Legislature(2001 - 2002)
03/14/2001 09:12 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CS FOR SENATE BILL NO. 105(JUD) "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; 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." This was the first hearing for this bill in the Senate Finance Committee. Senator Halford testified that the criminal justice system represents virtually everyone but the victims and that the judicial process often overwhelms victims. He referred to a ballot initiative earlier passed by a vote of the people to give victims of crime greater consideration in the process. As a result, he stated there has been improvement in the treatment of victims, but that until victims have access to the same legal assistance as other participants, the full intent of the victim's rights law could not be realized. Senator Halford spoke of legislation the Senate passed in 1998 but did not complete the legislative process to become a law. He added that similar legislation was again passed in 1999 by both the Senate and the House of Representatives, but was vetoed by the governor. The legislation before the Committee, he noted is similar as the previous attempts except the proposed Office of Victim's Rights would operate within the legislative branch, independent from the executive branch. He stressed that in order to provide objective oversight of the Alaska Court System the office must be a part of the either the executive or legislative branches. Senator Halford expressed support for Co-Chair Donley's proposed amendments. DEAN GUANELI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, agreed that compassionate, fair treatment of victims is important in the justice system. He stressed that the Criminal Division has been "in the forefront" of this effort for over 20 years, when it implemented a paralegal program to work with victims and witnesses and help them through the criminal justice process. He noted this program was initially federally funded but is currently funded with state dollars. Mr. Guaneli testified the department provides federally funded training for prosecutors and paralegals on how to appropriately deal with victims in sensitive cases, such as sexual assault and child abuse. He detailed the various training conferences held annually. Mr. Guaneli told of another program that uses volunteers to help make contact with victims. He described the many schedule changes and the difficulty for department staff to keep victims updated on hearing and court dates. He pointed out the main reason the department loses criminal cases is because victims fail to cooperate or are unable to provide "good" testimony. Mr. Guaneli then informed of brochures the department distributes, in both English and in Native Alaskan languages, relating to crime victim's rights, information regarding sexual assault, what families should know about child sexual abuse, and information for victims of domestic violence. He stressed the department is not required to do this, but does because it helps staff do their job and also because "it's the right thing to do." He noted this effort is also federally funded. Mr. Guaneli told the Committee the department is currently in litigation defending other laws passed by the legislature that limited "some of the abuses" of defense attorneys and defense investigators regarding victim contact, that have occurred during the investigative portion of criminal cases. Mr. Guaneli summarized that the Department of Law "is doing a very good job" in its relationship with victims. He stated that he has listened to previous testimony from victims complaining about their treatment in the judicial system and that he has researched these instances. He concluded that in each case, the department did everything it could have done to ensure the victim's rights were guaranteed. He suggested that because these cases involved family members of murder victims, there was significant stress and trauma for these people during the criminal justice proceedings. He stated that in these instances, victims often take out their frustrations with the government agency they have the most contact with. He recommended counseling for these victims rather then another attorney. Mr. Guaneli was concerned that with the passage of this legislation, there would be an expectation that victims would have an attorney in all cases. He stressed that even though the jurisdiction of the proposed office is narrow in that it is limited to felony cases and misdemeanor crimes against persons, there are still 5,000 to 6,000 of these cases each year. Mr. Guaneli suggested efforts could be better spent in the collection of court ordered restitution to victims. He stressed that the court does not enforce these orders well, that the Department of Law has a system for collecting court-ordered fines, and that this system could be applied to collecting victim restitution as well. Mr. Guaneli mentioned the governor has introduced separate legislation dealing with victim's rights. Co-Chair Kelly asked if this bill interferes with the governor's bill and if it diverts funds from other victim services. Mr. Guaneli replied this legislation would not interfere and would not divert funds. However, he relayed testimony given to the Senate Judiciary Committee expressed concerns that if there were limited resources, budget reductions would be made to other programs such as the Council on Domestic Violence and Sexual Assault (CDVSA). Co-Chair Kelly surmised that since the proposed Office of Victim's Rights would be a part of the Legislature's budget, he did not think other programs would be affected. Co-Chair Kelly was unclear why the Administration opposed the bill. Mr. Guaneli did not oppose the legislation, but had concerns about the costs to the public. Co-Chair Kelly asked if there would be additional cost to the Department of Law. Mr. Guaneli answered there would not. Co-Chair Kelly reminded that the governor vetoed a similar bill the year before and asked if he would veto this legislation as well. Mr. Guaneli could not speak for the governor, but noted concerns with the previous legislation related to the location of the proposed office within the Department of Law and the conflicts that could arise because of this. He stated this has been resolved in the current legislation. Senator Austerman asked if this bill would result in any cost savings to the Department of Law. Mr. Guaneli did not anticipate any savings, but qualified it was possible if the victims' advocate took on some functions currently performed by the department, such as explaining the criminal justice process to victims. He stated this could save the department some time. Senator Hoffman noted the concerns expressed that there would be more cases then could be handled by the two attorneys and one paralegal position proposed for the Office of Victims' Rights. If this is the case, he asked how the department would prioritize the services. Mr. Guaneli replied that this office would not be located within the Department of Law but rather in the legislative branch. Co-Chair Donley asked the witness' opinion on proposed Amendment #1. Mr. Guaneli responded the amendment appears to change the law to provide that defendants and defense attorneys could not comment about victims who fail to appear to testify in a criminal proceeding. He opined, "It is a good idea." He shared this would prevent defense attorneys from making statements in court such as "well the victim didn't testify so that means it must not be a very important case." He did not think these statements would influence a judge's decision, but that it is uncertain how it would impact a jury's deliberation. He spoke to the courage required of some victims to appear. He stated that this amendment does not infringe on any constitutional rights. He supported the amendment. CANDACE BROWERS, Legislative Liaison and Program Coordinator, Department of Corrections, stressed that the department takes its obligation to serve victims very seriously. She gave as examples, victim conferences held across the state, and victim impact classes. She explained these classes are targeted toward offenders to attempt to make them understand the effects of their crimes on victims as well as their own families and the community at large. She also pointed out the department works closely with private non- profit agencies. She told of the implementation and enhancement of the Vine System, an electronic notification for victims. Ms. Browers continued, informing the Committee the department has hired a Victims Service Coordinator through a grant from through the CDVSA, to provide sensitivity to victim's needs training throughout the state for Department of Corrections personnel. Ms. Browers explained the proposed Office of Victim's Rights would be funded through the use of permanent fund dividend (PFD) funds. She stated that this program adds another allocation tier to the convict PFD withholdings, which she detailed, is labor intensive to process. She pointed out a Department of Corrections fiscal note includes an additional staff position to handle the additional workload. Ms. Browers reiterated Mr. Guaneli's comment that victim restitution could be better enforced. She noted that the withholding of PFD from convicted felons to fund the proposed office would result in less money available for restitution, child support, etc. SFC 01 # 40, Side A 10:51 AM Amendment #1: This amendment changes language in the title to read as follows. An Act relating to victim's rights; relating to establishing an office of victims' rights; relating to the authority of litigants and the court to comment on the crime victim's choice to appear or testify in a criminal case; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of an incarcerated for certain offenses; relating to notice of appropriations concerning victims' rights; amending Rules 16 and 30 Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and providing for an effective date. This amendment also inserts a new bill section on page 2, following line 10 of the committee substitute to read as follows. Sec. 3. AS 12.61 is amended by adding a new section to article 2 to read: Sec. 12.61.200. Comment not permitted. (a) The decision of the crime victim to testify or appear at a criminal case is not a proper subject of comment by judge or counsel. (b) Upon request, a party against the jury might draw an adverse inference from the failure of a crime victim to appear or testify is entitled to an instruction that no inference may be drawn therefrom. This amendment also inserts a new bill section on page 15, following line 10 of the committee substitute to read as follows. Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to read: COURT RULE AMENDMENT. AS 12.61.200, added by sec. 3 of this Act, has the effect of amending Rule 30, Alaska Rules of Criminal Procedure, relating to instructions to the jury. This amendment also inserts a new bill section on page 2, following line 10 of the committee substitute to read as follows. Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. AS 12.61.200, added by sec. 3 of this Act, is not intended to interfere with any constitutional rights and applies only to the extent permitted by the United States Constitution and the Constitution of the State of Alaska. Co-Chair Donley noted this amendment relates to defendants "making a big deal" over victims who do not appear in court. He shared that he has learned that some defense attorneys are doing this. He stressed that it requires a big effort for some victims to participate in the judicial process. [Note: No motion was made to adopt the amendment, no objections were made to the amendment, and it was not declared adopted. However, the amendment was incorporated into the final Senate Finance Committee substitute.] Amendment #2: This amendment increases compensation limits from $30,000 and $50,000. The amended language on page 2 lines 11 through 21 reads as follows. Sec. 3. AS 18.67.130(c) is amended to read: (c) Compensation may not be awarded under this chapter in an amount in excess of $40,000 [$25,000] per victim per incident. However, in the case of the death of (1) a victim who has more than one dependent eligible for compensation, the total compensation that may be awarded as a result of that death may note exceed $80,000;the [$40,000 THE] board may prorate the total awarded among those dependents according to relative need; or (2) two or more victims in the same incident who jointly have a dependent eligible for compensation, the total compensation that may be awarded as a result of those deaths may not exceed $50,000. New Text Underlined [UNDERLINED TEXT BRACKETED] Co-Chair Donley explained this amendment increases the inflationary amount of money available to the victims of crime through the Violent Crimes Compensation Board. He moved for adoption. There was no objection and the amendment was ADOPTED. Amendment #3: This amendment inserts a new subparagraph to AS 43.23.028(a) in Section 10 of the committee substitute. The new language reads as follows. (5) nonprofit victim's rights organizations for grants for services to crime victims Co-Chair Donley explained this amendment adds to the list of potential uses of money the state receives from the withheld PFDs of felons and certain misdemeanants. He stated this amendment adds a fifth category and gives the legislature discretion to use some of the funds as grants for nonprofit victims' rights organizations. After asking if there was any objection to adoption of the amendment, no objection was raised, and Co-Chair Kelly ordered the amendment ADOPTED. [Note: There was no formal motion to adopt the amendment.] ROBERT BUTTCANE, Legislative and Administrative Liaison, Division of Juvenile Justice, Department of Health and Social Services, testified via teleconference from Anchorage about 1998 changes in the delinquency chapter to require the department to hold juvenile offenders accountable. He said this was intended to prevent repeated behavior, to restore victims and communities "to wholeness", to protect the public, to develop competency in juveniles so they become protected. Mr. Buttcane stated that with this change, the department shifted from an "offender focus" system exclusively concerned with the issues related to rehabilitation of juvenile offenders. The focus, he remarked, broadened to incorporate public safety concerns as well as the restoration of victims. He detailed how an informal adjustment case could not be closed until victim restitution concerns have been addressed. Mr. Buttcane pointed out that victims have a right to be informed of, and present at, any formal proceedings. He noted that although this statute gives victims the right to testify during the delinquency disposition phase of proceedings, increasingly courts are allowing victims to make statements during detention, hearing reviews as well as during parts of adjudication. Mr. Buttcane stated that victims are a specific identified group allowed access to information about the offenders and the offender's parents. He pointed out that victims also receive notification when offenders are to be released from a juvenile institutional treatment program. Mr. Buttcane assured that any failure by the department to ensure victims receive the aforementioned considerations is only because of insufficient resources. He cautioned that the creation of the ombudsman-type office is a concern since the limited resources occasionally result in a victim "falling through the cracks" and this fact is already known. He stressed that this is not intentional. Mr. Buttcane stressed that the department's research has shown that victims mostly want to be listened to and to have an opportunity to tell their story. He emphasized this desire goes beyond making a statement on the witness stand during a delinquency proceeding. He said victims have a need for someone to fully understand and acknowledge that they have been wronged by the act of another person. He noted this is what probation officers and grief counselors within the department provide and that a new group of clients have been incorporated into the juvenile justice system. Mr. Buttcane stressed that victim impact classes have had the most success in getting offenders to understand the consequences of their actions and have been most effective in rehabilitating juvenile offenders. Mr. Buttcane testified he supports any legislation that provides advocacy and victim services. He added that after victims feel they have been heard, they next want to be compensated for their loss. He commented that any effort in getting restitution to these victims is important. Mr. Buttcane had specific questions about language in the bill. He referred to the authority of the Office of Victim's Advocacy provided in Section 5, page 5 line 28 and suggested clarification of whether jurisdiction extends to juvenile delinquency cases. He noted that language elsewhere in the bill speaks to juvenile delinquency and he asserted that the same accesses and privileges should be afforded to victims of a juvenile offense. Mr. Buttcane then referred to page 9, line 19, relating to immunity for the victim advocate and voiced concern that this level of immunity could be so high that if there was abuse, that person could not be held accountable. Mr. Buttcane asserted the justice system is better "for having moved victims to center stage." Co-Chair Kelly and Mr. Buttcane established that language in some portions of the bill explicitly outlines the inclusion of juvenile offenders under the jurisdiction of the Office of Victim's Rights, although it is not contained in all pertinent sections. Co-Chair Kelly noted this technical change does not alter the intent of the bill and could be made in the Senate Rules Committee. Mr. Buttcane qualified the existing language could be adequate, but requested that it be verified. Co-Chair Kelly assured this would be done. Co-Chair Donley offered a motion to move CS SB 105, 22-LS0219\F as amended from Committee with a $47,000 fiscal note from the Department of Corrections, a $63,900 fiscal note from the Legislature and zero fiscal notes from the Department of Law and the Department of Revenue. Without objection the bill MOVED from Committee.