Legislature(1999 - 2000)
02/25/2000 01:22 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 368 - RELEASE OF CRIMINAL DEFENDANT CHAIRMAN KOTT announced that the final order of business before the committee is HOUSE BILL NO. 368, "An Act relating to release of persons before trial and before sentencing or service of sentence; relating to custodians of persons released, to security posted on behalf of persons released, and to the offense of violation of conditions of release; amending Rule 41(f), Alaska Rules of Criminal Procedure; and providing for an effective date." Number 0917 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Legal Services Section-Juneau, Department of Law, explained that HB 368 would allow the courts more creative means with regard to having people released after being charged with a crime pending trial, pending sentencing, or pending service of sentencing. At the same time, the public and the victim would be protected. Furthermore, the bill would ensure that the defendant will be present for court trials or other court appearances. MS. CARPENETI informed members that HB 368 accomplishes this in four ways. First, it specifically allows for a court to impose a performance bond on a person charged with a crime. A performance bond requires a person to pay an amount of money into the court. Furthermore, the judge orders the defendant to abide by conditions such as not drinking, not contacting the victim, not violating laws, and other specific conditions as apply to the particular case. If the defendant does not abide by the conditions, the bond can be forfeited. This is a monetary way to encourage defendants to abide by the conditions of their release. Ms. Carpeneti noted that judges in the First Judicial District have been using performance bonds for years. On February 18, she noted, the Court of Appeals found that Alaska's statutory language in Title 12, Chapter 30, does not in fact allow judges to use performance bonds. MS. CARPENETI explained that another way to allow people to be released pending trial is to appoint a third-party custodian who agrees to be responsible for the defendant. The custodian is required to report to the judge or the police if the defendant has violated a condition of release. Although most custodians take their responsibility seriously, some do not. She pointed out that HB 368 provides that a third-party custodian must be warned that failure to immediately report violations of the defendant's conditions can place [the third party] in contempt of court. MS. CARPENETI advised members that HB 368 also encourages the defendant to abide by the conditions of release because it adopts a class A misdemeanor offense for violation of conditions if the defendant has been charged with a felony offense. For defendants charged with a misdemeanor offense who have violated the conditions of release, HB 368 imposes a class B misdemeanor; the Municipality of Anchorage has a similar ordinance, which the prosecutor has indicated is a very effective tool. Ms. Carpeneti explained that often when the court sentences a person for a crime, the sentence is set for a later date, which can be for the convenience of the defendant or the corrections system. Therefore, HB 368 clarifies that the court has the authority to do what it is already doing. MS. CARPENETI returned to the issue of performance bonds. She reported that when a person violates the conditions of release in connection with a prohibition against contacting the victim, HB 368 provides for forfeiture of the security posted. It also allows the court to forfeit the security if the defendant violates other conditions not necessarily related to contacting a victim or witness; the legislation clarifies the court rule in this regard. Ms. Carpeneti concluded that HB 368 allows people to be released while at the same time protecting the public. Number 1229 CHAIRMAN KOTT asked if there is ever a situation in which a defendant is released to a third party who is his or her spouse. MS. CARPENETI replied yes. However, that would not be preferred in a lot of domestic violence (DV) cases. She recognized that it can be a problem because it is a difficult responsibility, and it is difficult to turn in a family member. CHAIRMAN KOTT inquired as to the reasoning behind the 10 percent allowed to be charged as a performance bond, found on page 4, lines 13-16. MS. CARPENETI pointed out that the same language appears on page 4, lines 7-10, regarding an appearance bond. She believes that historically the 10 percent posting was to allow people to be released without having a bail bondsman. Ms. Carpeneti said she had thought of suggesting that the language in paragraph (6) be deleted in order to allow the court to impose a certain amount rather than 10 percent. She indicated it is rare that a person who posts 10 percent violates the conditions and then comes up with the remainder of the bond; therefore, it is probably more practical to allow the court to set a certain amount. She proposed deleting the following language on page 4, paragraph (6): "in cash or other security" and "of a sum not to exceed 10 percent of the amount of the bond; the deposit". MS. CARPENETI informed the committee of the following suggestion by Mr. Wooliver of the Alaska Court System. Usually, immediate effective dates are avoided when dealing with court rule changes. Therefore, removing the immediate effective date is suggested because it is difficult for the court system to adopt rules when there is an immediate effective date. CHAIRMAN KOTT related his understanding that if a third party paid the performance bond, it would be 10 percent under the bill, or the defendant could also pay the 10 percent. Although he supports that percentage regarding a third party, he also supports raising the threshold for the defendant up to 20-25 percent. The two would be different because there are different obligations for the defendant and the third party. Number 1490 MS. CARPENETI responded that it is probably best to set a smaller amount and to have whoever is paying the security pay the entire amount. She said this is an incentive. REPRESENTATIVE GREEN expressed concern and asked whether this stringent approach would make it more difficult to obtain bonds. He indicated that if he owned a bonding agency, he would be a little apprehensive about whom the agency allows bonds for. MS. CARPENETI agreed that increased difficulty is possible. However, there is still the possibility of an appearance bail bond, which could be separate from a performance bond. She restated that the performance bond would be based on performing the conditions of release, while the bail bond would be based on the appearance. REPRESENTATIVE GREEN recognized that the bill would add the performance bond. He posed the situation in which the defendant would [feel freer to] violate a condition of release, such as drinking alcohol, because someone else would have posted the bond. MS. CARPENETI said that is always the case in a custodial relationship, and that is why sometimes the custodian calls the court and requests that the defendant be taken back. Number 1621 REPRESENTATIVE GREEN asked Ms. Carpeneti's opinion of inserting the word "reasonable" before "date" on page 5, line 24. MS. CARPENETI agreed that the court would probably feel that any date that it would give would be a reasonable date. She restated that the purpose of having a person begin service on another date would be to accommodate the defendant, generally. However, sometimes that accommodation is for the correctional system, which at times likes to organize people's reporting to them in order to avoid having too few beds, for example. The courts also try to accommodate a defendant who requests accommodations for work. Number 1750 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), informed the committee that the ANDVSA supports HB 368 because the third party-custodian has a serious responsibility. Often in misdemeanor domestic violence cases, people are released to a third-party custodian. The ANDVSA particularly appreciates Section 4, which requires the courts to inform the custodians about their responsibilities and possible consequences for neglecting those. However, Ms. Hugonin expressed concern that "inform" may merely mean in writing, on a form that the custodian has filled out in agreement of this. She believes the court should have to verbally explain the responsibilities to the potential third-party custodian. MS. HUGONIN indicated the need to better define other consequences that the third-party custodian would face for failure to notify the court of violations. The ANDVSA would also be interested in prohibiting an individual from being a third-party custodian again if that person has been held in contempt of court for failure to notify the court [of a violation of the conditions of release]. MS. HUGONIN pointed out the need to have some limit on the eligibility for a third-party custodian. Furthermore, she recommended prohibiting a third-party custodian from being a custodian for more than one person at a time. In the rural areas, she noted, there have been instances in which an individual has agreed to be a third-party custodian for two or three persons at once; that would seem to be problematic. In conclusion, Ms. Hugonin noted that ANDVSA particularly likes the forfeiture section regarding the contact of the victim, which seems to be a further protection. Number 1936 BLAIR McCUNE, Deputy Director, Alaska Public Defender Agency, testified via teleconference from Anchorage. He related his experience that commercial bonding corporations do not write commercial bonds for performance-type bonds, although they will write bonds for failure to appear. Therefore, this [HB 368] speaks to bonds that will be executed by the defendant or the defendant's family. In most cases, the defendant will not have the resources to post the bond and thus would depend on the his/her family to do so. MR. McCune referred to the 10 percent provision on page 4, paragraph (6). He related his experience that 10 percent is a set figure in court rules and statutes. The court can adjust the total amount of the bond to be greater in order to obtain a greater amount from the 10 percent; the court receives that 10 percent, under the current law, if the individual fails to appear, and can seek the rest of the money. MR. McCUNE expressed his belief that HB 368 would hold more people in jail. He also voiced concern that the courts would overuse this. He noted that the third-party release inserted in statute quite a few years ago has become more of the rule rather than the exception. The agency believes that performance bonds will be issued in every case. Furthermore, this will be a hardship on the defendant as well as his/her family. Mr. McCune pointed out that defendants asking for bail are not in good bargaining positions because they are in jail. MR. McCUNE addressed technical points. He directed attention to page 6 and pointed out that the direct court rule amendment with regard to forfeiture says that the defendant shall forfeit the security if the defendant violates a condition of release by knowingly or intentionally contacting a victim or witness. However, he guessed that [forfeiture] of the performance bond could happen due to any [violation] of a condition of release. Therefore, there could be a situation in which a performance bond is written for not consuming alcohol, yet the forfeiture would be restricted to the contact of the victim or witness. He said that would make sense to some degree, in that one would not want to forfeit a performance bond for the more minor infractions of the conditions of release. MR. McCUNE turned attention to the remission portion. He referred to page 5 and indicated concern that if someone who had put up a performance bond were ten minutes late for a curfew, the judge could put that person in jail and then not take all of the bond, for example. In contrast, the remission section on page 7 still has the old "failure to appear" language on lines 7-9. MR. McCUNE referred to page 4, lines 26-29, and commented that the language had caught him by surprise. He thought that if a person failed to appear for a felony, that person would be charged with felony. However, this seems to say that if someone who is charged with a misdemeanor fails to appear for sentencing or violates an appeal bond, the individual would be found guilty of a felony when the [original] charge is a misdemeanor. Number 2235 MR. McCUNE turned to page 3 and the new crime under the "Violation of condition of release." Currently, if someone violates a substantial condition of release, the person is returned to jail and the bail is increased. However, this makes a separate crime for doing that and takes the authority from the judge; the prosecution would now have the authority to charge the person with a crime for being ten minutes late. He indicated he expects that the prosecution would show some prosecutorial discretion on these matters. He said the agency believes the current system deals with these situations adequately. REPRESENTATIVE GREEN asked about the location of the language to which Mr. McCune referred on page 4. He said he reads the language to say that a violation [for failure to appear] would be punishable as a misdemeanor. MR. McCUNE referred to page 4, line 26, "or while awaiting sentence". He said he interprets that to refer to while awaiting any sentence, whether for a felony or a misdemeanor. REPRESENTATIVE GREEN suggested that refers to a charge of a felony, while paragraph (2) speaks to a charge of a misdemeanor that would be considered as such. MR. McCUNE noted that a judge from Fairbanks had brought this up; the judge had felt that because "before sentence" on page 4, line 26, didn't specify a felony sentence, it would apply to a sentence for both felonies and misdemeanors. He believes that the judge reasoned that a court would view failure to appear for sentencing as more serious than failure to appear for a trial or a hearing. Perhaps this could be clarified by deleting the language after "or" through to "offense," Mr. McCune suggested. Number 2389 REPRESENTATIVE CROFT requested clarification. MS. CARPENETI pointed out that this statute has been in effect since 1966, and this merely makes amendments to cross-reference the forfeiture of security on line 24, page 4. The language has always been interpreted to mean that failure to appear in connection with a felony would mean that person would be charged with a felony, which would be the case with failure to appear with a misdemeanor as well. MS. CARPENETI referred to page 5, "Forfeiture of security." On line 11 of page 5, it provides that the court has discretion to forfeit any security if there is a violation of other conditions. If the court forfeits all or part of a security, then subsection (c), line 15, page 5, takes effect. It is not a mandatory forfeiture, except if the defendant violates a condition about contact; even then, the defendant can ask for a hearing and show that the contact was not knowing or intentional, in which case the court has the authority to remit the forfeiture. CHAIRMAN KOTT asked if there were further questions. There being none, HB 368 was held for further consideration.
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