Legislature(2001 - 2002)
04/10/2001 05:30 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 10, 2001
5:30 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
Representative Kevin Meyer
Representative Albert Kookesh
COMMITTEE CALENDAR
HOUSE BILL NO. 179
"An Act relating to underage drinking and drug offenses; and
providing for an effective date."
- HEARD AND HELD
CS FOR SENATE BILL NO. 105(FIN)
"An Act relating to victims' rights; relating to establishing an
office of victims' rights; relating to the authority of
litigants and the court to comment on the crime victim's choice
to appear or testify in a criminal case; relating to
compensation of victims of violent crimes; relating to
eligibility for a permanent fund dividend for persons convicted
of and incarcerated for certain offenses; relating to notice of
appropriations concerning victims' rights; amending Rules 16 and
30, Alaska Rules of Criminal Procedure, Rule 9, Alaska
Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and
providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 133
"An Act relating to restitution for criminal and delinquency
acts; authorizing the state to collect restitution on behalf of
victims of crime and delinquent acts and the release of certain
information related to that collection; relating to the
forfeiture of certain cash and other security for payment of
other restitution; relating to access by the Violent Crimes
Compensation Board to certain records regarding delinquency acts
to award compensation to victims; relating to immunity for
damages related to certain collections of restitution; amending
Rule 82, Alaska Rules of Civil Procedure; and providing for an
effective date."
- HEARD AND HELD
HOUSE BILL NO. 134
"An Act relating to the rights of crime victims, the crime of
violating a protective injunction, mitigating factors in
sentencing for an offense, and the return of certain seized
property to victims; clarifying that a violation of certain
protective orders is contempt of the authority of the court;
expanding the scope of the prohibition of compromise based on
civil remedy of misdemeanor crimes involving domestic violence;
providing for protective relief for victims of stalking that is
not domestic violence and for the crime of violating an order
for that relief; providing for continuing education regarding
domestic violence for certain persons appointed by the court;
making certain conforming amendments; amending Rules 65.1 and
100(a), Alaska Rules of Civil Procedure; amending Rules 10, 11,
13, 16, and 17, Alaska District Court Rules of Civil Procedure;
and amending Rule 9, Alaska Rules of Administration."
- HEARD AND HELD
HOUSE BILL NO. 67
"An Act requiring proof of motor vehicle insurance in order to
register a motor vehicle; and relating to motor vehicle
liability insurance for taxicabs."
- SCHEDULED BUT NOT HEARD
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 68
"An Act relating to civil liability for transporting an
intoxicated person or for driving an intoxicated person's motor
vehicle; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 179
SHORT TITLE:OFFENSES RELATING TO UNDERAGE DRINKING
SPONSOR(S): JUDICIARY
Jrn-Date Jrn-Page Action
03/13/01 0560 (H) READ THE FIRST TIME -
REFERRALS
03/13/01 0560 (H) JUD, FIN
03/26/01 (H) MINUTE(JUD)
03/28/01 (H) JUD AT 1:00 PM CAPITOL 120
03/28/01 (H) <Bill Postponed TO 3/30/01>
03/30/01 (H) JUD AT 1:00 PM CAPITOL 120
03/30/01 (H) Heard & Held
MINUTE(JUD)
03/31/01 (H) JUD AT 11:00 AM CAPITOL 120
03/31/01 (H) Heard & Held
MINUTE(JUD)
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
BILL: SB 105
SHORT TITLE:VICTIMS' RIGHTS/ PRISONER'S PFD
SPONSOR(S): SENATOR(S) HALFORD
Jrn-Date Jrn-Page Action
02/20/01 0432 (S) READ THE FIRST TIME -
REFERRALS
02/20/01 0432 (S) JUD, FIN
02/28/01 (S) JUD AT 1:30 PM BELTZ 211
02/28/01 (S) Moved CSSB 105(JUD) Out of
Committee
02/28/01 (S) MINUTE(JUD)
03/01/01 0555 (S) JUD RPT CS 4DP SAME TITLE
03/01/01 0555 (S) DP: TAYLOR, DONLEY, ELLIS,
THERRIAULT
03/01/01 0556 (S) FN1: (COR)
03/01/01 0556 (S) FN2: INDETERMINATE(LAW)
03/01/01 0556 (S) FN3: ZERO(REV)
03/01/01 0562 (S) COSPONSOR(S): TAYLOR
03/14/01 0655 (S) FIN RPT CS FORTHCOMING 4DP
3NR 1AM
03/14/01 0656 (S) DP: DONLEY, WILKEN, LEMAN,
WARD;
03/14/01 0656 (S) AM:KELLY; NR: AUSTERMAN,
HOFFMAN, OLSON
03/14/01 0656 (S) FN1: (COR)
03/14/01 0656 (S) FN2: INDETERMINATE(LAW)
03/14/01 0656 (S) FN3: ZERO(REV)
03/14/01 0656 (S) FN4: (LAA)
03/14/01 (S) FIN AT 9:00 AM SENATE FINANCE
532
03/15/01 0674 (S) CS RECEIVED NEW TITLE
03/20/01 0735 (S) RULES TO CALENDAR 3/20/01
03/20/01 0737 (S) READ THE SECOND TIME
03/20/01 0737 (S) FIN CS ADOPTED UNAN CONSENT
03/20/01 0737 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/20/01 0737 (S) COSPONSOR(S): LINCOLN, DAVIS,
COWDERY,
03/20/01 0737 (S) WARD, GREEN
03/20/01 0737 (S) READ THE THIRD TIME CSSB
105(FIN)
03/20/01 0738 (S) PASSED Y20 N-
03/20/01 0738 (S) EFFECTIVE DATE(S) SAME AS
PASSAGE
03/20/01 0738 (S) COURT RULE(S) SAME AS PASSAGE
03/20/01 0740 (S) TRANSMITTED TO (H)
03/20/01 0740 (S) VERSION: CSSB 105(FIN)
03/20/01 (S) RLS AT 10:45 AM FAHRENKAMP
203
03/20/01 (S) MINUTE(RLS)
03/22/01 0677 (H) READ THE FIRST TIME -
REFERRALS
03/22/01 0677 (H) JUD, FIN
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) <Bill Postponed>
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
BILL: HB 133
SHORT TITLE:RESTITUTION FOR CRIMES OR DELINQUENCY
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/19/01 0365 (H) READ THE FIRST TIME -
REFERRALS
02/19/01 0365 (H) JUD, FIN
02/19/01 0365 (H) FN1: (LAW)
02/19/01 0366 (H) GOVERNOR'S TRANSMITTAL LETTER
02/19/01 0366 (H) REFERRED TO JUDICIARY
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) <Bill Postponed>
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
BILL: HB 134
SHORT TITLE:CRIME VICTIMS RTS/CRIMES/PROTECTIVE INJ.
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/19/01 0367 (H) READ THE FIRST TIME -
REFERRALS
02/19/01 0367 (H) JUD, FIN
02/19/01 0367 (H) FN1: INDETERMINATE(ADM)
02/19/01 0367 (H) FN2: INDETERMINATE(COR)
02/19/01 0367 (H) FN3: ZERO(LAW)
02/19/01 0368 (H) GOVERNOR'S TRANSMITTAL LETTER
02/19/01 0368 (H) REFERRED TO JUDICIARY
04/09/01 (H) JUD AT 1:00 PM CAPITOL 120
04/09/01 (H) <Bill Postponed>
04/10/01 (H) JUD AT 5:00 PM CAPITOL 120
WITNESS REGISTER
HEATHER M. NOBREGA, Staff
to Representative Norman Rokeberg
House Judiciary Standing Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Presented the proposed CS for HB 179,
Version L, on behalf of the House Judiciary Standing Committee.
ROBERT BUTTCANE, Legislative & Administrative Liaison
Division of Juvenile Justice
Department of Health & Social Services
PO Box 110635
Juneau, Alaska 99811-0635
POSITION STATEMENT: During discussion of HB 179, explained the
concept of community diversion panels.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: During discussion of HB 179, answered
question regarding proposed Amendment 4. Presented HB 133 and
HB 134 and discussed how they could tie in with SB 105.
ELMER LINDSTROM, Special Assistant
Office of the Commissioner
Department of Health and Social Services
P.O. Box 110601
Juneau, Alaska 99811-0601
POSITION STATEMENT: Testified on HB 179.
JULI LUCKY, Staff
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 111
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 105 on behalf of Senator
Halford, sponsor.
CINDY CASHEN
Juneau Chapter
Mothers Against Drunk Driving
211 4th Street
Juneau, Alaska 99801
POSITION STATEMENT: Testified in support of HB 133 and HB 134.
LAUREE HUGONIN, Director
Alaska Network on Domestic Violence and Sexual Assault
130 Seward
Juneau, Alaska 99801
POSITION STATEMENT: Testified on HB 133 and HB 134.
ACTION NARRATIVE
TAPE 01-61, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 5:30 p.m. Representatives
Rokeberg, James, Coghill, and Berkowitz were present at the call
to order.
HB 179 - OFFENSES RELATING TO UNDERAGE DRINKING
Number 0234
CHAIR ROKEBERG announced that the first order of business would
be HOUSE BILL NO. 179, "An Act relating to underage drinking and
drug offenses; and providing for an effective date."
CHAIR ROKEBERG mentioned that there were amendments he'd
numbered according to the order in which they would be taken up.
He offered that the amendments could mesh well together.
Number 0346
CHAIR ROKEBERG made a motion to adopt Amendment 1, 22-
LS0564\L.4, Ford, 4/5/01, which reads:
Page 1, line 8, following "of":
Insert "at least $200 but not more than"
Page 1, line 9:
Delete "shall suspend the full amount of the fine
and"
Insert "may suspend a portion of the fine imposed
under this subsection that exceeds $200 if the court
requires the person to pay for education or treatment
recommended by the court and shall"
CHAIR ROKEBERG explained that Amendment 1 would provide the
courts with flexibility by setting a base of $200, and would
allow for a suspension of a portion of that fine if it exceeds
$200. He clarified that the fine would be at least $200 and not
more than $600.
Number 0406
CHAIR ROKEBERG noted that there were no objections. Therefore,
Amendment 1 was adopted.
[It was clarified later that the amendments pertained to Version
L, not yet adopted. Following the adoption of Version L, the
adoption of Amendments 1 and 2 was reconfirmed.]
Number 0414
CHAIR ROKEBERG made a motion to adopt Amendment 2, 22-
LS0564\L.3, Ford, 4/6/01, which reads:
Page 2, lines 19 - 21:
Delete "The following conditions of probation
apply:
(1) the person shall pay for and enroll in
a juvenile alcohol safety action program;
(2)"
Insert "The court may require the person to pay for
and enroll in a juvenile alcohol safety action
program. The court shall impose the following
conditions of probation:
(1)"
Renumber the following paragraphs accordingly.
Page 7, line 15:
Delete "has enrolled"
Insert ", if required to participate"
Page 7, line 16:
Delete "and"
Insert "has"
Page 9, line 22:
Delete "has enrolled"
Insert ", if required to participate"
Page 9, line 23:
Delete "and"
Insert ", has"
CHAIR ROKEBERG explained that Amendment 2 would provide
flexibility to the court by allowing the judge to be the
"gatekeeper" with regard to attendance by the offender in any
Juvenile Alcohol Safety Action Program (JASAP) that may be
established.
Number 0501
CHAIR ROKEBERG made a motion to adopt the proposed committee
substitute (CS) for HB 179, version 22-LS0564\L, Ford, 4/4/01,
as a work draft.
Number 0531
REPRESENTATIVE BERKOWITZ objected for the purpose of discussion.
Number 0555
HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg,
House Judiciary Standing Committee, Alaska State Legislature,
presented the proposed CS, Version L, on behalf of the
committee. She explained that Version L incorporates the
recommendations made by the Department of Law (DOL), deletes the
JASAP requirements for first-time offenders, and requires
education courses for first-time offenders. These changes
originally took the form of amendments adopted on 3/31/01.
Number 0643
CHAIR ROKEBERG noted that there were no further objections to
the adoption of the proposed CS as a work draft. Therefore,
Version L was before the committee.
Number 0660
CHAIR ROKEBERG renewed the motion to adopt Amendment 1. There
being no objection, Amendment 1 was adopted.
MS. NOBREGA confirmed that Amendment 1 creates a minimum [fine]
of $200, leaves the maximum [fine] at $600, and allows the judge
to suspend between $200 and $600 in order that the defendant pay
for the alcohol information safety school, as well as any JASAP
fees.
CHAIR ROKEBERG expressed concern over the term "treatment" being
added by Amendment 1.
MS. NOBREGA noted that another amendment yet to be discussed
would add the possibility of requiring JASAP treatment for
first-time offenders, and paying for treatment is already
encompassed in HB 179 under a probation requirement provision.
Number 0776
CHAIR ROKEBERG renewed the motion to adopt Amendment 2.
Number 0787
REPRESENTATIVE COGHILL objected for the purpose of discussion.
He asked: If the provision for mandatory payment were being
taken out, would it be included elsewhere in the form of
discretionary language? He clarified that he was referring to
the first portion of Amendment 2.
REPRESENTATIVE JAMES pointed out that the language to be
substituted in that portion of Amendment 2 still includes a
mandatory payment provision should the judge require enrollment.
Number 903
CHAIR ROKEBERG noted that there were no further objections.
Therefore, Amendment 2 was adopted.
Number 0912
CHAIR ROKEBERG made reference to Amendment 3, 22-LS0564\L.2,
Ford, 4/5/01, which reads:
Page 1, line 10, following "section":
Insert ". The court may require a person
convicted under this subsection to comply with
treatment recommended by a community diversion panel.
In this subsection, "community diversion panel" means
a group approved for treatment of alcoholism in
persons under 21 years of age by the Department of
Health and Social Services"
CHAIR ROKEBERG said he wanted to delete "treatment recommended
[by]" and insert "[the] jurisdiction [of]", and delete
"treatment of alcoholism [in]" and insert "adjudication [of]".
Thus, the amended version of Amendment 3 reads:
Page 1, line 10, following "section":
Insert ". The court may require a person
convicted under this subsection to comply with the
jurisdiction of a community diversion panel. In this
subsection, "community diversion panel" means a group
approved for adjudication of persons under 21 years of
age by the Department of Health and Social Services"
CHAIR ROKEBERG explained that the intention of Amendment 3 was
to set up a community diversion panel, similar to a "youth
court" or a small-community restorative-justice panel; it was
not intended to provide treatment.
REPRESENTATIVE JAMES asked who is going to pay for it and how
much it is going to cost.
Number 0975
CHAIR ROKEBERG responded that it was his intention that the
individual offender would pay the cost.
REPRESENTATIVE JAMES clarified that she was referring to the
community diversion panel; that there must be some cost to that.
REPRESENTATIVE BERKOWITZ said it depends.
CHAIR ROKEBERG responded, "It depends; ... there certainly
should be no fiscal note attached to it in this bill." He
explained that the intent was to try and broaden the scope of
the judiciary.
REPRESENTATIVE JAMES said she understood that [concept], but
countered that every time the scope is broadened, it costs
money.
CHAIR ROKEBERG inquired if Representative James wanted to amend
that provision so that it would be self-supporting.
REPRESENTATIVE JAMES said she did not want to do so; she only
wanted to know, for the record, what [the creation of a
community diversion panel] would do to the cost, because she had
no idea and there was not any definition of [a community
diversion panel]. It was simply a title of something that was
not listed anywhere else.
Number 1031
CHAIR ROKEBERG made a motion to adopt Amendment 3 [as amended].
REPRESENTATIVE BERKOWITZ said it seemed Amendment 3 would reduce
the overall burden on the court system, and would allow
alternative sentencing through community programs. He noted,
for example, that the youth court is primarily funded through
other means, and most restorative justice is done in a manner
similar to community patrols; [Amendment 3] would reduce
government burden and allow for more citizen participation.
CHAIR ROKEBERG confirmed that it was his intention [with
Amendment 3] to reduce the court system's burden. He noted that
any formal [community diversion panel] approved in the future by
the [Department of Health and Social Services (DHSS)], is
already addressed in Amendment 3.
REPRESENTATIVE JAMES said her concern centered around the fact
that if there is never a community diversion panel, this whole
section wouldn't do anything.
CHAIR ROKEBERG noted that there already are [community diversion
panels].
Number 1120
ROBERT BUTTCANE, Legislative & Administrative Liaison, Division
of Juvenile Justice, Department of Health & Social Services
(DHSS), explained that "community diversion panel" is a term
[the DHSS] is trying to incorporate into its process. Current
statute has a section, under the delinquency chapter, that
relates specifically to youth courts. But as [the DHSS] has
developed other types of panels around the state such as elders
courts and community diversion panels, [the DHSS] has been
trying to use a more inclusive term for the concept that was
developed as a youth court. Thus community diversion panels are
part of the delinquency process; they are part of the scheme
that relates to the diversion of young offenders from the formal
court process into community response processes.
MR. BUTTCANE said to his knowledge, [the DHSS] has not applied
[community diversion panels] to persons outside of the
delinquency system; therefore, all references in statute to
community diversion panels relate to offenses committed [by]
delinquents, and [community diversion panels] are the informal
programs. He added that conceptually, [the DHSS] supports the
idea [of Amendment 3], but has some problems with the wording.
REPRESENTATIVE JAMES asked whether the term "community diversion
panel" is used elsewhere in statute or regulations.
MR. BUTTCANE responded that the term is not elsewhere in
statute. Only the term "youth court" is used in statute, but as
[the DHSS] negotiates with community groups, [the DHSS] favors
the language of ["community diversion panel"], which will appear
in individual negotiated agreements. Thus the elder's court in
Togiak, for instance, is referred to as a community diversion
panel. He added that it is a commonly used term.
REPRESENTATIVE JAMES noted that for her, that was the problem:
"community diversion panel" is in Amendment 3 in quotations,
even though the term has not yet been defined. She offered that
every statute should have the benefit of having its terms
defined.
Number 1268
CHAIR ROKEBERG argued that there are two safeguards: First, the
court has to make the decision on whether to make the referral
[to a community diversion panel]. And second, the [community
diversion panel] has to be approved by the [DHSS]. He added
that although he, too, preferred to have definitions included in
statute, he recognized that the area of [community diversion
panels] seemed to be growing.
REPRESENTATIVE JAMES commented that she was not opposed to the
concept, just that she had concerns over the language being
inserted.
Number 1338
CHAIR ROKEBERG agreed to review the specific language of
[community diversion panel] further as the bill goes through the
process.
CHAIR ROKEBERG noted there were no further objections.
Therefore, Amendment 3, as amended, was adopted.
Number 1366
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 4,
which reads:
(b) Upon probable cause of a violation of (a) of this
section by a person who has not been previously
convicted of such violation or previously subject to
an order under this section, a peace officer shall
apply to the district court for an injunction against
the person. Such injunction shall restrain the person
from violating section (a) and may
(1) order the subject to participate in or comply with
the treatment plan of a rehabilitation program;
(2) prohibit the subject from consuming alcohol,
inhalants, or intoxicating substances;
(3) prohibit the subject from driving or seeking a
driver's license;
(4) order the subject to pay court costs.
(c) Violation of this order may be punishable by a
fine of [$]1,000 and 40 hours of community work.
Number 1375
REPRESENTATIVE COGHILL objected. He asked what portion of
Version L Amendment 4 addresses.
REPRESENTATIVE BERKOWITZ explained that Amendment 4 would
replace Sections 1 and 2; although it is more applicable to the
original version of HB 179, he didn't have [Version L] in his
possession at the time of drafting it. He went on to say that
the bill has a scheme whereby at the first offense, a person has
a violation; at the second offense, a person is guilty of repeat
minor consuming, and at that point, real penalties are incurred.
On the first offense (when the offender has slipped "under the
radar screen"), there are no costs involved; and on a third
offense, there are additional penalties imposed.
REPRESENTATIVE BERKOWITZ said he fundamentally thinks that is a
flawed scheme. Trying to get under the radar screen the first
time would work if everyone were just a first-time offender; in
using the first offense to create the second and third offenses,
however, the penalties of the second and third offenses depend
on the conviction of the first offense. And if the first
offense conviction can be attacked because there was no
attorney, or if some other doubt can be cast on "how good a
conviction it was," then there is the potential for
constitutional problems with the "habitual minor consuming" and
other penalties.
Number 1456
REPRESENTATIVE BERKOWITZ offered that with Amendment 4, instead
of having a first offense thought of the way it currently is,
when an offender is caught for the first time, he/she is taken
to the judge/magistrate, who then places the offender under a
court order. Clearly, such an order - in addition to perhaps
including some of the items listed in [Version L] - should tell
the minor he/she could not drink again. Also, the court would
have the discretion to order participation in alcohol
information safety courses, restrict driving privileges, and
require payment of court costs. And while these items may not
normally be considered "penalties," there are costs associated
with them.
REPRESENTATIVE BERKOWITZ continued. In this way, he said,
because there would not be any criminal charge, there would not
be any requirement for an attorney to become involved. It would
be a civil order, similar to a domestic violence restraining
order. If a person commits a second offense, not only would
he/she enter into the minor-in-possession criminal world, he/she
would also be in violation of the order imposed on the first
offense, and thus be subject to the penalties of $1,000 and 40
hours of community work service. Representative Berkowitz said
he was trying to get around the cost problem by not making the
first offense criminal, but civil.
Number 1599
CHAIR ROKEBERG inquired if the idea was that there would be no
fine or punishment unless there was a violation of the order.
REPRESENTATIVE BERKOWITZ responded that there would be no fine
in the sense of what is normally thought of as a fine; it would
not show up [as such]. But the court can order the individual
to pay court costs. If someone is 16, he posited that it would
not make much difference to that person if he/she had to pay a
$200 fine or pay $200 in court costs. "The message of having to
shell something out for something you did should be there," he
said. Also, the provisions [of Amendment 4] would have an
immediate impact; one of the problems with criminal cases, he
added, was that the offense occurs but then it is a while before
anything happens. In contrast, a court order goes into effect
right away.
CHAIR ROKEBERG responded that he would be more comfortable with
that theory if the fines and suspensions and the "EIS"
educational school were mandated. He inquired, "Can we have a
violation and a fine, as well as a requirement to attend school,
and still make this work?"
REPRESENTATIVE BERKOWITZ said, "No. You can't have a violation
and make it work with the first offense."
CHAIR ROKEBERG asked whether Representative Berkowitz believed,
from a constitutional standpoint, that [the solution presented
by Amendment 4] would hold up better.
REPRESENTATIVE BERKOWITZ answered that he thought it was more
palatable, and although subject to some criticism, it would draw
less criticism from a constitutional standpoint.
CHAIR ROKEBERG said he thought if there were an attempt to have
a "look-back" at previous convictions - which, to his
understanding, HB 179 did not have - it "wipes the slate clean."
REPRESENTATIVE BERKOWITZ countered that this did not wipe the
slate clean.
Number 1699
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), said he appreciated Representative Berkowitz's efforts to
craft a solution to the problem - stemming from supreme court
case law - of not being able to base a later crime on a prior
offense in which the defendant did not have a right to counsel
or to a jury trial. [The DOL] does not want to provide a right
to counsel or a jury trial for first-offense minor consuming
because of costs.
MR. GUANELI said the solutions posed by Representative Berkowitz
[via Amendment 4] and the proposed CS are similar in that, as
part of some proceeding, the offender is put under a court order
and a violation of that order triggers additional penalties.
With Version L, it is a criminal proceeding for a violation;
with Amendment 4, it is a civil proceeding of a restraining
order. He believes both solutions are effective ways of dealing
with the aforementioned supreme court case law, he said.
MR. GUANELI added, however, that he thought the solution offered
by Version L would be more favorable to the courts because the
decision, in terms of a criminal [proceeding] for a violation,
will be based on proof beyond a reasonable doubt. By contrast,
a decision in terms of a civil [proceeding] for of a violation
of a restraining order will be based on proof by a preponderance
of the evidence. The latter, a civil standard, is a much lower
standard. Thus if courts have to make later decisions because
of [repeat offenses], they would be more comfortable basing
those decisions on [the higher standard of] proof beyond a
reasonable doubt.
Number 1812
MR. GUANELI noted that another problem the civil standard of
proof raises is that it is much more likely that minors would be
subjected to a protective order. For example, if there is a
party, the police arrive, and the kids scatter, then the police
would not have to prove beyond a reasonable doubt that the kids
were drinking; they would just need to find out the names of the
kids and prove by a preponderance of the evidence - such as
running away from the party - that they were guilty of minor
consuming. He suggested the frequency of the kinds of
complaints that arise now with the minor-consuming law would
increase under a civil standard [as posed by Amendment 4].
MR. GUANELI referred to the point raised by Chair Rokeberg
regarding an inability to impose a fine in a civil restraining
order context. He said he thought it was an important aspect to
have an amount of money suspended that the minor knows he/she
will have to pay if he/she does not comply with the court's
conditions.
CHAIR ROKEBERG surmised from Mr. Guaneli's testimony that the
administration did not support Amendment 4.
REPRESENTATIVE BERKOWITZ remarked, "Anything we work on is going
to butt us up against that problem of trying to not pay for some
constitutional protections or right to counsel." He added that
what he was trying to do [with Amendment 4] was to say that it
is not criminal problem the first time around; it is a civil
problem. He suggested that the flaw of not providing counsel
was present in [Version L] as well, because those later
convictions are dependent on the earlier convictions, which
under [Version L] would be done without benefit of counsel.
CHAIR ROKEBERG suggested the legislature needs to set the policy
in such a way that the courts recognize that certain restraints
need to be put on the administration of justice. For a first-
time offense to mandate counsel and incur the whole panoply of
the judicial system is not well-founded. He added that in this
day and age of high costs, increasing efficiencies have to be
kept in mind.
REPRESENTATIVE BERKOWITZ noted that "we keep telling people that
our rights are priceless."
Number 1987
CHAIR ROKEBERG responded, "Their rights are priceless; that's
why a judge is making this decision. They'll be before the
bench." He noted that there had been previous testimony that
said a district court jury trial would be 1 percent or 3.7
percent, depending on which study is referenced. He asked
whether that was worth the protections offered by a jury trial
for a first offense. He answered that it seemed to him to not
be warranted in terms of the administration of justice.
Number 2001
MR. GUANELI added that the [expense of the] jury trial was one
thing, but he thought that the Public Defender Agency (PDA)
constituted the much bigger expense. He explained that a wide
range of offenses under Alaska law subject someone to fines but
don't carry a right to a jury trial or a right to counsel.
Examples are speeding, which has a potential $300 fine; running
a red light; any number of driving offenses; possession of
alcohol in a local-option area, which can have a $1,000 fine;
and commercial fishing violations, with fines ranging much
higher than $1,000. Alaska law has a number of precedents where
fines have been imposed without carrying a right to counsel/jury
trial; therefore, it is a matter of determining what rights are
at stake and what social stigma is attached.
MR. GUANELI said he does not believe minor consuming, at least
for the first offense, carries the social stigma of being
labeled a criminal. He noted that the legislature determined a
number of years ago to decriminalize minor consuming. Although
"we're" taking a step away from that because of the problem of
minors who habitually consume alcohol, Mr. Guaneli said he
thinks the record is clear that the legislature does not label
that a crime; thus it does not carry with it the right to
counsel or a jury trial.
Number 2087
REPRESENTATIVE BERKOWITZ said "we" issue points for traffic
violations, and if a certain number of points are aggregated,
then the license is lost. He asked whether there are other
penalties [imposed] if there are too many points.
MR. GUANELI responded that loss of license is the only one. It
carries with it some mandatory insurance requirements and so
forth, he added.
REPRESENTATIVE BERKOWITZ asked why [the committee] couldn't do
some kind of "point scheme" for minors in possession [of
alcohol].
MR. GUANELI replied that there are probably a lot of ways to
address problems, and in the point system context there is an
administrative process that leads to the revocation of a
license. The reason no jury trial or right to counsel is
associated with it is because there is a clear connection
between the driving violations - and the points that one
assesses - and one's fitness to drive; therefore, the state has
a right to take one's license.
MR. GUANELI said what isn't present in the minor consuming
situation, and isn't present in most instances, is that nexus
between simply drinking and driving. While a scheme could be
conceived whereby points could be assessed, there still has to
be a connection made to driving, in order to take a license,
unless there is a right to a jury trial and a right to counsel.
MR. GUANELI said it is a subject worth discussing, but this
problem needs to be fixed now.
Number 2175
REPRESENTATIVE JAMES remarked that she'd said almost the same
thing when [the legislature] passed the "Use It, Lose It" law.
REPRESENTATIVE BERKOWITZ withdrew Amendment [4].
CHAIR ROKEBERG asked Mr. Lindstrom whether he'd had a chance to
look at [Amendment 1]. He asked if that discretionary
"treatment" [language] should be left in or removed, and whether
Mr. Lindstrom was going to add a fiscal note to it.
Number 2214
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,
Department of Health and Social Services, replied that [the
department] didn't object to the amendment, and it hadn't
occurred to him that this might "drive" a fiscal note. He said
there are no added costs.
CHAIR ROKEBERG announced that [HB 179] would be held over. He
asked Mr. Guaneli and Mr. Buttcane to work on it, and indicated
he would be working on it as well.
REPRESENTATIVE COGHILL asked about the possibility of getting
the (JASAP) up and running by June 1.
CHAIR ROKEBERG commented that he has another amendment that
limits the JASAP program to a pilot area.
Number 2273
MR. LINDSTROM said [the department] assumed JASAP programs would
be "rolling out" in six to eight communities based on the
requested funding, both in the budget and on the fiscal note
before the committee. The communities not listed in this
amendment include Juneau, the Matanuska-Susitna area, Kenai, and
maybe Bethel and Dillingham. He said "we" would still like the
flexibility to get in as many communities as possible with the
existing resources.
MR. LINDSTROM noted that previously, the committee had a truly
"pilot project" bill, the therapeutic court bill, which is doing
something new and has an evaluation component and so forth.
Frankly, he said, the JASAP program is new technology. "We've"
had the alcohol safety action program running successfully in
many communities for a number of years; the courts love it, and
wish there were more, in different places.
MR. LINDSTROM explained that the JASAP program is essentially
the same technology, and Fairbanks already had some experience
with it. He said, "It will work. It does work. ... So the
notion of a sunset or ... treating these as a pilot project ...
doesn't make a lot of sense to us. It has proven technology."
[The department] would hope to have as much flexibility to go
into as many communities as possible with the resources
available.
CHAIR ROKEBERG stated that he was not offering an amendment
because Anchorage was incorrectly added, which was an
[unintended mistake].
REPRESENTATIVE JAMES said she thought she heard Mr. Lindstrom
say he has enough money to do what he wants, and she asked if
[the committee] wants him to do that much or not.
REPRESENTATIVE BERKOWITZ pointed out that this is a question for
the House Finance Committee.
Number 2360
CHAIR ROKEBERG announced that HB 179 would be held over,
awaiting an amendment tomorrow.
SB 105 - VICTIMS' RIGHTS/ PRISONER'S PFD
[Contains discussion of HB 133 and HB 134]
CHAIR ROKEBERG announced that the next order of business would
be CS FOR SENATE BILL NO. 105(FIN), "An Act relating to victims'
rights; relating to establishing an office of victims' rights;
relating to the authority of litigants and the court to comment
on the crime victim's choice to appear or testify in a criminal
case; relating to compensation of victims of violent crimes;
relating to eligibility for a permanent fund dividend for
persons convicted of and incarcerated for certain offenses;
relating to notice of appropriations concerning victims' rights;
amending Rules 16 and 30, Alaska Rules of Criminal Procedure,
Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of
Evidence; and providing for an effective date."
Number 2384
JULI LUCKY, Staff to Senator Rick Halford, Alaska State
Legislature, came forth to present SB 105 on behalf of Senator
Halford, sponsor. She stated:
The sponsor sees this as a practical application of
the Victims' Rights Amendment to the Alaska
Constitution, which was ratified by popular vote in
1994 by over 86 percent of the voters. ... [With] the
amendment to the constitution, victims also have
certain rights in statute.
We feel that this will be setting up an office that
will ensure that these victims of violent crime are
aware of their rights, and also will advocate on their
behalf in the court system. [A prior version of] the
bill did pass unanimously ... and was vetoed by the
governor last year. We're hoping to not be vetoed
this year.
MS. LUCKY explained the changes between last year's House
Judiciary Standing Committee version and the current version:
As it left House Judiciary last year, it was located
in the legislative branch. The bill that we
introduced has it currently in the legislative branch,
which ... we believe ... is better. As it left the
House ... and conference committee last year, it was
in the Department of Public Safety, which there were a
lot of strenuous objections to.
As far as the changes that are made in this year's
bill, there [were] some changes in Senate Finance and
on the Senate floor regarding a higher compensation
cap for victims, which I believe is Section 2 of this
bill.
There's some added language requiring the victims'
advocate to contract for services, which we believe
fosters a complementary working relationship with
victims' groups, and also allows the victims' advocate
to privatize where appropriate. We added some
language allowing grants to nonprofit victims' groups.
As you may be aware, the funding mechanism is
forfeited permanent fund dividends from repeat
criminals. It is anticipated [that] there will be
money to pay for the office and [have] additional
funds. What we did was we added grants directly to
nonprofit victims' groups as another allowable use of
these funds that would be generated.
There was an amendment offered in Senate Finance by
Senator Donley regarding victims' choosing not to
testify or appear at court, and there is also a
proposed amendment ... to ... reword that language.
...
TAPE 01-61, SIDE B
Number 2483
MS. LUCKY continued explaining:
... We feel the victims go through a traumatic
experience; some of them may not be able to testify
based on fears or other problems that they have after
the commission of the crime. ... Therefore, ... the
statement shouldn't be made, "Well, the victim didn't
care enough to come to court to testify and,
therefore, we believe that the perpetrator shouldn't
be sentenced to this amount of the crime." ...
Senator Donley, after offering the amendment, spoke
with the Department of Law and came up with some other
language; they felt it was more appropriate to put
this into the sentencing section as opposed to the
victims' rights section of statute.
CHAIR ROKEBERG asked whether that amendment is [22-LS0219\J.1,
Luckhaupt, 3/26/01], and whether the sponsor approves of it.
MS. LUCKY answered in the affirmative.
Number 2442
CHAIR ROKEBERG stated that it has been suggested that [the
legislature] is creating a new office and that there already is
an existing contract for victims' rights activities.
MS. LUCKY remarked that [the sponsor] believes the nonprofit
victims' groups as well as the departments have done a good job
focusing on the victim. The victims' advocate and the Office of
Victims' Rights provide an advocate who is trained in the legal
system and has confidentiality and standing to be able to find
out what's going on, whereas a nonprofit victims' group might
not.
MS. LUCKY told members there is also the ombudsman function
through which if someone feels his/her constitutional rights
have been violated, he/she will have recourse. Victims could
say, "We'd like you to investigate this and recommend some
systemic changes." The ombudsman's office would then be able to
make a report, the justice agency involved in the report would
be able to review the report, and then those findings could be
made public. Ms. Lucky said experiences in other states show
that being able to have this conversation, have the report, and
come up with recommendations makes the state more responsive to
the victims.
REPRESENTATIVE JAMES asked Ms. Lucky whether this office would
be established under the legislature.
MS. LUCKY concurred.
REPRESENTATIVE JAMES asked whether it would have any
relationship to the ombudsman's office.
MS. LUCKY responded that the statutes almost mirror [those for]
the ombudsman's office, but it would be a separate entity. This
would deal specifically with violations of crime victims' rights
and justice agencies.
REPRESENTATIVE JAMES remarked that she finds the purpose of this
very different from the ombudsman's office, and it is hard for
her to see a relationship between this office and the
legislature.
MS. LUCKY explained:
We believe that they are dealing with the victims,
just like they would with constituents and the ...
public safety and justice agencies. ... Some of the
comments we've heard since we moved back in the
legislature have been that ... people are having a
problem, let's say, with the prosecutor's office; the
witness coordinator isn't calling them back, or
they're unable to find out what's going on with their
case. ... The courts will say, "Well, we're ... the
impartial body here, and we'll need to hear from the
attorneys from the defense side and then the
prosecution side, and then we will determine what
needs to be done." ...
The experience in other states has shown that people,
when they feel like they're not getting a fair break
from the police or they're not getting a fair break
from the prosecutors or people are not calling them
back, ... don't have any faith in the fact that
calling another branch within that umbrella is going
to give them any relief. ... Minnesota has a crime
victims' ombudsman's office, and they have found that
by calling this office, they feel that they have a
neutral third party.
MS. LUCKY, for an example, referred to a murder case cited in
the bill packets.
Number 2130
REPRESENTATIVE BERKOWITZ remarked that he has always thought
this was a bad idea. He said he thinks the correct approach
would be for [the state] to take the money and fund the victim
witness coordinators and the district attorney offices across
the state. Instead, a third party is going to be injected into
an adversarial system that is not capable of doing that.
REPRESENTATIVE BERKOWITZ noted that nothing in the investigation
section [of the bill] precludes the victims' advocate from, for
example, subpoenaing the notes of the prosecutor or the defense
attorney. That item alone could be incredibly problematic. He
asked how Ms. Lucky anticipates the impact of trying to subpoena
those notes, which could be something as simple as thinking a
witness is marginal. Those things, he said, can be devastating
if they are widely disseminated. There is a reason why
privilege and confidentiality are attached to them. On the
defense side, he stated, anything that the defendant tells his
or her attorney is sacrosanct. There is no provision in this
legislation that would recognize those features of the criminal
process.
MS. LUCKY responded that she thinks the wish is that "throwing"
money into the witness coordinator problem would fix the
problem; however, since the witness coordinator is in the
prosecutor's office, people feel that continually calling the
prosecutor's office is biased. With regard to policy, Ms. Lucky
said she thinks having a neutral party that looks out for the
rights of the victims is the correct way to go.
REPRESENTATIVE BERKOWITZ commented that he finds it ironic that
[the legislature] has a majority that ostensibly wants to cut
the budget and reduce government bureaucracy, but is doing the
exact opposite with [this legislation].
CHAIR ROKEBERG announced that SB 105 would be held over.
HB 133 - RESTITUTION FOR CRIMES OR DELINQUENCY
HB 134 - CRIME VICTIMS RTS/CRIMES/PROTECTIVE INJ.
[Contains discussion of SB 105]
CHAIR ROKEBERG announced that next the committee would hear two
bills: HOUSE BILL NO. 133, "An Act relating to restitution for
criminal and delinquency acts; authorizing the state to collect
restitution on behalf of victims of crime and delinquent acts
and the release of certain information related to that
collection; relating to the forfeiture of certain cash and other
security for payment of other restitution; relating to access by
the Violent Crimes Compensation Board to certain records
regarding delinquency acts to award compensation to victims;
relating to immunity for damages related to certain collections
of restitution; amending Rule 82, Alaska Rules of Civil
Procedure; and providing for an effective date," and HOUSE BILL
NO. 134, "An Act relating to the rights of crime victims, the
crime of violating a protective injunction, mitigating factors
in sentencing for an offense, and the return of certain seized
property to victims; clarifying that a violation of certain
protective orders is contempt of the authority of the court;
expanding the scope of the prohibition of compromise based on
civil remedy of misdemeanor crimes involving domestic violence;
providing for protective relief for victims of stalking that is
not domestic violence and for the crime of violating an order
for that relief; providing for continuing education regarding
domestic violence for certain persons appointed by the court;
making certain conforming amendments; amending Rules 65.1 and
100(a), Alaska Rules of Civil Procedure; amending Rules 10, 11,
13, 16, and 17, Alaska District Court Rules of Civil Procedure;
and amending Rule 9, Alaska Rules of Administration."
Number 1934
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law
(DOL), came forth to present HB 133 and HB 134. He stated that
in 1984 the Alaska voters overwhelming passed the Victims'
Rights Amendment to the constitution, but 15 years earlier, in
1979, the Department of Law was already at the forefront of
trying to provide for victims' rights.
MR. GUANELI explained that at that time, [the department]
applied for federal grants that were available to provide for
paralegal assistants in the district attorneys offices to act as
assistants for victims and witnesses, to help guide them through
the court process, and to help them to overcome the trauma that
comes with testifying in court proceedings. [The DOL] provided
[the paralegals and the prosecutors] with training, which
continues today. Every year the criminal division of the DOL
puts on a three-day conference funded by federal funds under the
Violence Against Women Act. Training is provided in topics such
as domestic violence, sexual assault, dealing with child
victims, and cross-cultural communication with victims. Also,
through the federal grant, [the DOL] has a volunteer coordinator
whose job is to recruit volunteers from across Alaska to help
out in the DAs (district attorneys) office, especially with
contacting victims.
MR. GUANELI went on to say that [the DOL] has provided brochures
for victims of domestic violence, explaining what families
should know about child sexual abuse, sexual assault, crime
victims' rights, and personalized safety plans. These brochures
are in English, Yupik, and Inupiat. He noted that [the DOL] has
done this because it is the right thing to do. [The DOL]
realized long ago that the reason it loses criminal cases is
that victims and witnesses don't cooperate.
MR. GUANELI told members the Department of Corrections [DOC]
also has recognized that victims are important, and has an
automated victim-notification system that informs victims of
when offenders are being released from prison. Every pre-
sentence report filed in felony cases has a specific section on
victim impact.
MR. GUANELI reported that the DOC also has a victims' services
unit that provides training to all DOC employees and provides
classes to the offenders on victim impacts. The Division of
Juvenile Justice has changed its focus to an equal focus on the
offender and the victim; the division has found that bringing
the victim into the process of dealing with juvenile offenders
is helpful for the juvenile offender and the victim to bring the
matter to closure.
Number 1683
MR. GUANELI noted that [the DOL] also listens to victims through
the Council on Domestic Violence and Sexual Assault as well as
the Network on Domestic Violence [and Sexual Assault]. Last
fall, there was a victims' roundtable at which victims came
together and told [the department] about some of the problems
that they have been having. As a result, [the department]
discovered that one of the primary problems [victims] have is
collecting restitution. House Bill 133 provides a more
effective way of collecting restitution for victims.
MR. GUANELI stated that the DOC has put on a number of community
justice forums on crime and victimization. [The Department of
Law] has also heard from victims of theft that when the stolen
property is pawned, they have a difficult time getting it back
from pawnshops. Part of HB 134, therefore, provides a
streamlined method for establishing their claims to that
property.
MR. GUANELI reported that [the department] has also listened to
victims who have said it is great to have restraining orders
against domestic violence, but there is a real gap in the law -
there is no easy way to get a restraining order against someone
who is stalking them. Providing a protective order that guards
against stalking as well as domestic violence is part of HB 134.
MR. GUANELI noted that these bills are long and appear to be
complex, but [the DOL] has a great deal of experience in
collecting fines and judgments in favor of the state. House
Bill 133 directs those same efforts to the civil division of the
DOL and puts that unit to work collecting restitution on behalf
of victims.
MR. GUANELI explained that HB 134 does a number of things, some
of which were enacted last year. This year's bill adds the
restraining order for victims of stalking, and it provides for
additional remedies involving contempt of court for violations
of protective orders where there is no effective remedy today.
All of the provisions are ones that victims and victims' groups
have said they need. Although it is late in the session, he
said, it is important to the administration and the victims that
HB 133 and HB 134 be enacted this year.
Number 1467
MR. GUANELI explained that combining these two bills with SB 105
will create a mechanism for getting these bills enacted this
year and for having a comprehensive victims' package. Through
some informal discussions with Senator Halford's office, he
said, he believes the Senator would consider this. He believes
it is a win-win situation - a win for those in legislative
leadership positions, and a win for victims - if all three bills
can get passed.
MR. GUANELI said he believes SB 105 contains enough protections
against potential abuses for [the DOL] to be comfortable with
it. He added that in some cases it is important for victims to
have a neutral advocate - someone outside of the prosecutor's
office.
MR. GUANELI remarked that he is not alarmed by the notion that
there might be a legislative-branch employee investigating [the
DOL's] activities. In addition to reports that might criticize
some agencies, there ought to be reports that indicate when
agencies are doing a good job.
MR. GUANELI noted that the lead-in to the title of SB 105
indicates it is an Act relating to victims' rights. He said he
thinks victims' rights is precisely what HB 134 is. Under the
constitutional provision relating to victims' rights, one of the
primary victims' rights is the right to receive restitution
[from] the offender. The only effective way to do that is to
provide a mechanism in the DOL using its existing collection
unit. In conclusion, he stated that he thinks the language
related to victims' rights is broad enough to encompass both of
the governor's bills [HB 133 and HB 134].
Number 1223
REPRESENTATIVE BERKOWITZ asked Mr. Guaneli whether he would take
a look at protections that could be added to SB 105 regarding
work product and attorney-client [privilege].
MR. GUANELI responded that he would be happy to take a look at
that. He noted that the current ombudsman bill also provides
broad subpoena power for the ombudsman. In the past, ombudsmen
have done limited investigations of the prosecutors' offices.
Further, he noted that he doesn't believe there has ever been a
situation in which the ombudsman wanted any kind of confidential
prosecutor's notes.
Number 1163
CINDY CASHEN, Juneau Chapter, Mothers Against Drunk Driving
(MADD), came forth in support of HB 133. She stated:
The MADD Juneau Chapter strongly supports the
governor's victim rights package. MADD's mission
statement includes aiding the victim of drunk driving.
This bill is directly aimed at dealing with the drunk
driving victims, and unless you have ever lost someone
to drunk driving, you have no idea how vital this bill
is to us.
When my dad was killed, our minds and bodies went into
shock. Unfortunately, we faced before us a mountain
of paperwork. ... Writing a check for the urn, signing
permission for organ donation, rewriting the will -
these are just a few of the personal ones we had to
deal with. We also had to learn how the system worked
in [terms] of my mother's future. We were fortunate
in that Dad was wise in his decision-making concerning
his possible early demise, but many others have not
been as fortunate as us. But even though my father
acted in such a manner, it took weeks and even months
to sort through the paperwork, and even now, almost
one year later, there is still some to be dealt with.
Victims don't just get to grieve and mourn. We have
to carry on with our lives, ... much as we sometimes
wish not. Sometimes it is all we can do to get out of
bed and get dressed. At times, to have the resources,
the energy, [and] the capability to focus on financial
matters is simply not possible.
It is common for the victim's brain to be in a frozen
state of shock, one which can last for several months,
even as long as a year. I can tell you that that is
what is happening to me. ... It is during this time,
however, that decisions need to be made concerning
financial restitution.
So, how can a victim deal with such a huge,
complicated subject when merely remembering someone's
name is impossible? This bill would eliminate or take
away much of the stressful work from the victim. This
package would allow the victims to concentrate on
healing. It was very frustrating watching my mother
try to get on with her life and at the same time deal
with paperwork. ... This package is a good thing. It
shows the State of Alaska will care for its victims.
Our chapter urges this committee to support this
package.
Number 0975
MS. CASHEN further described her personal situation:
When my dad was killed, we were fortunate in that our
drunk driver didn't fight back. He showed remorse and
he dealt with it. We were the minority. But what
happened was, we still had to go through the process,
... and it was extremely frustrating trying to figure
why it took so long, for instance, to arrest him. It
took weeks to arrest him, and it drove my mother
crazy. ...
But ... we were fortunate ... [to have] this
particular woman - she was a victims' advocate, but it
was not her job to do what she did. What she did is
what is written in this bill: ... she saved my
mother's life. She became the go-between, and she
explained to my mother what was going on. And for
some reason ... when she said, "This is what's
happening, this is what the police officers are doing,
this is what the prosecutor is doing, this is what the
defender is doing, and so forth," ... it was all
right. When my mother had to wait for four days for
the prosecutor to return a call because he's so over-
worked and he has so many other cases that he did the
best he could, ... she needed the answers now. ...
This office would be able to do that. This office
would care for the victim.
Number 0827
LAUREE HUGONIN, Director, Alaska Network on Domestic Violence
and Sexual Assault, came forth and stated:
We are in a time right now where we're being
challenged on the seriousness with which we take
sexual assault, for example. The 9th [Circuit] Court
of Appeals has struck down part of our sex offender
registration system. And looking at their thinking
behind that process, and seeing that ... some of the
things that we considered when we were testifying for
the legislation to help protect the public safety
[were] seen as overbroad or too harsh, is
disheartening.
We've recently had a case in Alaska in a sentencing
for a sexual assault in the second degree, which is a
class B felony, in which the judge was making comments
about not needing to listen to a victim in the context
of a pre-sentence report or at a sentencing because he
had heard her at trial and what really more did he
have to learn? And on Sunday in Juneau we had a
hostage situation where a perpetrator of domestic
violence went into a church with a gun and held
hostage his victim. In having all of those instances
coming together at the same time when we're also
looking at ways to help the system help victims and be
responsive to what victims are saying as to what they
need, is a very important nexus.
Mr. Guaneli spoke about the roundtable that the
victims and victim service providers had back in the
fall where restitution kept coming up as a forefront
effort - that if we could get restitution to the
victims ... it would be one of the most helpful things
that could happen. They could pay some of their
bills; they could have a sense of justice. They don't
always see that the perpetrator is in the jail, but
they can see that they have had that court order
probably enforced and listened to by having the money
in their hands. ... And to do it in such a way where
the burden is not on the victim to recover that
restitution, which in many situations now is how we
have the system working, ... will be very helpful.
Number 0536
MS. HUGONIN went on to say:
Some of the provisions in HB [134], we think, are also
very critical to assisting victims in being able to
feel more safe and take some steps toward accepting
some justice. For violating protective orders there
are seven provisions where it can be a class A
misdemeanor if you violate that order.
Unfortunately, there seems to be a need to have those
provisions violated more than once before the case is
in a situation where it can be successfully prosecuted
at that level of crime. Allowing for contempt
violations to be prosecuted, I think, will be a more
immediate way to say, "You can't do that, and here's a
penalty." In some studies that have been done with
perpetrators of domestic violence, it seems that the
more quickly you can say, "Don't do that," ... and
there's a penalty and it's immediate, their behavior
changes. ...
I think that having a way that is easy for victims of
stalking ... to get some protection is very important.
I don't think there are a lot of cases in Alaska where
this would be applicable, but there are some. ...
One of the provisions that was in a bill last year
that made it through the House and not through the
Senate was to change the definitions in the statute
involving civil compromise. It has an older
definition of domestic violence, and the suggestion is
to change it to a crime involving domestic violence so
it would capture the ... definition from the 1996 DV
[domestic violence] Act. I think that's important
because it particularly adds dating relationships.
The federal Violence Against Women Act, too, has added
dating relationships into its definition of domestic
violence. ... Prior to 1996, we did have people in
dating relationships that were violent; we afforded
them the protection of being able to get a protective
order. So we think it makes sense in this situation
to have them excluded from that civil compromise.
A final section that may not get a lot of debate ...
is a section that requires training for mediators,
child custody investigators, and guardians ad litem.
... There'd be a training that's sponsored by the
Council on Domestic Violence and Sexual Assault, so we
can have some faith in the accuracy of the information
that they're receiving in its currentness and its
applicability to situations in which they will be
making determinations that truly affect the lives of
the families that are involved.
We hope for your thoughtful consideration of these
bills. If the way to get them through is to put them
in Senate Bill 105, then we hope that's something that
you're able to work out, that you would consider being
cosponsors of the legislation, and that you would do
what you could to ensure its passage this session.
Number 0214
CHAIR ROKEBERG announced that HB 133 and HB 134 would be held
over.
ADJOURNMENT
Number 0188
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 7:02 p.m.
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