Legislature(1999 - 2000)
04/29/2000 11:09 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 368-CRIM.DEFENDANT:RELEASE/CUSTODIAN'S DUTY:
MS. ANNE CARPENETI, Assistant Attorney General, gave the
following testimony. HB 368 was introduced to give the Alaska
Court System more tools to use to enforce conditions of release
that are imposed on defendants released pending trial, appeal, or
sentencing. It establishes a new offense of violating conditions
of release. HB 368 is similar to an ordinance used by the
Municipality of Anchorage (MOA) and the City and Borough of
Juneau (CBJ). Prosecutors consider it to be an excellent tool
for enforcing conditions of release. If a person, charged or
convicted of a felony, is released on bail and violates a
condition other than failure to appear, the person would be
charged with a class A misdemeanor. If the person is released in
connection with a misdemeanor, he or she would be charged with a
class B misdemeanor for violating conditions of release. Failure
to appear was not included because it is already a crime. A
person is charged with a felony for failure to appear in
connection with a felony and with a misdemeanor for failure to
appear in connection with a misdemeanor.
MS. CARPENETI explained that HB 368 also provides consequences
for third party custodians for persons who are released on bail.
Third party custodians must promise the court that they will
immediately report any violations of the conditions of release.
HB 368 makes it clear that if a custodian does not report a
violation immediately, the custodian may be held in contempt. It
also allows the court to issue performance bonds. A recent Court
of Appeals' decision makes it unclear whether the court still has
the authority to issue performance bonds. HB 368 places that
authority in statute. HB 368 also provides for forfeiture of
securities posted. Forfeiture is mandatory if a person contacts
a victim in violation of a condition of release. Permissive or
discretionary forfeiture is provided if a person violates any
other condition of release.
MS. CARPENETI noted HB 368 provides the court with statutory
authority to require a person to report for or to carry out a
sentence at a later date. This practice has been occurring
either because of prison overcrowding or because the defendant
requested a later date.
Number 576
CHAIRMAN TAYLOR informed committee members that the Department of
Law has proposed two amendments. Amendment 1 deletes several
provisions of the bill. Chairman Taylor pointed out that several
people have expressed concern that parents, who post their home
as collateral for a bond to release a child, could lose their
home if that child violates conditions of release. He asked Ms.
Carpeneti what Amendment 1 would accomplish.
MS. CARPENETI explained that no forfeitures would be mandatory
unless a defendant contacted a victim in violation of conditions
of release. Amendment 1 strips the bill of the forfeiture
provisions and retains current law. If a person violated an
appearance bond, the court would have the discretion to forfeit
all or part of that bond.
CHAIRMAN TAYLOR interjected and verified that the participants at
the Legislative Information Offices received copies of the
proposed amendments.
CHAIRMAN TAYLOR moved to adopt Amendment 1 which reads as
follows.
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSHB 368(JUD)am
Page 1, lines 4-5:
Delete: "and amending Rule 41(f), Alaska Rules of Criminal
Procedure."
Page 4, line 23:
Delete: ", as provided in AS 12.30.065,"
Page 5, lines 5-20:
Delete all material and renumber remaining bill sections
accordingly.
Page 6, lines 3-31 and page 7, lines 1-18:
Delete all material and renumber remaining bill sections
accordingly.
Page 7, lines 19-23:
Delete all material and renumber remaining bill sections
accordingly.
Page 7, line 26:
Delete: "Sections 1-3, 5 and 6"
Insert: "Sections 1-3 and 5"
Page 8, lines 3-6:
Delete all material and renumber remaining bill sections
accordingly.
CHAIRMAN TAYLOR objected to his motion for the purpose of hearing
a line-by-line explanation of Amendment 1 from Ms. Carpeneti.
MS. CARPENETI explained that the change on page 1, lines 4-5, is
a technical change that removes from the title of the bill the
reference to Rule 41(f).
The change on page 4, line 23, removes the provision in statute
that cross referenced the forfeiture for a performance bond. By
removing that cross reference, penalties for failure to appear
will be addressed by AS 12.30.060.
On page 5, lines 5-20, the material that was deleted adopted a
new statute addressing forfeiture of security both for appearance
and performance bonds. That deletion will leave forfeiture of
performance bonds up to the discretion of the court.
Amendment 1 also deletes the court rule change on pages 6 and 7.
The remaining provisions of Amendment 1 change the uncodified
law: the conditional effect, the applicability sections, the
court rule changes and the effective dates that have to do with
the provisions that were already removed.
MS. CARPENETI stated that Amendment 2 clarifies that if the court
chooses to impose a performance bond, it would be separately
enforced from an appearance bond. If a person does not appear in
court, a bail bondsman would not lose the performance bond.
Amendment 2 reads as follows.
A M E N D M E N T 2
OFFERED IN THE SENATE
TO: CSHB 368(JUD)AM
Page 4, line 14: After "security;"
Insert: the performance bond must be imposed and
enforced separately from any appearance bond ordered; and"
Number 576
CHAIRMAN TAYLOR clarified that the purpose of Amendment 2 is to
make certain that there is no confusion between the appearance
bond posted by a bond bailsman and the performance bond to assure
the defendant's compliance while on release.
MS. CARPENETI thought that provision should be clear to the
courts because bail bondsmen are not in a position to guarantee a
defendant will abide by conditions of release.
Number 799
CHAIRMAN TAYLOR took teleconference testimony.
MR. BILL BRYSON, an Anchorage attorney, said while the proposed
amendments allay some of his concerns, they do not alleviate his
concerns about the effect of this bill. He is in private
practice in Anchorage but has practiced in other judicial
districts in Alaska. He became aware of HB 368 only after the
bill came out of the House Judiciary Committee. He has several
concerns with HB 368. First, he routinely bails people out with
bail bonds that usually range from $20,000 to $50,000. He relies
on a bondsman who can get collateral, write the bond and assure
appearance. A bondsman will not write performance bonds because
of his inability to enforce the conditions. Second, the fiscal
note has some problems in terms of the number of bail hearings
that will be held and the number of people who will remain
incarcerated because a performance bond is applied instead of an
appearance bond. In addition, the state courts use a very
cumbersome process for posting property bonds.
MR. BRYSON described a situation he was involved in to illustrate
the problems. He was the initial attorney in a murder case in
Anchorage. A young woman who was a witness to the murder was
charged as an accomplice or principal in the case. Judge Andrews
issued a performance bond for her release. The woman's parents
own a house worth $500,000 free and clear. The woman was put
under house arrest and the parents had to sign over a deed of
trust to their home as part of the performance bond. One
condition was that this woman was to have no phone contact with
her friends. The parents have been vigilant and no violations
have occurred, but had she broken any conditions, Judge Andrews
made it very clear that the home would be forfeited. Yesterday,
one year later, a Superior Court judge dismissed the case against
the woman so, for one year, the parents' home was at stake. He
stated that judges differ so he is not as comfortable as Ms.
Carpeneti is with leaving these decisions to the discretion of
judges. Third party custodians who are responsible for a
defendant with a performance bond will be less likely to report a
violation because of the risk of losing what they have posted.
He cautioned that by writing performance bonds into law, well
meaning, law abiding custodians will be punished and fewer people
will be willing to post bonds. In addition, this scenario will
aggravate the prison overcrowding problem.
Number 1169
SENATOR ELLIS stated that Fred Adkerson from Fred's Bail Bonding
referenced, in his written testimony, a Court of Appeals'
decision made on February 18, 2000. He asked Mr. Bryson to
explain that decision.
MR. BRYSON stated the Court of Appeals reversed Judge Zervos's
decision to forfeit a $5,000 performance bond. The case was
appealed by the Department of Law and the Court of Appeals said
that no statutory authority existed to forfeit a bond for a
violation of performance conditions. The only statutory
authority for forfeiture exists if a person fails to appear.
Number 1261
MR. BLAIR MCCUNE, Deputy Director of the Public Defender Agency,
informed committee members that he submitted written comments on
the bill. Regarding the amendments, he noted that if lines 13-15
on page 4 (subsection 6) remain in the bill, the courts will
still be able to issue performance bonds. He asked for
clarification of subsection 6.
CHAIRMAN TAYLOR said he believes subsection 6 allows courts to
set performance bonds if they wish to. He asked Mr. McCune and
Mr. Bryson how the MOA's municipal ordinance has worked regarding
the sanctions it imposes for violations of conditions of release.
MR. BRYSON said he has not had any experience with that
ordinance. He noted the normal remedy on a violation of
conditions is that the person is remanded to custody. He
believes that ordinance has been applied in domestic violence
cases where people frequently do not abide by conditions. He
thought the result would depend on the individual case.
CHAIRMAN TAYLOR asked Mr. McCune to recount his experience with
the ordinance. He pointed out that a major shift has occurred in
the court system. Courts used to frequently issue conditions of
release whenever they put someone back out on bail. The courts
tried to roll that into the appearance bond. The Court of
Appeals found no statutory authority for the imposition of those
conditions. He asked if the court would now be limited to
appearance bonds only without passage of HB 368.
MR. MCCUNE said the key phrase here is that there are no
additional consequences. There are certainly consequences if one
violates conditions of release. The first is prison time but, if
a person violates conditions of release, the person will have to
go before the judge for trial or sentencing or both and the judge
will not be willing to consider probation. He believes that
particular provision, coupled with the threat of prison time, is
enough to provide a disincentive to violate conditions of
release. Regarding MOA cases, he spoke with Horton and
Associates (ph) which handle most of those cases. They believe
it has been used as a plea bargaining tool in misdemeanor cases
in which the defendant plans to go to trial. If the prosecution
can find any condition of release violation, they can bring an
additional charge which tends to discourage people from going to
trial.
Number 1565
MS. CARPENETI pointed out that the bill provides options that the
courts have been using for many decades. The Department of Law
has not observed any dire consequences that may be out there.
These provisions have been very successful in cases; often these
cases are minor and the bond may be $250. She added that an
appearance bond cannot be forfeited for violation of conditions
of release. She clarified that Amendment 2 adds a sentence to
subsection 6 on lines 13 through 15 on page 4 to make it
absolutely clear that performance bonds are imposed and enforced
separately from appearance bonds. She thinks it is clear that
bail bondsmen will not lose money if they make sure the defendant
shows up because that is all they can guarantee.
MS. CARPENETI noted that Mr. Bryson's comments on the effect that
HB 368 will have on the corrections system is a two-way street.
The purpose of HB 368 is to allow courts to have the discretion
to use other tools so that people can get back on the street.
Some judges will not be comfortable allowing a defendant to be
released unless he or she is convinced the defendant will take
the conditions of release seriously. Right now, a person who
violates conditions of release can be put back in jail but the
person will get credit for time served on the original charge and
there will be no additional consequences.
CHAIRMAN TAYLOR asked if there was objection to adopting
Amendment 1. He noted Amendment 1 deleted the material that
provided for forfeiture of performance bonds.
SENATOR DONLEY asked, "What the bill does is it gives the judge
the option to do this - judges don't have to do it, right? This
will take away the option to apply forfeiture for non-
performance."
CHAIRMAN TAYLOR replied, "No, only on an appearance bond, only if
they attempted to mix the two. The option of forfeiture would
still be available on a performance bond."
MS. CARPENETI explained that Amendment 1 takes us back to where
we are now.
CHAIRMAN TAYLOR said he is particularly concerned with the
contact of victims provision because in smaller communities where
mail is not delivered, everyone in town picks up the mail at one
place. It would be difficult to not have contact in a situation
like that.
CHAIRMAN TAYLOR announced that with no objection, Amendment 1 was
adopted.
CHAIRMAN TAYLOR moved to adopt Amendment 2 and repeated that
Amendment 2 clarifies that there is no confusion between those
conditions posted on a performance bond and those posted on an
appearance bond, which is solely based on the appearance of the
individual. There being no objection to Amendment 2, it was
adopted.
SENATOR DONLEY moved SCS CSHB 368(JUD) from committee with
individual recommendations. There being no objection, the motion
carried.
There being no further business to come before the committee,
CHAIRMAN TAYLOR adjourned the meeting at 11:40 a.m.
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