Legislature(1999 - 2000)
05/10/1999 01:38 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CSSB 4(FIN) - OFFICE OF VICTIMS' RIGHTS CHAIRMAN KOTT announced the first order of business is CS FOR SENATE BILL NO. 4(FIN), "An Act relating to victims' rights; relating to establishing an office of victims' rights; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; relating to notice of appropriations concerning victims' rights; and amending Rule 16, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and providing for an effective date." Number 0068 BRETT HUBER, Legislative Assistant to Senator Rick Halford, Alaska State Legislature, came before the committee to present the sponsor statement. He stated that CSSB 4(FIN) passed the Senate with unanimous bipartisan support and 13 co-sponsors. He noted that similar legislation was before this committee last year in the form of SB 219. The thrust of the legislation is to provide a mechanism for the practical application of the Victims' Rights Amendment to the constitution ratified by popular vote on November 8, 1994. The bill establishes the office of victims' rights in the Department of Public Safety and tasks the advocate with assisting crime victims in obtaining rights that they are guaranteed under the constitution and laws of the state in regards to contact with state justice agencies. Crime victims are all too often left to deal with the justice system that's heavily weighted to the benefit of the criminal and filled with legalize and technicalities. The passage of the bill would provide victims of crimes with an advocate who understands and is experienced with criminal law and is familiar with the justice process. It would not preclude the responsibility of the prosecutor's office to fulfill its statutory obligations. It would not preclude the need for organizations, such as Victims For Justice. In fact, their effectiveness would be bolstered by the office of victims' rights. Number 0229 MR. HUBER presented the following sectional analysis: Section 1 provides the short title; Section 2 allows the victims' advocate to make statements at the time of sentencing in-lieu-of the victim, if requested; Section 3 amends AS 12.61 by adding new sections, which creates the office in the Department of Public Safety [Mr. Huber noted that the original version of the bill would have placed the office within the legislative branch and would be modeled after the ombudsman office]; Sec. 12.61.200 (a) creates the office, provides for the appointment of the advocate by the commissioner, and allows employment for an assistant advocate and clerical staff; Sec. 12.61.200 (b) sets up the tasks of the office; Sec. 12.61.200 (c) requires the cooperation of state agencies; Sec. 12.61.200 (d) provides the office the authority to administer grants to nonprofit organizations; Sec. 12.61.200 (e) establishes the qualifications for the advocate; Sec. 12.61.210 (a) requires the advocate to adopt regulations; Sec. 12.61.210 (b) disallows the office to charge fees for its services; Sec. 12.61.220 (a) establishes the advocate's jurisdiction; Sec. 12.61.220 (b) directs the advocate to exercise reasonable care, to not interfere with ongoing cases, and to not make extra judicial statements; Sec. 12.61.220 (c) restricts the advocate from advising a victim against cooperating with an investigation, providing information, or testifying; Sec. 12.61.230 sets out the authority to advocate on behalf of crime victims and to access records; Sec. 12.61.240 lists how and when the advocate may conduct investigations, provides subpoena power, requires consultations with the justice agencies prior to the release of a report, lines out the advocate's duties upon completion of an investigation, and permits the advocate to report public opinions and recommendations; Sec. 12.61.250 requires the advocate to publish an annual report; Sec. 12.61.260 limits the judicial challenge of the advocate's actions; Sec. 12.61.270 provides immunity for the advocate; Sec. 12.61.280 provides evidentiary privilege against being compelled to testify; Sec. 12.61.290 sets out a criminal penalty for obstruction of the advocate's duties; Sec. 12.61.300 provides definitions ["justice agency" and "victim"]; Section 4 increases the compensation available for victims of crime under AS 18.67 as decided by the Violent Crimes Compensation Board; Section 5 allows the board to increase the compensation levels by regulation in order to account for inflation; Section 6 brings the advocate under the partially exempt status; Section 7 provides for Permanent Fund Dividend ineligibility for a misdemeanant who is incarcerated for all or part of a qualifying year and who has either one prior felony or two prior misdemeanor convictions; Section 8 provides that the proceeds of the dividend may be used to fund the office; Sections 9 and 10 provide for a court rule change notice; Section 11 allows the office space to be obtained, equipped and staffed in the FY [fiscal year] 00 budget for a July 2001 start; Sections 12 and 13 are the effective date clauses. Number 0523 CHAIRMAN KOTT asked Mr. Huber to share with the committee the discussion from the Senate on those who have committed a misdemeanor with prior convictions and their loss of their permanent fund dividend. Number 0545 MR. HUBER replied the current law says that anybody who is incarcerated for all or part of a qualifying year and has two prior convictions are ineligible for the dividend. This bill changes the two prior convictions to one prior felony or two prior misdemeanors. Number 0598 REPRESENTATIVE CROFT asked Mr. Huber to explain the other changes that the Senate Finance Standing Committee made. MR. HUBER replied the main change was the transfer of the office from the legislature to the Department of Public Safety. The committee also added the word "reasonable" [page 2, line 2] in response to testimony. Language was also added to allow the legislature the right to grant money to non-profit victims' rights organization from the same pool of dividend ineligible money. The committee also included the bifurcated effective date that allows for the beginning of the supplies, staffing, and procurement of office space, but it doesn't allow for the operation of the office until the FY 01 budget. In addition, the committee adopted a letter-of-intent that speaks to entities currently allowed to receive funding from the ineligible dividend pool of money. Number 0722 REPRESENTATIVE CROFT stated the letter-of-intent attached to the Department of Public Safety's fiscal note looks like $73,000 for this year with a steady state of $450,000, which the department expects to receive from the ineligible dividend funding mechanism. MR. HUBER pointed out that the fiscal note does not reflect the money coming into the department; it just speaks to the cost of the office. The $73,000 is the anticipated cost of getting the office ready. The $450,000 is the ongoing funding requirement for the office. He referred to a spreadsheet illustrating the revenue stream from the ineligible dividend mechanism. It shows $391,000 in the first fiscal year. It also shows that amount increasing each year, which speaks to the ability to look back to the out-years for prior crimes. The spreadsheet was calculated at last year's dividend. Number 0840 REPRESENTATIVE CROFT stated it was brought to his attention that the PFD [Permanent Fund Dividend] would be available for the Child Support Enforcement Division [Department of Revenue] or to directly compensate victims. MR. HUBER stated that was a policy call made at the time of the initial PFD ineligible pool of money. The bill doesn't really speak to the use of that money as a policy call; it merely expands the pool of funds. Number 0929 REPRESENTATIVE JAMES asked Mr. Huber what would happen if the office was set up and there wasn't enough money. Would the legislature have to use general fund money? MR. HUBER replied the bill creates a possible pool of funds that are, of course, subject to the governor's recommended usage and the appropriation of the legislature. It would be an annual policy call as to the appropriation of the funds. It was the sponsor's intent to create a funding mechanism that more than pay for the program, especially as the growth of the pool increases in the out-years. Number 1025 DEL SMITH, Deputy Commissioner, Department of Public Safety, came before the committee to testify. The placement of the office in the Department of Public Safety is of concern to him and the commissioner. They are concerned about bringing in close to $500,000 - no matter the source - in the event there might not be sufficient funding thereby impacting the department's ability to fund its primary mission - state troopers, fire prevention, fish and wildlife protection, and several other programs. They are also concerned about the administrative impact of the office. It potentially pits departments against each other. The bill was originally designed by the sponsor so that the office was in the legislative branch similar to the Office of the Ombudsman with some distance between it and the line-departments. In addition, the department might be the actual agency a victim is complaining about, given that it deals with victims. Number 1164 REPRESENTATIVE JAMES asked Mr. Smith what he thinks about the office being within the Department of Administration. MR. SMITH replied it's certainly an option. Number 1230 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came before the committee to testify. The department has reservations about the bill because it tries to deliver paralegal services that are guaranteed by the Victims' Rights Amendment which have not increased since before that time. The department deals with about 40,000 to 50,000 contacts with victims every year - notifying them of hearings, schedule changes, and last minute hearings - which is required in statute. The department also tries to deliver services that are guaranteed under the amendment even in circumstances that are not specifically required by the prosecuting attorney. The most common complaint from victims is a lack of notification of schedule changes, which she can understand. But it cannot be done for all cases given the number of paralegals involved. Ms. Carpeneti further stated that putting the office in the Department of Public Safety is even more problematical. It delivers some of the services, therefore, it would be investigating itself. It would also be investigating the Department of Law which is a client. Number 1391 CHAIRMAN KOTT asked Ms. Carpeneti whether her concerns were aired in the Senate. MS. CARPENETI replied yes her concerns were aired in the Senate Judiciary and Senate Finance Standing Committees. Number 1407 REPRESENTATIVE JAMES asked Ms. Carpeneti whether the department's chores would be simplified by simply notifying the advocate. MS. CARPENETI replied, according to her understanding, the advocate would not be delivering services directly but helping victims who feel that they have not been provided their constitutional rights after the fact. Number 1482 REPRESENTATIVE GREEN asked Ms. Carpeneti whether her concerns were considered in the Senate; the bill passed the Senate overwhelmingly. MS. CARPENETI replied the committee substitute, that moved the office to the Department of Public Safety, was introduced in the Senate Finance Standing Committee where she testified that it would cause problems between departments. No questions were asked. Number 1534 REPRESENTATIVE GREEN asked Ms. Carpeneti whether there is a way to address victims' rights that wouldn't cause such a high fiscal note. MS. CARPENETI replied the Department of Law thinks it could provide better services to victims if it had more paralegals to deliver them, which would have a more direct impact on how they feel about the criminal justice system than somebody investigating a mistake after the fact. REPRESENTATIVE GREEN asked Ms. Carpeneti whether the Department of Law conducts an internal audit that reviews its procedures. MS. CARPENETI replied the complaints that the department gets are from those victims who have not been notified of a hearing. Number 1662 REPRESENTATIVE CROFT asked Ms. Carpeneti whether the office could assume some of the notification duties of the Department of Law, given the duties of the office listed in the bill. MS. CARPENETI replied if those duties were made a lot clearer it would possible. House Bill 172 actually says that the office can deliver services listed in AS 12.61.015. She further noted that if the office was in the Department of Law, it would have to be in a separate office because it's charged with investigating. Number 1721 REPRESENTATIVE KERTTULA suggested a hotline for a listing of the hearings. That way a victim would be able to call to determine the status of a hearing. REPRESENTATIVE KERTTULA referred to the language - "(c) The victims' advocate may not advise, counsel, or advocate on behalf of a victim in a way that would, (1) prevent or discourage a victim from cooperating with law enforcement authorities in a criminal investigation; (2) encourage a victim to withhold evidence from law enforcement authorities in a criminal investigation" - and asked Ms. Carpeneti whether it should also include defense attorneys, especially in regards to withholding evidence. MS. CARPENETI replied they probably should be specified since they aren't included in law enforcement. REPRESENTATIVE KERTTULA said conceivably an equal protection argument could be made because a victim could indicate in a trial that he/she was advised not to talk to the defense attorney. Number 1880 REPRESENTATIVE JAMES asked Ms. Carpeneti whether she has any indication of the types of things that the paralegals are doing for notifying victims in relation to other things. MS. CARPENETI replied the paralegals spend most of their time on victim services. She also noted that the district attorneys also assist victims. Number 1929 REPRESENTATIVE JAMES asked Ms. Carpeneti whether she knows what kind of numbers the Department of Law is looking at for additional paralegals. MS. CARPENETI replied no. But she would find out and provide the committee with that information. Number 1987 REPRESENTATIVE GREEN asked Ms. Carpeneti whether she has a feel of what it would cost for more paralegals to help with notification and to handhold the victims. MS. CARPENETI replied no. She would get that information and bring it back to the committee later. She doesn't write the fiscal notes. But she does know that paralegals are a lot less expensive than lawyers. Number 2049 KAREN CAMPBELL testified via teleconference from Anchorage. She stressed that this is not an issue of adding paralegals. She is the mother of Bonnie Craig, who was murdered on September 28, 1994. She is here today because she doesn't want other victims to go through the same hell and pain that she went through and will continue to go through. The pain of childbirth and kidney stones do not even come close to the pain of one's child having been murder. She noted that Bonnie was abducted on her way to UAA [University of Alaska, Anchorage]. She was brutally raped and murdered. Her autopsy indicated that she was repeatedly hit over the head again and again. Her body was found floating in McHugh Creek. Her murderer is still free. Ms. Campbell stated that Bonnie was an angel and described the activities she was involved in before her death. She said, "In Bonnie's honor I'm asking you to work effectively and be responsible by enacting and passing SB 4." MS. CAMPBELL further stated that the idea of putting the office into the Department of Public Safety is wrong. It won't work that way. The department can't be policing itself. She suggested putting it back in the legislative branch. MS. CAMPBELL further explained the pain of being a victim. She cited a story of a mother whose child had been murdered who was not informed of the hearing because the paralegal was off that particular day. The judge went ahead and read the verdict without her being present. She said, "I can't describe to you the amount of pain that would cause a mother of a murdered child. To be so disrespectful to read a verdict and not bother ... This is in comprehensive to me. And who can she go to? The judge should never have read the verdict without inquiring where the mother was. And this goes on again and again, and it's not going to be a paralegal that can fix that situation. We need to have an attorney that will actually be able to put some teeth into the constitutional amendment giving victims rights." She also resents the idea that no money should come from the general fund when so much of it goes to protecting rights of criminals. The system needs to start looking at the rights of victims and affording them the same amount of rights that are afforded to criminals. Number 2296 REPRESENTATIVE JAMES expressed her sympathy to Ms. Campbell, and noted that the bill seems to protect a victim after the fact when it seems that it's important for a notice to be given in the first place. MS. CAMPBELL stated, right now, when something goes wrong and a victim's rights are not afforded nothing is done. Maybe the judge and paralegal said that they were sorry, but sorry's don't cut it. There needs to be some kind of peace so that those types of things don't continue. Number 2362 CHARLOTTE PHELPS, Advocate, Victims For Justice, testified via teleconference from Anchorage. She is a victim also. Her son was murdered by a drunk driver about three years ago. She asked the committee members to pass the bill from the committee with a favorable vote today. She suggested moving the office back to the jurisdiction of the legislature rather than the Department of Law or Department of Public Safety to ensure the greatest degree of impartiality. If it was under either one of those department, it would create a conflict of interest for the advocate and make it more difficult for that advocate to investigate reports of violations. Victims For Justice also does not feel that this is a paralegal issue as Ms. Campbell has indicated. In closing, she stated the comment earlier made by Representative Green in regards to hand-holding is very offense to victims. It implies that they are children, when they are fighting very much to become survivors and are demanding respect. They demand the same respect and protection that the constitution gives criminals. The office of victims' rights would ensure that respect and right. Number 2449 MS. CAMPBELL noted that if a victim's rights have been violated any lawyer will say, "Well, you can't sue the government for being incompetent..." TAPE 99-61, SIDE B Number 0001 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault, testified in Juneau. In terms of helping victims of domestic violence and sexual assault exercise their rights, she noted that there is a legal advocacy project funded through the federal violence against women Act (S.T.O.P.), which trains designated legal advocates. She cited there are 22 legal advocates across the state. They help victims access the civil justice system through protective orders, custody, and divorce proceedings. They also help victims through the criminal justice system during a trial. There is also a funding mechanism with grants to encourage arrests. The Department of Law receives some funding to establish volunteer programs to assist paralegals in providing notices to victims. That program is in its second year and the department has received funding for the next fiscal year to try and solidify these programs. Hopefully, they will help relieve the pressures on the paralegals. She further mentioned that HB 67 requires the court to inquire whether or not a victim has been notified in sexual assault cases. She also mentioned the VINE [Victim Information and Notification Everyday] system in the Department of Corrections, a system whereby victims can call an automated phone line to ascertain the status of an inmate. She further mentioned that the Alaska Court System, through S.T.O.P. will be starting a pilot project this coming year for a person to be onsite and available in the Anchorage court facility. She further mentioned that the Alaska Judicial Council distributes brochures on victims' rights in English, Spanish and other languages supplementing the pamphlets that the Department of Law provides. Number 0188 REPRESENTATIVE GREEN stated that he has the utmost empathy for somebody who is a victim of a violent crime. He asked Ms. Hugonin what else can the state do, given there are agencies, brochures, and groups that are available to talk to victims. Number 0229 MS. HUGONIN replied, personally, she thinks it's important to do as much as possible in the beginning of the process to ensure that victims know their rights and to inform them of the availability of assistance in exercising those rights. It's also important to ensure that there are protocols in place both at the prosecutorial level in the court system and advocacy groups to ensure that it happens. There may need to be a mechanism at the end of the process, but that should be further down the list. She noted that SB 4 is very helpful in terms of restitution for victims, which is necessary in some situations because, right now, there is a low upper limit of what victims can receive. Number 0318 REPRESENTATIVE JAMES stated it seems that the most important thing for a victim is to have the proper notification, otherwise that victim is being "damaged" again. She is, therefore, struggling with the bill because it puts those efforts in the wrong place. MS. HUGONIN stated the best place for a notice is in the beginning because it's the best time to arrange for help, so that they can be involved in every step of the process. She understands that sometimes the hearings are postponed or accelerated in a quick period of time and it's very difficult to reach all the necessary parties, but HB 67 will make some allowances for that problem. Number 0443 REPRESENTATIVE JAMES stated a hearing won't go forward if the criminal has not been notified, so it seems that nothing should happen until the victim has been notified. But this bill does not do that. She suggested looking at extending the process in HB 67 to other victims, not just to victims of sexual assault and domestic violence. Number 0509 CHAIRMAN KOTT referred to AS 12.61.250 and asked Mr. Huber who the public is that the office would be submitting a report to. MR. HUBER replied the report submitted to the public would include the governor, attorney general, legislature, a grand jury, the public, or any of those. He imaged that it would be published like any other agency's report and be made available to the executive branch, legislature, and general public. Number 0542 CHAIRMAN KOTT stated a change was made in statute whereby the annual reports of the various agencies and departments "shall be made available" to the legislature. The bill says, "shall submit." MR. HUBER replied he does not know how that interacts with the recent change on making reports available versus providing actual hard copies. CHAIRMAN KOTT reiterated he is just wondering who the public is in this case. Number 0577 CHAIRMAN KOTT referred to page 4 of the bill and asked whether a person can be less than 21 years of age and be licensed to practice law in the state; and, if a person is less than 21 years of age, does that person have significant experience in criminal law? He's not sure of the interaction between the qualifications for the advocate. MR. HUBER stated the criteria were based on what it would take to be appointed to the bench. It was also built around the office being in the legislature and similar to the Office of the Ombudsman. He agrees that it would be hard to find a factual circumstance where somebody meets all of the rest of the criteria and is not 21 years of age. Number 0641 REPRESENTATIVE JAMES confirmed as to whether a person cannot engage in another occupation and get paid for it. MR. HUBER replied that is correct. Number 0653 CHAIRMAN KOTT asked Mr. Huber whether the sponsor had discussed the issue of moving the office to the Department of Public Safety prior to the change. MR. HUBER replied no. It came about through a committee substitute in the Senate Finance Standing Committee. The sponsor had not seen the committee substitute until he arrived at the committee hearing. Number 0703 MR. HUBER stated, as closing remarks, that the concept of victims' rights are relatively new - the constitutional amendment just passed in 1994. Those who work in this area and those who have been victims agree that the issues need to be flushed out and that there needs to be an understanding of what these rights mean and how they balance with the constitutional rights of the accused and the rights and responsibilities of the state. It's not just a matter of notice, according to the stories and information that the sponsor has received. It's dealing with people who are facing a traumatic time and who are thrust into a system where the prosecutors seek justice for the state, and the defense attorneys make sure that the rights of the accused are cared for at all steps of the process. The victims feel that there is nobody representing them. The issue of notice was only a portion of the constitutional amendment on victims' rights. There was also the ability to confer with the prosecution, to confer with the investigation, and to be treated with dignity and respect. The idea of the office is to give victims a place to go that just has their interests in mind and is looking out for them. MR. HUBER further stated the Department of Corrections' fiscal note adds an administrative clerk to do the PFD ineligibility calculation, which has been asked for and denied through the budget process three to four years in a row. He's not sure whether that position is specific to the changes in the bill, or more of a wish of the department. The Violent Crimes Compensation Board's fiscal note is a reflection of the additional increase in caps and the ability to adjust for inflation. MR. HUBER further stated that a lot of the bill is based on the Office of the Ombudsman, which looks at other ways to deliver services without additional money. Maybe those who are delivering services need to be more aware of the issues that are important to the public. It's the intent of the sponsor to flush those types of things out to make the system in general more responsive to victims. Number 0892 REPRESENTATIVE GREEN asked Mr. Huber what he envisions happening if a victim is not notified. MR. HUBER replied he envisions the victim going to the advocate and inquiring why something happened. The advocate would then issue a report indicating the findings of what happened. The advocate would not be able to turn back the clock, but may be able to provide a better mechanism to deal with similar situations in the future. He further noted that a victim has the right to look at a civil remediation. But the office is not set up to look at that. Number 0994 REPRESENTATIVE JAMES asked Mr. Huber whether the advocate would be present in court with a victim. If she was a victim sitting in a courtroom observing the process, it would be nice to have someone to ask whether or not her rights are being protected. She further stated that the $450,000 fiscal note seems like a pittance of what it would take to really give victims the protection that they need. MR. HUBER replied there is no guarantee that everybody would feel - with or without this office - that their rights have been protected to the degree that they would like them to be. The staffing level envisioned in the current fiscal note includes the advocate, three assistants, two paralegals, and clerical staff. An office would be in Juneau, Anchorage, and Fairbanks where the bulk of the court cases are dealt with. Is that enough to do everything? he asked. He doesn't think so, but if a level of awareness has been increased and those participating in the system know that somebody is watching them and that reports and recommendations are coming forward to make the system work better, the amount of effort by this office might diminish over time. Number 1234 CHAIRMAN KOTT closed the meeting to public testimony. REPRESENTATIVE JAMES said she is struggling with putting the office in the Department of Public Safety in terms of that being a conflict of interest. She doesn't necessarily want to put in the legislature either. Number 1256 REPRESENTATIVE CROFT noted, the figure of 40,000 to 50,000 contacts per year, equates to about 200 a day. The legislature has a role to play in this, but he doesn't want to be the one responsible for missing one of those 200 phone calls a day. In the House version - HB 172 - the office is in the Department of Law only because that is where a lot of the notices are generated. The statute says, "the attorney general shall notify" and putting it anyplace else might bring up the question of responsibility. Number 1369 REPRESENTATIVE JAMES commented she is still visualizing that there aren't enough paralegals in the Department of Law to notify victims, and that there ought to be a connection between them and the advocate; however, they really do have different missions. Number 1473 REPRESENTATIVE KERTTULA stated, for all of the reasons that the Department of Law and Public Safety have testified about, she is concerned about having the office in either one. She thinks that the Department of Administration might be the best place because the Public Defender Agency and the Office of Public Advocacy are both there and it isn't a law enforcement agency. She thinks that even the victims would feel better represented if it wasn't in one of those two departments. Number 1504 REPRESENTATIVE CROFT noted that victims and victims' rights groups that he has talked to indicated that they didn't want the office to be under the Public Defender Agency or the Office of Public Advocacy. But it might make sense to have it in the Department of Administration working collaterally. Number 1548 CHAIRMAN KOTT referred the bill to a subcommittee consisting of Representatives Green, Murkowski and Kerttula. He charged the subcommittee with addressing the following concerns: - The issue of the placement of the office; - The issue of the qualifications of the advocate; - The issue of the advocate being able to counsel; and - The issue of the report being submitted to the public.