Legislature(2009 - 2010)
2010-02-03 Senate Journal
Full Journal pdf2010-02-03 Senate Journal Page 1396 SB 252 SENATE BILL NO. 252 BY THE SENATE RULES COMMITTEE BY REQUEST OF THE GOVERNOR, entitled: "An Act relating to the crime of failure to appear; relating to arrest for violating certain conditions of release; relating to release before trial, before sentence, and pending appeal; relating to material 2010-02-03 Senate Journal Page 1397 witnesses; relating to temporary release; relating to release on a petition to revoke probation; relating to the first appearance before a judicial officer after arrest; relating to service of process for domestic violence protective orders; making conforming amendments; amending Rules 5 and 41, Alaska Rules of Criminal Procedure, and Rules 206 and 603, Alaska Rules of Appellate Procedure; and providing for an effective date." was read the first time and referred to the Judiciary Committee. The following fiscal information was published today: Fiscal Note No. 1, zero, Department of Law Fiscal Note No. 2, zero, Department of Administration Fiscal Note No. 3, zero, Department of Administration Fiscal Note No. 4, zero, Department of Corrections Governor's transmittal letter dated February 1: Dear President Stevens: Under the authority of Art. III, Sec. 18, of the Alaska Constitution, I am transmitting a bill that revises State bail statutes and provides better direction to judicial officers in making decisions about the release of a person charged with a crime. A judicial officer's decision to release or detain a person who has been charged with a crime is critical to the justice system and the safety of the community. The guidance currently provided in the State's bail statutes was in effect before statehood, and is in many respects outdated. The bill includes a general revision of the procedures and standards in AS 12.30. Although the bill retains many of the general guidelines in current law for release of persons charged with crimes, there are important differences that would greatly improve the safety of Alaskans. For example, in cases where a person is charged with a serious crime such as sexual assault, the bill would adopt a rebuttable presumption that no release condition or combination of release conditions would assure 2010-02-03 Senate Journal Page 1398 the appearance of the defendant or the safety of others. This would result in a more serious inquiry into the release conditions that would reasonably assure that the person charged would appear in court and would not pose a danger to the victim or the public. The bill would impose standards on persons who may serve as a third- party custodian for a defendant. Appointment of a third-party custodian is useful in certain cases, but only if the custodian takes their duties seriously. The bill requires a person to appear in court and acknowledge the responsibilities of a custodian, and be notified that failure to undertake these responsibilities can result in the custodian being charged with a crime or being held in contempt. It also prohibits a person from serving as a custodian if the person is a witness in the defendant's case, has recent criminal convictions, or is on probation. Under current law, a person found guilty of an unclassified or class A felony may not be released before sentencing or during an appeal. The bill extends this prohibition to include persons convicted of a sexual felony, or of a class B or C felony if the person has a previous felony conviction within the past 10 years. There are several reasons for these changes. First, a person convicted of a sexual felony is subject to a potential maximum term of imprisonment of 99 years, and for that reason poses a higher flight risk. Second, the high recidivism rate for sex offenders raises the danger to the public if the person is released. Further, the provision addressing persons convicted of a class B or C felony with a prior conviction responds to a decision by the Alaska Court of Appeals, Bourdon v. State, 28 P.3d 319 (Alaska App. 2001). Bourdon found the current law on release of persons with prior convictions to violate the equal protection clause of the Alaska Constitution. The bill corrects the concerns noted by the court in Bourdon. The bill also would clarify how to deal with material witnesses that are unlikely to appear for trial even if served with a subpoena. Under current law a material witness may be arrested. Currently, there are no standards allowing for release from confinement. This bill would allow the witness to be released after providing deposition. Current law requires a person who is arrested for a crime to be brought before a judicial officer within 24 hours of arrest. Many states and the federal law require the first appearance within 48 hours, and this 2010-02-03 Senate Journal Page 1399 deadline is proposed in the bill. There are good reasons for the change. Forty-eight hours would allow the prosecutor adequate time to see the police report, make informed charging decisions, and to make more rational bail arguments to the judicial officer. It would also allow time to contact a victim for input about whether the defendant would present a danger if released without particular conditions. A victim has a right to be heard at a bail hearing; 48 hours gives the prosecution time to make this right meaningful. The bill addresses the safety of a victim of domestic violence by adopting tough standards for when a domestic violence offender may return to the victim's residence. The current statute forbids an offender from returning to the victim's residence. However, this prohibition was overturned by the court in Williams v. State, 151 P.3d 460 (Alaska App. 2006). The court found that the absolute prohibition violated the constitutional guarantee of equal protection of the law. In response to Williams, the bill adopts standards for the court to apply in deciding whether it is safe and appropriate to allow the person to return to the home of the victim. These standards emphasize the safety of the victim. Passage of this bill would protect all Alaskans, and particularly many of our most vulnerable friends and neighbors. I urge your prompt and favorable consideration of this bill. Sincerely, /s/ Sean Parnell Governor