Legislature(2001 - 2002)

03/14/2001 09:12 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                            
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                                                            
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                                                            
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                                                            
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                                                            
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                                                            
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                                                            
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                                                            
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                                                            
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.                                                                                

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