Legislature(2007 - 2008)CAPITOL 120
04/13/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB225 | |
| HB14 | |
| HB90 | |
| HB14 | |
| HB90 | |
| HB220 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 164 | TELECONFERENCED | |
| *+ | HB 225 | TELECONFERENCED | |
| + | HB 220 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 14 | TELECONFERENCED | |
| += | HB 90 | TELECONFERENCED | |
HB 90 - BAIL 1:50:30 PM REPRESENTATIVE LYNN announced that the next order of business would be HOUSE BILL NO. 90, "An Act relating to bail." [Before the committee was the proposed committee substitute (CS) for HB 90, Version 25-LS0331\K, Luckhaupt, 3/7/07, which had been adopted as the work draft on 4/10/07.] REPRESENTATIVE SAMUELS, joint prime sponsor of HB 90, made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 2, line 16 (A) sexual penetration; Page 4, line 28 for court review; and Page 5, line 1 spent in a [AN] private residence... Page 6, line 5 Applications based on claim of ineffective assistance of counsel. REPRESENTATIVE LYNN asked whether there were any objections. There being none, Amendment 1 was adopted. REPRESENTATIVE SAMUELS made a motion to adopt Amendment 2, which read [original punctuation provided]: Page 3, after line 7 (4) hindering prosecution of murder; Renumber accordingly REPRESENTATIVE LYNN asked whether there were any objections. There being none, Amendment 2 was adopted. 1:52:32 PM REPRESENTATIVE SAMUELS made a motion to adopt Amendment 3, which read [original punctuation provided]: Page 3, line 16 (j)...unless the prosecuting authority stipulates otherwise or a defendant has been incarcerated for a period equal to the maximum sentence for the most serious charge for which the defendant is being held, a judicial officer may not... REPRESENTATIVE GRUENBERG objected for the purpose of discussion. 1:53:24 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), relayed that Amendment 3 was suggested by Quinlan Steiner of the Public Defender Agency as a way to ensure that a person is not imprisoned longer than a given charge warrants. Amendment 3, she indicated, would probably only apply in situations wherein the person is held on bail for a charge of disorderly conduct, which has a maximum term of imprisonment of 10 days. 1:54:04 PM QUINLAN G. STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), concurred that he'd suggested this language as a way to ensure that a person is not imprisoned longer than a given charge warrants. In response to comments and a question regarding potential delays in getting a trial, he said he could envision using alternative language along the lines of, "reasonable likelihood that the maximum sentence has been reached". REPRESENTATIVE GRUENBERG said he merely wants the court to have some discretion. MS. CARPENETI said she is not concerned because, under the bill, either as currently written or with Amendment 3, a defendant would be able to get an additional bail hearing since a delay in getting a trial would constitute a change in circumstances - "new information" - that the defendant wouldn't have known about during a previous bail hearing. MR. STEINER disagreed, adding that it would be hard to predict how the courts would view this provision. REPRESENTATIVE GRUENBERG said he is concerned about potential ambiguity and therefore he wants the administration to research that point. MS. CARPENETI reiterated her belief that use of the term, "new information" is sufficient for a number of circumstances and so a defendant would still be able to schedule another bail hearing. [Representative Lynn returned the gavel to Chair Ramras.] REPRESENTATIVE SAMUELS assured the committee that if Amendment 3 is adopted he will work with the administration to ensure that nothing more needs to be done to address the concern that Amendment 3 is meant to alleviate. REPRESENTATIVE GRUENBERG removed his objection to Amendment 3. CHAIR RAMRAS noted that there were no further objections and announced that Amendment 3 was adopted. 2:03:48 PM REPRESENTATIVE SAMUELS made a motion to adopt Amendment 4, which read [original punctuation provided]: Page 5, lines 3 and 4: delete all material and insert: (c) Period of probation, together with any extension, may not exceed (1) except as provided in (2) of this section, 10 years; (2) for a person convicted of a felony sex offense, 25 years. [Following was a brief discussion regarding a different proposed amendment.] [The motion to adopt Amendment 4 was left pending, and HB 90, Version K, as amended, was set aside until later in the meeting.] HB 90 - BAIL 2:07:44 PM CHAIR RAMRAS announced that the committee would next return to the hearing on HOUSE BILL NO. 90, "An Act relating to bail." [Before the committee was the proposed committee substitute (CS) for HB 90, Version 25-LS0331\K, Luckhaupt, 3/7/07, which had been adopted as the work draft on 4/10/07 and amended earlier in the meeting; left pending from earlier in the meeting was a motion to adopt Amendment 4.] REPRESENTATIVE GRUENBERG objected to the motion to adopt Amendment 4 [text provided previously]. He offered his understanding that the normal minimum term of imprisonment for a felony sex crime is 15 years. 2:08:48 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), clarified that the minimum term of imprisonment is 5 years for a class C felony sex offense, 10 years for a class B felony sex offense, and 15 years for an unclassified felony sex offense. In response to a question, she offered her understanding that the legislature's rationale behind providing long periods of probation for sex offenders stems from the fact that having serious supervision and control over sex offenders is the best way to manage them; in this way, the Department of Corrections (DOC) can spot when a person is moving away from compliance and towards re-offending. 2:11:13 PM DWAYNE PEEPLES, Deputy Commissioner, Office of the Commissioner - Juneau, Department of Corrections (DOC), remarked that [without the adoption of Amendment 4], the proposed longer probation period would apply to everyone, and the DOC feels that such a change would place a heavy burden on the DOC. He mentioned that the department has submitted only indeterminate fiscal notes for HB 90, and offered his belief that many who would re-offend would do so within 10-16 years of being released. REPRESENTATIVE GRUENBERG suggested, in lieu of adopting Amendment 4, altering proposed AS 12.55.090 such that a period of probation, together with any extension, may not extend more than 10 years beyond the mandatory minimum sentence for any given crime. MR. PEEPLES sought confirmation that [existing and proposed] AS 12.55.090(c) is discretionary. MS. CARPENETI relayed that it is discretionary and that the proposed change would allow the court to institute a 25-year probation period in instances where the court feels that such supervision is necessary. Treatment experts have relayed that the goal with sex offenders is to extend the period between re- offenses; thus the longer authorities can have supervision over sex offenders, the better, because it is very difficult to treat sex offenders in any way other than to control them via the use of regular polygraph examinations and regular reporting to probation/parole officers. CHAIR RAMRAS offered his understanding that although rapists, as they get older, may lose interest in raping victims, pedophiles never lose interest in molesting children and must therefore be managed/supervised their whole lives. 2:14:10 PM MR. PEEPLES relayed that the DOC is unable at this time to determine the fiscal impact of HB 90. QUINLAN G. STEINER, Director, Central Office, Public Defender Agency (PDA), Department of Administration (DOA), indicated that he can't speak to whether proposed AS 12.55.090 or Amendment 4 would be of any benefit, but said he agrees that most re- offenses would occur within 15 years of release. REPRESENTATIVE GRUENBERG asked whether stipulating, via Amendment 4, that the increased probation period applies only to felony sex offenses is sufficient. MR. PEEPLES indicated that it is. REPRESENTATIVE LYNN said he is tempted to offer an amendment to the amendment that would result in sex offenders never being released from prison. REPRESENTATIVE GRUENBERG removed his objection to Amendment 4. CHAIR RAMRAS noted that there were no further objections and announced that Amendment 4 was adopted. 2:17:11 PM REPRESENTATIVE SAMUELS, joint prime sponsor of HB 90, made a motion to adopt Amendment 5, which read [original punctuation provided]: Page 1, between lines 12 and 13 (a) A person commits the crime of violation by sex offender of condition of probation or parole if the person (1) is on probation or parole for conviction of a sex offense; (2) has served the entire term of incarceration imposed for conviction of the sex offense; and (3) either REPRESENTATIVE HOLMES objected for the purpose of discussion. MS. CARPENETI offered that Amendment 5 came about as a result of a conversation between the DOL and the DOC, and is intended to avoid a large fiscal note and address a concern regarding what happens in instances where a sex offender is on probation but has run out of incarceration time and thus has no incentive to continue taking polygraph examinations or continue with his/her treatment program. Amendment 5 provides "that it's a crime" only if the person has no more time left on his/her sentence for the underlying sex offense. REPRESENTATIVE HOLMES removed her objection. CHAIR RAMRAS noted that there were no further objections and announced that Amendment 5 was adopted. 2:19:00 PM REPRESENTATIVE SAMUELS made a motion to adopt Amendment 6, which read [original punctuation provided]: Page 4, line 24 (2) must be confined at all times to the grounds of the facility or be in the physical custody of an employee of the facility, except for court appearances or meetings with counsel; CHAIR RAMRAS asked whether there were any objections. There being none, Amendment 6 was adopted. REPRESENTATIVE SAMUELS noted that Amendment 1, which was already adopted, is similar to Amendment 7, labeled 25-LS0331\K.2, Luckhaupt, 4/13/07, which read: Page 4, line 28, following "review;": Insert "and" Page 5, line 1: Delete "an" Insert "a" Page 6, line 5, following "ineffective": Insert "assistance of" Page 6, line 7: Delete "applicant's attorney" Insert "assistance the applicant's attorney provided" CHAIR RAMRAS made a motion to adopt Amendment 7 as amended to read: Page 6, line 7: Delete "applicant's attorney" Insert "assistance the applicant's attorney provided" REPRESENTATIVE GRUENBERG relayed that he has no objection to Amendment 7, as amended. REPRESENTATIVE SAMUELS objected. CHAIR RAMRAS offered his understanding that Amendment 7, as amended, pertains to the new provision addressing applications based on claim of ineffective counsel - proposed AS 12.72.025. MS. CARPENETI concurred, adding that proposed AS 12.72.025 specifically addresses second applications for post conviction relief wherein the applicant is claiming his/her first attorney did not provide effective assistance of counsel. 2:22:33 PM CHAIR RAMRAS offered that Amendment 7, as amended, doesn't change the meaning of the aforementioned provision and is merely a "housekeeping" amendment. REPRESENTATIVE GRUENBERG noted that the technical term is "ineffective assistance of counsel". MS. CARPENETI said she has no objection to Amendment 7, as amended. REPRESENTATIVE SAMUELS removed his objection. CHAIR RAMRAS announced that Amendment 7, as amended, was adopted. 2:23:08 PM CHAIR RAMRAS [made a motion to adopt] Amendment 8 - labeled 25- LS0331\K.1, Luckhaupt, 4/12/07 - and said it would augment Amendment 1 and that it should be considered a conceptual amendment so that the drafter can integrate it with Amendment 6; Amendment 8 read: Page 4, line 25, following "facility": Insert "unless the person is at work or traveling to or from work" CHAIR RAMRAS explained that Conceptual Amendment 8 addresses those people who are attending a treatment program that requires its participants to work as part of treatment. MS. CARPENETI, in response to a question, said that the DOL's concern with Conceptual Amendment 8 is that Nygren credit - credit against a sentence of imprisonment - is supposed to be for treatment programs that are similar to incarceration - the courts have already held this in both the Nygren case and various other cases - and so treatment programs that allow a person to leave a facility in order to work unsupervised by anyone from the facility is a program that is not similar to incarceration and thus shouldn't qualify as a program suitable for allowing the defendant to receive Nygren credit for time spent in that program. MR. PEEPLES, in response to questions, confirmed that the halfway house in Fairbanks that is part of the DOC would not fall under the definition of, "treatment center", and said that some of the treatment beds available at a facility operated by the Salvation Army are usually reserved for those receiving post-sentence treatment. MS. CARPENETI pointed out that the provision which Conceptual Amendment 8 would alter - proposed AS 12.55.027(c)(2) - pertains to pre-sentence treatment. 2:27:28 PM REPRESENTATIVE GRUENBERG surmised that Conceptual Amendment 8, when integrated with amendment 6, would provide another exception to proposed AS 12.55.027(c)(2), and that the Chair's intention with Conceptual Amendment 8 is to have Nygren credit given only if work is part of the treatment program and the work is specifically approved by the court. MS. CARPENETI pointed out that the bill already requires that any qualifying treatment program be one that's approved by the court. REPRESENTATIVE GRUENBERG clarified that he is suggesting that the court specifically approve the work portion of a particular treatment program. He acknowledged that additional language might need to be crafted to address this point. CHAIR RAMRAS, referring to a situation he was familiar with wherein a young woman attended and successfully completed a treatment program in the Lower 48, surmised that had that program had a work component, the woman would have had to choose between participating in the work component or receiving credit for her time there. He said he doesn't want to restrict remedies that will help people become productive members of society. 2:30:39 PM CHAIR RAMRAS expressed an interest in amending Conceptual Amendment 8. REPRESENTATIVE HOLMES relayed that she's received suggested language from Mr. Steiner that incorporates the concepts of both Amendment 6 and Conceptual Amendment 8; that language reads [original punctuation provided]: "must be confined at all times to the grounds of the facility or be in the physical custody of an employee of the facility, except for court appearances, meetings with counsel, and for work as required by the treatment program;". REPRESENTATIVE SAMUELS, in response to comments, pointed out that if one is able to go to work while attending a treatment program, it is not like being in jail; therefore, a person whose treatment program has a work component should still have to serve all of his/her jail time or else it will result in him/her being treated differently than someone else who committed a similar crime and received a similar sentence but couldn't afford to go to a treatment program. CHAIR RAMRAS, remarking that there is no equity in the system, said he is more interested in the wellness of the broader community and less interested in who gets a better leg up. REPRESENTATIVE GRUENBERG made a motion to amend Conceptual Amendment 8 such that it would say: Page 4, line 25, following "facility": Insert "unless the person is at work or traveling to or from work as required by the treatment program and as specifically approved by the court for credit" REPRESENTATIVE GRUENBERG explained that he wants the court to specifically know that the person is going to and from work and working, and to approve that, and that [the work component] be part of the treatment program. CHAIR RAMRAS asked whether there were any objections. There being none, the amendment to Conceptual Amendment 8 was adopted. REPRESENTATIVE SAMUELS removed his objection to Conceptual Amendment 8, as amended, and offered his understanding that under it the court would have to specifically say that a particular type of work counts towards Nygren credit. REPRESENTATIVE GRUENBERG indicated that such was his intention. CHAIR RAMRAS announced that Conceptual Amendment 8, as amended, was adopted. 2:37:56 PM REPRESENTATIVE GRUENBERG moved to report the proposed committee substitute (CS) for HB 90, Version 25-LS0331\K, Luckhaupt, 3/7/07, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 90(JUD) was reported from the House Judiciary Standing Committee.
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