Legislature(2001 - 2002)
05/04/2001 09:00 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 105(FIN) "An Act relating to victims' rights; relating to establishing an office of victims' rights; relating to the authority of litigants and the court to comment on the crime victim's choice to appear or testify in a criminal case; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; relating to notice of appropriations concerning victims' rights; amending Rules 16 and 30, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and providing for an effective date." JULI LUCKY, STAFF, SENATOR HALFORD testified in support of the legislation. She explained that a similar bill was passed in the previous Legislature and was vetoed by the Governor. The bill establishes an Office of Victim's Rights. The main task of the Office of Victim's Rights would be to advocate on behalf of crime victims in the court system (if necessary) and investigate any violations of constitutional rights (similar to an ombudsman). The Office would be located in the legislative branch, which is where the Office of the Ombudsman is located. Studies by the National Institute for Justice have shown that, even if the victim's have guaranteed constitutional rights and strong statutory protection, more needs to be done to assure that victims are aware of their rights. Ms. Lucky discussed changes from the legislation adopted [in the Twenty-First Legislature]. She observed that HB 133 was included, which is the Governor's legislation dealing with restitution for crime victims. There are studies that show that restitution is a fairly high priority of victims. The legislation would set up a mechanism in the court, which already makes collections for other things, to collect restitution on behalf of victims. The Senate Finance Committee raised the compensation cap because they felt that the compensation was not keeping up with inflation in relation to medical costs. Representative John Davies questioned if the victim would give permission for the state to go after restitution. Ms. Lucky affirmed that the court would send a notification, stating that the victim has the right not to have the state collect on their behalf. The victim has three days to notify the state that they would prefer to collect the restitution on their own behalf. Representative Davies observed that reasonable attorney costs would be charged against what is owed. Ms. Lucky thought that the reasonable attorney costs would be added to the restitution judgment. Representative Hudson noted that there would be six members with travel and a new office in Anchorage. The office would be in the legislative branch of government. Ms. Lucky explained that discussions with other states determined that an ombudsman type office would be most beneficial. She stressed that it would be beneficial for victims to contact a third, neutral party and argued in support of the provision. Representative Hudson and Representative Davies questioned why the office would not be placed in the ombudsman's office. Ms. Lucky pointed out that the ombudsman's office does not become involved until rights have been violated. The intent is to have a more collaborative effort and to be involved during the process. Representative John Davies stressed that there would be no reason why the office couldn't operate in the same way under the ombudsman's office. Ms. Lucky responded that the intent is to have an office that has experience with the justice system. DEAN GUANELI, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW spoke in support of the legislation. The office would review the activities of the agency. He noted that a lack of cooperation by victims is one of the primary reason cases are lost. Treating victims well helps the department to do its job well. He observed that it is difficult for the prosecution to reach some victims and thought that a separate entity for legal advice would be an advantage for the department. The Department of Law represents the state of Alaska. He thought it was appropriate for victims to have their own legal representation. The Department of Law could provide better restitution collection on behalf of the victims if it had statutory authority. The Civil Division of the Department of Law has a collection unit that works efficiency and has a good working relationship with the state. The bill would provide the authority for state collections. He argued that the office is modeled after the ombudsman and the Office of the Ombudsman is in the legislative branch. The Office of the Ombudsman accepts complaints about state agencies. People who complain about a state agency need to know that the investigation is not guided by the agency being investigated and that they are neutral. He did not have a recommendation in regards to whether the office should be part included under the Office the Ombudsman or kept separate. Representative John Davies expressed concern that the cost of restitution collection would be added to the fine. Mr. Guaneli pointed out that if a defendant pays their fine on schedule there would be no action by the department. He maintained that it would not be inappropriate to add costs if the defender forces the department to go to collection. The Court can adjust the payment schedule if the offender is having difficulty with payments. Representative Davies reiterated concerns that the addition of collect costs could exceed the fine. If the victim were forced to collect the money on their own there would still be costs, which the offender would have to pay. The state would not collect anything more than what the state of Alaska would collect. The collection unit uses reasonable efforts. He did not think the state would spend $10,000 dollars to go after $100 dollars. Representative Lancaster observed that the legislation includes juveniles and questioned if it costs more to include juveniles. Mr. Guaneli responded that juveniles do victimize people and maintained that it would be appropriate to include them. Representative Hudson questioned if concerns with the placement of the office under the Legislative Council have been addressed. Ms. Lucky provided members with Amendments 1 and 2 (copy on file). Amendment 1 Delete page 4, lines 5 - 11, and insert: Sec. 12.30.075. Forfeited cash and other securities. (a) Cash or other security posted by a defendant under AS 12.30.020 that would otherwise be forfeited shall be held by the court in trust for the benefit of the victim if, within 30 days after an order of the court establishing a failure to appear or a violation of conditions of release, the prosecuting authority gives notice that restitution may be requested as part of the sentence if the defendant is convicted. (b) If a restitution order is not entered, the court shall order the cash or other security being held in trust to be forfeited to the state. (c) If a restitution order is entered, the court shall apply the cash or other security to the satisfaction of the order. If the cash or other security held in trust is applied to an order of restitution, the court shall issue a separate judgment against the defendant in favor of the state in the amount that would have otherwise been forfeited, and any cash or other security remaining after payment of the restitution shall be applied against that judgment. Any cash or other security remaining shall be forfeited to the state. Amendment 2 Page 6, line 15 Delete "is Insert "may be" Delete Page 6, lines 20 - 21; and Insert: A defendant who is convicted of (1) a felony shall submit the form to the probation office within 30 days after conviction, and the probation officer shall attach the form to the presentence report, or (2) a misdemeanor shall file the form with the defendant's response or opposition to the restitution amount. The defendant shall provide a copy of the completed form to the prosecuting authority. Ms. Lucky explained that they are technical amendments from the Department of Law. Amendment 1 clarifies how bail works. Amendment 2 deals with how reports are filed and consolidates the reports. Vice-Chair Bunde MOVED to ADOPT Amendment 1. Mr. Guaneli explained that legislative attorneys suggested Amendment 1. If a defender has posted bail and forfeits bail, instead of the bail first going to the state, under the amendment, victims restitution would be paid first and the remaining funds would go to the state. There being NO OBJECTION, Amendment 1 was adopted. Co-Chair Williams MOVED to ADOPT Amendment 2. Co-Chair Mulder OBJECTED for the purpose of discussion. Mr. Guaneli explained that the Alaska Court System requested the amendment. The amendment clarifies where financial information about the offender would be sent. Forms would go directly to the probation officer who would write a report to the court. There being NO OBJECTION, Amendment 2 was adopted. CSSB 105 (FIN) was heard and HELD in Committee for further consideration.