Legislature(2005 - 2006)CAPITOL 120
02/23/2006 10:00 AM JUDICIARY
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* first hearing in first committee of referral
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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 couple. 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 points. 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 guilty. 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 added: 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 release. 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 issue. 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 robbery. 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 bail. 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 escort. 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 escorted. 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 escaping. 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 release. 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 over.