Legislature(2007 - 2008)CAPITOL 120
02/08/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB307 | |
| HB281 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 307 | TELECONFERENCED | |
| += | HB 237 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 281 | TELECONFERENCED | |
HB 307 - DOMESTIC VIOLENCE OFFENSES 1:04:07 PM CHAIR RAMRAS announced that the first order of business would be HOUSE BILL NO. 307, "An Act relating to penalizing certain misdemeanor domestic violence offenses as felonies." 1:05:57 PM REPRESENTATIVE HOLMES, speaking as one of the bill's joint prime sponsors, said that HB 307 is intended to address Alaska's high rate of domestic violence (DV), and proposes something that was recommended by the task force created by legislation last year. Over 6,000 cases of DV in Alaska were reported in 2005, and Alaska ranks highest in the nation with regard to female victims killed by male perpetrators [of DV]. House Bill 307 provides that if one has been convicted twice before for DV crimes, then the third [or subsequent] conviction for a DV crime will bring with it a class C felony penalty. Referring to the U.S. Supreme Court case, Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004), she mentioned that the proposed increased penalty might only apply in situations in which the prior DV offenses occur after the effective date of the Act. By the time a person is convicted of more than two DV crimes, he/she has probably committed many more such crimes, and so a message needs to be sent that this type of behavior is unacceptable. REPRESENTATIVE DAHLSTROM, speaking as one of the bill's joint prime sponsors, remarked that HB 307 takes a small step towards addressing the problem of DV in Alaska. 1:11:04 PM REPRESENTATIVE ANNA FAIRCLOUGH, Alaska State Legislature, speaking as one of the bill's joint prime sponsors, said she supports HB 307, and asked the committee to do the same. She noted that another legislator has said, "What we allow, we encourage." Therefore, she opined, if people start to "dis- incentivize" acceptance of violence in the home, then domestic violence will start to be reduced. REPRESENTATIVE SAMUELS pointed out, though, that the language on page 2, lines 7-8, says in part, "References to previous convictions include convictions before, on, or after the effective date of this Act", and expressed a preference for that concept as opposed to requiring that the prior convictions occur after the bill's effective date. REPRESENTATIVE HOLMES relayed that that issue has not yet been clarified. 1:15:02 PM GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency (LAA), speaking as the drafter, in response to a question regarding Section 2 of HB 307, explained that a third or subsequent DV crime, even if that third or subsequent DV crime is a misdemeanor, will subject the perpetrator to a class C felony penalty. Characterizing that third or subsequent DV crime as an inchoate crime, he explained that it will become a class C felony crime once the predicate DV crimes and the elements of that current DV crime are proven. He noted that the way he drafted the language of Section 2, it specifies that a third or subsequent DV crime will both become a class C felony crime and subject the perpetrator to a class C felony penalty. In response to questions, he indicated that existing statutes provide for a similar increase in levels of crime and penalties for multiple driving under the influence (DUI) crimes and multiple shoplifting crimes, and for an increase in penalties for certain multiple felony crimes. He observed that it is within the purview of the legislature to determine what level crimes should be and to establish penalties for crimes as it sees fit. MR. LUCKHAUPT said that HB 307 is designed to look back at a perpetrator's prior DV crimes, and pointed out that in Blakely, Justice Scalia specifically stated that the court's decision in Blakely doesn't apply to prior convictions; in other words, prior convictions don't have to be proven to a jury. Mr. Luckhaupt reiterated that prior convictions are already being taken into consideration for other types of crimes, adding that after Blakely, the state's sentencing statutes were rewritten to specifically say that the fact of prior convictions doesn't have to be proven to a jury. Furthermore, although the prosecution might be required to prove to a jury that the prior convictions were really for violent crimes occurring against a household member, since that is what distinguishes DV crimes from all other violent crimes against a person, the sentences themselves for the prior convictions might provide sufficient indication that they were for DV crimes, thus alleviating the need to have the jury consider the fact that the victim was a household member of the perpetrator. MR. LUCKHAUPT referred to the memorandum [included in members' packets] he'd written on this issue, and explained that the U.S. Supreme Court considered a similar federal law providing greater punishment for those committing multiple, aggravated burglaries, and ruled that if the sentences themselves don't indicate whether the prior convictions were for same type of crime as the current crime, then the fact that they were must be proven to a jury in order to comply with Blakely. The court in that aforementioned case, however, acknowledged that Blakely doesn't really favor defendants who don't wish to have a jury hear about prior convictions at all. He surmised, therefore, that even if Blakely somehow applies with regard to HB 307 and the fact of the prior convictions must be proven to a jury, doing so might not be "all that terrible" from a prosecutorial standpoint. 1:22:47 PM PEGGY BROWN, Executive Director, Alaska Network on Domestic Violence & Sexual Assault (ANDVSA), said that the ANDVSA is 1,000 percent in support of HB 307, which, by specifically targeting repeat DV offenders, would send a message that domestic violence is a very serious crime and will no longer be tolerated. However, the ANDVSA is concerned that the current system doesn't have a way to track how many DV crimes are actually charged as such but then "plead down" to lesser crimes; if it is not known how often such occurs, then simply increasing the penalty to a felony for a third or subsequent DV offense might just be giving DV perpetrators more to bargain over. This lack of information means that even if HB 307 becomes law, no one will really know how effective it is or what impact it has. For example, even though Nevada passed similar legislation, authorities there have indicated that they don't really know how effective their law is or what impact it's having on perpetrators. MS. BROWN relayed that another of the ANDVSA's concerns pertains to how HB 307 will affect women, particularly those in rural Alaska, who [mistakenly] get arrested for DV under "Alaska's mandatory arrest law," since they are unlikely to contest such charges because they feel they must return home to their children as soon as possible and they are not educated about the consequences of allowing such charges to go uncontested. In closing, she relayed that the ANDVSA is also concerned with the lack of prosecutors in Alaska. REPRESENTATIVE HOLMES relayed that Section 1 of the bill is intended to address the ANDVSA's concern regarding women who mistakenly get arrested for DV under Alaska's mandatory arrest law; Section 1 [which adds language to the uncodified law of Alaska] states that before accepting a plea, the judge must determine that the person being charged under Section 2 of the bill really is the aggressor and not the victim. MS. BROWN thanked the joint prime sponsors for addressing that point. REPRESENTATIVE DAHLSTROM concurred that the sponsors are attempting to address that issue. 1:31:34 PM CHRIS ASHENBRENNER, Executive Director, Council on Domestic Violence and Sexual Assault (CDVSA), Department of Public Safety (DPS), relayed that the CDVSA has submitted a letter of support for HB 307. Domestic violence is an extremely serious problem, and the goal is to reduce it and eliminate it. House Bill 307 will help send the message that DV will not be tolerated in Alaska, and society's response to DV is the key to eliminating it. Repeat DV offenders just seem to keep getting away with their DV crimes, and don't seem to care about the current penalties. Serving three days, ten days, or thirty days in jail is not much of a deterrent for repeat DV offenders, she relayed, adding that it's quite telling when a victim of domestic violence says, "I don't want him to go to jail because he'll be out in a few days and then he'll really be pissed off"; that victim's safety was compromised by the justice system's lack of [adequate] response. She relayed that as of 2005, 26 other states have some sort of enhanced penalties for [repeat DV offenders], and said that she and the CDVSA believe that Alaska should join those states. Ms. Ashenbrenner said she concurs with Ms. Brown's comments and concerns, and mentioned that the aforementioned task force brought forth a lot of recommendations to improve the justice system with regard to holding domestic violence offenders accountable. 1:35:40 PM JEFFREY LANDVATTER, Public Safety Employees Association, Inc. (PSEA); State Trooper, A Detachment, Division of Alaska State Troopers, Department of Public Safety (DPS), said that domestic violence is one of the most dangerous crimes that law enforcement officers respond to; officers are in a very high state of alert when responding to such calls, and, whenever possible, at least two officers respond in order gain control of these very volatile situations. The state takes DV crimes very seriously, but a repeat offense in even the most dangerous DV situations is still just a misdemeanor. House Bill 307, he opined, will send a clear message to DV offenders that if they continue to commit DV crimes, they are going to be charged with a felony, adding his belief that the proposed law will help to keep the most violent offenders off the street, thereby making Alaska communities safer. 1:37:09 PM MELANIE JAMES, Domestic Violence Sexual Assault (DVSA) Advocate, SeaView Community Services ("SeaView"), relayed that both she and SeaView support HB 307. A report from the Centers for Disease Control and Prevention (CDC) indicates that 25 percent of women and 11 percent of men are victims of "intimate partner violence," and according to her experience as a DVSA advocate, she relayed, many women are victimized by men who have battered all the women they've been in relationships with. For example, SeaView tracked one batterer who'd been arrested for assault in the fourth degree for beating four of the women he'd had a relationship with, and found he'd been in relationships with and beaten five other women who never pressed charges. Because this man only used his fists when beating up his domestic partners, he was never charged with anything other than assault in the fourth degree. House Bill 307 would give prosecutors a tool to remove such DV offenders from the community for a longer period of time. In conclusion, she asked that HB 307 be passed from committee. 1:38:46 PM TIM WHEELER relayed that his 22-year-old daughter has recently been charged with her second DV crime because the man she is living with assaults her and, then, when she struggles with him to protect herself, he calls the police and reports that she's assaulting him, and she is the one who ends up getting thrown in jail. Mr. Wheeler said he supports HB 307, but cautioned that more efforts towards educating people about the problem of domestic violence must also be made, since his daughter is the third woman her current boyfriend has done this with. CHAIR RAMRAS acknowledged that laws sometimes have unintended consequences. 1:45:59 PM JUDY CORDELL, Executive Director, Abused Women's Aid in Crises (AWAIC), said that the AWAIC supports the intent of HB 307, but has concerns regarding the bill's [potential] unintended consequences. One concern pertains to the lack of data regarding conviction rates; such data would answer the question of whether even the current laws are being enforced, particularly given that the system currently allows DV perpetrators to plead down their crimes to disorderly conduct and thereby avoid any sentencing enhancement for subsequent DV offenses. Another concern - as highlighted by the prior testifier - pertains to law enforcement's ability to determine who the "primary aggressor" really is in DV situations. Yet another concern pertains to HB 307's use of the term, "domestic violence"; specifically, the AWAIC would prefer that that term be replaced with the term, "interpersonal violence". REPRESENTATIVE HOLMES concurred that the lack of conviction data regarding DV crimes is troubling, and noted that the aforementioned task force has discussed that issue. CHAIR RAMRAS, after ascertaining that no one else wished to testify, closed public testimony on HB 307. REPRESENTATIVE COGHILL asked whether the joint prime sponsors had considered changing the term, "domestic violence" to the term, "interpersonal violence". REPRESENTATIVE HOLMES said she had not, but offered to research that issue further. REPRESENTATIVE COGHILL, noting that such a language change might have an impact on prosecutions, asked whether it would also address the concern pertaining to [law enforcement officers incorrectly charging the wrong person with a DV crime]. REPRESENTATIVE HOLMES posited that in addition to the requirement outlined in Section 1, prosecutorial discretion should also help ensure that the bill won't be applied to the victims of DV. She remarked, though, that she would be willing to consider possible changes to HB 307 that would more effectively address that issue. 1:51:51 PM RICK SVOBODNY, Deputy Attorney General, Central Office, Criminal Division, Department of Law (DOL), in response to a question, said that currently Alaska law doesn't define the term, "interpersonal violence". REPRESENTATIVE FAIRCLOUGH concurred, but offered that the CDC, at the federal level, is considering using the term, "interpersonal violence" as a way of actually preventing interpersonal violence. Alaska's law in that regard is antiquated, she remarked, and until that term is defined in Alaska law, use of it could create problems with regard to judicial interpretation. In response to a question, she offered to provide the committee with the CDC's definition of the term, "interpersonal violence", and indicated a preference for keeping the term "domestic violence" in the bill since that is the term currently used in Alaska law. MR. SVOBODNY mentioned that the bill would apply to all offenses under AS 11.41 - crimes against a person - including but not limited to offenses such as stalking, custodial interference, and reckless endangerment. REPRESENTATIVE SAMUELS asked whether the DOL supports the language of HB 307 and the way it is structured. REPRESENTATIVE LYNN relayed that he supports the bill. MR. SVOBODNY said that he supports the concept embodied in HB 307, and thinks that those who repeatedly commit misdemeanor assault offenses should, at some point, be treated as felons. He pointed out, however, that although Section 1 requires the court to determine whether an offender who is pleading guilty or no contest to a DV crime actually committed that crime, such a requirement is already included in the Alaska Rules of Court in that a court must make a determination that there was probable cause that a crime was committed; therefore, from a structural standpoint, Section 1 is not necessary. He also opined that there is a big problem with regard to retroactivity, adding that although he doesn't disagree with Mr. Luckhaupt that technically the current language of the bill doesn't raise a Blakely issue merely because it considers prior offenses, it has the exact same problems that Blakely had. MR. SVOBODNY observed that currently there is no assault crime that has as an element of it that [the perpetrator and the victim] were in a domestic relationship that meets the [statutory] definition of such, and so the court would be unable to look back and find those crimes without simply guessing or relying on the opinion of the current prosecuting attorney or the opinion of the judges who sentenced the perpetrator for those prior crimes, and thus surviving a challenge on that issue could be problematic because the aforementioned element wouldn't have been proven to a jury. So although one way to deal with such a situation would be to simply have a new trial and present evidence that the prior convictions were for DV crimes, there are both legal and practical problems with doing so. He indicated that the lack of the aforementioned element in DV cases raises "a very interesting ex post facto argument," and opined that the bill is proposing a major change. He surmised that that is why the drafter chose to create a whole new chapter in statute - AS 11.21. In conclusion, he said he doesn't like the structure of HB 307, but thinks the concept of it is great. REPRESENTATIVE DAHLSTROM offered her belief that not too many of those committing DV crimes are thinking about the timeframes during which they commit those crimes - rather, such offenders aren't thinking to begin with. She said she doesn't want to let such offenders off the hook, and asked that any proposed amendment include a "look back" period in Section 3 - perhaps a period not less than nor greater than 10 years. 2:01:20 PM REPRESENTATIVE COGHILL relayed that he'd been thinking of offering an amendment that would result in only those prior convictions occurring on or after the effective date of the bill being considered, and indicated that such a change would address some of the concerns raised. REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, to delete from page 2, lines 7-8, the language, "References to previous convictions include convictions before, on, or after the effective date of this Act." REPRESENTATIVE DAHLSTROM objected for the purpose of discussion. REPRESENTATIVE DOOGAN questioned whether the difficulty is that there wouldn't be factual proof that a prior conviction included the element of domestic violence. MR. SVOBODNY concurred, adding, "We know that it is a domestic violence case because we ... do keep track and it makes a difference as to what the sentencing may be in that particular case, but we didn't prove it to a jury," and that's what results in a Blakely issue. REPRESENTATIVE DOOGAN asked whether there might be cases in which the element of DV has been proven to a jury at least twice before the effective date of the bill. MR. SVOBODNY said not in Alaska; "We do not have offenses that require proof to a jury that ... this was a domestic violence assault or a domestic violence offense." REPRESENTATIVE DOOGAN clarified that his question is whether there might be cases in which it had been proven that it was domestic violence, regardless of whether such proof was required. MR. SVOBODNY indicated that there have been cases in which factually the issue of [DV] did come up. For example, in a case in which a husband hits his wife, the state must prove that the husband knowingly caused physically injury to another person, and in the course of the trial, it will come out that the person causing the injury is the victim's husband; so factually the evidence of that would be there, but there is no requirement that the domestic relationship itself be proven to a jury. 2:06:12 PM REPRESENTATIVE SAMUELS asked whether, if Amendment 1 were not adopted, the DOL would be able to proceed with prosecution. He expressed a preference for leaving the language of the bill as is, but not if it would result in further litigation for the state. MR. SVOBODNY said that if the legislature says the bill is retroactive, then that's how [the DOL] will view it, and the State will simply have to try to prove that the prior convictions were for DV offenses. He noted that most of the time, when a new law is enacted, the State pays for any subsequent appeals. REPRESENTATIVE DAHLSTROM opined that Alaska should be on the cutting edge in saying that [domestic violence] is unacceptable. By deleting the words pertaining to previous convictions, then in a situation like the one described by Mr. Wheeler, the true perpetrator of DV won't be held accountable for any of his/her previous DV crimes. She opined that the legislature ought to ere on the side of the victim, and suggested that they instead consider another amendment to page 2, lines 7-8, such that only those prior convictions occurring within the last 10 years be considered. 2:09:40 PM REPRESENTATIVE COGHILL said that the concept of retroactivity is always troublesome for him. Saying he agrees with the concept of making a third or subsequent DV offense a felony, he opined that it is proper for the legislature to make such a policy call with regard to crimes occurring [on or after] the effective date of the bill. He then referred to the comments regarding how the bill, in its existing form, might affect those, [particularly in] rural areas, who've inaccurately plead [guilty to DV crimes] in the past. REPRESENTATIVE HOLMES asked whether the existing aggravating factor for DV assaults [AS 12.55.155(c)(18)] has to be proven to a jury. MR. SVOBODNY said that that aggravating factor does need to be proven to the jury, but that would be in a present case and wouldn't address prior convictions. Furthermore, aggravating factors apply to felony cases. He suggested that perhaps an easy way to address this issue would be to have the predicate crimes be any kind of assault - not just DV assaults. In this way, the DOL would not be faced with having to change history after the fact by specifying that the prior convictions were for DV offenses. REPRESENTATIVE SAMUELS asked whether the DOL would have the discretion to not apply the proposed enhanced penalty in a current DV case. MR. SVOBODNY said the DOL does have that discretion, but noted that in instances of a third DUI offense and its accompanying enhanced penalties, although the DOL doesn't have to, it does try to prove the prior DUI convictions. REPRESENTATIVE SAMUELS said he doesn't consider the language that Amendment 1 is proposing to delete to be a retroactive provision because the bill is addressing a current third or subsequent DV crime. REPRESENTATIVE FAIRCLOUGH surmised that adoption of Amendment 1 would provide for an opportunity to train law enforcement officers regarding the new law and the importance of documenting DV crimes correctly, and could perhaps minimize appeals. She too opined that Alaska should be on the cutting edge of holding perpetrators of domestic violence accountable. REPRESENTATIVE DOOGAN referred to Amendment 1, and asked what's the worst that could happen. MR. SVOBODNY said that the DOL could go through with a criminal prosecution and obtain a conviction and a sentence that might then be overturned by the Alaska Court of Appeals. 2:17:14 PM REPRESENTATIVE COGHILL withdrew Amendment 1. He said, however, that he doesn't want to institute a limitation on the look back period as suggested by Representative Dahlstrom. REPRESENTATIVE DAHLSTROM, in response to a question, expressed a preference for keeping the HB 307 as it's currently written. REPRESENTATIVE HOLMES referred to Section 1, and asked whether it could be improved so as to further ensure that the proposed enhanced penalty isn't applied to victims of DV. MR. SVOBODNY indicated that he doesn't have any specific language to suggest, and reiterated that before accepting a plea, the courts already have to find probable cause that the crime was committed and that it was committed by the person who has been accused of committing it. He acknowledged, though, that there will be those who, for any number of reasons, will inaccurately plead guilty to a DV crime; this does happen, but not with much regularity. Furthermore, it is the district attorney's duty to correct instances of incorrect guilty findings. 2:21:17 PM REPRESENTATIVE DAHLSTROM moved to report HB 307 out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE SAMUELS commented that as HB 307 continues through the process, as long as the concepts of the bill remain intact - providing an enhanced penalty for a third or subsequent DV offense and allowing the courts to look back at prior DV offenses - he would be amenable to language that would improve the bill. CHAIR RAMRAS, noting that there were no objections to the motion, announced that HB 307 was reported from the House Judiciary Standing Committee.
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