Legislature(2005 - 2006)CAPITOL 120

02/23/2006 10:00 AM JUDICIARY

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Heard & Held
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HB 329 - BAIL RESTRICTIONS                                                                                                    
10:12:16 AM                                                                                                                   
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE BILL NO. 329, "An  Act relating to bail."  [In committee                                                               
packets  was a  proposed committee  substitute (CS)  for HB  329,                                                               
Version 24-LS1302\F, Luckhaupt, 2/14/06.]                                                                                       
10:12:22 AM                                                                                                                   
REPRESENTATIVE  BILL STOLTZE,  Alaska State  Legislature, one  of                                                               
the prime  sponsors of HB  329, relayed  that he simply  wants to                                                               
give  clearer guidelines  as  to what  bail  means and  establish                                                               
better lines of communication between  all facets of the criminal                                                               
justice   system  and   particularly  with   the  Department   of                                                               
Corrections (DOC).   In response  to a question, he  relayed that                                                               
although HB  329 was not  introduced specifically in  response to                                                               
the recent  situation involving the  escape from custody  of John                                                               
P.  Smith,  II,  while  attending   his  father's  funeral,  that                                                               
situation is one that illustrates  the current potential problems                                                               
regarding  temporary  releases  from jail.    The  aforementioned                                                               
escape affected  the people  of his  community, he  noted, adding                                                               
that when  Mr. Smith  was apprehended, he  was babysitting  for a                                                               
10:15:01 AM                                                                                                                   
REPRESENTATIVE  ANDERSON moved  to adopt  the proposed  committee                                                               
substitute  (CS)  for  HB 329,  Version  24-LS1302\F,  Luckhaupt,                                                               
2/14/06, as the work draft.   There being no objection, Version F                                                               
was before the committee.                                                                                                       
REPRESENTATIVE  ANDERSON  noted that  Version  F  would make  the                                                               
crime of unlawful evasion a class C felony.                                                                                     
10:15:25 AM                                                                                                                   
BEN  MULLIGAN,  Staff  to   Representative  Bill  Stoltze,  House                                                               
Finance  Committee, Alaska  State Legislature,  one of  the prime                                                               
sponsors  of HB  329, said  on behalf  of Representative  Stoltze                                                               
that the  DOC has relayed  that one out  of five persons  who are                                                               
temporarily released from  prison fail to return,  though in some                                                               
areas  up to  50  percent  fail to  return.    This requires  law                                                               
enforcement  officers to  go out  and actively  search for  those                                                               
escaped prisoners.  Sometimes prisoners  are released for medical                                                               
or drug abuse  assessment, but that's not  really necessary since                                                               
those assessments can  be done in house or  accommodations can be                                                               
made to  do so.   The  bill will  not restrict  bail and  is only                                                               
meant to  address the  issue of temporary  or periodic  release -                                                               
those who still qualify to make bail will be able to make bail.                                                                 
MR.  MULLIGAN, in  response to  questions, said  that if  someone                                                               
arrested  for a  lesser crime  can't make  bail but  wants to  be                                                               
released temporarily  to attend a  funeral, for example,  the DOC                                                               
already has a system in place  to arrange for such a release, and                                                               
HB 329 would  simply make the person go through  the DOC's system                                                               
rather  than getting  released  by a  judge.   In  response to  a                                                               
further  question, he  acknowledged that  HB 329  would make  the                                                               
crime of  unlawful evasion a  class C  felony even if  the person                                                               
was initially in jail for a misdemeanor.                                                                                        
REPRESENTATIVE COGHILL characterized that as a steep punishment.                                                                
REPRESENTATIVE STOLTZE  concurred, but characterized  that change                                                               
as  a necessary  step, because  the  system won't  work when  the                                                               
penalty  for  unlawful evasion  is  lighter  than the  prisoner's                                                               
original sentence; currently  there is no incentive  to return to                                                               
jail.   He  relayed that  he has  consulted with  law enforcement                                                               
agencies, the Department of Law  (DOL), [the DOC], and the Alaska                                                               
Court System (ACS) on this issue.                                                                                               
REPRESENTATIVE COGHILL, after remarking that  a class C felony is                                                               
still a  steep punishment, acknowledged  Representative Stoltze's                                                               
10:20:35 AM                                                                                                                   
REPRESENTATIVE  WILSON   offered  her  belief  that   the  change                                                               
proposed by HB 329 will reduce  the state's costs because it will                                                               
act as a deterrent.                                                                                                             
REPRESENTATIVE STOLTZE  concurred, but noted that  another aspect                                                               
to consider is that when judges  are dealing with the question of                                                               
whether to  grant temporary [release],  they should know  why the                                                               
person is in jail to begin  with and how he/she is behaving while                                                               
in jail.   Some people simply  are not suitable for  release, and                                                               
judges  won't know  that unless  they communicate  with the  DOC;                                                               
HB 329 will bring the DOC "into  the loop" so that it can provide                                                               
judges with information that will  allow them to recognize people                                                               
for  the  level  of  danger  they  might  present  while  out  on                                                               
temporary release.                                                                                                              
MR.   MULLIGAN,  in   response   to  a   question,  offered   his                                                               
understanding that  although the  ACS has  some information  on a                                                               
prisoner   requesting  temporary   release,   the   DOC  is   not                                                               
automatically given  an opportunity  to speak to  whether someone                                                               
should be  released.   House Bill  329 will  ensure that  the DOC                                                               
does  get  to  provide  input  regarding  whether  the  temporary                                                               
release of a particular prisoner  is appropriate.  He pointed out                                                               
that the DOC,  as a matter of course, becomes  very familiar with                                                               
how an inmate behaves.                                                                                                          
REPRESENTATIVE GARA  said that  according to  his interpretation,                                                               
the  bill  could  also  affect  how a  defendant  that  could  be                                                               
innocent is treated,  because it pertains to  whether someone can                                                               
be released, either after conviction  or before his/her trial - a                                                               
trial at which the person  could be found innocent.  Furthermore,                                                               
when a judge  releases someone on bail until the  trial, that too                                                               
is a temporary release as described  in the bill, and, again, the                                                               
person could  be found innocent.   He urged care in  defining the                                                               
word, "temporarily" as it will be used in the bill.                                                                             
MR. MULLIGAN  offered his  belief that the  bill will  not affect                                                               
someone who  can make bail;  instead, only  if a person  fails to                                                               
make bail will the question  of whether he/she can be temporarily                                                               
released be addressed by the bill.                                                                                              
REPRESENTATIVE  GARA said  he wants  to  know how  the bill  will                                                               
affect  both guilty  people  and those  who  haven't been  judged                                                               
10:26:24 AM                                                                                                                   
SUSAN  A. PARKES,  Deputy  Attorney  General, Criminal  Division,                                                               
Office of  the Attorney  General, Department  of Law  (DOL), said                                                               
she  would echo  statements that  the bill  will only  affect the                                                               
temporary  release  of  persons  who can't  make  bail  but  want                                                               
temporary release  for a  particular event such  as a  funeral, a                                                               
wedding, a birth, or a medical appointment.                                                                                     
REPRESENTATIVE  GARA  asked  whether  the  word,  "temporary"  is                                                               
defined somewhere  in statute,  adding that  his concern  is that                                                               
"temporary"  could  also be  construed  as  that period  of  time                                                               
between  when one  is  put  in jail  and  one's  trial -  "that's                                                               
technically, in the English language, temporary also."                                                                          
MS. PARKES  offered her  belief that  that is  not correct.   She                                                               
     When bail is  set, here's your bail  pending trial, and                                                                    
     then at  trial you're either convicted  or you're found                                                                    
     not guilty,  and if you're  not guilty then  you're not                                                                    
     going  to  have  any  bail, so  I  don't  think  that's                                                                    
     considered  "temporary"; temporary  would  be, for  the                                                                    
     next 24 hours, the next 48  hours.  I think it's pretty                                                                    
     clear.  ...  This  committee could  certainly  consider                                                                    
     defining it,  but I think  it's pretty  well understood                                                                    
     that either  bail is set  pending trial -  however long                                                                    
     that  may  be  -  or there's  some  sort  of  temporary                                                                    
REPRESENTATIVE  GARA surmised  that he  and Ms.  Parkes mean  the                                                               
same thing.                                                                                                                     
MS. PARKES noted that innocent  and guilty people are treated the                                                               
same under  the bail  statute, positing that  they would  also be                                                               
treated the  same under this proposed  temporary release statute.                                                               
If one can't  make the bail that  has been set -  bail the amount                                                               
of which  the judge has determined  will keep society safe  - why                                                               
should one then get a temporary pass out of jail?                                                                               
REPRESENTATIVE GARA suggested changing  the language on lines 10-                                                               
12 to  say in part,  "nothing in this  chapter allows a  court to                                                               
order  a defendant  who has  not  satisfied bail  to be  released                                                               
temporarily or periodically".                                                                                                   
MS.  PARKES acknowledged  that such  a change  might clarify  the                                                               
CHAIR  McGUIRE  said  her  concern  pertains  to  the  fact  that                                                               
innocent people  are charged  all the time  and still  incur bail                                                               
obligations even if they have  no resources with which to satisfy                                                               
that bail.  Such people still  ought to be eligible for temporary                                                               
release for purposes  of attending the funeral of  a close family                                                               
member or the birth  of their child.  It is the  bad cases - such                                                               
as the aforementioned one involving  Mr. Smith - that gain public                                                               
recognition, and  currently judges  have the discretion  to grant                                                               
temporary   release  on   a  case-by-case   basis,  whereas   the                                                               
legislature doesn't  have the opportunity oversee  each and every                                                               
request  for temporary  release.   She  asked how  often the  bad                                                               
cases  occur, and  whether they  happen often  enough to  warrant                                                               
taking away judicial discretion.                                                                                                
10:31:03 AM                                                                                                                   
MS.  PARKES  pointed  out  that  when  bail  is  originally  set,                                                               
everyone is  presumed innocent -  that's where judges  start from                                                               
and that's factored  into the system.  She then  relayed that she                                                               
was  surprised to  find that  cases  such as  Mr. Smith's  happen                                                               
often;  for  example,  recently in  Kenai  a  person  temporarily                                                               
released  for   a  medical  assessment  escaped   custody.    She                                                               
suggested that the DOC could provide statistics.                                                                                
CHAIR McGUIRE noted  that the way the bill  is currently written,                                                               
if a person  has the resources to make bail,  then the bill won't                                                               
apply to him/her, but if the  person can't make bail, he/she goes                                                               
to jail.                                                                                                                        
MS.  PARKES  concurred,  but  noted  that  a  person  can  always                                                               
[request]  bail  modification,  adding  that  this  occurs  on  a                                                               
routine basis.                                                                                                                  
REPRESENTATIVE GARA  offered his  understanding, however,  that a                                                               
person is only entitled to bail  modification if there has been a                                                               
change in his/her circumstances.                                                                                                
MS. PARKES said,  "You have to bring forth either  a new proposal                                                               
or new factual information and  give 48-hour ... [written] notice                                                               
of either what the new proposal  is or [what] the new information                                                               
you're going to bring forward [is]."                                                                                            
10:33:34 AM                                                                                                                   
PORTIA PARKER, Deputy Commissioner,  Office of the Commissioner -                                                               
Juneau,  Department of  Corrections  (DOC), explained  that if  a                                                               
person is incarcerated awaiting trial  and doesn't make bail, and                                                               
a major  event occurs, the DOC  does not do a  temporary release;                                                               
instead,  after considering  his/her request,  the DOC  will keep                                                               
the person  in custody and simply  escort him/her to the  event -                                                               
the  person is  never  released  from custody.    She said  she'd                                                               
recently approved such a request,  a request to attend a funeral,                                                               
even though the circumstances were  not typical; the prisoner was                                                               
escorted  to   the  funeral   and  then   brought  back   to  the                                                               
correctional  facility.   The problem  with temporary  release is                                                               
that many don't return - for  example, in Fairbanks as many as 50                                                               
percent of  those on temporary  release were not returning.   She                                                               
mentioned  that   that  particular  rate  of   failure  is  being                                                               
addressed  and  is  improving  through  increased  communications                                                               
between the DOC and the  prosecutors, public defenders, probation                                                               
officers, and judges in that area.                                                                                              
CHAIR McGUIRE noted,  however, that there could  be two similarly                                                               
situated  people arrested  for the  same type  of crime,  and the                                                               
bill won't  apply to  the person  who is able  to make  bail even                                                               
though he/she  is no different,  when later  there is a  death in                                                               
the family, than  the person who couldn't make bail.   Why, then,                                                               
should  the person  who can't  make bail  have more  restrictions                                                               
placed on him/her simply because he/she can't make bail?                                                                        
REPRESENTATIVE   ANDERSON  observed   that  in   Chair  McGuire's                                                               
example, both  individuals are presumed  innocent but  one awaits                                                               
trial in jail while the other one doesn't.                                                                                      
MS. PARKER said,  "That's completely up to the judge;  ... we can                                                               
only look at people who are in custody."                                                                                        
MS.  PARKES  explained that  in  cases  where  a person  has  the                                                               
resources to make bail - a  job, a family, or other indicators of                                                               
stability - a  judge can make a finding that  that person is less                                                               
likely to flee,  whereas a person without such  resources or ties                                                               
to the community  doesn't have a lot to lose  by just taking off.                                                               
In response to  another question, she said she  doesn't know that                                                               
there is  a particular standard that  must be met with  regard to                                                               
whether the community  will still be safe if  a particular person                                                               
is  released, though  the bail  statute  does contain  a list  of                                                               
criteria  that a  judicial officer  must take  into account  when                                                               
determining the conditions of release  and the appropriate amount                                                               
of bail;  those criteria include family  ties, employment status,                                                               
financial resources,  character and  mental condition,  length of                                                               
residence   in  the   community,   record   of  convictions   and                                                               
appearances at  proceedings, whether the person  has confessed to                                                               
the crime, and the weight of the evidence against the person.                                                                   
10:38:25 AM                                                                                                                   
CHAIR McGUIRE,  in response to  a question, noted that  Mr. Smith                                                               
had originally been charged with  kidnapping, assault, arson, and                                                               
REPRESENTATIVE GARA suggested changing  the bill such that before                                                               
a  person charged  with either  a class  A sexual  offense or  an                                                               
unclassified felony can be released  on bail, the judge must make                                                               
a finding  that there is  a reasonable certainty that  the public                                                               
would be protected under the conditions  of bail.  He offered his                                                               
understanding  that  in  Mr. Smith's  situation,  the  judge  had                                                               
released him  on bail  without first ensuring  that he  would not                                                               
pose a danger to society.                                                                                                       
MS. PARKER clarified that Mr. Smith  was not let out on bail; Mr.                                                               
Smith escaped while on temporary  release, and the bill addresses                                                               
whether temporary release is available  to someone who can't make                                                               
CHAIR McGUIRE asked  whether the option of posting  bail had been                                                               
offered to Mr. Smith.                                                                                                           
MS. PARKES said it had, adding that bail is set in every case.                                                                  
REPRESENTATIVE   GARA  suggested   changing   the  standard   for                                                               
temporary and  periodic [releases]  to, "a  reasonable certainty"                                                               
that the community is going to be protected.                                                                                    
MS.  PARKES  said  doing  so  would be  a  policy  call  for  the                                                               
legislature  to   make,  though  she  noted   that  AS  12.30.020                                                               
specifies that  the court  must set a  bail that  will reasonably                                                               
assure the person's  appearance as required and  that he/she will                                                               
not pose  a danger  to the  victim.   Thus the  term, "reasonably                                                               
assure" is the current standard, she surmised.                                                                                  
REPRESENTATIVE  STOLTZE  indicated  that  he would  rely  on  Ms.                                                               
Parker and Ms. Parkes's judgment regarding this issue.                                                                          
MS. PARKER, in response to  questions, explained that in addition                                                               
to  increasing the  penalty for  unlawful  evasion to  a class  C                                                               
felony, the bill also proposes  to preclude a judge from allowing                                                               
temporary releases, though a person  could still request, through                                                               
the DOC,  to be escorted  to an event.   Currently, when  the DOC                                                               
receives an  order from a  judge to temporarily  release someone,                                                               
the DOC  does so  and hopes  that the  person actually  does come                                                               
back at the  specified time; if he/she does not,  then he she can                                                               
be  charged with  failure to  appear or  unlawful evasion  - both                                                               
currently misdemeanors.   In Mr. Smith's case,  he was originally                                                               
facing several felony charges, and  so any additional misdemeanor                                                               
charge he  faced for not  returning provided little  incentive to                                                               
return.   In response to  a further question, she  explained that                                                               
under the  bill, when  the DOC receives  a request  for temporary                                                               
release of a  prisoner, the DOC will make  the decision regarding                                                               
whether to  escort that prisoner  and return him/her  to custody;                                                               
again,   under  such   circumstances,  the   prisoner  is   never                                                               
officially released from custody.                                                                                               
10:44:08 AM                                                                                                                   
CHAIR McGUIRE  surmised that HB  329 would take away  the court's                                                               
discretion to  issue temporary releases  for someone who  has not                                                               
made bail,  and so  a person's  only recourse,  then, will  be to                                                               
petition  the DOC  for a  temporary  release under  escort.   She                                                               
remarked,  however,  that she  doesn't  know  how accessible  the                                                               
DOC's process in that regard is.                                                                                                
MS. PARKER relayed that the DOC  receives one or two requests per                                                               
month, from  both sentenced prisoners  and those  awaiting trial,                                                               
and  usually those  requests are  for funeral  escorts.   The DOC                                                               
then approves  them or not  depending on the risk  the individual                                                               
poses as  well as other  criteria.  The  DOC has a  whole process                                                               
that  must be  followed; for  example,  once the  inmate goes  to                                                               
his/her probation officer, the probation  officer explains to the                                                               
inmate how  to go about making  the request and speaks  to family                                                               
members and  the victim  - ensuring that  the victim  is notified                                                               
and that  he/she will not  also be in  attendance - and  gets the                                                               
victim's opinion regarding the possible  release.  There is often                                                               
a need for a quick turnaround  on these requests and so they come                                                               
directly to either  the commissioner or deputy  commissioner.  An                                                               
inmate or  his/her family then pays  for the escort, and  this is                                                               
usually  a minimal  amount, though  even  that can  be waived  in                                                               
certain cases.  Again, these  requests are addressed very quickly                                                               
because they are time sensitive.                                                                                                
REPRESENTATIVE  WILSON  asked whether  there  will  always be  an                                                               
MS. PARKER  said it  depends on the  situation; for  example, the                                                               
DOC has granted  short duration furloughs when an  inmate is only                                                               
six  or  seven days  from  release  anyway  and then  the  inmate                                                               
doesn't actually have to come back  to the facility.  In response                                                               
to a question, she indicated that  [in the majority of cases], if                                                               
the DOC  allows a  prisoner to  attend an  event, he/she  must be                                                               
REPRESENTATIVE  GARA said  he is  not comfortable  limiting one's                                                               
release to the discretion of one's  jailer.  In some cases a fair                                                               
decision will be  made but not in other cases,  he predicted.  He                                                               
offered his recollection that in  the past, people have requested                                                               
temporary release  for the  purpose of  attending fish  camp, for                                                               
example, because  they were  the only  able-bodied person  in the                                                               
family.   Such an inmate  wouldn't be able  to afford to  have an                                                               
escort at fish camp for a week.                                                                                                 
10:49:19 AM                                                                                                                   
CHAIR  McGUIRE  asked the  sponsor  whether  he'd considered  any                                                               
other solutions  to the perceived  problem; for  example, perhaps                                                               
establishing a  higher threshold  for the  court when  it decides                                                               
whether to grant temporary release.                                                                                             
REPRESENTATIVE STOLTZE  indicated that  he didn't think  that the                                                               
bill would  completely remove judicial discretion,  and suggested                                                               
that in the  example involving fish camp, such  a situation would                                                               
warrant  a request  for  bail modification.    He reiterated  his                                                               
belief  that the  DOC  will have  a better  picture  of what  the                                                               
person is  really like and  can better predict what  the person's                                                               
behavior will be  if released, and commented on  the quickness of                                                               
the DOC's procedure.                                                                                                            
CHAIR McGUIRE asked how other states treat this issue.                                                                          
CHAIR  McGUIRE, after  ascertaining that  no one  else wished  to                                                               
testify, closed public testimony on HB 329.                                                                                     
REPRESENTATIVE  WILSON said  she is  concerned that  too much  is                                                               
being changed via  HB 329, though she has no  problem with making                                                               
the crime of unlawful evasion a class C felony.                                                                                 
REPRESENTATIVE  GRUENBERG observed  that  Section 3  of the  bill                                                               
proposes to repeal AS 12.30.020(b)(3), which says:                                                                              
       (3) require the person to return to custody after                                                                        
     daylight hours on designated conditions;                                                                                   
REPRESENTATIVE   GRUENBERG  suggested   that   instead  of   just                                                               
repealing  that  provision,  it  might   be  best  to  add  other                                                               
conditions for temporary release to AS 12.30.020(b).                                                                            
CHAIR  McGUIRE suggested  that the  sponsor  research that  issue                                                               
further, adding that it would be  an extreme measure to take away                                                               
judicial discretion completely, particularly  given that the bill                                                               
will  also impact  innocent people.    Similarly situated  people                                                               
oughtn't be treated differently just  because some don't have the                                                               
resources to make  bail, but under the bill, even  if a person is                                                               
innocent,  if he/she  can't make  bail, he/she  would not  get to                                                               
attend  a funeral  or the  birth of  a child,  for example.   She                                                               
offered an  example of  a DOC  employee who's got  a beef  with a                                                               
prisoner who can't make bail,  perhaps even an innocent prisoner,                                                               
and so  goes out of  his/her way to  ensure that the  prisoner is                                                               
not permitted  to attend  a funeral  or other  significant event.                                                               
However, she remarked, she is  also keeping in mind the situation                                                               
that occurred  with Mr. Smith,  and therefore she is  hoping that                                                               
the  sponsor  and  department representatives  can  find  another                                                               
solution that will achieve a middle ground.                                                                                     
MS. PARKER,  in response to  a comment, explained that  Mr. Smith                                                               
was  wearing  a  monitoring  device  but he  cut  it  off  before                                                               
AN UNIDENTIFIED  SPEAKER, in  response to  a question,  said that                                                               
she  is not  aware  of  any type  of  monitoring  device that  is                                                               
impossible to remove.                                                                                                           
MS. PARKER pointed out that  releasing someone for the purpose of                                                               
attending a funeral or birth of  a child is not that common; much                                                               
more  often a  temporary release  is sought  for drug  or alcohol                                                               
assessments, though  she acknowledged  that the  DOC accommodates                                                               
providers doing such in house.                                                                                                  
CHAIR McGUIRE pondered whether they  should address that issue as                                                               
well  as beefing  up the  conditions listed  in AS  12.30.020(b).                                                               
For example,  they could  simply limit the  types of  events that                                                               
may even be considered for  temporary releases.  She concluded by                                                               
saying that she  believes that they ought to send  a message that                                                               
incidents such as occurred with Mr. Smith won't be repeated.                                                                    
11:02:26 AM                                                                                                                   
REPRESENTATIVE  GARA  questioned   whether  precluding  temporary                                                               
releases  for  the  purpose  of alcohol  or  drug  assessment  is                                                               
practical from  a financial  standpoint.   After noting  that the                                                               
bill proposes to  add the language, "The defendant  in a criminal                                                               
case may be  admitted to bail after conviction  only as permitted                                                               
under  AS 12.30.040",  asked  what effect  that  language has  on                                                               
current law.                                                                                                                    
REPRESENTATIVE GRUENBERG suggested that  the reason for including                                                               
that  language  is that  the  current  language of  AS  12.30.010                                                               
pertains to bail  before conviction, and since  the bill proposes                                                               
to  address  situations  involving bail  after  conviction,  that                                                               
additional language is needed as a conforming change.                                                                           
REPRESENTATIVE  GARA asked  whether there  are other  ways to  be                                                               
released after conviction other than by using AS 12.30.040.                                                                     
MS.  PARKES noted  that those  who  have been  convicted but  are                                                               
awaiting  sentencing   could  also  be  applying   for  temporary                                                               
REPRESENTATIVE  GRUENBERG pointed  out that  AS 12.30.040  refers                                                               
back to AS 12.30.020.                                                                                                           
CHAIR McGUIRE  indicated that  HB 329 [Version  F] would  be held                                                               

Document Name Date/Time Subjects