Legislature(2007 - 2008)BUTROVICH 205
04/03/2008 08:00 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB65 | |
| HB307 | |
| HB359 | |
| HB88 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 65 | TELECONFERENCED | |
| += | HB 307 | TELECONFERENCED | |
| += | HB 359 | TELECONFERENCED | |
| += | HB 88 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 307-DOMESTIC VIOLENCE OFFENSES
8:27:36 AM
CHAIR FRENCH announced the consideration of HB 307 and asked for
a motion to adopt Version \O as the working document.
SENATOR McGUIRE moved the Senate CS for CSHB 307, 25-LS1236\O,
Luckhaupt, as the working document.
8:27:58 AM
REPRESENTATIVE LINDSEY HOLMES, Sponsor of HB 307, said this bill
is known colloquially as a three strikes domestic violence bill.
It responds to the fact that Alaska ranks at the top on nearly
every indicator for violence against women and first in the
nation for rape of female victims killed by male perpetrators.
In 2005 there were 6,000 reported cases of domestic violence. HB
307 is not a one-stop solution; it tries to chip away at the
problem, but education and a change in attitude are also vital
components.
REPRESENTATIVE HOLMES explained that HB 307 seeks an increased
penalty for an offender convicted of a fourth degree physical
assault involving domestic violence, who has two prior
convictions in the last ten years. The predicate priors can be
either a fourth degree assault or a list of felonies including
sexual assault, stalking, and manslaughter. Upon a third
conviction, a class A misdemeanor crime is increased to a class
C felony. The bill is prospective so all three strikes would
have to occur after the effective date and within ten years of
each other. She noted the letters of support.
8:30:12 AM
REPRESENTATIVE HOLMES explained that the Senate CS [Version \O]
makes two changes. The first is the intent language in Section
1. The intent is that the bill is aimed at perpetrators and not
innocent victims. It was brought to the sponsors' attention that
the old intent language required the court to make a particular
finding that would interfere with plea agreements. The sponsors
understand that this new intent language fixes that problem.
SENATOR THERRIAULT questioned the need for the intent section.
"With any of our laws we want to get the bad guys, not the
innocent victims so we don't need to say that."
CHAIR FRENCH welcomed the sponsor to the judiciary committee
where Senator Therriault sits and patiently waits for intent
language to come along.
REPRESENTATIVE HOLMES agreed that it's not as important as the
rest of the bill. She explained that it was inserted at the
request of provider communities and serves as a reminder.
8:32:27 AM
REPRESENTATIVE HOLMES relayed that the second change addresses
proof of the domestic violence element. Originally it had to be
proved on all three strikes, but she has been convinced that
that would be too unwieldy. Now the domestic violence element
needs only be proved on the third strike.
CHAIR FRENCH characterized the change as wise.
8:33:10 AM
RICK SVOBODNY Deputy Attorney General, Civil Division,
Department of Law , said he is here to speak in opposition to HB
307. The Senate Judiciary Committee has already heard and passed
SB 234, and DOL views it as a better approach for dealing with
repeat assaultive domestic violence offenders. This bill creates
unforeseen consequences that can be detrimental to the
prosecution of domestic violence cases and the entire scheme of
domestic violence protective laws in this state. He agreed with
the sponsor that this is a special problem in the state. And, he
said, it's a particular problem because of its prevalent and the
inherent difficulties in prosecuting domestic violence assaults
that don't exist in other crimes. Special problems involved
include: emotions, relationships, the prevalence of recanting by
the victim, and the need to give immunity. A huge problem is
that domestic violence is intergenerational; kids learn this
behavior. He understands the sponsor's commitment to the issue
and he agrees completely, but in his view SB 234 is a better
approach for a number of reasons.
8:35:50 AM
MR. SVOBODNY relayed that this body has created a system of
intentional laws. Title 18 has protective orders that aren't
very expensive to the victim of domestic violence, they occur
fast, and lawyers generally aren't involved. You've made arrests
mandatory and you've required the DOL to look at the primary and
the initial aggressor and you've dealt with sentencing laws, he
said. You've made it a mandatory minimum for a second time
misdemeanor offense of 60 days in jail, and for felony matters
you've made two aggravating factors to allow for enhanced
sentencing if the case is domestic violence. If HB 307 passes,
those felony aggravators go away because the law doesn't allow
two bites at the apple. If a crime is enhanced because it's
domestic violence, the fact that domestic violence was involved
won't allow, in a felony sentence, an enhanced sentence.
CHAIR FRENCH pointed out that you never get to use an aggravator
on a misdemeanor assault.
MR. SVOBODNY clarified that he's talking about felonies.
CHAIR FRENCH responded that he understands that, but HB 307
talks about just one kind of felony, a fourth degree assault
that will become a felony.
Absent that aggravation, absent that elevation, it's a
fourth degree assault. It's recklessly causing
physical injury and you're stuck in misdemeanor court.
We frequently use the aggravators--we'll talk about
the aggravators in misdemeanor court as a way to get
the judge to impose a little more time--but legally
you've got nothing on the fourth degree assault with
an aggravator.
8:38:07 AM
MR. SVOBODNY said that's correct, but this bill makes that
fourth degree assault, if it's the third time, a felony.
CHAIR FRENCH said he understands his point. If domestic violence
isn't an element of the crime, if it's just three strikes you
can use it. It's made a felony by the fact that it's an assault,
but then this says that it's the aggravator.
MR. SVOBODNY agreed. For repeat domestic violence offenders we
want to be able to go above the zero to two year [sentencing]
range, but under this bill we won't have the aggravating factor
that it was a domestic violence case because it was an element,
he said. That wasn't an issue in SB 234.
CHAIR FRENCH asked how many aggravators potentially apply and
Mr. Svobodny said there are two.
MR. SVOBODNY continued to articulate his concern with HB 307
explaining that the legislature has also dealt with the criminal
laws related to assaultive behavior, violating a protective
order, and interfering with a report of domestic violence. But
no Title 11 law requires the state to prove that any of those
are a domestic violence offense. This is a new element for
prosecutors and there is an unintended consequence. When the
legislature created the definition of domestic violence the
intention was to make it as broad as possible because it's a
civil matter dealing with emergency situations and protecting a
person.
8:40:40 AM
MR. SVOBODNY highlighted that his concern is that the state has
never had to deal with that broad definition of domestic
violence in criminal cases because it isn't an element. Twice
it's come up in the court of appeals and two of the three
justices clearly signaled there is a constitutional problem with
using that definition in criminal cases. Either it's void for
vagueness or it's over broad. If HB 307 passes it will be an
element of the offense and those judges will have to decide the
constitutionality of that definition. "I am concerned that an
unintended consequence is that the definition of domestic
violence is going to be declared unconstitutional and that
really has a huge problem for the issues of obtaining protective
orders," he said. That unintended consequence doesn't arise in
the approach taken in SB 234., because it's not necessary to
prove the element of domestic violence.
8:43:09 AM
MR. SVOBODNY expressed concern with the core drafting of the
definition of domestic violence. Under Section 3 it will be
necessary to prove: two or more predicate offenses; that a
person recklessly caused physical injury or with criminal
negligence they caused physical injury by means of a dangerous
instrument; and domestic violence. The definition of domestic
violence is: arson, criminal trespass, criminal mischief,
murder, and assaults so the elements will be that the state has
to prove there was reckless physical injury. Now the state has
to again prove recklessly caused physical injury and then the
household relationship. The point is that it's repetitious and
doesn't make logical sense, he said.
8:45:00 AM
CHAIR FRENCH asked if it isn't a question of a prosecutor having
to prove that a husband beat his wife or a boyfriend beat his
girlfriend.
MR. SVOBODNY replied he absolutely believes that.
CHAIR FRENCH agreed that it may be a bit fuzzy when it's written
down, but when a prosecutor says it's a case involving domestic
violence that is a phrase that jurors understand.
MR. SVOBODNY agreed. He understands that the actual proof of
domestic violence isn't going to be that difficult, but he has
some concern with things like what is a dating relationship.
CHAIR FRENCH responded that's something the prosecutor makes in
every case. You don't, for example, bring a case between two
guys on a crab boat and try to make it a felony, he said. You'll
bring a case that looks like a husband, again, beat up his wife.
MR. SVOBODNY said that's correct.
ANNE CARPENETI, Assistant Attorney General, Department of Law
(DOL) said it wouldn't be difficult to prove domestic violence
in the case of a husband beating his wife, but the irony of HB
307 is that in the fringe cases it doesn't help victims of
domestic violence as much as SB 234. It will be much more
difficult to prove domestic violence in cases of recanting
victims in a dating or sexual relationship because there won't
be a victim, there won't be a defendant and nobody will testify
that they had a physical or dating relationship.
8:47:03 AM
SENATOR WIELECHOWSKI asked if the administration views domestic
violence abuse as worse from a societal standpoint than other
assaults, such as a bar fight.
MR. SVOBODNY said you can't make that societal distinction. If
you're the victim you're hurting just like any other victim, but
domestic violence is a greater problem for other reasons.
Domestic violence is done in front of children and it teaches
that behavior. That isn't the case in a barroom fight. Domestic
violence cases aren't public so they're more difficult to
prosecute; barroom fights generally have witnesses. Domestic
violence victims recant, barroom fight victim are less likely to
later say their black eye was the result of running into the
door.
SENATOR WIELECHOWSKI agreed that the victim won't care about the
type of relationship they have with the abuser. Unfortunately
though, he said, ours is a system that has great cost attached
to putting people in jail. He asked the amount of the fiscal
note on SB 234.
MR. SVOBODNY deferred to Mr. Peeples.
8:49:28 AM
DWAYNE PEEPLES, Deputy Commissioner, Department of Corrections
(DOC), said the last cost that was projected to 2014 was $20.8
million. It builds up over a period of 5 years because it's
prospective.
CHAIR FRENCH asked if DOC had accounted for the latest changes
in HB 307.
MR. PEEPLES replied that based on the most recent numbers
supplied the court system, implementation at 2014 would be $8.9
million, rounded up.
CHAIR FRENCH noted that that was taking into account only
domestic violence priors and this version takes into account
nearly all assaults.
8:50:54 AM
MR. PEEPLES said he'd have to wait for an updated court analysis
before he could give new numbers.
8:51:07 AM
DOUGLAS WOOLIVER, Administrative Attorney, Alaska Court System,
relayed that the court has been running numbers for all the
various versions of both bills. He received the current draft CS
yesterday and expects to have new numbers sometime today.
SENATOR WIELECHOWSKI commented that the legislature could make
the policy choice to spend $20 million or it could make the
policy choice to spend $8.9 million to target a different set of
offenders. You understand that policy call, she said.
MS. CARPENETI referred to the comment about bar fights and
explained that when those are prosecuted it's a mutual combat
disorderly conduct prosecution. It's a class B misdemeanor that
carries a maximum sentence of 10 days. We're not talking about
bar fights here; we're talking about people who aggressively
hurt other people, she said. Bar fights don't get class A
misdemeanors.
DOL continues to believe that SB 234 is a better protection for
domestic violence victims in areas where the domestic violence
relationship isn't as clear. Also, once it's an element of the
offense, it's lost as an aggravating factor in sentencing at the
felony level. If cost is part of the concern, DOL suggests
limiting the look-back or limiting the predicate offences to
assault and stalking. As a practical matter homicide and sexual
offenses tend to have very long sentences anyway, so it's less
likely that somebody in 10 years would have two predicates that
would include sex offenses or homicide offenses. She reiterated
that once you take away the proof of domestic violence, domestic
violence victims have a lot more protection.
8:54:29 AM
SENATOR McGUIRE asked what the policy was when the governor's
bill was first introduced.
MS. CARPENETI relayed that the policy in SB 234 is to address
bullies who repeatedly beat up people. She reminded members
about the crime summit testimony that highlighted that there are
people in Anchorage who have 12 to 15 convictions for fourth
degree assault. Those crimes are repeatedly charged and
prosecuted at the class A misdemeanor level. SB 234 seeks to
stop that chain of violence at a felony level. The tools are
better; there's a five year maximum sentence and felony
probation, which is actual supervised probation. DOL's intent
was to get perpetrators of domestic violence and other people,
too, who are dangerous and hurt people on a basis that is
consistent enough to qualify for the three convictions and ten-
year look-back. Bar fights don't get class A misdemeanors.
8:56:51 AM
RODNEY DIAL, Lieutenant, Alaska State Troopers, Department of
Public Safety (DPS), echoed the concerns expressed by DOL with
respect to HB 307. DPS has a goal to put the worst offenders
away for as long as possible. We appreciate the intent of HB 307
and see the need for enhanced penalties, but we believe that it
could make prosecutions and longer sentences more difficult, he
said. We instead encourage support of SB 234.
CHAIR FRENCH asked if DOL made this same presentation to the
other body.
MR. SVOBODNY replied yes and no. The argument he did not make to
that body was about the unintended consequences. He noted that
Peggy Brown with the Network on Domestic Violence and Sexual
Assault testified that the domestic violence community wasn't
united in support or opposition to the bill because of the
unintended consequences.
CHAIR FRENCH asked if he has a major concern about having to
prove domestic violence with each predicate prior.
MR. SVOBODNY said yes; that becomes a huge problem.
CHAIR FRENCH observed that Version \O represents a tremendous
change from the original bill. It gives up all those domestic
violence priors and makes the district attorney's job easier.
9:00:22 AM
MR. SVOBODNY concluded his comments first by restating the
suggestion about potential cost savings in SB 234 by limiting
the predicate crimes and reducing the look back. Second, he
agreed with the sponsor that it's time-consuming for judges to
make a factual finding in each case. Removing that requirement
improves the bill.
9:01:58 AM
SENATOR THERRIAULT asked if DOL was asked to hold its concerns
until the bill was heard in this body.
MS. CARPENETI replied that is correct. She added that DOL has
worked cooperatively with the sponsor so its opposition isn't a
surprise to anyone. The concern about importing civil language
into criminal prosecution language hasn't been stated because
DOL, too, is evolving in its understanding of the bill.
SENATOR THERRIAULT said that if the Network has concerns with
the bill and the potential for unintended consequences, he wants
to know about that.
CHAIR FRENCH noted that no one from the Network signed up to
testify, but there's another chance this afternoon.
9:03:20 AM
CHAIR FRENCH recessed the meeting until 1:30.
1:44:01 PM
CHAIR FRENCH reconvened the meeting and asked the sponsor her
view of the testimony she heard this morning.
REPRESENTATIVE HOLMES said she took exception to a number of
things that were said this morning, but in light of the
testimony and subsequent discussion there is an amendment.
1:45:08 PM
SENATOR McGUIRE moved to adopt Amendment 1.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR MCGUIRE
TO: SCS CSHB 307(JUD)(25-LS1236\O)
Page 1, line 1:
Delete "domestic violence"
Page 2, line 18:
Delete: "involving domestic violence"
Page 3, line 2-12:
Delete all material
CHAIR FRENCH objected for discussion purposes.
SENATOR McGUIRE explained that the amendment deletes reference
to domestic violence because it has been shown to be problematic
in this bill. DOL and DPS have committed to support the bill
with this amendment.
CHAIR FRENCH removed his objection and finding no further
objection, announced that Amendment 1 is adopted. Finding no one
else who wished to testify, he closed public testimony. He noted
that a title change may be required.
1:47:04 PM
SENATOR McGUIRE motioned to report the amended Version \O Senate
CS for CSHB 107 and attached forthcoming fiscal note(s) from
committee with individual recommendations.
CHAIR FRENCH announced that without objection SCS CSHB 107(JUD)
is moved from committee.
At ease from 1:47:28 PM to 1:48:23 PM.
SENATOR McGUIRE motioned to forward a conforming title change
resolution along with HB 307. There being no objection it was so
ordered.
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