Legislature(1993 - 1994)

02/01/1994 01:32 PM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HJR 43    Proposing an amendment to the Constitution of  the                 
            State of Alaska relating to penal administration.                  
                                                                               
            CS HJR 43 (FIN) was reported out of Committee with                 
            a  "do pass"  recommendation  and  with  a  fiscal                 
            impact note by  the Office of the  Governor, dated                 
            1/13/95; and  with two  zero fiscal  notes by  the                 
            Department of Public Safety and the Department  of                 
            Corrections, dated 1/13/94.                                        
                                                                               
  Members were provided  with a proposed committee  substitute                 
  work draft 8LS1056\D, dated 1/28/94 (copy on file).                          
                                                                               
  REPRESENTATIVE BRIAN  PORTER explained  that CSHJR  43 (JUD)                 
  would provide specific constitutional rights for victims  of                 
  crime.    He  observed  that families  and  spouses  of  the                 
  individual that has been victimized  would be included.   He                 
  emphasized that most of the rights contained in CSHJR  (JUD)                 
  have  been defined  in statute.   He stressed  that victim's                 
  rights would be  raised to  the same level  as the  criminal                 
  defendant.                                                                   
                                                                               
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  Representative  Grussendorf  noted  that constitutional  law                 
  generally   protects   individuals   from  abuses   by   the                 
  government.   He observed that CSHJR 43  (JUD) would protect                 
  victim's rights from other  individuals.  He asked if  other                 
  states have adopted constitutional rights for victims.                       
                                                                               
  Representative Porter  replied  that  fourteen  states  have                 
  adopted  constitutional rights for  victims.   He maintained                 
  that the government has control of the criminal defendant in                 
  the criminal justice system.                                                 
                                                                               
  Representative Brown addressed the fiscal impact of CSHJR 43                 
  (JUD).  She  asked if the  right to be reasonably  protected                 
  would increase the State's liability.                                        
                                                                               
  Representative  Porter  noted  that   the  right  of  timely                 
  disposition already  exists in  law.   Current law  requires                 
  that a  case be addressed within 120  days.  A defendant can                 
  petition  for  a   suspension  of   the  right  for   timely                 
  disposition in order to delay a  case.  He pointed out  that                 
  CSHJR 43 (JUD) would allow a victim to request that the case                 
  not be delayed.  Courts would have to weigh the interests of                 
  the defendant and the victim if the legislation is enacted.                  
                                                                               
  Representative Hanley  expressed concern that the  right for                 
  timely disposition would result in dismissal of cases due to                 
  court  backlogs.   Representative  Porter  doubted  that the                 
  Supreme Court  would interrupt that timely disposition would                 
  occur in less time than current law allows (120 days).                       
                                                                               
  JANICE LIENHART, VICTIMS FOR JUSTICE  testified on behalf of                 
  CSHJR 43  (JUD).  She  stressed that defendant's  rights are                 
  protected by the Constitution  of the State of Alaska.   She                 
  asserted that victim's rights need  to be equally protected.                 
  She listed other states that have passed or have legislation                 
  pending in regards  to victim's constitutional rights.   She                 
  maintained that the rights of victims of violent crimes must                 
  be balanced with defendant's rights.                                         
                                                                               
  Representative Parnell  raised the question  of restitution.                 
  Representative Porter explained that current  law allows the                 
  court  to  render  restitution  in  a criminal  case  for  a                 
  conviction, over a period  of probation.  A victim  also has                 
  the   option   of   pursuing   restitution   through   civil                 
  proceedings.                                                                 
                                                                               
  Representative  Porter clarified that an accusation does not                 
  automatically   make   an    individual   responsible    for                 
  restitution.  Restitution is awarded only upon a conviction.                 
                                                                               
                                                                               
                                2                                              
                                                                               
                                                                               
  Representative Parnell raised  the question of the  right to                 
  be informed and  present.  Representative Porter  noted that                 
  it is not  the intent of the legislation  that the State pay                 
  for a victim's travel.  He  noted that victims could utilize                 
  telecommunications.                                                          
                                                                               
  Representative  Hanley  expressed concern  that  the State's                 
  responsibility to  inform victims  of proceedings be  clear.                 
  Representative Porter clarified that "proceeding" is defined                 
  by  the  presence   of  a  judge  or  jury.    Psychological                 
  evaluations  would not  be  included.   Motions  determining                 
  guilt  or innocence would  be included in  the definition of                 
  "preceding" in cases involving juveniles.                                    
                                                                               
  Representative  Grussendorf  echoed  the  previous  concerns                 
  regarding notification of proceedings.  He  asked if a delay                 
  would  occur to  protect  the rights  of  victims unable  to                 
  attend a proceeding.   He questioned  the need to raise  the                 
  issue  to  a  constitutional level.    Ms.  Lienhart assured                 
  Representative  Grussendorf that victims would not choose to                 
  prolong their cases.                                                         
                                                                               
  Representative   Grussendorf   asked   what    the   State's                 
  responsibility  would  be  to   inform  victims  when  their                 
  whereabouts are unknown.  Representative Porter assured  him                 
  that the  process would follow  the normal  confines of  the                 
  court's schedule.                                                            
                                                                               
  Representative Porter added  that a victim could  attempt to                 
  show that a defendant has manipulated the  court schedule to                 
  prevent the victims appearance.                                              
                                                                               
  Representative Martin  pointed out that the  victim's rights                 
  issue is not new.   He asked if statutes  defined reasonable                 
  attendance.   Representative Porter  stressed that  existing                 
  statute requires that victims supply  the court with current                 
  addresses.  Current statutes would not be altered.                           
                                                                               
  Representative  Brown  expressed  concern that  the  State's                 
  responsibility not be increased by  raising statutory law to                 
  the constitutional  level, in  regards to  the  right to  be                 
  reasonably protected.  She observed  that there are villages                 
  without a village  public safety  officer or state  trooper.                 
  She wondered  if the State  would incur  extra liability  in                 
  areas where there is not sufficient protection.                              
                                                                               
  Representative Porter pointed out CSHJR  43 (JUD) states the                 
  right to be "reasonably" protected.   It does not  guarantee                 
  protection.                                                                  
                                                                               
  In   response  to  a   question  by  Representative  Larson,                 
  Representative Porter assured members that the intent of the                 
                                                                               
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  legislation is not to add further liability to the State.                    
                                                                               
  Representative Brown suggested that the right of restitution                 
  be moved  from page  1, line  11 of  the proposed  committee                 
  substitute, to  page 1  line 14,  in order  to clarify  that                 
  restitution would occur after conviction.                                    
                                                                               
  Representative Porter  had no  objections but was  concerned                 
  that the victim's  right to seek restitution in  civil court                 
  not be changed.                                                              
                                                                               
  Representative Hanley  MOVED to ADOPT work  draft 8LS1056\D,                 
  dated 1/28/94.  There being NO OBJECTION, it was so ordered.                 
                                                                               
  Members  continued to  discuss restitution.   Representative                 
  Porter stated that courts cannot award restitution without a                 
  conviction.   Representative  Navarre  stressed  that  civil                 
  proceedings are separate from criminal proceedings.                          
                                                                               
  Members discussed language to clarify that restitution would                 
  not be  awarded  by the  defendant,  if the  defendant  were                 
  acquitted of  the offense.  Representative Hanley reiterated                 
  that    restitution    is    dependent   upon    conviction.                 
  Representative Porter  pointed out that the  legislation was                 
  drafted based on laws existing in other states.                              
                                                                               
  SENATOR DAVE DONLEY  observed that state statutes  have been                 
  expanded  to  include  victim's  rights   since  1987.    He                 
  suggested that  constitutional law  will take statutory  law                 
  into  consideration  but  noted  that  it is  impossible  to                 
  guarantee  how  the  court will  interpret  the  law without                 
  legislative mandate.                                                         
                                                                               
  (Tape Change, HFC 94-21, Side 2)                                             
                                                                               
  Senator Donley noted that the victim's rights movement has a                 
  strong national base.   He  maintained that the  legislation                 
  will help those who have not yet been victimized.                            
                                                                               
  Senator Donley referred to CSSJR 2  (STA).  He observed that                 
  CSSJR  2  (STA) contains  language  to allow  constitutional                 
  interpretation  to  follow  existing  statutory   law.    He                 
  asserted that this  allows existing law  to be codified  and                 
  clarifies that constitutional law and  statutory law are not                 
  in conflict.                                                                 
                                                                               
  Senator  Donley  discussed  restitution.     He  noted  that                 
  restitution  is  commonly  addressed  in   civil  law.    He                 
  maintained that restitution  as applied  in criminal law  is                 
  reserved for  cases that are simple  to prove.  He  gave the                 
  example of a robbery where it is demonstrated that a certain                 
  item  or  item  has been  withdrawn  from  the  victim.   He                 
                                                                               
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  maintained that the  real issue is the balance between civil                 
  and criminal law.                                                            
                                                                               
  Representative  Porter  observed  that  the  intent  is that                 
  restitution be issued by the defendant not the State.                        
                                                                               
  Senator Donley clarified  that constitutional rights do  not                 
  have  to  exist in  statute  to  be implemented,  even  if a                 
  mandate  exists for legislative  implementation of  the law.                 
  He observed  that the  Court has  upheld the  constitutional                 
  right to privacy without implemented statutes.                               
                                                                               
  Representative Grussendorf expressed concern that the fiscal                 
  notes do not reflect  the fiscal impact of the  legislation.                 
  He   pointed   out   that  there   will   be  administrative                 
  responsibilities for notification.                                           
                                                                               
  Representative Brown asked  if CSHJR  43 (FIN) would  change                 
  current law.   Senator Donley replied that  without language                 
  instructing the legislature to implement  the law, the court                 
  would   have    discretion   on   interpretation    of   the                 
  constitutional amendment.                                                    
                                                                               
  Representative Parnell  observed that  the court  would take                 
  statutory law into consideration.                                            
                                                                               
  Representative  Brown  questioned  if  juvenile  proceedings                 
  would be open to victims.  Senator Donley noted that federal                 
  law provides baseline protection  for juveniles which  could                 
  not  be removed.   He pointed out  that juvenile proceedings                 
  are not generally  considered as  criminal proceedings.   He                 
  stressed that some rights do not apply to juveniles.                         
                                                                               
  Representative  Parnell  expressed   further  concern   that                 
  restitution  not  be  limited in  civil  proceedings  by the                 
  proposed  constitutional  amendment.   Representative Porter                 
  assured him that the  intent of the legislation is  to raise                 
  existing  law  to a  constitutional level.    It is  not the                 
  legislation's intent to change existing law.   He added that                 
  grand juries would not be effected.  Victims do not have the                 
  right to be present during grand jury deliberation.                          
                                                                               
  Representative Parnell MOVED to delete, "to restitution from                 
  the accused" on page 1, line 11; and insert, "to restitution                 
  from the accused,"  on page 1 line 14,  after "considered,".                 
  There being NO OBJECTION, it was so ordered.                                 
                                                                               
  Representative  Brown  MOVED   to  add   on  page  2,   "The                 
  legislature may  provide by law for the  enforcement of this                 
  section."                                                                    
                                                                               
  Representative    Parnell     suggested    that     existing                 
                                                                               
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  constitutional  language  be  substituted.   He  stated that                 
  Article I (3) states:  "The legislature shall implement this                 
  section."                                                                    
                                                                               
  Representative Brown WITHDREW  her MOTION.   There being  NO                 
  OBJECTION, it was so ordered.                                                
                                                                               
  Representative Parnell  MOVED that,  "The legislature  shall                 
  implement this section," be added on page 1, line 15.  There                 
  being NO OBJECTION, it was so ordered.                                       
                                                                               
  Representative  Brown emphasized  that  more information  is                 
  needed  in  regards  to  how  the legislation  would  effect                 
  juvenile  proceedings.   Representative  Porter and  Senator                 
  Donley  were unable  to  find  statutes  regarding  juvenile                 
  proceedings but recalled that some proceedings are closed to                 
  victim  participation and  some  are  open.   Representative                 
  Porter  assured  Representative  Brown that  it  is  not the                 
  intent  to  change  existing  law  in  regards  to  juvenile                 
  proceedings.                                                                 
                                                                               
  Representative  Brown suggested  that language  be  added to                 
  clarify the "opportunity"  to be  present at proceedings  is                 
  provided  for  the victim.    She  noted that  "to  have the                 
  opportunity to be," could be added  before "present" on line                 
  12, page 1; and  "have an opportunity" could be  added after                 
  "to"  on line 13, page 1 of  CSHJR 43 (FIN).  Representative                 
  Navarre  agreed  with  Representative   Brown's  attempt  to                 
  further clarify that the  State's responsibility to  provide                 
  the victim with the opportunity to attend proceedings.                       
                                                                               
  (Tape Change, HFC 94-22, Side 1)                                             
                                                                               
  Senator  Donley assured  members that the  interpretation of                 
  constitutional  law  would  be  that the  government  cannot                 
  prevent  victims  from  attending proceedings  not  that the                 
  government must provide  the means to  attend.  He  stressed                 
  that  the amendment  adopted  stating  that the  legislature                 
  would  implement  the   law  would   safe  guard  that   the                 
  legislature's intent be upheld.                                              
                                                                               
  In  response  to   a  question  by  Representative   Martin,                 
  Representative Porter noted that the defendant has the right                 
  to   request  a  change  in  venue.     Under  the  proposed                 
  legislation the victim's right to  maintain venue would also                 
  be considered by  the court.   He maintained that the  court                 
  would  be  able  to  balance   the  rights  of  victims  and                 
  defendants.                                                                  
                                                                               
  Representative Larson reiterated  that it is not  the intent                 
  of  the  legislation  that  the  State  be  responsible  for                 
  transportation  of victims  to attend  proceedings in  which                 
                                                                               
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  they are involved.                                                           
                                                                               
  Representative  Hanley suggested  that  a  Letter of  Intent                 
  accompany the legislation.                                                   
                                                                               
  Representative  Navarre   observed  that  the   court  would                 
  interpret  the  constitutional amendment  from the  point of                 
  view of those voting for adoption of the amendment.                          
                                                                               
  Representative Martin MOVED  to report CSHJR 43 (FIN) out of                 
  Committee  with  individual  recommendations  and  with  the                 
  accompanying fiscal notes.                                                   
                                                                               
  Representative Navarre  OBJECTED for purpose  of discussion.                 
  He suggested  that the legislation needs further discussion.                 
  He emphasized the importance of a  constitutional amendment.                 
  He WITHDREW his OBJECTION.                                                   
                                                                               
  CSHJR 43  (FIN) was  reported out  of Committee  with a  "do                 
  pass" recommendation  and with a  fiscal impact note  by the                 
  Office  of the Governor,  dated 1/13/95;  and with  two zero                 
  fiscal notes  by the  Department  of Public  Safety and  the                 
  Department of Corrections, dated 1/13/94.                                    

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