Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/24/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB186 | |
| SJR21 | |
| SB257 | |
| SB265 | |
| SB252 | |
| SB241 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| = | SJR 21 | ||
| = | SB 265 | ||
| = | SB 252 | ||
| = | SB 241 | ||
| + | SB 209 | TELECONFERENCED | |
| *+ | SB 239 | TELECONFERENCED | |
| + | SB 244 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 257 | ||
| = | HB 186 | ||
SB 252-FAILURE TO APPEAR; RELEASE PROCEDURES
1:44:12 PM
CHAIR FRENCH announced the consideration of SB 252. He asked Ms.
McLean to remind the committee where she stopped last hearing.
SUE MCLEAN, Director, Criminal Division, Department of Law
(DOL), replied she introduced SB 252 and provided a sectional
analysis. She said she was prepared to take up the provision
regarding the burden of proof.
CHAIR FRENCH asked her to remind the committee of the current
law and what the bill proposes in that regard.
MS. MCLEAN said that Mr. Mittman with the ACLU raised the issue
in a letter and if there was no objection she would take up the
issue by talking about his letter.
CHAIR FRENCH agreed.
MS. MCLEAN explained that in Section 4, page 7, line 19, the
bill proposes, for persons charged with specific crimes, that
there is a presumption that no condition of release or amount of
bail can assure the person's appearance or the safety of the
community. But it does not deny or attempt to deny the right to
bail, which is ensured under the U.S. Constitution and the
Alaska Constitution. This provision tracks the federal statute
that has been examined closely by federal courts and found
constitutional.
The important distinction is that the right to bail does not
mean that the defendant has the right to release. This provision
sets up a framework for what the court might consider when it
discusses bail in certain cases. The rationale is that in
certain cases there is either an enhanced risk that the person
will flee, or that he or she presents an obvious risk to the
community.
1:48:29 PM
MS. MCLEAN said it's important to remember that the burden here
is not the burden of proof; it is the burden of going forward.
The person has the burden of going forward with a preponderance
of the evidence to show what conditions of bail might be imposed
that will assure that he or she will appear and that the
community will be safe. In response, the state has the burden of
proof to show by clear and convincing evidence that the person
is a danger to the community or that there is no bail amount
that will assure his or her appearance.
CHAIR FRENCH asked if she is saying that the list of crimes on
page 7, line 23 [through page 8 line 5] is analogous to those in
the federal bail statute.
MS. MCLEAN replied the federal bail statute includes the crimes
listed in SB 252 and some other offenses, many of which are drug
offenses and RICO crimes.
1:50:08 PM
CHAIR FRENCH mentioned a recent case of a woman on release for
DWI who killed an Anchorage citizen while under the influence.
He asked if the woman would have had to overcome a rebuttable
presumption that she could not be released under this proposal.
MS. MCLEAN said yes, under subparagraph (C) on page 7, line 29.
She was charged with an offense that she committed while on
release for a charge or conviction of another offense.
CHAIR FRENCH asked if this proposed bail statute would have made
it more difficult for the woman to get out of jail in the first
place.
MS. MCLEAN answered no.
CHAIR FRENCH asked what bail decisions are being made in the
state that caused DOL to propose this statutory change.
MS. MCLEAN replied she hears anecdotally that some courts regard
the right to bail as analogous to the right to release. The most
common is a person who has been released OR (on his/her own
recognizance) and is again release OR even though the new charge
is far more serious. She is personally aware of a case in which
a person was released OR after having been charged with a sexual
abuse of a minor felony crime. That person was returned to the
village of 50 people where the crime occurred. In this sort of
situation it's extremely difficult to protect the victims and
DOL is asking the court to look at the subject of bail from this
context. The court should consider the factors and presume that
the defendant is dangerous or that the community can't be
protected. The defendant should have the burden of explaining to
a judge why he or she will show up or will not be a danger if
released. She emphasized that the bill makes no attempt to set
any kind of rules about the kind of evidence that may be
proposed.
1:54:11 PM
SENATOR COGHILL asked for an explanation of the timeframe and
the difference in bail for these higher class felonies and other
crimes.
MS. MCLEAN explained that when a person is arrested he or she is
immediately brought before a judicial officer who sets bail. If
the offense is serious the bail will typically be quite high or
the conditions will be difficult to meet. A person charged with
a felony has the right to a preliminary hearing or an indictment
within 10 days if they remain in custody. She noted that
Anchorage has a pre-indictment program so it's a little
different, but most DOL offices try to get the case to a grand
jury or preliminary hearing within 10 days at which time the
subject of bail is revisited before the superior court. By the
time 10 days has passed, the person may have come up with a plan
to assure that people are safe or that he or she will appear as
ordered. Often the bail that was set at the magistrate court is
continued.
SENATOR COGHILL asked if this is what occurs after the
indictment.
MS. MCLEAN clarified that it actually applies to an initial bail
setting.
SENATOR WIELECHOWSKI questioned how the bill could possibly have
a zero fiscal note. "I imagine you're going to have huge numbers
of people who are all of a sudden denied bail and sitting in our
corrections facilities or small jails…," he said.
MS. MCLEAN replied she can't speak to the Department of
Corrections fiscal note, but this won't change what DOL does
with respect to going to bail hearings.
CHAIR FRENCH deferred the question about the fiscal impact of
the provision until the committee hears from the court and
corrections. He clarified for the record that bail is set when a
person is charged with a crime and it continues until the person
is found innocent or guilty.
MS. MCLEAN agreed and added that for minor offenses the person
is sometimes released OR and is given some conditions.
1:57:11 PM
SENATOR WIELECHOWSKI asked if any thought has been given to
providing victims the statutory right to a timely disposition of
a case.
MS. MCLEAN replied the constitutional provision includes
something like that.
SENATOR WIELECHOWSKI noted that some states have more specific
definitions of "timely disposition" than is provided in the
overly broad constitutional provision. He asked if she has a
position on including something like that.
MS. MCLEAN replied she is happy to discuss that, but the state
always assumes that it will go to trial in 4 months. She
recognizes that when cases drag on it can be extremely difficult
for the victims, but it's often because the defendant has waived
the time so that the defense has more time for discovery and
preparation.
CHAIR FRENCH commented that it's frustrating for victims when a
defendant waives the time to trial, but the courts are reluctant
to push that because of concerns about being overturned on
appeal.
CHAIR FRENCH asked how many cases per year this fairly
significant change in the bail statute might pertain to.
MS. MCLEAN offered to provide the information.
CHAIR FRENCH asked her to send the information to his office. He
added that he recognizes that the federal government made this
change, but the U.S. Eighth Amendment isn't the same as Article
1, Section 12 of the Alaska Constitution.
2:00:43 PM
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
said the court isn't taking a position on the bail issue, but it
does have a different view on the impact. The Department of Law,
the Public Defender Agency, and the Office of Public Advocacy
have submitted zero fiscal notes, but the court sees that this
will add a fair amount of time to bail hearings in a significant
number of cases. Most of the comments he's received from judges
indicate that bail hearings will take a lot more time. "Maybe
they should, but there is a fiscal impact on that." The court
hasn't submitted a fiscal note largely because it is working
with DOL to address concerns and questions. Their fiscal
analysis might change depending on what happens to the bill.
CHAIR FRENCH asked if someone with the court is working on a
fiscal note.
MR. WOOLIVER replied it's his responsibility.
CHAIR FRENCH asked him to describe what he hopes will come from
the conversations regarding the bail provision.
MR. WOOLIVER replied the court doesn't really care if this
provision is there or not; it just wants to make sure it has
resources available to deal with it because the court sees a big
impact. The other departments see none so we need to figure it
out, he said..
2:04:32 PM
CHAIR FRENCH asked him to provide the following information:
· How many bail hearings the court currently conducts
statewide.
· How many of those bail hearings would be subject to these
new rules if they were adopted.
MR. WOOLIVER agreed to provide information and noted that one
judge estimated there are as many as 15,000 bail hearings per
year.
SENATOR WIELECHOWSKI asked him to include an estimate of the
additional time for each hearing because he believes that each
hearing has the potential to go on for hours if not days.
CHAIR FRENCH asked what other provisions the court has concerns
about.
MR. WOOLIVER directed attention to Section 3, page 4, lines 14-
16, which is a provision directing the clerk of the court to do
a criminal background check using court records before a second
bail review hearing. The court would very much like to see this
provision removed because it is redundant and would be very
expensive and time consuming, he said. The prosecution and
defense should have already presented all the criminal
background information that's relevant to any bail decision at
the first hearing. Even if the court were to do this the record
would be incomplete because it would not include any out-of-
state cases.
2:08:29 PM
DWAYNE PEEPLES, Deputy Commissioner, Department of Corrections
(DOC), introduced himself.
CHAIR FRENCH asked what fiscal impact the proposed change in the
bail statute will potentially have on the Department of
Corrections.
MR. PEEPLES replied it's difficult to determine until they know
how the courts will handle the change. DOC submitted a zero
fiscal note because the number of "mandays" of incarceration
probably wouldn't change. However, there will be a shift of
burden from prisons to state or community jails. An accused
person who is unable to get bail would be in jail until the
adjudication process is completed. The sentence that is passed
down includes the time served during the un-adjudicated phase.
2:10:50 PM
SENATOR WIELECHOWSKI suggested that it would be more appropriate
to submit an indeterminate fiscal note. There's a fiscal impact
if people are found innocent after serving time, he said.
MR. PEEPLES said whether it says zero or indeterminate, it means
that at this point they can't figure it out. They may get a
better handle on it once they see what the court is producing.
CHAIR FRENCH asked if the concern is that individuals who used
to be released back into the community awaiting the resolution
of their trial would now be kept in jail and transported to a
longer-term regional facility such as in Juneau.
MR. PEEPLES replied that could happen. Many small communities
have jails, but each has a limitation on how long somebody can
be held. The range is one week to three weeks to 30 days. If the
local court or magistrate denies bail, the person would at some
point be transported to the regional facility such as Lemon
Creek. That would primarily be done by the Department of Public
Safety.
CHAIR FRENCH said Ms. McLean would point out that these are
people who have been charged with high level, and sometimes
repeat, felony offenses.
2:13:34 PM
JEFFERY MITTMAN, Executive Director, ACLU-Alaska, said he
submitted written testimony focusing on constitutional rights
and civil liberties. He and others analyzed the bill to see if
the proposed statutes would be in compliance with both the U.S.
and Alaska constitutions. The leading case on this matter is
Martin v. State. In that 1974 case the Alaska Supreme Court
noted that in that appeal it was not necessary to decide whether
appellants were entitled to bail under the Eighth Amendment to
the U.S. Constitution. The court then reviewed the Alaska
Constitution and stated that under Article 1, Section 11 every
accused person is guaranteed the right to be released on bail
except in capital offenses where proof is evident. It further
notes that in Alaska an implied limitation would contravene the
language of the constitution and its intended purpose as stated
at the Constitutional Convention.
Overall, the ACLU is taking the orientation that the Alaska
Supreme Court has been fairly clear in interpreting a specific
provision of the state constitution. This is of greater import
and protection than the federal standard, he said.
MR. MITTMAN said the issue here is that a person accused of a
crime is presumed innocent and essentially has the presumption
to liberty that an un-accused person would have. In a bail
hearing the court certainly should consider information
regarding the safety of the community and whether or not the
accused is a flight risk. But the overall effect of this bill is
to unconstitutionally reverse the intention of the constitution.
2:16:57 PM
CHAIR FRENCH asked if he's aware that this proposal parallels a
provision in the federal criminal code.
MR. MITTMAN said yes and the comments of constitutional delegate
Vick Fischer about narrowing the limitations on granting of bail
make it clear that the bail provision was of specific import to
the drafters of the Alaska Constitution. That there is a federal
bill that may allow for stricter limitation on bail hearings or
the granting of bail, in this case is rendered moot by the
Alaska Constitution and the decision in Martin v. State, he
said.
CHAIR FRENCH remarked that it's a pleasure to have the
opportunity to talk to a drafter of the Alaska Constitution. He
asked Mr. Mittman if he had further comments.
MR. MITTMAN said the rebuttable presumption on page 7 tries to
reverse through statute the presumption that an accused person
has a right to bail, and that's not permissible. It would be
subject to almost immediate litigation and given the decision in
Martin v. State there's little question about the result.
2:19:28 PM
SENATOR MCGUIRE suggested that if the committee can't agree on
this because of questions about constitutionality, it might
instead consider looking at conditions that might be set at the
bail hearing itself.
CHAIR FRENCH said it's a good conversation to have. Clearly, the
public is protected the most when someone is kept in jail, but
there are costs and risks associated with that. There isn't a
simple answer.
He asked Mr. Steiner to provide his perspective on the proposed
change in the presumption regarding release on bail.
2:22:35 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration (DOA), said he agrees with Mr.
Mittman that constitutional challenges are likely, primarily
because the burden of production is shifted to the defense. In a
bail hearing the defense can rely on the state having to meet
its burden of proving that bail isn't sufficient, but here the
defense may have to meet some burden of going forward in order
to put the state to its burden. That may require the defense to
disclose its view of the case, which is problematic in terms of
the constitutional arguments and the time that these hearings
would take. This is really the only distinction because this
burden is juxtaposed against the way a person is charged and the
crime he or she is charged with so it puts the state's case
directly at issue in rebutting it in the bail hearing. That is
not the case at present.
MR. STEINER noted that this also appears to cover not just the
higher level felony cases but also the lowest level
misdemeanors. Even a repeat criminal trespass would be subject
to this bail hearing if a person were to commit a subsequent
trespass while on conditions of release.
CHAIR FRENCH suggested he contact Rich Kurtner to see if federal
bail hearings are more complex and lengthy.
MR. STEINER agreed, and added that their zero fiscal note
reflects that it's not predictable whether or not this will drag
out bail hearings or how many cases this will apply to. Getting
numbers from the court or corrections will help in evaluating
that, he said.
2:26:48 PM
CHAIR FRENCH said he was surprised to see that the Public
Defender Agency also submitted a zero fiscal note because it
would seem that it would create more work for the agency.
MR. STEINER replied it's a matter of predictability; at this
point there's no way to come up with a defensible number.
SENATOR COGHILL said that since statehood Alaska hasn't had the
death penalty so this is trying to figure out bail for those
most egregious crimes. At the Constitutional Convention it was
supposed that for those kinds of cases there would be reasonable
cause to hold somebody. He opined that except for subparagraph
(C), there might be a good case; Article 1, Section 24, of the
constitution supports that. It says that crime victims have the
right to be reasonably protected from the accused through the
imposition of appropriate bail or conditions of release by the
court. That puts two constitutional provisions in the test so he
wouldn't out of hand call it unconstitutional.
CHAIR FRENCH clarified that Senator Coghill was reading from the
victims' rights amendment.
He asked Ms. McLean what other provisions the committee needs to
address.
2:28:58 PM
MS. MCLEAN said Mr. Mittman's second point was that Section 4,
subsection (b) proposes to improperly expand the court's
authority, but she would point out that most of the conditions
already exist and are being imposed under current law. The ACLU
was specifically concerned about the condition requiring the
person to maintain employment or, if unemployed, to actively
seek employment. She relayed that DOL doesn't see that this is
different than telling the person not to leave town. DOL
frequently hears that the person needs to be out with no bail or
they'll lose their job only to have the person quit their job
once they're out if there wasn't a condition to keep the job.
It's a mockery and it's not unreasonable for the court to
require someone to do what they said they'd do, she said.
MS. MCLEAN agreed that the ACLU interpretation of subsections
(b)(15) and (b)(16) sounds draconian, but the bill is specific
that this applies to people who are already on medication. She
argued that it's a reasonable condition of release that is aimed
at making sure that the person can be released. A lot of people
in the criminal justice system are mentally ill and they commit
crimes that they wouldn't otherwise commit when they don't take
their medication. The aim is to both protect the public and make
sure the person can be released, she said.
2:31:26 PM
MS. MCLEAN said Mr. Mittman next addresses failure to appear,
which has been a crime since 1966. He stated that changing the
crime of failure to appear would somehow increase the number of
parole violators in jail. She suggested the committee might want
to question his understanding because parole violators are not
being charged with failure to appear. They have been sentenced
and released either on mandatory or discretionary parole and
allegedly have violated their parole by committing new crimes or
doing what they were told not to do.
SB 252 addresses a case in which the court of appeals defined an
element in the crime of failure to appear that DOL didn't
believe was there. DOL has always assumed that the elements of
failure to appear were that the state had to prove that the
defendant knew their conditions of release and that they failed
to appear at court. This proposal says that those are the
elements and it gives the defendant the affirmative defense of
saying that he or she could not appear for certain stated
reasons. She related that in practice defendants are not being
prosecuted for failure to appear when they call the court saying
they can't show up; it's the defendants who simply disappear.
The purpose of this provision is for the Legislature to clarify
what its understanding was on the element of failure to appear.
2:33:24 PM
MS. MCLEAN said that Mr. Mittman next made the point that the
change in time for a bail hearing in Section 3 was problematic.
However, Section 3 deals with current law under AS 12.30.020,
which says that if a person is held, the prosecution has 48
hours in which to ask that the person be detained so that the
prosecution can come forward with evidence showing why the
person should continue to be held. Subsection (f) currently
provides that a person who remains in custody 48 hours after the
original bail is set has the right to a bail review hearing. The
new Sec. 12.30.006 does not change that.
MS. MCLEAN pointed out that Section 20 of the bill does ask for
an amendment to Rule 5 of the Alaska Rules of Criminal Procedure
to allow the state up to 48 hours to bring a person who has been
arrested before a judicial officer for an initial appearance.
The current rule allows the state just 24 hours' which in some
cases is simply not possible.
2:35:00 PM
CHAIR FRENCH said he believes the majority of defendants are
arraigned within 24 hours, but at a future hearing he'd like to
know specifically how many jurisdictions embrace the "48 hour
rule."
MS. MCLEAN agreed to provide the information.
MS. MCLEAN said that Mr. Mittman also argues that under the bill
conditions of release encompass search, but those conditions
exist already. Mr. Mittman cited a Ninth Circuit case that
endorsed the right of pretrial defendants to be free of
suspicionless searches and DOL also endorses that right. These
conditions of release have been in effect for a very long time
and they are reasonable, she said. Case law says there should be
a nexus between conditions of release and the charge. The bill
proposes alcohol conditions that apply to people charged with an
alcohol offense and drug conditions that apply to a person
charged with a drug offense.
The last point Mr. Mittman made is that the third party
custodian provision in Section 5 would limit a pretrial
defendant's liberty, but the court has always been permitted to
require a third-party custodian in addition to other conditions,
she said. Current law is AS 12.30.030(b). The change the bill
proposes is to set qualifications for third-party custodians.
DOL's concern is that at present there are no conditions or
requirements for third-party custodians. The proposed
requirements include not having a pending charge, being able to
see and hear the defendant 24 hours a day, and not being on
felony probation. They aren't unreasonable for someone who has
taken on the responsibility of watching over a person who is on
conditions of release from jail. Some people undertake this
responsibility as a job, which is a concern because DOL's
understanding has always been that the Legislature's vision was
that the defendant would ask a friend or family member to be a
third party
2:39:44 PM
MS. MCLEAN said that today she received a suggestion to change
"electronic mail" to "electronic communication" on page 10, line
8.
CHAIR FRENCH made a note of the suggestion and announced he
would hold SB 252 in committee for further work.
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