Legislature(1995 - 1996)
03/13/1996 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE March 13, 1996 1:30 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Mike Miller Senator Al Adams Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR CS FOR SENATE BILL NO. 159(HES) "An Act relating to advance directives for mental health treatment." CS FOR HOUSE BILL NO. 370(JUD) "An Act relating to the provision of legal services at public expense." SENATE BILL NO. 268 "An Act relating to release before trial in cases involving controlled substances." PREVIOUS SENATE COMMITTEE ACTION SB 159 - See Senate Health, Education & Social Services minutes dated 2/14/96. HB 370 - No previous Senate committee action. SB 268 - No previous Senate committee action. WITNESS REGISTER Mary Hughes Municipality of Anchorage P.O. Box 196650 Anchorage, AK 99519-6650 POSITION STATEMENT: Supports SB 268 Senator Steve Rieger Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SB 159 Dorothy Peavey Mental Health Consumers of Alaska 430 W. 7th #220 Anchorage, AK 99501 POSITION STATEMENT: Supports SB 159 Richard Rainery Alaska Mental Health Board 431 N. Franklin #101 Juneau, AK 99801 POSITION STATEMENT: Supports SB 159 Bob Bailey Anchorage Chamber of Commerce 441 W. 5th Ave. Anchorage, AK POSITION STATEMENT: Supports SB 268 Anne Carpeneti Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Opposes SB 268 Mary Vollendorf Legislative Aide Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for sponsor of SB 268 Representative Terry Martin Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of HB 370 John Salemi Public Defender Agency 900 W 5th Ave. Ste. 200 Anchorage, AK 99501-2090 POSITION STATEMENT: Opposed to HB 370 Shirley Warner Anchorage Police Department 4501 S. Bragaw St. Anchorage, AK POSITION STATEMENT: Supports HB 370 ACTION NARRATIVE TAPE 96-21, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:28 p.m. and began taking testimony while awaiting a quorum. The first order of business was SB 268. SB 268 PRETRIAL RELEASE FOR DRUG OFFENSES MARY HUGHES, representing the Municipality of Anchorage, stated Senator Leman received letters supporting SB 268 from the MOA and Anchorage Police Department. SB 268 provides a checklist for conditions to grant bail in drug and alcohol cases. In Anchorage drug dealers are continually picked up by police but are back selling drugs in the same location within a period of hours because it is too easy to get out on bail. Police have re-arrested people before they've gone to trial for the first offense. The Deputy Attorney General sent out a notice to all criminal division lawyers on January 24, indicating that specific bail conditions were to be requested by the state. She applauded Ms. Otto's efforts, but the MOA would like those conditions placed in statute to provide uniformity. Number 188 SENATOR TAYLOR questioned the constitutionality of requiring a person alleged to have committed an offense to engage in drug screening and counseling as a condition of bail. JOHN SALEMI, Alaska Public Defender Agency, agreed constitutional questions may exist. He commented if a judge were to impose treatment as a condition of release that would cut against the presumption of innocence. Second, when a person enters treatment, he/she has to divulge information about drug use, which would be in conflict with the person's right to remain silent or to not give self-incriminating testimony. He did not believe that changing the bail statute will change the way in which drug trade is carried on in a community. An area restriction will only force a dealer to move to a different area. He warned against micro-managing the criminal justice system by making statutory changes and suggested providing judges with training at a judicial conference or establishing new bail conditions through an administrative approach. SENATOR TAYLOR announced a quorum was present, and had been for most of the previous testimony. SB 159 MENTAL HEALTH TREATMENT DECLARATIONS SENATOR STEVE RIEGER, sponsor of SB 159, summarized the legislation as follows. SB 159 provides advance directives for mental health treatment. Currently patients are entitled to make an informed consent about the type of treatment used for mental illness however when patients undergo treatment they are often not legally competent to make treatment decisions. SB 159 creates a structure whereby a potential patient may, in advance, appoint an attorney- in-fact to make the decision on the patient's behalf, or to fill out an advanced directive in writing which states the preferred course of treatment when legally incompetent. SENATOR TAYLOR noted his appreciation for the legislation since there are times when people are lucid and capable of making this type of decision yet know the possibility of becoming incompetent in the future exists. SENATOR GREEN announced three of the committee members heard testimony on SB 159 in the Senate HESS committee. DOROTHY PEAVEY, representing Mental Health Consumers of Alaska, testified in support of SB 159. The bill gives more power and authority to mental health consumers in making treatment decisions at a time when they have very little voice or validity. If the choices a patient makes are inappropriate, medical staff can consult with the attorney-in-fact. SB 159 also provides medical staff with a starting point, because often patients arrive with little paperwork or treatment history and people in crisis are not the best historians or in a position to give permission for medication. This measure has been endorsed by the Mental Health Board, the Mental Health Directors' Association, Southcentral Counseling, Alaska Psychologists' Association, Charter North Hospital, Nursing Home and Hospital Association, the Bridges Campaign, and the Department of Health and Social Services. Although SB 159 has a zero fiscal note, it may save money because at present, when a person is admitted to a hospital and refuses medication, the state must go to a forced medication hearing, tying up the time and efforts of a judge, an attorney general, a public defender, and a state psychiatrist. SB 159 will decrease the need for many of these hearings. SENATOR TAYLOR noted he has met with Dr. Abel who voiced the Department of Health and Social Services' support for SB 159. RICHARD RAINERY, Executive Director of the Alaska Mental Health Board, expressed the Board's support for SB 159 and urged the committee's favorable action. There being no further testimony, Senators Ellis and Green jointly moved CSSB 159(HES) to the next committee of referral with individual recommendations. There being no objection, it was so ordered. SB 268 PRETRIAL RELEASE FOR DRUG OFFENSES BOB BAILEY, a member of the Anchorage Chamber of Commerce Board of Directors and Co-Chair of the Chamber's Crime Prevention Board, testified SB 268 is part of the Crime Prevention Board's legislative package. Downtown businesses in Anchorage see the result daily of the "catch and release" problem with drug dealers, who are arrested but out on the streets within hours selling drugs again. SB 268 provides police with a tool to keep drug dealers away from the area where they sell drugs. ANNE CARPENETI, representing the Department of Law, discussed DOL's concerns with SB 268. Although DOL agrees the bail conditions listed in the bill are good, and are routinely asked for along with additional conditions in drug and alcohol cases, it is concerned about embodying conditions in statute as it may imply to the court that only those conditions are to be met. DOL is also concerned about creating statutory bail conditions for particular offenses. Current bail statutes apply across a broad range of offenses. Number 306 SENATOR ELLIS asked if DOL is concerned that a person might appeal a conviction, or the conditions of release, based on the fact that an additional condition was not in statute. MS. CARPENETI clarified DOL is concerned that if SB 268 passes, a prosecutor might not be able to convince a judge to impose other conditions that are appropriate to a particular case. SENATOR TAYLOR agreed placing the conditions in statute may limit the judge, but noted there is a high level of frustration with the lack of adequate bail conditions required of this class of offenders. Last year the committee heard a bill to prevent a second time drug offender from being granted bail, but the constitutional ramifications were significant. MS. CARPENETI offered to provide committee members with the list of conditions requested in every drug and alcohol bootlegging case, which is more extensive than what is contained in SB 268. DOL is in the process of working with the court in Anchorage to develop a checklist. SENATOR ADAMS suggested adding the other conditions requested by DOL to SB 268. He questioned whether SB 268 attempts to fix a problem that doesn't exist, and instead ties a judge's hands. Number 337 SENATOR MILLER asked whether the "catch and release" problem does exist, and asked DOL for alternatives to fix the problem. MS. CARPENETI replied DOL is working with district court judges on the conditions it is asking for, and is hoping to come to a resolution and develop forms. SB 268 does not require any conditions be imposed, it is discretionary. MARY VOLLENDORF, staff to Senator Leman, sponsor of SB 268, questioned whether a judge has more authority to require conditions if they are set out in statute, as opposed to a policy directive. SENATOR TAYLOR responded there is no weight gained by placing the conditions in statute, and by listing them, the legislature may be excluding some conditions judges would be willing to consider. The bill may preclude the judge from using a new or unique bail condition. He used the analogy of DWI offenses, which carry a one- year prison sentence and $5,000 fine as a maximum penalty. The minimum mandatory sentence is three days in jail which is what judges usually impose no matter what the conditions. He echoed DOL's concern that the minimum sentence is an easy pattern for a judge to drop into. SENATOR TAYLOR announced SB 268 would be held in committee for a few days to give Senator Leman's staff and DOL the opportunity to reconsider the legislation. HB 370 LEGAL SERVICES PROVIDED AT PUBLIC EXPENSE REPRESENTATIVE TERRY MARTIN testified as Chairman of the Legislative Budget and Audit Committee. HB 370 is the result of a recommendation by the audit division because eligibility procedures need to be formalized and uniformly applied. After the legislative audit on the Public Defenders' Agency was completed, the Anchorage Police Department and Alaska State Troopers agreed with the need to unify the eligibility criteria for public defender services. In the Anchorage area public defenders are sometimes on the scene before the police. Indigence would be decided by the court at the first court appearance. Rural areas will not be affected by HB 370 because there are very few, if any, private attorneys practicing in those areas, therefore a public defender would be appointed. If a judge later decides a rural client is not indigent, the client will be required to hire a private attorney. REPRESENTATIVE MARTIN mentioned a public defender position is needed in Bethel and questioned whether a position could be moved from Anchorage. He believed the bill would decrease the cost of the Public Defender Agency in Anchorage by decreasing its workload. He repeated the need for the court system to decide indigent status rather than the Public Defenders Agency. Number 430 SENATOR ADAMS stated that although HB 370 originated with Legislative Budget and Audit, the motion made by that committee was to address the eligibility screening procedures. HB 370 extends beyond that and is unconstitutional under art. I, sec. 11, of the Alaska Constitution which provides for the assistance of counsel for a person's defense. REPRESENTATIVE MARTIN replied it has been made clear at hearings that HB 370 is not unconstitutional because a judge determines indigence at the very first court appearance and in those areas where a private attorney is not available, the first defense a person would have is a public defender. HB 370 does not diminish the ability of the poor to have counsel, it removes the ability of wealthy people to use the public defender's services. SENATOR TAYLOR commented Senator Adams' concern is that HB 370 shifts the time at which a public defender would be appointed. Current law gives a person the right to a public defender upon being detained by an enforcement officer, as the result of a serious crime. HB 370 provides for a public defender once a person has been formally charged or committed, as the result of a serious crime. In Section 3, the same provision occurs, and requires the law enforcement officer's concern upon commencement of detention, which is after a person has been arrested, booked, and placed in a holding cell. That provision moves the public defender's ability to work on behalf of the defendant by about 24 hours in the average criminal case. Number 484 REPRESENTATIVE MARTIN responded that when a person is detained, it is the police officer's duty to get the person under control. In urban Alaska, there are night courts, so normally a judge is available and can determine whether a person is indigent right away. Sometimes a person may be detained for 8 or 12 hours, until there is an arraignment. In rural areas the problem is not whether a judge will appoint a public defender, it is whether a public defender is available. Eliminating public defender positions from Anchorage and placing them in rural areas will alleviate that problem. Under Rule 92 it is clear the judge will make the determination of indigence based on evidence provided. SENATOR ADAMS said he was willing to work on legislation that addresses screening procedures but not on the provisions of HB 370 that violate the Constitution and Alaska Criminal Rule 5(B) which provides that immediately after arrest the prisoner shall have the right to telephone or otherwise communicate with both an attorney and a relative or a friend. JOHN SALEMI, representing the Public Defenders' Agency, discussed a murder case in Anchorage which was solved through the help of the public defender's office, and resulted in a murder conviction of three people, without a trial. Had HB 370 been in effect, the Public Defender's Agency would not have been able to provide services to a key participant in the case, who was indigent and unwilling to cooperate with law enforcement officers, but had not been arrested. To his knowledge, the Public Defenders' Agency has never represented a millionaire, and HB 370 will not prevent that from happening anyway. If HB 370 passes, a public defender can only get involved with a suspect or person who wants legal advice if that person has been formally charged and brought to court. He insisted the Public Defenders' Agency has assisted law enforcement efforts countless times, often before a person is formally charged or arrested. Over 99 percent of public defender cases come from the court system now, therefore HB 370 will not change the public defenders' agency workload. In less than one percent of the cases the agency either self-appoints when a person walks into the office for legal advice, or the police contact them, which will be eliminated by HB 370. Miranda rights require an attorney be made available. SENATOR MILLER believed the issue to be at what income level a person can afford a private attorney. The perception that people who can afford private counsel are receiving public defender services exists. If that is true, those people are taking valuable resources from people who cannot afford counsel. He asked for Mr. Salemi's help in determining at what level of income a client should be denied services. MR. SALEMI believed two issues are being debated. The first issue is to determine what the eligibility rules should be, and the only provision in the original bill which addressed that issue required the court to make an eligibility determination on the record. Testifying before the House Judiciary Committee, Art Snowden stated if those determinations had to be made on the record, the court system would need six or seven more judges, so that provision was deleted. The problem seems to center on the fact that the court system does not have an adequate screening mechanism in place. He informed committee members that several state agencies are currently working with the court system to fine tune eligibility screening issues and a pilot project is being designed. SENATOR TAYLOR commented that to the extent a person is capable, partial payment should be required for services. TAPE 96-21, SIDE B Number 000 SHIRLEY WARNER, Anchorage Police Department, testified that six years ago it was brought to her attention by investigative staff that public defenders were appointing themselves as counsel to obstruct interviews with offenders. Letters were written to correct the problem, however the problem is ongoing and affects hundreds of cases. The Public Defenders' Agency calls detectives and orders them not to talk to certain people, some of who are not detained. She contended that public defender representation in many of these cases is not a wise use of public resources as this service does not support the interest of victims of crime, and hampers law enforcement's duty to do its job. She stated the APD's support of HB 370 and urged the committee to pass the legislation. REPRESENTATIVE MARTIN asserted the legislature needs to require the court to be the decision maker when appointing counsel, not the public defenders. In Anchorage the public defenders are in contact with a suspect before the police are even able to get a search warrant signed which interferes with investigations. SENATOR TAYLOR repeated there are two issues: the screening procedures used to ensure indigence qualification; and the time of appointment and how appointment for representation occurs. Currently law enforcement officers can see to the appointment of a public defender, if during questioning, once a person is advised of his/her Miranda rights, the person refuses to provide information without the advice of counsel. REPRESENTATIVE MARTIN explained the time for appointment of an attorney would be during arraignment, or the individual could make a phone call to a public defender. He stressed in a rural area a public defender would automatically be appointed if no private attorneys were in the area, despite a determination of indigence. SENATOR TAYLOR asked how a public defender would be more promptly appointed in a rural area than in an urban area if HB 370 passed. REPRESENTATIVE MARTIN answered in the rural area the public defender is probably the only attorney available. SENATOR TAYLOR explained in a rural community, a person being questioned by the police, but refusing to talk without an attorney present, would not be able to talk to a public defender until formally charged and given a court appearance, which could be 24 hours later, under HB 370. REPRESENTATIVE MARTIN stated realistically, in rural areas, judges are not available at all hours of the day and night. SENATOR TAYLOR asked how a police officer could continue to talk with the suspect before an arrest occurs and a public defender is appointed. REPRESENTATIVE MARTIN replied the police officer would try to get someone available to help that individual. He did not believe the problem to be in small towns, but in larger cities. SENATOR TAYLOR assured Representative Martin that if a suspect were being questioned in Wrangell tonight, no one would be available to provide counsel to the person since he is the only attorney in town. REPRESENTATIVE MARTIN asked what the police do in Wrangell now. SENATOR TAYLOR stated if a person refused to talk after being read his/her Miranda rights, the police officer would call a public defender for representation, but under HB 370, the police officer could not do that until after the person was arrested. REPRESENTATIVE MARTIN stated the problem is not with police officers, it is that public defenders are aggressively seeking cases and that judges do not use correct criteria to determine indigence. SENATOR TAYLOR encouraged the review of screening criteria but expressed concern about the Miranda right issue and eliminating the law officer's ability to appoint a public defender. REPRESENTATIVE MARTIN stated the court clearly has that authority. The law enforcement officer would take appropriate action to get representation while the suspect is detained, but the ultimate decision rests with the judge. CAPTAIN WARNER informed the committee when the APD is detaining a suspect, and the suspect requests an attorney after being read his/her Miranda rights, the APD gives the person the opportunity to call an attorney. If the person says he/she cannot afford an attorney, the interview stops. The problem lies in the fact that public defenders step in before a suspect or witness is detained, which hampers APDs' ability to investigate. Number 440 SENATOR TAYLOR asked Captain Warner if the APD wants line 9 of page 2 removed, which removes the officer's opportunity to appoint a public defender. CAPTAIN WARNER felt the court system was better suited to determine eligibility. SENATOR TAYLOR stated the final determination would not rest with police officers, but indigence guidelines would have to be provided and the client would have to take a sworn oath. The police officer would appoint the public defender but the court would review that appointment. CAPTAIN WARNER assumed the full screening process for eligibility was under AS 18.85.100. SENATOR TAYLOR explained it is, but HB 370 would amend that section. CAPTAIN WARNER responded she had no objection to giving law enforcement officers the ability to contact the public defenders' office to help with a suspect. Number 402 SENATOR TAYLOR announced the committee could take no further testimony at this time, due to other schedule commitments, but would reschedule HB 370 for further testimony in the near future. SENATOR ADAMS asked Mr. Salemi to send the committee information on eligibility criteria procedures. He also requested a legal opinion on any conflict with Article I, Section 2 of the Alaska Constitution and Alaska Criminal Rule 5(B). SENATOR TAYLOR agreed to obtain the legal opinion. SENATOR ADAMS asked Representative Martin if he would support the Governor's budget numbers for the Court System, Department of Public Safety, and Department of Corrections since their workloads would be increased if HB 370 passes. REPRESENTATIVE MARTIN replied HB 370 was introduced to provide a tool for public protection and to correct a misuse of office by decreasing the aggressive approach used by the public defenders' office. SENATOR ADAMS again asked Representative Martin if he would support the Governor's budget numbers for those offices to protect the public. REPRESENTATIVE MARTIN noted HB 370 does go beyond what was intended by the Legislative Budget and Audit Committee, because other stories and information came up during the process indicating additional issues needed to be addressed. SENATOR MILLER commented the Court System is working on this issue and a bill is working its way through the committee process that allows the Court System to get income information from the Employment Security Division. SENATOR TAYLOR announced HB 370 would be heard at the next committee hearing and adjourned the meeting at 3:37 p.m.