Legislature(2007 - 2008)BUTROVICH 205

02/08/2007 03:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 64 DISCLOSURES & ETHICS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 69 NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY TELECONFERENCED
Moved SCS CSHB 69(JUD) Out of Committee
+= SB 45 PEACE OFFICER CONVICTED OF MURDER TELECONFERENCED
Moved CSSB 45(JUD) Out of Committee
+= SB 69 CIVIL LEGAL SERVICES FUND TELECONFERENCED
Heard & Held
+= SB 5 FAILURE TO REPORT CRIMES TELECONFERENCED
Scheduled But Not Heard
    CSHB  69(JUD)-NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY                                                                 
                                                                                                                                
CHAIR FRENCH announced  the consideration of HB 69.  He asked for                                                               
a motion to adopt the \M committee substitute (CS).                                                                             
                                                                                                                                
SENATOR HUGGINS  made a motion  to adopt Version \M,  labeled 25-                                                               
LS0317\M, as the working document. There was no objection.                                                                      
                                                                                                                                
3:34:49 PM                                                                                                                    
REPRESENTATIVE RALPH SAMUELS, Sponsor of  HB 69, said the bill is                                                               
a choice  between several constitutional issues.  He read Article                                                               
III, Section  21, of the  Alaska State Constitution  which states                                                               
in part:                                                                                                                        
                                                                                                                                
     Subject to  procedure prescribed  by law,  the governor                                                                    
     may  grant pardons,  commutations,  and reprieves,  and                                                                    
     may  suspend  and  remit fines  and  forfeitures.  This                                                                    
     power shall not extend to impeachment.                                                                                     
                                                                                                                                
                                                                                                                                
REPRESENTATIVE  SAMUELS  said the  conflict  is  with Article  I,                                                               
Section 24 of the Alaska State Constitution. It states in part:                                                                 
                                                                                                                                
     Crime  victims,  as  defined by  law,  shall  have  the                                                                    
     following rights as  provided by law: ...  the right to                                                                    
     be heard, upon request,  at sentencing, before or after                                                                    
     conviction  or   juvenile  adjudication,  and   at  any                                                                    
     proceeding where the accused's  release from custody is                                                                    
     considered; ...                                                                                                            
                                                                                                                                
REPRESENTATIVE SAMUELS said HB 69  simply establishes a procedure                                                               
that the  governor must  follow in  cases of  executive clemency.                                                               
This is good public policy, he  said, and the fundamental crux is                                                               
that  the victim  must  be  notified. A  governor  may choose  to                                                               
pardon someone, but  he or she must pass the  "red face test" and                                                               
call the victim. He stated.                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS noted  that the bill has  changed since it                                                               
passed the House.  Originally the victim was notified  as part of                                                               
the application procedure, but that  was changed to accommodate a                                                               
situation  where   the  governor  grants  a   pardon  without  an                                                               
application having been made.                                                                                                   
                                                                                                                                
The  House version  also said  that  a victim  would be  notified                                                               
regardless  of whether  a  request was  made.  That language  was                                                               
cleaned up, he  said. Although the 180 days  might be questioned,                                                               
that is the  time that the Alaska Board of  Parole said it needed                                                               
for  its review  process. He  noted  that the  Department of  Law                                                               
might give its perspective on that point.                                                                                       
                                                                                                                                
3:39:54 PM                                                                                                                    
SENATOR  HUGGINS asked  where victim  notification is  located in                                                               
the bill.                                                                                                                       
                                                                                                                                
REPRESENTATIVE SAMUELS said page 2, line 9 says:                                                                                
                                                                                                                                
     The board shall provide notice of any action taken by                                                                      
      the governor to the Department of Law, the office of                                                                      
     victims' rights, and the victim.                                                                                           
                                                                                                                                
The original  legislation said, "If  requested by  the victim..."                                                               
but a pardon could take place  20 years after a crime and someone                                                               
may not  have asked to  be notified at the  time. The idea  is to                                                               
make a best effort to notify, he said.                                                                                          
                                                                                                                                
3:40:57 PM                                                                                                                    
Senator Therriault arrived.                                                                                                     
                                                                                                                                
CHAIR FRENCH commented  that it's fair to say that  the bill errs                                                               
on the  side of notification  rather than waiting for  someone to                                                               
ask to be notified.                                                                                                             
                                                                                                                                
REPRESENTATIVE SAMUELS agreed.                                                                                                  
                                                                                                                                
3:41:36 PM                                                                                                                    
SENATOR  THERRIAULT  asked if  the  language  about applying  for                                                               
notification had been removed because it was problematic.                                                                       
                                                                                                                                
REPRESENTATIVE  SAMUELS replied  that language  became irrelevant                                                               
because victims will be notified under any circumstances.                                                                       
                                                                                                                                
3:42:20 PM                                                                                                                    
CHAIR FRENCH opened public testimony.                                                                                           
                                                                                                                                
3:42:48 PM                                                                                                                    
LAWRENCE  JONES,  Executive  Director, Alaska  Board  of  Parole,                                                               
Department of  Corrections (DOC), said he  made lengthy testimony                                                               
at the first [House] judiciary  hearing; he was quite comfortable                                                               
with the bill  then and is more so now.  He supports the proposed                                                               
change in  verbiage from "application" to  "consideration" and as                                                               
a  matter of  logistics, 180  days  is quite  adequate. From  the                                                               
Alaska  Board  of Parole  perspective,  the  bill will  be  quite                                                               
workable, he stated.                                                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI asked if there  is a definition for "victim"                                                               
that would be  used and if there would be  a requirement that all                                                               
family members be notified.                                                                                                     
                                                                                                                                
MR.  JONES replied  there is  a statutory  definition for  victim                                                               
that is  relatively broad.  It extends through  to the  family if                                                               
the  victim is  deceased and  to  the parents  in the  case of  a                                                               
minor. Anecdotally the board will  make every effort to determine                                                               
a reasonable cutoff for victim notification, he said.                                                                           
                                                                                                                                
3:46:06 PM                                                                                                                    
SUSAN SULLIVAN,  Executive Director,  Victims for  Justice (VFJ),                                                               
stated strong support  for the bill particularly  with the recent                                                               
changes. She  suggested that on page  2, line 7 it  might be more                                                               
consistent   to  use   the   term   "consideration"  instead   of                                                               
"application".                                                                                                                  
                                                                                                                                
CHAIR FRENCH asked the sponsor to comment.                                                                                      
                                                                                                                                
SENATOR  THERRIAULT said  the change  in terminology  might be  a                                                               
good idea  because under the  existing system the  governor could                                                               
take action without an application having been filed.                                                                           
                                                                                                                                
REPRESENTATIVE  SAMUELS said  he  tends to  agree,  but he  would                                                               
defer to the Department of Law.                                                                                                 
                                                                                                                                
CHAIR FRENCH asked  Mr. Svobodny if, on page 2,  line 7, it would                                                               
be more desirable  to say: "The victim may comment  in writing to                                                               
the board on the consideration for executive clemency."                                                                       
                                                                                                                                
3:49:12 PM                                                                                                                    
RICHARD  SVOBODNY,  Chief  Assistant Attorney  General,  Criminal                                                               
Division, Department of Law (DOL), said  he would agree and it is                                                               
in conformity with the sponsor's intent.                                                                                        
                                                                                                                                
3:49:34 PM                                                                                                                    
SENATOR THERRIAULT  said the  governor has  to provide  notice to                                                               
the parole  board for an  investigation. If an  application isn't                                                               
part of that process then it should be broadened, he stated.                                                                    
                                                                                                                                
CHAIR  FRENCH asked,  for the  sake of  clarity, if  everyone was                                                               
strictly considering the case where  the governor has sua sponte,                                                               
on  his or  her  own, considered  granting  clemency outside  the                                                               
normal application process.                                                                                                     
                                                                                                                                
SENATOR THERRIAULT asked if the  governor would have the power to                                                               
grant clemency without interaction with the board.                                                                              
                                                                                                                                
MR.  SVOBODNY  said  it's  certainly   not  unheard  of  for  the                                                               
executive  to  grant  clemency or  commute  sentences  without  a                                                               
particular application having been made.                                                                                        
                                                                                                                                
REPRESENTATIVE SAMUELS  said Section  1 states that  the governor                                                               
may  not  grant  clemency  without   having  provided  notice  of                                                               
consideration to the board of  parole. Further in the process, he                                                               
said, the board must notify the victim.                                                                                         
                                                                                                                                
CHAIR  FRENCH asked  if it  is fair  to say  that a  governor who                                                               
believes that this is a  restriction on his or her constitutional                                                               
power   to   grant  clemency   would   have   to  challenge   the                                                               
constitutionality of the statute.                                                                                               
                                                                                                                                
REPRESENTATIVE SAMUELS  said HB 69 doesn't  remove the governor's                                                               
right to grant clemency; it simply sets up procedures.                                                                          
                                                                                                                                
3:52:58 PM                                                                                                                    
SENATOR WIELECHOWSKI  said page 1, lines  6, 9 and 15  talk about                                                               
notice  of consideration,  so  it  would seem  that  it would  be                                                               
consistent to change "application"  to "consideration" on page 2,                                                               
line 7. He  is comfortable that the bill is  constitutional for a                                                               
number  of reasons.  The  legislature has  the  authority to  set                                                               
procedures  and also  there is  a  constitutional provision  that                                                               
discusses  victims' rights.  He  asked the  sponsor  to touch  on                                                               
that.                                                                                                                           
                                                                                                                                
REPRESENTATIVE SAMUELS said Article 1,  Section 24 lists a myriad                                                               
of rights  that victims  have including:  right to  be reasonably                                                               
protected from  the accused; the right  to bail; the right  to be                                                               
treated  with  dignity, respect  and  fairness;  the right  to  a                                                               
timely disposition of a case; and  the right of the accused to be                                                               
present  at  a  criminal  or   juvenile  proceeding.  A  governor                                                               
wouldn't be required  to follow the procedure, he  said, but more                                                               
than likely all would choose to do so.                                                                                          
                                                                                                                                
3:56:35 PM                                                                                                                    
SENATOR McGUIRE  said the argument  is practical  and compelling,                                                               
but  the phrase  "may  not grant"  on  page 1,  line  4 raises  a                                                               
separation  of  powers issue.  That  changes  the generous  grant                                                               
authority and  requires a  governor to  take another  step before                                                               
executing that  power. With that  in mind, she  suggested placing                                                               
the burden  on the board and  saying, "The board of  parole shall                                                               
send a  notice to the victim  irrespective of whether or  not the                                                               
application has been  forwarded to the board." It's  okay for the                                                               
legislature to  make a  direct requirement  on the  parole board,                                                               
but  requiring the  governor  to  make the  extra  step is  shaky                                                               
constitutional ground, she stated.                                                                                              
                                                                                                                                
3:59:01 PM                                                                                                                    
REPRESENTATIVE  SAMUELS said  if  the  parameters and  procedures                                                               
aren't established,  then midnight  pardons won't stop.  He noted                                                               
that the  number of  days is  a concern to  some, but  the parole                                                               
board said  six months is  a good  timeframe to review  the case,                                                               
process  the  application,  and   contact  the  victim.  If  that                                                               
presents a  constitutional problem then  it can be  revisited, he                                                               
stated.                                                                                                                         
                                                                                                                                
SENATOR McGUIRE  said the goal  is to  keep the law  from getting                                                               
thrown out  so she prefers  to take the most  conservative route.                                                               
She suggested  that keeping the  discretionary word "may"  in the                                                               
bill instead of  " shall". "You still put the  political heat on,                                                               
you still wage the public  relations campaign, and you still have                                                               
the requirements on  the book and you don't get  it thrown out by                                                               
a  court." The  legislature simply  doesn't have  the ability  to                                                               
strap the governor's hands, she said.                                                                                           
                                                                                                                                
SENATOR   WIELECHOWSKI    asked   the   DOL   opinion    on   the                                                               
constitutionality of the bill.                                                                                                  
                                                                                                                                
MR. SVOBODNY  responded, there is  an issue  of how much  time it                                                               
takes. 180 days represents the first  half year in office and the                                                               
last half year  in office so that cuts the  governor's ability to                                                               
grant pardons by  25 percent. "I don't think  that's correct," he                                                               
said. Nothing says an application  made during the last two weeks                                                               
of  one  governor's  term  would  not  carry  over  to  the  next                                                               
governor.                                                                                                                       
                                                                                                                                
The  legislature has  the authority  to establish  procedures for                                                               
granting pardons  and that takes  time. However, it is  better to                                                               
pick a number  that everyone is used  to so that it  is viewed as                                                               
procedural rather than cutting into  the governor's authority. "I                                                               
don't know where that  line is - whether it's at  120 days or 60.                                                               
I certainly  feel more  comfortable in  saying it's  a procedural                                                               
issue if it's 30 days, 45 days, 60 days.                                                                                        
                                                                                                                                
CHAIR FRENCH  said his view  is that this  is a way  to harmonize                                                               
the  victims'  right  amendment and  governor's  power  to  grant                                                               
clemency.                                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI asked  if the power to pardon  runs with the                                                               
governor as a  person or with the governor's office.  There is an                                                               
argument that it runs with the  office and if it does, this isn't                                                               
an infringement at all, he said. "A governor in their last two                                                                  
weeks could offer  up this pardon and then ...  that person is no                                                               
longer in  office, but you  still have  a governor who  still has                                                               
that ability to pardon."                                                                                                        
                                                                                                                                
MR. SVOBODNY opined that the authority is while in office.                                                                      
                                                                                                                                
4:05:44 PM                                                                                                                    
CHAIR FRENCH closed  public testimony and asked  if the committee                                                               
had discussion or amendments to offer.                                                                                          
                                                                                                                                
4:05:56 PM                                                                                                                    
SENATOR WIELECHOWSKI  made a motion  to delete  "application" and                                                               
insert "consideration" on page 2, line 7.                                                                                       
                                                                                                                                
CHAIR FRENCH  found no objection  and announced that  Amendment 1                                                               
carries.                                                                                                                        
                                                                                                                                
SENATOR McGUIRE asked the sponsor  to restate how he decided upon                                                               
180 days.                                                                                                                       
                                                                                                                                
REPRESENTATIVE SAMUELS replied  that Mr. Jones from  the board of                                                               
parole said it would take about  that much time to go through the                                                               
normal application process and contact the victim.                                                                              
                                                                                                                                
SENATOR McGUIRE asked Mr. Jones if 120 days would be unfeasible.                                                                
                                                                                                                                
MR. JONES  said he had  reconsidered his original answer  and was                                                               
ready to go on record stating that 120 days would be adequate.                                                                  
                                                                                                                                
4:07:47 PM                                                                                                                    
SENATOR McGUIRE  made a motion  to delete "180" and  insert "120"                                                               
from page  1, lines 7  and 8  and any conforming  amendments. She                                                               
explained the reason  is to reflect customary  deadlines that are                                                               
recognized in the law.                                                                                                          
                                                                                                                                
CHAIR FRENCH  said his  review of the  bill indicates  that "180"                                                               
appears just twice - on line 7 and line 8 of page 1.                                                                            
                                                                                                                                
CHAIR FRENCH  found no objection  and announced that  Amendment 2                                                               
carries.                                                                                                                        
                                                                                                                                
4:09:01 PM                                                                                                                    
SENATOR McGUIRE made a motion to  report SCS CSHB 69, as amended,                                                               
from  committee  with  individual  recommendations  and  attached                                                               
fiscal note(s).                                                                                                                 
                                                                                                                                
CHAIR FRENCH  announced that without  objection SCS  CSHB 69(JUD)                                                               
moved from committee.                                                                                                           
                                                                                                                                

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