01/30/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB323 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 323 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 30, 2008
1:09 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Ralph Samuels
Representative Lindsey Holmes
MEMBERS ABSENT
Representative Bob Lynn
Representative Max Gruenberg
COMMITTEE CALENDAR
HOUSE BILL NO. 323
"An Act relating to the crimes of assault in the fourth degree
and of resisting or interfering with arrest; relating to the
determination of time of a conviction; relating to offenses
concerning controlled substances; relating to issuance of search
warrants; relating to persons found incompetent to stand trial
concerning criminal conduct; relating to probation and to
restitution for fish and game violations; relating to
aggravating factors at sentencing; relating to criminal
extradition authority of the governor; removing the statutory
bar to prosecution of certain crimes; amending Rule 37(b),
Alaska Rules of Criminal Procedure, relating to execution of
warrants; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 323
SHORT TITLE: CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/17/08 (H) READ THE FIRST TIME - REFERRALS
01/17/08 (H) JUD, FIN
01/30/08 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
RICK SVOBODNY, Deputy Attorney General
Central Office
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Presented HB 323 on behalf of the
administration and responded to questions.
RODNEY DIAL, Lieutenant, Deputy Commander
A Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Ketchikan, Alaska
POSITION STATEMENT: Testified in support of HB 323 and
responded to questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 323.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 323.
STEPHEN WEST, District Attorney
1st Judicial District (Ketchikan)
District Attorneys
Department of Law (DOL)
Ketchikan, Alaska
POSITION STATEMENT: Provided testimony during discussion of
HB 323 and responded to a question.
QUINLAN G. STEINER, Director
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided a comment during discussion of
HB 323.
JOSHUA FINK, Director
Anchorage Office
Office of Public Advocacy (OPA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided a comment during discussion of
HB 323.
ACTION NARRATIVE
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:09:56 PM. Representatives Samuels,
Holmes, Dahlstrom, Coghill, and Ramras were present at the call
to order. Representatives Lynn and Gruenberg were excused.
HB 323 - CRIMINAL LAW/PROCEDURE: OMNIBUS BILL
1:10:36 PM
CHAIR RAMRAS announced that the only order of business would be
HOUSE BILL NO. 323, "An Act relating to the crimes of assault in
the fourth degree and of resisting or interfering with arrest;
relating to the determination of time of a conviction; relating
to offenses concerning controlled substances; relating to
issuance of search warrants; relating to persons found
incompetent to stand trial concerning criminal conduct; relating
to probation and to restitution for fish and game violations;
relating to aggravating factors at sentencing; relating to
criminal extradition authority of the governor; removing the
statutory bar to prosecution of certain crimes; amending Rule
37(b), Alaska Rules of Criminal Procedure, relating to execution
of warrants; and providing for an effective date."
1:12:14 PM
RICK SVOBODNY, Deputy Attorney General, Central Office, Criminal
Division, Department of Law (DOL), relayed that HB 323 was
introduced by the House Rules Standing Committee at the request
of the governor, and acknowledged that almost every year the
governor comes forth with legislation pertaining to Alaska's
criminal laws. Sometimes the legislation creates new laws,
sometimes it changes Alaska's sentencing structure, and
sometimes it addresses procedural matters. This year the
governor has chosen to do all three, but has attempted to make
the bill very discrete. House Bill 323 proposes to establish
three new crimes - though they aren't really new crimes, he
remarked. Section 4 proposes a change to AS 11.56.700(a) -
which pertains to the crime of resisting arrest - addressing
circumstances in which people are truly resisting arresting but
aren't fighting back; they are instead just acting like a lump
thus requiring several officers to remove them from the scene.
MR. SVOBODNY indicated that [Section 5] will affect the crime of
driving under the influence (DUI) [in that two new substances
are being added to the list of schedule IVA controlled
substances in AS 11.71.170(b)]; driving under the influence of
these new substances creates the same effect and danger as
driving under the influence of alcohol. Sections 11 and 18
aren't really creating new laws as such, he noted, but are being
proffered because it has become the trend with some judges to
come up with a new interpretation of the laws pertaining to fish
and game violations. He opined that it was clearly the
legislature's intent several years ago to make fish and game
crimes misdemeanors, or sometimes felonies, and allow some of
those offenses to be reduced to mere violations. This is a tool
that had often been used in such cases; the person would be
found guilty of a violation, the court would give him/her a
fine, suspend a portion of that fine, and put him/her on
probation. Some [magistrates], however, have since decided that
what the legislature really meant is that if a person has been
found guilty of a violation, he/she can't be put on probation or
have the "ill-gotten" game forfeited.
MR. SVOBODNY posited that the changes proposed by Sections 11
and 18 will allow the State to reduce a misdemeanor offense to a
violation, suspend a portion of the accompanying fine, and put
the person on probation on the condition that he/she doesn't
violate any fish and game laws. He characterized the changes
proposed by [Sections 4, 5, 11, and 18] as changes in
substantive law.
1:18:28 PM
MR. SVOBODNY, with regard to HB 323's proposed changes to
procedural law, noted that members will later be hearing
testimony about one of the cases that's engendered proposed
changes to the procedures pertaining to a person's competency to
stand trial. He observed that when considering whether a person
is competent to stand trial, a lot of people think that that
means considering whether the person has a mental disease or
defect. That's not the case, however. Instead, a person is not
competent to stand trial if he/she can't communicate with
his/her lawyer, can't aid in his/her own defense, or simply
doesn't understand what the proceedings are. And although that
may be caused by some mental illness or disease, it may also be
that the person is just not smart enough to do/know those
things, or chooses not to do/know those things.
MR. SVOBODNY explained that there is therefore a procedure
whereby, if there's a question about whether a person is
competent to stand trial, he/she is evaluated by the Alaska
Psychiatric Institute (API), and the API makes a determination
regarding whether the person actually is competent to stand
trial. There are a couple of problems with this, however,
because even if the person is not competent to stand trial,
he/she may still pose a danger to the community [if released
back into it]. For example, there was a recent arson case in
Anchorage wherein a 16-year-old was charged with the crime of
arson, was found not competent to stand trial, was released from
the API, and then committed another arson crime. There is also
a similarly-situated person in Ketchikan who's committed seven
or eight arson crimes, and who keeps being returned to the
community.
MR. SVOBODNY said that HB 323 does a couple of things to address
such situations. [Section 20, along with conforming Section
19,] requires that the district attorney be notified that the
person's going to be released back into the community; hopefully
this will provide the DOL with an opportunity to contact the
victims of the crime and inform them that the perpetrator is
being released. [Section 8, along with conforming Section 9,]
requires that if a person is found not competent to stand trial,
then a proceedings will be filed to determine whether the person
presents a danger to himself/herself or the community - to
determine whether he/she is committable under Title 47. This
does not mean that the person will be committed, since he/she
may not pose a danger to himself/herself or the community, but
the court will be required to determine whether such is actually
the case.
1:21:24 PM
MR. SVOBODNY relayed that in the Anchorage case, the 16-year-old
was waived into adult court, where he was found to be not
competent, and was then released from API because he was found
to not be an immediate danger to himself or the public - [this
latter determination was based on the fact that] he'd signed a
paper saying he promised not to commit arson again. In response
to a question, Mr. Svobodny explained that at issue is that the
question of whether there should be a "mental commitment" is
different than the question of whether a person is competent to
stand trial, and under the bill, after it has been determined
that a person is not competent to stand trial, there shall then
be a separate determination made regarding whether the person
should be committed. Currently, one of the standards used to
determine if a person can be released is whether he/she poses an
immediate danger to himself/herself or others, and although it
can be disputed what "immediate danger to others" means, in the
Anchorage example the person simply said [inaccurately] that he
wasn't going to commit any more arson. In addition, [Section
10] provides that when looking at the aforementioned standard,
the judge may also look at the underlying crime in determining
whether the person really isn't an immediate danger.
1:24:20 PM
MR. SVOBODNY, referring to the other two procedural changes
proposed by HB 323, indicated that [the changes proposed by
Section 21 will in part repeal] the existing bar against the
state going forward with a criminal prosecution if the federal
government has already done so. This change will not result in
double jeopardy because the state is a separate sovereign. The
last type of procedural changes proposed pertains to the
issuance of search warrants. One problem that exists with the
issuance of search warrants that the bill aims to address
pertains to the crime of online enticement of children.
Currently, Internet providers won't release information to law
enforcement unless presented with either a subpoena or a search
warrant, but a subpoena can't be issued when there isn't an
actual ongoing case, and some judges in the state have refused
to issue a search warrant because they believe they don't have
jurisdiction since the information being sought exists outside
the state. So [Section 6] would allow for the extraterritorial
issuance of a search warrant, one that Internet providers will
honor.
MR. SVOBODNY indicated that [Section 7, along with conforming
Section 21] provides that the search warrant provisions be
changed to mirror those of other states and the federal
government in allowing "telephonic" search warrants. Currently,
law enforcement can obtain a search warrant via telephone only
if the officer is able to present evidence that the evidence
being sought via the search warrant will be lost or destroyed if
the time is taken to obtain the search warrant in person. This
proposed change will bring the state into the 21st century,
recognizes that the territory of the state is vast, and will
save the state money. He offered an example wherein two Alaska
state troopers were at Devils Elbow [Yukon River] investigating
a marijuana "grow," and instead of traveling eight hours by boat
to obtain a search warrant, they chose to use a satellite phone
to obtain a search warrant but then didn't meet the requirement
of proving that the evidence was likely to be destroyed in the
time it would have taken them to get back up the river had they
sought to obtain the search warrant in person.
MR. SVOBODNY mentioned that some of the bill's proposed changes
to Alaska's sentencing structure are technical and "go back" to
the court's decision in Blakely v. Washington, 124 S. Ct. 2531
(U.S., 2004). One substantive proposed change to sentencing,
however, provides that a third crime of assault in the fourth
degree - which is currently a class A misdemeanor - would
instead be considered a class C felony offense. There are some
limitations, though: one, the "look-back" period is only ten
years; and, two, the provision would not apply to a "fear" type
of assault wherein no physical injury is caused. On the latter
point, he explained that prior to 1978, Alaska had two separate
crimes: assault, and battery. The crime of battery involved
injury to a person, whereas the crime of assault didn't. In
proposing this substantive change, he relayed, the DOL feels
that it would be better public policy to eliminate the assaults
that don't involve physical injury; only those assaults that do
may be subject to the higher penalty.
1:32:10 PM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said the department fully supports HB 323, particularly
Section 4 - pertaining to resisting arrest - and Sections 6 and
7 - pertaining to search warrants. With regard to Section 4,
law enforcement officers statewide somewhat frequently face
situations in which a person has been informed that he/she is
under arrest but he/she passively resists arrest by not moving
when directed to; this behavior forces the officer to use a
higher level of force which in turn increases the chances of
injury for everyone. Currently, law enforcement must prove that
a person resisted arrest by showing that the person's actions
created a substantial risk of physical injury to someone; under
the bill, a person could be charged with resisting arrest for
disobeying an order by an officer who has informed the person
that he/she is under arrest, or for noncompliance. He surmised
that this proposed change will be most effective with repeat
offenders - those who have passively resisted arrest in the past
- because it will have the potential of encouraging them to
comply in the future.
LIEUTENANT DIAL, on the issue of search warrants, noted that
Section 6 would allow the court to issue a search warrant for
locations outside the state. This proposed change is important,
he remarked, when investigating crimes involving Internet
technology or in situations involving interactions with the
Royal Canadian Mounted Police (RCMP). An example of the latter
type of situation involved law enforcement officers in Ketchikan
investigating a person in Hyder who had a serious accident while
DUI and seriously injured [himself and] a number of people;
people in Hyder who are seriously injured are generally
transported to Stewart, Canada, for treatment, and in this
particular case, the officers were able to find a local [Alaska]
judge who issued a search warrant for the medical records of the
perpetrator to illustrate his blood alcohol concentration (BAC),
and this warrant was honored by the Canadian government.
However, law enforcement officers in this case were lucky to
have found a judge that was willing to issue the warrant, since
there is no requirement in state law that a judge do that, and
many judges might not have. Section 6 would ensure that if law
enforcement is able to meet the probable-cause standard, the
judge could not refuse to issue a warrant solely on the grounds
that the evidence being sought is located in another
jurisdiction.
LIEUTENANT DIAL characterized Section 7 - pertaining to search
warrants issued via telephone - as especially important for law
enforcement officers working in remote areas of Alaska far away
from the nearest courthouse. He elaborated:
We've all experienced ... cases like the one that was
mentioned by Mr. Svobodny, where we're spending
significant amounts of time [to] travel and to stand
before a judge to provide essentially the same
information that we can provide telephonically. ...
We'll still have to meet those same standards - we'll
still have to ... convince the judge that we have
probable cause for the issuance of the search warrant
- it just will allow us to get more of those
telephonically, and it really is, we think, better for
all involved.
LIEUTENANT DIAL, in conclusion, again relayed that the DPS
supports HB 323.
1:36:42 PM
REPRESENTATIVE HOLMES, referring to Section 6, said she is
concerned about the enforceability of search warrants across
[jurisdictional] lines. Would Alaska law enforcement personnel
honor a search warrant issued in Kansas, for example?
LIEUTENANT DIAL said that if he received a request from another
agency to assist in the execution of a search warrant that was
issued in another jurisdiction, he would attempt to serve that
warrant; it would be the intent of the Division of the Alaska
State Troopers to honor a search warrant issued in another
jurisdiction.
REPRESENTATIVE HOLMES said she is concerned about putting
something in statute that won't be honored by those in other
jurisdictions.
CHAIR RAMRAS, referring to the proposed change to the resisting
arrest statute, asked at what point does an arrest begin for
purposes of having to obey the order of a peace officer.
LIEUTENANT DIAL said that once the person is notified that
he/she is under arrest, that's when the arrest begins, and so at
that point, under the bill, a refusal to comply would be
considered resisting arrest. In situations involving DUI, for
example, mere refusal to comply with an officer's request to get
out of the car or take a field sobriety test would not
constitute resisting arrest because at that point the person
hasn't been arrested. Again, the arrest procedure only starts
when the person is advised that he/she is under arrest; at that
point, if the person then does something to prevent the arrest,
or if another person then does something to interfere with the
remainder of the arrest procedure, the crime of resisting arrest
will have occurred.
CHAIR RAMRAS expressed a desire to have the language of
Section 4 clarified regarding that point. He asked whether
taking pictures of someone being arrested could be construed to
be interfering with the arrest of another as outlined in AS
11.56.700(a).
LIEUTENANT DIAL explained that "outside actions" such as taking
pictures or yelling and screaming aren't considered to be
interference; only physical interference constitutes
interference.
CHAIR RAMRAS said he is concerned that below-average law
enforcement officers won't take the same view.
REPRESENTATIVE SAMUELS asked whether taking flight after being
informed that a police officer is present would be considered
resisting arrest.
LIEUTENANT DIAL said it would not.
1:46:53 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law (DOL), concurred,
reiterating that the person would first have to be informed that
he/she is under arrest.
REPRESENTATIVE SAMUELS said that the new language in Section 4 -
"(4) disobeying an order of a peace officer" - strikes him as
being overbroad, regardless that subsection (a) specifies when
proposed paragraph (4) would be applied.
MR. SVOBODNY, in response to comments and a question, explained
that the term "arrest" means something different under search
and seizure law than it does for purposes of providing someone a
"Miranda" warning or when taking him/her into custody. For
purposes of AS 11.56.700 - the statute Section 4 proposes to
alter - an arrest is defined in AS 12.25.050 as: "An arrest is
made by the actual restraint of a person or by a person's
submission to the custody of the person making the arrest". In
comparison, for purposes of a Miranda warning, the standard is,
does a reasonable person under those circumstances feel that
he/she has the right to leave. Furthermore, under Alaska's
search and seizure law, it depends upon how long the person is
being detained. The word "arrest" is used in different contexts
in the same incident; for example, somebody may be arrested for
Miranda purposes at a different time in the event of a DUI
"arrest" than he/she is when actually restrained.
MR. SVOBODNY, in response to another question, opined that being
asked to get out of a vehicle by a police officer is merely a
request, and that the courts would agree. He acknowledged,
though, that according to case law, the question of whether
someone is under arrest may have to determined by using the
standard of whether a reasonable person believes that he/she
will be allowed to leave the vicinity; for example, if an
officer blocks someone's car so that it can't be moved, then
perhaps that person has been "arrested" for Miranda purposes but
not for "resisting arrest" purposes because the officer has not
yet "restrained" the person. Again, even if a person flees a
scene in which an officer has identified himself as being a
police officer and is shouting to the person that he/she is
under arrest, the person is not under arrest, under common law,
until the officer has touched the person. Again, for purposes
of Section 4, arrest must involve actual restraint.
REPRESENTATIVE SAMUELS asked whether he would be required to
pull over if an officer in a patrol car driving behind him turns
on its lights and siren.
LIEUTENANT DIAL said yes, a person would be required to pull
over if an officer has probable cause to make a traffic stop.
To not pull over would be a violation.
REPRESENTATIVE DAHLSTROM asked whether she could be construed to
be resisting arrest if, while driving alone on a deserted
roadway, she was instructed by someone who appeared to be an
officer to pull over, but she instead kept driving until she
felt she was in a safer location.
1:53:30 PM
LIEUTENANT DIAL said that in those situations the officer is
expected to use some discretion and apply a reasonable standard;
if there is a valid reason for the person not pulling over
immediately, the officer should consider that point. He noted,
too, that the prosecuting attorney also has some discretion with
regard to whether to prosecute such a person for the crime of
resisting arrest.
CHAIR RAMRAS referred to Section 7, and asked whether it would
give more power to police officers without providing judicial
oversight, and whether there would be a record of the officers'
telephonic testimony. He indicated that he is in favor of this
proposed change.
LIEUTENANT DIAL said Section 7 would not give law enforcement
any additional power or any leeway in acquiring a search
warrant. Rather, it just makes it easier to present evidence
telephonically, and the officer still has to meet a very high
standard in order to obtain a search warrant. He said it is his
impression that the court does record conversations in which an
officer is seeking a search warrant, whether that conversation
occurs telephonically or in person; the officer is also put
under oath in both circumstances. In response to a question, he
said that with a telephonic request for a search warrant, the
officer does have to indicate verbally that he has raised
his/her hand and is making a sworn statement, though there may
not be a witness present.
REPRESENTATIVE SAMUELS indicated that he is in favor of this
proposed change.
LIEUTENANT DIAL, in response to another question, offered his
belief that Section 7 will just apply in the few situations in
which the officer is not able to satisfy the court that the
evidence will be lost or destroyed if the officer takes the time
to obtain a search warrant in person. Furthermore, officers
will still have to meet the existing probable cause standard. A
search warrant issued telephonically is filled out by the
officer while he/she is speaking with the judge, a copy is given
to the individual at the scene, and a copy is filed with the
court at the first opportunity; once the document is signed by
the court, it is then provided to the individual along with an
inventory of the items seized.
1:59:12 PM
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), in response to a question, pointed out that the courts
can already issue a search warrant telephonically, and that
although the legislature felt the need to add some sideboards
regarding when such a search warrant could be issued, the
existing statute pertaining to telephonic search warrants was
requested by the Alaska Supreme Court several years ago. He
said that from the ACS's perspective, the procedure for
obtaining a search warrant is essentially the same regardless of
whether it is issued telephonically or in person; the officer
contacts the judge, goes on the record, is sworn in, and
[provides the required information and findings]. Section 7
merely removes the current restrictions but doesn't create any
new procedures.
REPRESENTATIVE SAMUELS surmised, then, that with the adoption of
Section 7, an officer will no longer have to show that evidence
might be lost or destroyed if he/she had to seek the search
warrant in person. He asked whether telephonic search warrants
are sought by officers in urban areas of the state as well.
MR. WOOLIVER clarified that the existing statute regarding
telephonic search warrants originated from a "valley" case; the
officers were posted outside of a "drug house" and didn't want
to leave the post attended by just one officer in order to
obtain a search warrant in person because they feared that the
evidence and/or suspects would disappear during that time. So
although existing law is referred to as applying in rural areas
of the state, it was prompted by some cases in urban areas of
the state.
2:02:00 PM
REPRESENTATIVE HOLMES surmised, then, that if Section 7 is
adopted, AS 12.35.015(a) could be used for any search warrant at
any time.
MR. WOOLIVER said that is how he would read Section 7. Pointing
out that the ACS doesn't take a position on HB 323, he offered
his understanding that although technically an officer could
call the court from across the street, both judges and police
officers feel that a person can be more persuasive in person
than over the phone.
REPRESENTATIVE HOLMES asked whether, with the adoption of
Section 7, it could be expected that officers would stop seeking
search warrants in person, and, if so, would that create a
problem.
MR. WOOLIVER posited that in general judges prefer to have
people come before them because otherwise it is difficult to
assess credibility - that's why arraignments are done either in
person or via videoconference. In response to a question, he
said that the ACS relies enormously on telephonic testimony in
all kinds of proceedings.
CHAIR RAMRAS, referring to [Section 9], asked whether there are
due-process issues raised by allowing the court to recommit an
incompetent defendant for an additional 90 days without a civil
[commitment] hearing.
MR. SVOBODNY said no, and pointed out that the language in
[Section 9] authorizing such recommitment is part of existing
law. In such cases, the person has already been arrested and
bail has been set, and 90 percent of the time the proceedings to
determine competency take place in jail.
MR. SVOBODNY, in response to a question, indicated that
[mentally ill] people are actually placed in the custody of the
commissioner of Department of Corrections (DOC) and put in jail,
generally in Anchorage, and it is the API's staff that goes to
the jail and conducts the necessary tests and interviews. This
is not in always the case, however; sometimes people are placed
in other facilities, and so technically the aforementioned
interviews and tests could be done in those other locations.
Also, technically, such people don't have to be in custody - the
court could release them on their own recognizance - but then
sometimes they can't be found again; in such instances, although
the staff at API might have determined that such people aren't
competent, they are then left to fend for themselves.
MR. SVOBODNY - in response to a question regarding Section 17,
proposed AS 12.70.280(2) [expanding the definition of who may
perform extradition duties] - explained that the U.S.
Constitution allows the governor of one state to have the
governor of another state issue a warrant to return a particular
person to the state in which he/she committed the crime for
which he/she is being sought. He offered his understanding that
Alaska's governor is currently the only governor who personally
signs such extradition papers, and noted that Section 17's
proposed language is patterned after language in other states'
statutes, one such state being Oregon. Indicating that he is
the person who "deals with extraditions," he relayed that this
proposed change is being suggested because he feels it would be
better to have this point reflected in statute.
REPRESENTATIVE SAMUELS noted that the language in Section 17
doesn't specify which of the governor's staff could be delegated
these duties - so it could be that the person the governor
appoints might not be qualified for such duties.
MR. SVOBODNY said that he reviews every potential extradition,
and sends the governor a written memorandum regarding whether a
particular extradition meets all the qualifications. He offered
his belief that the governor would like the ability to delegate
extradition duties to someone on her staff; that person would be
identified in writing and the information filed with the
lieutenant governor.
2:11:34 PM
CHAIR RAMRAS, referring to Sections 11 and 18, which pertain to
fish and game violations, asked when the last time AS
16.05.925(a) was updated, and what incident engendered these two
sections of the bill.
MR. SVOBODNY said that because one training judge for
magistrates interpreted the law a certain way, now all
magistrates use the same interpretation and aren't imposing
probation or requiring the forfeiture of the game via the
setting of a monetary amount of restitution. Prior to this
interpretation being advanced by the training judge, prosecutors
specializing in fish and wildlife cases would charge a person
with a misdemeanor crime, allow the person to "plea to a
violation" and to pay a fine - a portion of which would be
suspended - and to pay restitution for the game, and the court
would then put the person on probation for two years on
condition that he/she doesn't have any further fish and game
violations.
MR. SVOBODNY explained that this is how the vast majority of
such cases were dealt with. The aforementioned training judge,
however, at a training session last year, told the magistrates
in training that for game violations, they couldn't put someone
on probation or order forfeiture in the form of restitution.
The DOL doesn't get to litigate that point or appeal such
decisions. The fix offered by Sections 11 and 18 will make it
clear that in cases involving violations, the court can put a
person on probation and order forfeiture of the game.
MS. CARPENETI surmised that perhaps the training judge's
interpretation stemmed from the fact that existing AS
12.55.090(a) uses the word "crime" and technically - in Title 11
- a crime doesn't include a violation. The goal is to clarify
that when a good resolution can be found for both the defendant
and the State, that the statute defining probation recognize
that probation can be ordered for a violation as well as a
crime.
CHAIR RAMRAS, remarking on the low amounts outlined in Section
18, asked whether the schedule of restitution is the same for
residents and nonresidents, and whether, if it is, the
legislature could establish a different schedule for
nonresidents.
MS. CARPENETI said she would research when those amounts were
last updated, whether the same schedule applies to both
residents and nonresidents, and whether the legislature would be
able to establish different penalties for nonresidents. In
response to another question, she confirmed that Section 18 only
illustrates restitution amounts, and that there are also fines
that can be imposed.
REPRESENTATIVE SAMUELS asked her to also research whether the
fine schedule is the same for both residents and nonresidents.
MS. CARPENETI agreed to do so.
2:19:13 PM
REPRESENTATIVE SAMUELS referred to Section 21 [which in part
repeals the existing bar against the State going forward with a
criminal prosecution if the federal government has already done
so] and asked whether a conviction in federal court could be
used as evidence in a state prosecution.
MS. CARPENETI said no, the federal conviction cannot be used as
evidence of the bad act itself.
REPRESENTATIVE SAMUELS asked whether, if the State also
convicted the person, the state sentence could be postponed
until after the federal sentence was served.
MR. SVOBODNY indicated that it would depend on the circumstances
and what the federal and state sentences were. Although the
State could convict the person and impose a state sentence, the
[Alaska Court of Appeals] has ruled that the length of both
sentences must be considered in order to ensure that the total
sentence doesn't exceed the maximum sentence that could be
imposed under Alaska law.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. SVOBODNY, in response to the question of why the State would
want to prosecute someone who is also being prosecuted in
federal court, offered that the state might wish to pursue
prosecution if the person is acquitted in federal court.
MS. CARPENETI added that there it might also be done in
situations where the state wishes to impose state fines, for
example, for environmental crimes.
MR. SVOBODNY, in response to questions, said that the federal
government isn't precluded from prosecuting someone in federal
court just because he/she is already being or has been
prosecuted in state court, but that he isn't sure whether the
federal courts would consider the length of a state sentence.
To clarify an earlier statement, he noted that although Alaska's
courts would consider the amount of the federal sentence as a
basis for the state sentence, it could be that the person does
end up serving substantially more time.
VICE CHAIR DAHLSTROM asked whether the change proposed via
Section 11 would affect offenses other than fish and game
offenses that are punishable by both fines and imprisonment.
2:26:24 PM
MR. SVOBODNY said litter offenses.
REPRESENTATIVE COGHILL offered his understanding that failure to
have a CO2 detector is also such an offense.
MR. SVOBODNY noted that a person's first or second minor
consuming offense is as well.
MS. CARPENETI added that minor consuming is a violation and the
statute specifically provides for probation for a first or
second offense.
MR. SVOBODNY, in response to a question, noted that for minor
consuming offenses there is a mandatory fine for a first or
second offense.
VICE CHAIR DAHLSTROM asked that the question of which other
offenses would be impacted by Section 11 be researched further.
VICE CHAIR DAHLSTROM returned the gavel to Chair Ramras.
MS. CARPENETI, in response to comments and a question regarding
Section 10, explained that a rebuttable presumption is an
evidentiary presumption that the finder of fact takes into
consideration and weighs in favor of wherever the presumption
has directed [the court] to go. For example, under current law,
a defendant is rebuttably presumed to be competent when the
court is deciding whether he/she is competent to be tried. If
enough evidence is presented to overcome the presumption, then
the person is found to incompetent, and at that point the
incompetent person is rebuttably presumed to also be civilly
committable under Title 47. However, this doesn't preclude the
admittance of evidence that could "weigh the scale back in
opposition to the presumption." Under Section 10, a person who
is found to be incompetent to stand trial for a crime is
[considered] mentally ill and subject to civil commitment.
2:31:28 PM
REPRESENTATIVE COGHILL characterized that as a significant shift
in policy. He asked how that differs from what currently
occurs.
MS. CARPENETI said she would disagree with the assertion that
Section 10 constitutes a substantial change in Alaska law. The
presumption included therein arises after the court has found
that the person is incompetent to be tried. Furthermore, under
current statutes, one has to be severely impaired to be found
incompetent to be tried for the crime he/she is charged with,
and the judge will have just made that determination. At that
point, when civil commitment procedures are being considered,
there will be some weight given to that prior conclusion, that
the person is too impaired to be tried, and the person will
therefore also be presumed to be mentally ill or a danger to
himself/herself or others. But, again, that presumption doesn't
preclude the person from presenting evidence to the contrary.
REPRESENTATIVE COGHILL urged caution regarding this presumption,
and offered an example of a man who suffered a head injury,
assaulted someone, was deemed mentally incompetent, and was
placed in a psychiatric ward; although the injury later healed,
the label stuck with the man and he suffered because of it.
This type of incident already occurs under existing law, he
observed, but acknowledged that the presumption outlined in
Section 10 won't be assumed at the beginning of the process. He
then asked how "mentally ill" will be defined for purposes of
Title 12.
MS. CARPENETI offered that the bill provides that if a person
has been found to be incompetent to be tried for the crime
he/she is charged with committing, then he/she is referred to an
institution such as API that will evaluate the person to see
whether he/she should be civilly committed, and that would be
the procedure for which the DOL would then look at Title 47 -
civil commitment procedures - and to which the evidentiary
presumption provided for in Section 10 would apply.
REPRESENTATIVE HOLMES surmised that under the bill, the burden
is being shifted; instead of the State having to prove that the
person is mentally ill and a danger, the person would have prove
that he/she is not, even though he/she has already been
determined to be incompetent to stand trial and is therefore
probably least likely to be able to defend himself/herself.
Just because a person is found to be incompetent, does that also
mean he/she is dangerous? She noted that the second sentence in
Section 10 - proposed AS 12.47.110(e) - says that the court is
allowed to consider the conduct that the defendant was charged
with, even though, at that point, the person hasn't been
convicted of any crime.
MS. CARPENETI offered her understanding that in the arson
prosecution in Anchorage, the person was starting fires and was
found incompetent and was committed to API for evaluation and
treatment. During such evaluations, where staff is trying to
determine whether a person should remain committed, the standard
procedure presently is to look at how the person is currently
acting under medication rather than how he/she was acting when
he/she committed the crime, and in the aforementioned case, the
person wasn't starting fires while he was committed and he
promised not to start any fires again [though upon release he
did]. When public safety is an issue, the DOL feels it is
reasonable, when considering whether to release a person who
starts house fires, to look at his/her past behavior when
evaluating whether he/she is a danger to the public.
2:38:53 PM
CHAIR RAMRAS referred to Sections 1 and 2 and to the attorney
general's letter that accompanied HB 323, and noted that under
the bill, a person may commit assault in the fourth degree twice
without being subject to a felony.
MS. CARPENETI concurred with that summation.
MR. SVOBODNY, in response to a question, explained that under
the bill, a third crime of assault in the fourth degree wherein
the perpetrator recklessly causes physical injury to another
person or with criminal negligence causes physical injury to
another person by means of a dangerous instrument would be
considered a class C felony offense, and that physical injury
means causing pain or impairment of bodily functions. In
response to another question, he said that currently assault in
the fourth degree is a misdemeanor regardless of how many times
a person commits that crime.
REPRESENTATIVE COGHILL offered his understanding that shoving
someone could be considered assault in the fourth degree, and
noted that fear cause by repeated intimidation can sometimes
drive someone to suicide.
MS. CARPENETI, in response to questions and comments, explained
that expert testimony heard during the Senate's crime summit
meetings has indicated that Alaska's laws are good but could
tolerate some improvements, small changes that will make
significant differences in public safety and the enforcement of
law in Alaska, and HB 323 incorporates some of the changes
suggested at those meetings. As Mr. Svobodny explained during
his opening statement, Ms. Carpeneti remarked, HB 323 addresses
several problems in three areas: substantive law, procedural
law, and sentencing. She, too, relayed that forthcoming
testimony will detail one of the cases that has engendered the
proposed changes to the procedures pertaining to a person's
competency to stand trial.
2:45:20 PM
STEPHEN WEST, District Attorney, 1st Judicial District
(Ketchikan), District Attorneys, Department of Law (DOL), noted
that he would be speaking to Sections 8-10 and 19-20, all of
which deal with persons found incompetent to stand trial. He
relayed that the proposed changes arose out of a case involving
a defendant who, in 2004, was charged with five counts of arson
in the first degree and one charge of assault in the third
degree. Between 2003 and 2004 the defendant burnt five
different buildings, three of which were residences, two of
which were totally destroyed. At the time [of the fourth fire],
an individual living in the neighborhood saw the defendant
leaving the [burning] building and told the police - who took
the defendant into custody whereupon he admitted to burning four
buildings - but two weeks later this individual found the same
defendant starting another fire and ended up burning his hands
attempting to put that fire out.
MR. WEST explained that the defendant was adjudged to be
incompetent and was sent up to Anchorage, where the psychiatrist
at API determined that the defendant was incompetent "to
proceed" but had he been competent it would not have been a case
of temporary insanity; in other words, the defendant knew that
what he was doing was wrong, but he simply didn't understand how
the court process worked. Since the criminal case was being
dismissed, Mr. West contacted the API about possibly having the
defendant civilly committed. The API contacted the defendant,
who was still in Anchorage at the time, and determined that the
defendant wasn't committable because, by promising that he
wouldn't start any more fires, it was felt that he didn't pose
an immediate danger. That criminal case was dismissed on
3/20/06 and the defendant was released; then, on 7/21/06,
another building in Saxman was burnt down, and the defendant was
found on the scene and so was again charged with arson in the
first degree after only being out of the API for four months.
MR. WEST said that again the defendant was adjudged incompetent,
was sent up to Anchorage, and the API did another evaluation.
Initially a different psychiatrist determined that the defendant
was incompetent to stand trial but thought that perhaps he could
made competent by educating him with regard to court procedures.
That worked, and so the defendant was found to be competent to
stand trial. Mr. West relayed that his office is now proceeding
with the 2006 arson case and will re-indict the defendant on the
2004 arsons. However, the defense has hired an expert and is
trying to reopen the issue of incompetence. If that attempt is
successful, then the charges will again be dismissed, and Mr.
West said he is sure that the same thing will happen again: the
API will go through the same process, the defendant will again
promise not to start any more fires, and he'll be released.
MR. WEST pointed out that the defendant is someone who has
admitted to starting several fires and is clearly extremely
dangerous, but under existing law, he can't be committed because
he agrees not to set any more fires. This defendant has proven
himself to be incompetent, and there is at least probable cause
to believe that he is a harm to others, and so it is not as if
the prosecution is attempting to get a competent person
committed; rather, the defense has already proven in court that
it's more likely than not that the defendant is mentally
incompetent.
MR. WEST offered that [Section 10] merely establishes a
mandatory presumption that such a defendant is incompetent and
is a danger and therefore needs to be civilly committed unless
he/she can prove either that he/she is not a danger or that
he/she is no longer mentally ill. The proposed change would
address situations in which currently an individual found
incompetent to proceed with a criminal trial is simply turned
loose in the community because he/she is deemed to not be
committable; currently such a person faces no consequences for
his/her actions, and there is no way to protect the public from
such a person. In conclusion, he opined that the aforementioned
provisions should be enacted so that this problem doesn't arise
anymore.
2:52:07 PM
REPRESENTATIVE SAMUELS asked how competency is determined.
MR. WEST explained that in a criminal case, the law provides
that the defendant is presumed competent, and so it is the
defendant that has to prove that he/she is instead incompetent.
Both the defense and the prosecution bring in expert witnesses,
and the judge then makes the determination of whether the person
is incompetent.
REPRESENTATIVE DAHLSTROM said it is amazing to her that a person
who is competent enough to plan a crime and to know that what
he/she is doing is wrong can then be found to be incompetent
with regard to being held accountable for his/her actions. In
the examples provided, she suggested, the defendants appear to
be psychopathic and without conscience, rather than incompetent.
Referring to the defendant from Ketchikan, she said it would be
interesting to know whether he is gainfully employed or is on
the public welfare system.
[Chair Ramras turned the gavel over to Vice Chair Dahlstrom.]
MR. WEST expressed concern that if the individual in Ketchikan
is again found to be incompetent, without the proposed changes
being enacted, he will simply continue to set fires and
eventually someone will die as a result. He offered his belief
that under the bill, the defendant would be kept locked up since
even the psychiatrist who found the defendant incompetent in
2004 opined that the defendant should be kept locked up with 24-
hour supervision because he is dangerous.
2:56:37 PM
QUINLAN G. STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), said that the
PDA has no position of HB 323, and that he is available for
questions.
2:57:21 PM
JOSHUA FINK, Director, Anchorage Office, Office of Public
Advocacy (OPA), Department of Administration (DOA), said that
the OPA has no position on HB 323 but does have some concerns
regarding the commitment provisions.
VICE CHAIR DAHLSTROM, in conclusion, surmised that the goal of
the bill is to make existing law better and make communities
safer places to live. She relayed that HB 323 would be held
over.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:58 p.m.
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