Legislature(2009 - 2010)BELTZ 105 (TSBldg)

02/19/2010 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 92 U.S. PRESIDENTIAL ELECTION COMPACT TELECONFERENCED
Heard & Held
*+ SB 257 YOUTH COURTS AND CRIMINAL FINES TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 252 FAILURE TO APPEAR; RELEASE PROCEDURES
Heard & Held
          SB 252-FAILURE TO APPEAR; RELEASE PROCEDURES                                                                      
                                                                                                                                
1:46:15 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 252.                                                                             
                                                                                                                                
SUSAN  MCLEAN, Director,  Criminal  Division,  Department of  Law                                                               
(DOL), said that  SB 252 revises the bail statute.  Over the past                                                               
40  some years  it  has been  added to  and  has become  somewhat                                                               
unwieldy  and   difficult  to  reference  quickly   during  court                                                               
arraignments. The  intent is to  revise the statutes  and enhance                                                               
public safety in  Alaska and to give voice  to the constitutional                                                               
amendment giving rights to crime victims.                                                                                       
                                                                                                                                
SB 252  incorporates concepts  from federal  bail law  and adapts                                                               
them  to  Alaska conditions.  The  bill  generally would  do  the                                                               
following:                                                                                                                      
   · Require the person charged with a serious sex offense to                                                                   
     prove that the release conditions before trial will protect                                                                
     the victim and the public.                                                                                                 
   · Adopt standards for persons who may be appointed as third-                                                                 
     party custodians for persons who are released on bail.                                                                     
   · Prohibit a person who is found guilty of a serious sex                                                                     
     offense from being released before sentencing or during an                                                                 
     appeal of a conviction.                                                                                                    
   · Protect victims of domestic violence by setting standards                                                                  
     that the court must find before allowing a perpetrator of                                                                  
     domestic violence to return to the victim's residence.                                                                     
  · Change the time for arraignment from 24 hours to 48 hours.                                                                  
                                                                                                                                
MS.  MCLEAN  asked if  the  committee  would  like  her to  do  a                                                               
sectional analysis.                                                                                                             
                                                                                                                                
1:50:01 PM                                                                                                                    
CHAIR FRENCH replied it would be helpful.                                                                                       
                                                                                                                                
MS. MCLEAN  said Section 1  addresses two issues with  failure to                                                               
appear.  First, it  moves the  crime  of failure  to appear  from                                                               
Title 12  to Title  11. It  also addresses  the problem  that was                                                               
raised  when a  second culpable  mental  state was  added to  the                                                               
crime of  failure to  appear. This  would provide  an affirmative                                                               
defense that  the defendant,  due to  unforeseeable circumstances                                                               
outside his or  her control, was prevented from  appearing at the                                                               
hearing, and that the defendant  notified the court orally and in                                                               
writing that he or she was  unable to appear. The penalties would                                                               
be the same  as under the current law, except  that the bill adds                                                               
a violation  for failure  to appear  if the  crime charged  was a                                                               
violation.                                                                                                                      
                                                                                                                                
Section  2 includes  a conforming  amendment to  AS 12.25.030(b),                                                               
which changes the standard for  a law enforcement officer to make                                                               
an arrest  without a  warrant in  certain cases  from "reasonable                                                               
cause" to  "probable cause" to  clarify that the standard  in all                                                               
cases is  probable cause. It also  allows an officer to  arrest a                                                               
person  for violations  of  conditions of  release  if they  have                                                               
probable  cause   to  believe   that  the  person   has  violated                                                               
conditions  of  release. This  allows  the  officer to  arrest  a                                                               
person  without  a warrant  if  the  violation of  conditions  of                                                               
release is occurring in the officer's presence.                                                                                 
                                                                                                                                
1:52:12 PM                                                                                                                    
Section  3 adopts  a new  section, AS  12.20.006, that  describes                                                               
release  procedures  for  a  person charged  with  a  crime.  The                                                               
procedures are similar to sections  of existing law, but the bill                                                               
also includes the following:                                                                                                    
    · Before a third or subsequent bail hearing, the bill                                                                       
      requires 48 hours notice to any surety involved so that                                                                   
      the surety has an opportunity to attend the hearing.                                                                      
                                                                                                                                
1:53:01 PM                                                                                                                    
CHAIR FRENCH  reviewed page  4, lines 14-16,  and asked  what the                                                               
provision is getting after.                                                                                                     
                                                                                                                                
MS.  MCLEAN replied  it  gets  at persons  who  ask for  repeated                                                               
subsequent  bail interview  hearings. It  requires the  person to                                                               
articulate  what   conditions  have   changed,  other   than  the                                                               
inability  to make  bail, since  his or  her last  bail interview                                                               
hearing.  This puts  a written  record  before the  court of  the                                                               
person's prior  record and what  should be considered  before the                                                               
court determines whether or not a bail hearing should be set.                                                                   
                                                                                                                                
CHAIR  FRENCH noted  that the  next provision  requires at  least                                                               
seven  days notice  for  a new  request and  asked  if there's  a                                                               
provision in current law that keeps  a person from coming back to                                                               
court every day asking for a new bail review.                                                                                   
                                                                                                                                
MS.  MCLEAN replied  there's very  little, but  current law  does                                                               
require the person  to state what has changed  in their situation                                                               
such that  their bail should  be changed. What  typically happens                                                               
is that  on a  daily basis  a person says  they have  a different                                                               
third-party  custodian. This  makes the  prosecutors scramble  to                                                               
find the  victim who  has a  right to be  informed of  every bail                                                               
hearing. Likewise,  the court has  to schedule a bail  hearing on                                                               
short notice when it probably  already has all the information it                                                               
needs to  set bail. It's  not unreasonable  to ask that  a person                                                               
give seven days notice, she said.                                                                                               
                                                                                                                                
1:56:19 PM                                                                                                                    
CHAIR  FRENCH said  the  committee  will at  some  point ask  Mr.                                                               
Wooliver how demanding bail requests are on the court's time.                                                                   
                                                                                                                                
MS. MCLEAN  continued to explain  the changes to existing  law in                                                               
Section 3.                                                                                                                      
    · The bill requires a person being released to sign a release                                                               
      agreement that describes the terms that the court has set.                                                                
    · The bill eliminates a current provision that allows a                                                                     
      judicial   officer  to   change,  add   to,  or   eliminate                                                               
      conditions  of  release  at   any  time.  The  law  already                                                               
      provides the  bail review  hearing for making  such changes                                                               
      and the  provision sort of  leaves the victim in  the dark.                                                               
      They   might  not   be  notified   and  wouldn't   have  an                                                               
      opportunity to be heard on the topic.                                                                                     
                                                                                                                                
Section 4  adds new  sections that  address release  before trial                                                               
for  persons charged  with  a crime.  The  proposed AS  12.30.011                                                               
adopts  standards  and  conditions   for  release  in  general  -                                                               
including a  requirement to obey  all laws, appear in  court when                                                               
ordered, and  keep in contact  with their attorney.  The proposed                                                               
AS  12.30.016 adopts  standards  and conditions  for release  for                                                               
specific  crimes.  The  section  is designed  to  streamline  the                                                               
procedures for release,  and many of the provisions  are found in                                                               
current law.                                                                                                                    
                                                                                                                                
1:58:58 PM                                                                                                                    
CHAIR FRENCH said  he's surprised that the  drafter didn't choose                                                               
to  repeal and  reenact  the provisions  rather  than adding  new                                                               
sections.                                                                                                                       
                                                                                                                                
MS. MCLEAN directed  attention to Section 27,  which` proposes to                                                               
repeal  all  the discrete  conditions  of  release for  different                                                               
crimes.                                                                                                                         
                                                                                                                                
MS.  MCCLEAN continued  the analysis  of Section  4 pointing  out                                                               
that  AS 12.30.011  subsection (d)  provides evidentiary  burdens                                                               
that a  court must apply  in making  a decision about  whether to                                                               
release  a  person  on  bail.  The  bill  proposes  a  rebuttable                                                               
presumption,  which  may  be  overcome   by  a  preponderance  of                                                               
evidence,  that no  condition or  combination of  conditions will                                                               
assure the  defendant's appearance  or the  safety of  the victim                                                               
if:                                                                                                                             
    · The person is charged with an unclassified felony, a class                                                                
      A felony, or a sexual felony;                                                                                             
    · The person is  charged with  a  felony and  has a  previous                                                               
      conviction for a felony that is less than five years old;                                                                 
    · The offense  was  committed  while  the  defendant  was  on                                                               
      release for another offense; or                                                                                           
    · The charge is for a crime involving  domestic violence, and                                                               
      the defendant  has been  convicted of  a crime  of domestic                                                               
      violence within the past five years.                                                                                      
                                                                                                                                
AS 12.30.016 adopts the additional conditions that may be                                                                       
imposed in particular cases, most of which are found in current                                                                 
law.                                                                                                                            
    · Subsection (b)  provides  special  conditions  for  persons                                                               
      charged with Title 4 violations  such as selling alcohol or                                                               
      bootlegging and charged with  drunk driving and refusing to                                                               
      submit  to  a breath  test.  A  judicial officer  may,  for                                                               
      example, order  a person  to submit to  a breath  test when                                                               
      requested to do so by a law enforcement officer.                                                                          
    · Subsection (c)  provides  special conditions  that  may  be                                                               
      imposed on  a person charged  with a violation of  the drug                                                               
      laws.  For  example,  a   person  may  be  prohibited  from                                                               
      entering  or  remaining  in  a  place  where  a  controlled                                                               
      substance   is   being   used,  manufactured,   grown,   or                                                               
      distributed.                                                                                                              
    · Subsection (d) adopts a  mandatory requirement  of $250,000                                                               
      cash  bond   for  a   person  charged   with  manufacturing                                                               
      methamphetamine, unless  the defendant proves to  the court                                                               
      that his  or her role was  only as an aider  or abettor and                                                               
      that  they did  not stand  to gain  financially. This  is a                                                               
      provision in current law.                                                                                                 
    · Subsection (e)  adopts  specific conditions  for  a  person                                                               
      charged  with stalking  when it  is not  involving domestic                                                               
      violence. This provision is similar to current law.                                                                       
    · Subsection (f) adopts specific conditions for  a person who                                                               
      is  released  after  having  been  charged  with  a  sexual                                                               
      offense.  The court  may  order the  defendant  to have  no                                                               
      contact with someone under age  18, except that made during                                                               
      the normal course of business  in a public place. The court                                                               
      is required  to notify the  victim of the hearing,  or make                                                               
      reasonable efforts to  do so, and to  consider the victim's                                                               
      comments  when  making  a  release  decision.  This  is  in                                                               
      current law.                                                                                                              
                                                                                                                                
2:03:33 PM                                                                                                                    
Section 5 adopts new standards for the appointment of a third-                                                                  
party custodian for a person released before trial. The court is                                                                
required to ensure that a proposed custodian is physically able                                                                 
to  perform the  duties  of  a custodian,  and  requires them  to                                                               
report immediately  if the defendant has  violated conditions. It                                                               
also prohibits  a person from  acting as a  third-party custodian                                                               
under  certain circumstances,  such  as being  a  witness in  the                                                               
case,  having  a  recent  conviction,  or  having  been  recently                                                               
charged with a crime.                                                                                                           
                                                                                                                                
Section 6 attempts to address the  issue in the Williams v. State                                                             
case relating to  general release conditions of  a person charged                                                               
with a  crime involving domestic  violence. It  contains language                                                               
that conforms to the new sections of the bill.                                                                                  
                                                                                                                                
Section  7  is in  response  to  Williams,  which held  that  the                                                               
statute  prohibiting a  person from  returning to  the home  of a                                                               
victim  was overly  broad. That  case said  that the  court could                                                               
enter  such   a  prohibition  but   it  must   consider  specific                                                               
conditions.  In cases  of domestic  violence the  defendant could                                                               
not return to  the home of the  victim for at least  20 days; the                                                               
victim would need  to consent to the return;  the defendant could                                                               
not  have  a prior  conviction  for  domestic violence;  and  the                                                               
defendant  would  need  to  establish  by  clear  and  convincing                                                               
evidence that his  or her return to the residence  would not pose                                                               
a danger to the victim.                                                                                                         
                                                                                                                                
2:05:54 PM                                                                                                                    
Section 8  rewrites the provision  for appeal from  conditions of                                                               
release,  but it  does  not reenact  the  current provision  that                                                               
allows the court to amend the  release order at any time. Rather,                                                               
it  requires the  person  to follow  the  procedures adopted  for                                                               
asking  the court  to  amend conditions  of  release. The  appeal                                                               
procedure  of  the trial  court's  bail  decision is  similar  to                                                               
current law.                                                                                                                    
                                                                                                                                
Section 9 adds a new section  to address the temporary release of                                                               
a person for  an emergency such as the death  of a family member.                                                               
This is similar to the current law under AS 12.30.010(a).                                                                       
                                                                                                                                
Section 10 addresses  the release of a person who  has been found                                                               
guilty  but  not  yet  sentenced or  whose  conviction  is  being                                                               
appealed. It allows  the release under the  general provisions of                                                               
AS  12.30,  but  the  person   seeking  release  is  required  to                                                               
establish  by  clear and  convincing  evidence  that the  release                                                               
would  reasonably  assure  the   person's  appearance  and  would                                                               
reasonably assure  the safety  of the  victim and  the community.                                                               
The bill would  prohibit the release of a person  found guilty of                                                               
all  sexual felonies,  and a  person found  guilty of  a class  B                                                               
felony or  class C felony who  has been convicted of  a felony in                                                               
the  prior 10  years. This  avoids  the equal  protection of  law                                                               
problems in Bourdon v. State.                                                                                                 
                                                                                                                                
2:08:29 PM                                                                                                                    
Section 11 makes clarifying changes  to the law pertaining to the                                                               
release  of  a  material  witness  who is  not  responding  to  a                                                               
subpoena to appear; he or she  may be arrested. After the witness                                                               
has been  deposed, he or she  may be released under  the bail law                                                               
unless his or her presence is required at trial.                                                                                
                                                                                                                                
Section  12 specifies  that a  person who  is in  custody with  a                                                               
petition to revoke probation does  not have an automatic right to                                                               
be released under  AS 12.30, but he or she  may seek release. The                                                               
bill provides  that the probationer  must establish by  clear and                                                               
convincing evidence  that conditions on  his or her  release will                                                               
reasonably  assure  the appearance  of  the  probationer and  the                                                               
safety of the victims, other persons, and the community.                                                                        
                                                                                                                                
[Section 13 is a conforming amendment to current law.]                                                                          
                                                                                                                                
Section 14  clarifies that  for purposes of  the bail  statute, a                                                               
conviction occurs  at the time  a person is found  guilty, either                                                               
by verdict or by plea.                                                                                                          
                                                                                                                                
Sections 15-29  are either  definitions or  conforming amendments                                                               
with the exception of Section  26 that amends Rule 603(b), Alaska                                                               
Rules of  Appellate Procedure, to  clarify that the release  of a                                                               
person whose  conviction is being  appealed may be  allowed under                                                               
the provisions of AS 12.30.                                                                                                     
                                                                                                                                
2:10:33 PM                                                                                                                    
CHAIR FRENCH  focused on the  new subsection  (d) on page  7 that                                                               
addresses  a person  who has  been charged  with a  crime and  is                                                               
seeking release  from jail  ahead of trial.  He observed  that to                                                               
some extent  the bill tracks  the federal bail statutes,  but the                                                               
U.S.  Constitution and  the  Alaska  Constitution articulate  the                                                               
right to bail  differently. Under the Eighth  Amendment the right                                                               
to bail  is a  right to  be free of  excessive bail,  whereas the                                                               
Alaska Constitution is much more  emphatic. It says that a person                                                               
has a positive right to be released on bail ahead of trial.                                                                     
                                                                                                                                
MS.  MCLEAN  said that's  correct  provided  the victim  and  the                                                               
community will  be protected and  that the person will  appear at                                                               
trial.                                                                                                                          
                                                                                                                                
2:13:49 PM                                                                                                                    
CHAIR FRENCH asked if she's had occasion to ask for a memo on                                                                   
this because he foresees potential problems.                                                                                    
                                                                                                                                
MS. MCLEAN offered to provide a memo at the next hearing based                                                                  
on research that Ms. Carpeneti has done.                                                                                        
                                                                                                                                
2:15:05 PM                                                                                                                    
CHAIR FRENCH found no further questions and announced he would                                                                  
hold SB 252 in committee.                                                                                                       
                                                                                                                                

Document Name Date/Time Subjects
SB_257_Sponsor_Statement.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB 257 Juneau DistCourt LOS.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB257 Letter of Support.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB257 Ketchikan Magistrate LOS.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB257 JYC Bd LOS.doc SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB92 Sponsor Statement.pdf SJUD 2/19/2010 1:30:00 PM
SB 92
SB 92 Sectional.pdf SJUD 2/19/2010 1:30:00 PM
SB 92
SB92 Press.pdf SJUD 2/19/2010 1:30:00 PM
SB 92
SB92 Letters of Support.pdf SFIN 3/26/2010 1:30:00 PM
SJUD 2/19/2010 1:30:00 PM
SB 92
Wasilla PD LOS.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257