Legislature(1993 - 1994)

04/18/1994 01:00 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HB 523 - GRAND JURY EVIDENCE BY POLICE OFFICERS                              
                                                                               
  Number 180                                                                   
                                                                               
  MIKE J. STARK, Assistant Attorney General, Criminal                          
  Division, Department of Law, testified on HB 523.  He said                   
  this is not his normal area of expertise, but he was filling                 
  in for Dean Guaneli and Margot Knuth, who were both out of                   
  town.  He summarized from a statement that Margot prepared,                  
  describing the bill.  He said HB 523 amends criminal rule 6r                 
  to create a narrow exception to the rule that in a grand                     
  jury, one witness cannot testify about what another witness                  
  heard or said.  This exception would allow one peace                         
  officer, such as an Alaska State Trooper or a police                         
  officer, to tell the grand jury what another peace officer                   
  heard, said, or did, in the course of a criminal                             
  investigation.  It is a very narrow exception, because it                    
  applies only to peace officers who testify to what their                     
  fellow officers saw or heard; e.g.,      as to the contents                  
  of their fellow officers' police reports.  Under this bill                   
  the grand jury would continue to retain the authority to                     
  request the other police officer to testify in person if                     
  there is some uncertainty about the facts in the minds of                    
  the grand jury.  The existing rule is very expensive and                     
  does nothing to protect the constitutional rights of Alaskan                 
  citizens.  All it does is pull dozens of police officers and                 
  troopers off of patrol every month to wait in the district                   
  attorney's office for their turn to testify about something                  
  that one officer could do just as well.  He added  that the                  
  rule this bill would amend, if amended, would be similar to                  
  the federal system, which does allow one police officer to                   
  testify as to what other police officers saw or heard.  Mr.                  
  Stark stated he was available for any questions.                             
                                                                               
  Number 210                                                                   
                                                                               
  CHAIRMAN PORTER informed the committee that there was a time                 
  when a police officer could go to the grand jury and testify                 
  to everything, whether it was another police officer's                       
  observations, or a witness's observation -- anybody's                        
  hearsay.  Those were more crooked days, but since then, we                   
  have gone the other way, and now we are trying to get back                   
  in the middle.  Chairman Porter thought this was a pretty                    
  reasonable approach.                                                         
                                                                               
  Number 225                                                                   
                                                                               
  REP. JAMES moved to move out HB 523 with individual                          
  recommendations and the zero fiscal note.                                    
                                                                               
  Number 230                                                                   
                                                                               
  CHAIRMAN PORTER called for a vote after REP. NORDLUND                        
  objected to the motion.  A vote was taken and the bill was                   
  moved out with a 5 - 1 majority.  Reps. Kott, Phillips,                      
  Green, Porter and James voted yes; Rep. Davidson voted no;                   
  and Rep. Nordlund was absent.                                                
                                                                               
  CHAIRMAN PORTER then introduced RICH COLLUM from the Parole                  
  Board to explain SB 286, and also noted that MIKE STARK was                  
  present if it was necessary to ask questions of the                          
  Department of Law.                                                           
                                                                               
  Number 274                                                                   
                                                                               
  RICH COLLUM, Parole Board, said that it was not too long ago                 
  that he was before Chairman Porter testifying in favor of                    
  House Bill 418 to extend the Parole Board for four years.                    
  He said SB 286 began in the Senate with that same provision                  
  and had a couple of major sections added.  Although the                      
  sections are fairly lengthy, what they do is simply take                     
  things that the board has done over the last 30 years, that                  
  are included in the AAC's (Alaska Administrative Code), and                  
  now includes them in statute.                                                
                                                                               
  MR. COLLUM explained that the first major addition is the                    
  ability for a single board member to set conditions of                       
  parole on mandatory parolees.  He said, if we were to have                   
  to use all five board members to set conditions on mandatory                 
  court parolees, we would have to ask for an increase in our                  
  budget and it would take a great deal of our time in order                   
  to do that.  We have been using a single board member over                   
  the last thirty years.  It has been in the Alaska                            
  Administrative Code and it has worked very well.  He said                    
  the other section with major change is that it has taken the                 
  regular standard conditions that we have used again,                         
  probably over the last thirty years, and that are outlined                   
  in the Alaska Administrative Code, and moved them into the                   
  Alaska Statutes.  Mr. Collum stated that he, or Mike Stark                   
  from the Department of Law, would be willing to answer legal                 
  questions about either of these section changes, and stated                  
  that the Parole Board certainly does support SB 286.                         
                                                                               
  CHAIRMAN PORTER asked Mr. Collum about the individual Parole                 
  Board members holding hearings and making determinations,                    
  and the previously mentioned administrative procedures act                   
  that, in effect, causes a member to become a hearing                         
  officer.                                                                     
                                                                               
  Number 338                                                                   
                                                                               
  MR. STARK answered that they do not hold an in-person                        
  hearing when they are setting conditions on mandatory                        
  parolees, and explained that what they are trying to avoid                   
  is have an in-person hearing.  The institutional parole                      
  officer sends in a packet of information to the office.  One                 
  Board Member reviews that information, including the pre-                    
  sentence report, and then sets conditions.  That is in the                   
  case of mandatory parolees.  In the case of discretionary                    
  parolees, the in-person hearings, the five board members are                 
  present before anybody is released on discretionary parole,                  
  and all five board members set the conditions.                               
                                                                               
  REP. PHILLIPS asked if the mandatory parole method of                        
  handling these cases was pretty consistent with other                        
  states.                                                                      
                                                                               
  MR. STARK guessed that it was consistent, but stated that he                 
  could not answer that authoritatively.  He said most states                  
  that have any type of parole system have some type of                        
  mandatory parole where prisoners are supervised for the                      
  amount of good time they earn.  In our state it is one-                      
  third; in some states it is a great deal more.  Some have                    
  half, and some have even more than that.                                     
                                                                               
  CHAIRMAN PORTER asked if there were any others wishing to                    
  testify on SB 286.                                                           
                                                                               
  MR. STARK explained what a mandatory parolee is:  when a                     
  person is sentenced to incarceration for a crime, they are                   
  awarded good time, as long as they behave themselves while                   
  they are incarcerated.  Those who do not get into any                        
  trouble, earn one-third off of their sentence, so they serve                 
  two- thirds and have one-third off.  That one-third is then                  
  served on mandatory parole.  They are released from custody,                 
  but they are supervised by a parole officer, and by the                      
  parole board who sets conditions for their behavior while                    
  they are under supervision.  This is where we would like one                 
  board member to be allowed to set conditions of parole.  If                  
  the parolee is unhappy with the conditions the board member                  
  sets, the parolee can always appeal to the whole board, and                  
  then the whole board would review the case and make a                        
  decision.  He said he was talking about the initial setting                  
  of those conditions.  The reason this is so important is                     
  when this statute was adopted in 1986, we were not aware                     
  that there was a little technical loophole in the statutes                   
  which requires all orders of the decisions by the board to                   
  be conducted by a quorum of the board.  The board has always                 
  historically done this through one board member.  The                        
  statutes do not seem to allow for that.  There is now a                      
  number of law suits by parolees who got out on parole and                    
  then, for violating their conditions, are back in jail and                   
  are now saying, "Hold on, court, these conditions were not                   
  validly set, because only one board member was involved in                   
  the setting of these conditions."  The bill will make this                   
  allowance retroactive back to the time the statute was first                 
  adopted so these law suits will go away, and these people                    
  will do their time like they are supposed to.                                
                                                                               
  REP. CLIFF DAVIDSON asked Mr. Stark how many of these                        
  lawsuits fall into this category.                                            
                                                                               
  MR. STARK answered that there were about four or five of                     
  them pending, but he could say that from having represented                  
  the Department of Corrections, Parole Board for many years,                  
  there is a copy cat effect, and he expects to see many, many                 
  more cases just like this, unless this bill is adopted.                      
                                                                               
  REP. PHILLIPS asked Mr. Stark if we were likely to get into                  
  trouble with the ACLU (Alaska Civil Liberties Union) on the                  
  retroactive effective date.                                                  
                                                                               
  Number 380                                                                   
                                                                               
  MR. STARK answered that he did not think so, because we are                  
  not talking about the conditions themselves that were set,                   
  just how they were set.  We are talking about one board                      
  member versus a quorum of the board, which would be three                    
  members.  He felt sure that they would be challenged, as                     
  inmates love to litigate, but he did not think there was any                 
  constitutional problem with it.                                              
                                                                               
  Number 385                                                                   
                                                                               
  CHAIRMAN PORTER asked if there were further questions.                       
                                                                               
  Number 388                                                                   
                                                                               
  REP. PETE KOTT asked about page 3, line 21, where it talks                   
  about what the circumstances might be prohibiting a prisoner                 
  released on parole from possessing a defensive weapon, or a                  
  deadly weapon, other than an ordinary pocket knife, with a                   
  blade three inches or less in length.  He asked if this                      
  meant that a person would not be able to carry a hunting or                  
  fishing knife, and if we were restricting their movement in                  
  that area, or if there would be a provision for an allowance                 
  and an exception.                                                            
                                                                               
  Number 400                                                                   
                                                                               
  MR. AMBROSE answered that the conditions Rep. Kott was                       
  referring to on page 3 are those that are discretionary on                   
  the part of the board.  He said they set those conditions on                 
  most people, but were particularly concerned to make sure                    
  that these were discretionary rather than mandatory, because                 
  so many people are involved in commercial fishing, and that                  
  sort of thing, possibly hunting.  So, in the particular case                 
  of a fisherman, the parole officer tells the individual to                   
  keep knives, and dangerous weapons, so to speak, on the                      
  boat.  The parolee cannot carry them off of the boat to                      
  carry, or take home when they are not in the process of                      
  working.  That is why it is set out as a discretionary                       
  condition rather than a mandatory one.                                       
                                                                               
  REP. JAMES said that he was thinking of the person who might                 
  just be setting out for the weekend on a hunting or fishing                  
  trip, from a private standpoint, not a commercial fisherman,                 
  but a sports fisherman.                                                      
                                                                               
  MR. AMBROSE answered that they would have to talk to their                   
  parole officer, but he did not believe the parolee would be                  
  given permission to have a knife.  He thought the parole                     
  officer would probably argue that a knife within the                         
  regulations would be sufficient to clean the fish.                           
                                                                               
  Number 430                                                                   
                                                                               
  REP. JAMES said that she reread the language that says,                      
  "...may require the member of the Board, acting for the                      
  Board, may require as a condition of mandatory parole these                  
  things."  It says that they may require that they not                        
  possess these things.  It is really difficult when we                        
  visualize what we are doing on a specific bill, when we look                 
  at cases and peoples and places, and so forth, where there                   
  might be some rural resident, as an example, for whom                        
  hunting is a part of their lifestyle, and she said she would                 
  think that providing for the difference of the kind of case                  
  they had, and so forth, there might be an allowance where                    
  the person may be allowed to go hunting.                                     
                                                                               
  MR. AMBROSE agreed with Rep. James, and said that there are                  
  cases where they would not give a parolee a knife, cases                     
  where they had been assaultive with a knife.                                 
                                                                               
  Number 430                                                                   
                                                                               
  REP. JAMES demonstrated trust in the Parole Board members to                 
  make these discretionary conditions, so as not to set people                 
  up for defeat.  She then motioned to move SB 286.                            
                                                                               
  Number 450                                                                   
                                                                               
  CHAIRMAN PORTER announced the bill was moved, after no                       
  further discussion was desired.                                              
                                                                               
  CHAIRMAN PORTER then went on to take up the four bills that                  
  were heard previously, beginning with SB 321.  He briefly                    
  explained that SB 321 had all of the fingerprint provisions                  
  of the bill previously passed out of the Judiciary                           
  Committee.  The bill also adopts the VICAP (Violent Crimes                   
  Apprehension Program), allowing the Department of Public                     
  Safety to view open homicide cases within the state, and to                  
  participate in the national program to see if our cases have                 
  any tie-in with any existing outside cases, which would                      
  indicate a serial killer.  It would be very helpful just to                  
  be in the program.                                                           
                                                                               
                                                                               
  REP. PHILLIPS motioned to move the bill with individual                      
  recommendations and zero fiscal notes.                                       
                                                                               
  Number 497                                                                   
                                                                               
  CHAIRMAN PORTER moved SB 321 with no objection.                              

Document Name Date/Time Subjects