Legislature(1993 - 1994)
01/28/1994 09:00 AM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CHAIRMAN LEMAN brings up SJR 2 CRIME VICTIM RIGHTS;CRIM JUSTICE ADMIN as the first order of business before the committee today. Number 005 SENATOR MILLER moves the adoption of CSSSSJR 2(STA). There being no objection, it was so ordered. Number 008 MARGO KNUTH, Department of Law, Criminal Division, believes the change from penal administration to criminal and juvenile justice in section 1 is a good change and will make more specific that SJR 2 refers to the entire process and not just sentencing and post- sentencing. Adding community condemnation of the offender and the rights of victims of crimes will achieve the purpose of the legislature. She does, however, believe the use of the term restitution to be repetitious of the rights of victims of crimes. If we differentiate restitution from the rights of victims of crimes, what other differentiations should be made? Restitution is the principal right of a victim of crime and is set out in new section 24. There is, therefore, a logical inconsistency in explicitly setting restitution out in SJR 2. Number 046 MS. KNUTH states that in section 2, subsection (b) of SJR 2 the Department of Law is still concerned rights will be created for victims of crimes, whether there is clarification from the legislature or not. The main concern is that it may create liability for the state, and that there ought to be limits on the liability, which could be achieved through language in the section. There is also a concern that victims may want and may be given a control in state prosecutions. This would represent a radical departure from the way the system was originally created and has been operating in the United States for several hundred years now. Number 105 MS. KNUTH introduces a proposed amendment which would change subsection (b), adding the same language currently in the victim's rights act in Alaska State Statutes. Number 117 CHAIRMAN LEMAN asks if any members have questions for Ms. Knuth. Number 122 SENATOR ELLIS asks if when "penal administration" was changed to "criminal and juvenile justice", it was discussed in the last committee meeting. The chairman replies that it was discussed in the last meeting. The term "criminal and juvenile justice" was chosen because it seemed to be more encompassing than penal administration. Senator Ellis asks Ms. Knuth what the specific ramifications are of SJR 2 applying to juvenile justice. Number 140 MS. KNUTH responds that the juvenile justice system is designed differently than the adult justice system, the juvenile justice system having been designed primarily to treat the offender. She thinks it would perhaps be more consistent with the committee's intent to use the term "criminal justice administration", and leave out the "...juvenile justice administration", or there may be a change in our juvenile justice system that we have not anticipated. Number 164 CHAIRMAN LEMAN asks where the terms being discussed originated. Number 168 SENATOR DONLEY replies the term "penal" refers to any system whereby someone suffers some penalty. That includes the juvenile justice system. The language change was suggested in order to make the language more understandable. He thinks the average person could look at SJR 2 and understand it much better than the language that is currently in the constitution. He does not think the language change will alter who will be affected by SJR 2. Number 200 SENATOR ELLIS supports victim's rights, but wants more discussion on the impacts of SJR 2. In particular, he wants to know how it would affect the juvenile justice system. Number 223 MS. KNUTH states she is involved in the adult offender process, and not in the juvenile offender process, so is not in the best position to address the consequences of the impact of SJR 2 on the juvenile justice system. She says SJR 2 may dramatically change the juvenile justice system. Number 240 SENATOR DONLEY responds that everything in section 2 is qualified by subsection (b). For this reason, he does not believe the amendment proposed by the Department of Law is a good idea. The caveat is already there, it being that enforcement can be provided by statute. The problem with the amendment is it would put into the constitution a sweeping grant of immunity to the state. What other constitutional rights do we have which we would want to give immunity to the state for violating? Freedom of speech? Freedom of religion? Should we say, "This is a right, but if the state violates it, it's ok?" Senator Donley does not believe that attitude is appropriate for a constitutional amendment. He would like the committee to consider that point. Number 266 CHAIRMAN LEMAN questions Ms. Knuth about insertion of the word "restitution". He realizes that in section 24 there is provision for the right to restitution, so he wonders if also having "restitution" in section 12 would be repetitious. The chairman also asks Ms. Knuth to clarify who would qualify for restitution, whether there would also be a corporate or state right to restitution. Chairman Leman notes as an example of the corporate right to restitution DWI offenders having to pay the state up to $1000.00 of the cost of prosecution. He wants secondary victims, such as society or the state, and not just primary victims, to have the right to restitution. Number 285 MS. KNUTH replies that currently the word "restitution" refers only to payment being made to a primary victim of a crime. It is not a term that has been used for making everyone, including the system, whole. She cannot think of a word that would refer to making the system whole. To a certain extent, fines have served the purpose of restitution to the state; although fines are also punitive in nature. She will try to come up with a word that would better define restitution to the state between now and when SJR 2 is heard in the Senate Judiciary Committee. Number 310 SENATOR ELLIS asks if the list of penal administration guidelines on lines 9 through 11 are equal or if they are listed in order of importance. Number 316 MS. KNUTH responds they are ranked in order of priority. Number 321 SENATOR ELLIS expresses he does not necessarily agree with the order of priority. He asks what "community condemnation of the offender" means. Number 330 MS. KNUTH answers that "community condemnation of the offender" means punishment of the offender. Number 333 SENATOR ELLIS declares he did not realize it was a legal term, and to him it sounds as though the meaning might be to egg someone's house after they get out of prison. He does think restitution should be in the list of principals of penal administration. Senator Ellis wants to know, since the principal of reformation is the most important factor in the juvenile justice system, how reordering the principals of penal administration for both the adult and juvenile justice systems will affect the juvenile justice system. Number 346 MS. KNUTH comments Senator Ellis has raised the interesting thought that SJR 2 might run afoul of the United States Constitution. States may not have the right to make punishment of the offender or restitution to the victim a higher priority than reformation of the offender. Number 362 SENATOR ELLIS asks why the committee prefers the term community condemnation of the offender, rather than punishment of the offender. Number 364 SENATOR DONLEY responds that the language was developed over the interim, and punishment entails less than community condemnation of the offender. Community condemnation is a more encompassing concept. Number 374 SENATOR ELLIS expresses his opinion that community condemnation of the offender sounds a lot more wimpy than punishment. Number 381 SENATOR DONLEY adds a comment to the question raised by Ms. Knuth regarding the possible unconstitutionality of the prioritization of the principals of penal administration under the U.S. Constitution. He is not concerned with possible unconstitutionality under the federal constitution, because federal constitutional concerns would be primary to state constitutional concerns. If the prioritization turns out to be unconstitutional under the U.S. Constitution, the state constitution would simply defer to the federal constitution. It would not cause the type of constitutional crisis we now have with subsistence. Number 391 MS. KNUTH makes a last point regarding creating a new section 24, rights of victims of crimes. She states that one possible negative affect of creating additional rights for victims of crimes would be that victims might not be required to press charges or testify if they do not wish to do so. As a result, the effect could be to drop charges against a defendant if the victim chooses to not press charges. The state would not have the choice of going forward with a case if the victim was not in favor of doing so also. This would probably have the greatest impact on domestic violence cases in which the victim recants. Currently, the state has the right to go ahead with prosecutions, even when the victim recants because the Department of Law knows it is the right thing to do statistically. Prosecution does break the chain of violence. It's not fun for the victim at the time, but it is a massive improvement in their situation, and is the only basis for optimism that something will get better there. Most people probably do not like the idea of someone being able to buy their way or influence their way out of a prosecution, but this is what could happen if victims have the final say in whether or not to prosecute. Number 424 CHAIRMAN LEMAN states that it is certainly not his intent to allow cases to be dropped if the victim chooses not to testify or chooses not to press charges, and he would like the record to reflect that. Number 428 SENATOR DONLEY states the language in SJR 2 came straight from the constitution of Michigan, and Michigan has not articulated any concern with the implementation of the language. In addition, the language is modified by section (b). He thinks that it would be a stretch of the law for it to arrive at the effect Ms. Knuth just described, and if that were to happen, it could be addressed with a statute from the legislature. Number 448 SENATOR ELLIS states he does not have confidence that the concerns he voiced today will be adequately resolved or addressed in the Senate Judiciary Committee. He requests the Department of Law to note, in writing, the specific effects of SJR 2, should it be adopted. Number 468 CHAIRMAN LEMAN repeats the request Senator Ellis just made to Ms. Knuth. Number 476 SENATOR MILLER motions CSSSSJR 2(STA) be moved from committee with individual recommendations. Number 479 CHAIRMAN LEMAN, hearing no objections, discharges CSSSSJR 2(STA) from the Senate State Affairs Committee with individual recommendations.
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