK ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT, noted that the Network is not in total consensus & support for the bill. The Network does support the intention 100%, however, worries about the unintended consequences. She commented on the number of domestic violence charges that are actually convictions, which is a difficult number to obtain because they are not tracked in the small communities. These are the areas that the Network "worries" the most about unintended consequences. Ms. Brown commented that mandatory arrests have created the need for training resources to help determine the physical aggressor. She maintained that the unintended consequences might be severe and hoped to see them tracked. 2:26:06 PM PUBLIC TESTIMONY CLOSED 2:26:37 PM Vice-Chair Stoltze asked the approximate number of offenders that recant. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, acknowledged that the Department does prosecute cases in which the victim has recanted and the decision to do so depends on the available evidence. 2:28:10 PM Vice-Chair Stoltze addressed the profound consequences associated with the bill. Co-Chair Chenault reiterated his previous query regarding an assault on a family & the number of counts charged if more than one family member was involved. Ms. Carpeneti stated that the bill specifies that a conviction must be based on two or more convictions & occasions. That is common language in three strikes legislation. Co-Chair Chenault asked if there could be a felony charge if the perpetrator assaulted his wife the first day and his children the next. Ms. Carpeneti explained that each assault would have to be a conviction for crimes and be on two or more separate occasions. 2:31:21 PM Vice-Chair Stoltze inquired about the retroactivity potential. Ms. Carpeneti advised that would be applied only prospectively as there is no formal fact-finding for prior offenses at the present time. Representative Holmes agreed that was the original intent application. She offered to provide clarifying language. 2:32:19 PM Representative Thomas asked if the perpetrator would receive counseling after the first offense. Ms. Carpeneti referred that question to Department of Corrections, adding that if they were incarcerated as a result of a conviction, she imagined that services would be available. She thought it would depend on the circumstances. Representative Thomas thought it was important that the perpetrator seriously understand the consequences of a felony charge. Ms. Carpeneti elaborated it would be the person's third time through the judicial system and that they should have had an attorney appointed to represent them for the first two offenses. The presumptive range for a first Class C felony offense is zero to two years. That length is not "set in stone" for incarceration for a first time offense. There is a mandatory minimum for a domestic violence misdemeanor charge. Representative Thomas explained that living in a rural area, often, the person does not load size for those attorneys. Sometimes, it is easier for the charged person to assume a guilty plea. Representative Thomas wanted a guarantee that they receive the necessary counseling. Representative Holmes recommended the question be directed to the Office of the Public Defender; the bill could change the way that agency counsels their clients. She thought that the legislation could address prevention & supported counseling being factored into the defense council. Representative Thomas addressed to the pride that comes from having a job; he worried how high unemployment aggravates problems in the rural areas. 2:36:25 PM Representative Joule asked the definition of counseling and the financial obligation that would create for the State. Representative Holmes addressed comments made by Representative Thomas regarding counseling and education. She agreed that counseling is a separate issue. 2:38:18 PM Representative Hawker questioned the "factual findings" made in the Court process for a crime of domestic violence. He asked if it would be sufficient to place intent language in the bill for the Courts. He indicated concern that there was no fiscal note from the Court System. He asked if the Legislature could direct the Courts though the use of intent language & uncodified law. Ms. Carpeneti understood the bill's intent language differently. She believed the language indicates that judges should not be accepting pleas of guilty without factual bases. She pointed out that some people plead guilty just to get out of jail even if they are not. With regard to "fact finding", the Department assumes it will become an element of the defense and proven without reasonable doubt. In response to Representative Hawker, Ms. Carpeneti explained that in changes of plea proceedings, judges generally require the prosecutor to provide a factual basis for the plea. He thought that was the intent of the language. The concern is that there may be some who do not want to wait until the attorney makes the contact to inform them of their options. 2:42:48 PM Representative Hawker discussed situations where the State would not be negotiating a plea but instead, conducting a court process to its conclusion. He asked if it was necessary there be factual findings when a person is convicted. Ms. Carpeneti responded that if the bill is to pass, the Courts would have to initiate the procedure so that there would be a definitive factual finding that the crime against the person was domestic violence. Representative Hawker understood that it would be incumbent upon the Court to adopt the policy procedure; he asked if it was derived from the three strikes check list. Ms. Carpeneti responded that it could result from the Courts looking and interpreting that language. Representative Hawker pointed out that for the Courts to comply with the spirit and intent, they would have to change their procedures. Ms. Carpeneti replied yes. 2:45:20 PM Representative Hawker referenced the fiscal notes, pointing out that there was no representation from the prosecutorial authority. Ms. Carpeneti advised that a late note had been submitted by the Department of Law. Representative Hawker apologized. 2:46:34 PM Co-Chair Chenault indicated concern with the indeterminate fiscal notes received from Office of Public Advocacy, Department of Corrections, & the Public Defender Agency. The Department of Corrections anticipates between one to three offenders as a result of the legislation. There is an estimated impact of two to six beds annually. He requested actual dollar amounts included in the notes rather than an indeterminate indication. He said that he agreed with the intent of the bill, however, worried about the fiscal impact to the State. 2:50:13 PM SHARLEEN GRIFFIN, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES, DEPARTMENT OF CORRECTIONS, explained how the Department determined that one to three offenders could create the need for the two to six beds annually. Ms. Carpeneti added, it would depend which felony the conviction was for on that offender - the first, second or third and then the severity of that crime. Ms. Griffin clarified that the span of the costs depend upon the out-of-state offender population and if there exists sufficient in-State bed space. Co-Chair Chenault inquired cost differences between housing in & out of State. Ms. Griffin explained that the amounts in the note were not reflective of those differences. 2:52:42 PM Representative Hawker addressed base-costs for offenders having serious medical conditions. Ms. Griffin acknowledged that costs would skyrocket and that there are catastrophic cases, which happen every year. The population is generally not healthy and the costs are unpredictable. 2:53:29 PM Co-Chair Meyer asked if the language indicated on Page 2, Lines 6-8, should be deleted since it has been determined that the legislation will be prospective. "APPLICABILITY. AS 11.21.100, added by sec. 2 of this Act, applies to offenses committed on or after the effective date of this Act. References to previous convictions include convictions before, on or after the effective date of this Act." 2:54:44 PM Representative Holmes assumed if the determination was made that the legislation is only prospective, there should be changes made to the language. Vice-Chair Stoltze interjected that he hoped to "push the envelope" with whatever the Court System will allow. He asked the sponsor's intent. Representative Holmes noted she did not have that intent when the debate began, understanding it would be difficult to include prior offenses. The language as currently drafted, leaves it opens to return to prior offenses. She reiterated it would be difficult. Vice-Chair Stoltze suggested it only requires a good prosecutor. 2:57:02 PM Co-Chair Meyer stated that the bill would be held in Committee to review the fiscal notes. Co-Chair Chenault recommended that the Alaska Court System submit a note. Representative Hawker referenced previous testimony during the House Judiciary Committee. When the bill passed from that Committee, Representative Coghill had requested the bill be amended. He asked what those concerns had been. Representative Holmes recalled discussion regarding whether the language should be prospective or not. Representative Hawker was not surprised. 2:59:17 PM Co-Chair Chenault asked if a case were plea bargained, would it remain a misdemeanor. Ms. Carpeneti replied that if the person agreed to plead guilty & it was a domestic violence offense, then it would stay a misdemeanor. Representative Nelson supported the language of the bill being retroactive. It is not difficult to track convictions in domestic violence on the Court's database. She directed comments to the impact of the fiscal note, elaborating that the loss of life is a much bigger concern & should trump the concern with dollar costs. She observed that it is not appropriate for the State to allow misdemeanor after misdemeanor in cases of domestic violence. Studies show that in domestic violence situations for most perpetrators, their actions tend to escalate. By the third time that there is a conviction, the path is set. She agreed that the bill has a high priority. 3:01:23 PM Co-Chair Meyer recalled concerns in the attempt to make the legislation retroactive. Ms. Carpeneti advised that there are constitutional reasons when increasing the penalty for the conviction after the fact. The problem exists that there has not been a formal, factual, finding of domestic violence in cases up to now. To date, there has been no formal procedure for proving it. The Department of Law agrees it would be good to be retroactive, however, reiterated it would be difficult to prove. Co-Chair Chenault addressed concerns voiced by Representative Nelson regarding whether the State can afford the costs. He responded that the Legislature is charged with protecting the State's finances. He agreed that even one offense is too many but reiterated that the citizens of Alaska voted legislators into office with the obligation of law and money management. Costs must be listed. Discussion was concluded on HB 307. HB 307 was HELD in Committee for further consideration. 3:04:09 PM
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