Legislature(2001 - 2002)

05/04/2001 09:00 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                   
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                                                                   
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                                                                   
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                                                                   
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                                                                   
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                                                                   
     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                                                                   
     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                                                                   

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