Legislature(1993 - 1994)
04/18/1994 01:00 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.