Legislature(1995 - 1996)
03/13/1996 01:30 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= 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.
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