Legislature(2007 - 2008)BUTROVICH 205
02/08/2007 03:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB69 | |
| SB45 | |
| SB69 | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 64 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 69 | TELECONFERENCED | |
| += | SB 45 | TELECONFERENCED | |
| += | SB 69 | TELECONFERENCED | |
| += | SB 5 | TELECONFERENCED | |
CSHB 69(JUD)-NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY
CHAIR FRENCH announced the consideration of HB 69. He asked for
a motion to adopt the \M committee substitute (CS).
SENATOR HUGGINS made a motion to adopt Version \M, labeled 25-
LS0317\M, as the working document. There was no objection.
3:34:49 PM
REPRESENTATIVE RALPH SAMUELS, Sponsor of HB 69, said the bill is
a choice between several constitutional issues. He read Article
III, Section 21, of the Alaska State Constitution which states
in part:
Subject to procedure prescribed by law, the governor
may grant pardons, commutations, and reprieves, and
may suspend and remit fines and forfeitures. This
power shall not extend to impeachment.
REPRESENTATIVE SAMUELS said the conflict is with Article I,
Section 24 of the Alaska State Constitution. It states in part:
Crime victims, as defined by law, shall have the
following rights as provided by law: ... the right to
be heard, upon request, at sentencing, before or after
conviction or juvenile adjudication, and at any
proceeding where the accused's release from custody is
considered; ...
REPRESENTATIVE SAMUELS said HB 69 simply establishes a procedure
that the governor must follow in cases of executive clemency.
This is good public policy, he said, and the fundamental crux is
that the victim must be notified. A governor may choose to
pardon someone, but he or she must pass the "red face test" and
call the victim. He stated.
REPRESENTATIVE SAMUELS noted that the bill has changed since it
passed the House. Originally the victim was notified as part of
the application procedure, but that was changed to accommodate a
situation where the governor grants a pardon without an
application having been made.
The House version also said that a victim would be notified
regardless of whether a request was made. That language was
cleaned up, he said. Although the 180 days might be questioned,
that is the time that the Alaska Board of Parole said it needed
for its review process. He noted that the Department of Law
might give its perspective on that point.
3:39:54 PM
SENATOR HUGGINS asked where victim notification is located in
the bill.
REPRESENTATIVE SAMUELS said page 2, line 9 says:
The board shall provide notice of any action taken by
the governor to the Department of Law, the office of
victims' rights, and the victim.
The original legislation said, "If requested by the victim..."
but a pardon could take place 20 years after a crime and someone
may not have asked to be notified at the time. The idea is to
make a best effort to notify, he said.
3:40:57 PM
Senator Therriault arrived.
CHAIR FRENCH commented that it's fair to say that the bill errs
on the side of notification rather than waiting for someone to
ask to be notified.
REPRESENTATIVE SAMUELS agreed.
3:41:36 PM
SENATOR THERRIAULT asked if the language about applying for
notification had been removed because it was problematic.
REPRESENTATIVE SAMUELS replied that language became irrelevant
because victims will be notified under any circumstances.
3:42:20 PM
CHAIR FRENCH opened public testimony.
3:42:48 PM
LAWRENCE JONES, Executive Director, Alaska Board of Parole,
Department of Corrections (DOC), said he made lengthy testimony
at the first [House] judiciary hearing; he was quite comfortable
with the bill then and is more so now. He supports the proposed
change in verbiage from "application" to "consideration" and as
a matter of logistics, 180 days is quite adequate. From the
Alaska Board of Parole perspective, the bill will be quite
workable, he stated.
SENATOR WIELECHOWSKI asked if there is a definition for "victim"
that would be used and if there would be a requirement that all
family members be notified.
MR. JONES replied there is a statutory definition for victim
that is relatively broad. It extends through to the family if
the victim is deceased and to the parents in the case of a
minor. Anecdotally the board will make every effort to determine
a reasonable cutoff for victim notification, he said.
3:46:06 PM
SUSAN SULLIVAN, Executive Director, Victims for Justice (VFJ),
stated strong support for the bill particularly with the recent
changes. She suggested that on page 2, line 7 it might be more
consistent to use the term "consideration" instead of
"application".
CHAIR FRENCH asked the sponsor to comment.
SENATOR THERRIAULT said the change in terminology might be a
good idea because under the existing system the governor could
take action without an application having been filed.
REPRESENTATIVE SAMUELS said he tends to agree, but he would
defer to the Department of Law.
CHAIR FRENCH asked Mr. Svobodny if, on page 2, line 7, it would
be more desirable to say: "The victim may comment in writing to
the board on the consideration for executive clemency."
3:49:12 PM
RICHARD SVOBODNY, Chief Assistant Attorney General, Criminal
Division, Department of Law (DOL), said he would agree and it is
in conformity with the sponsor's intent.
3:49:34 PM
SENATOR THERRIAULT said the governor has to provide notice to
the parole board for an investigation. If an application isn't
part of that process then it should be broadened, he stated.
CHAIR FRENCH asked, for the sake of clarity, if everyone was
strictly considering the case where the governor has sua sponte,
on his or her own, considered granting clemency outside the
normal application process.
SENATOR THERRIAULT asked if the governor would have the power to
grant clemency without interaction with the board.
MR. SVOBODNY said it's certainly not unheard of for the
executive to grant clemency or commute sentences without a
particular application having been made.
REPRESENTATIVE SAMUELS said Section 1 states that the governor
may not grant clemency without having provided notice of
consideration to the board of parole. Further in the process, he
said, the board must notify the victim.
CHAIR FRENCH asked if it is fair to say that a governor who
believes that this is a restriction on his or her constitutional
power to grant clemency would have to challenge the
constitutionality of the statute.
REPRESENTATIVE SAMUELS said HB 69 doesn't remove the governor's
right to grant clemency; it simply sets up procedures.
3:52:58 PM
SENATOR WIELECHOWSKI said page 1, lines 6, 9 and 15 talk about
notice of consideration, so it would seem that it would be
consistent to change "application" to "consideration" on page 2,
line 7. He is comfortable that the bill is constitutional for a
number of reasons. The legislature has the authority to set
procedures and also there is a constitutional provision that
discusses victims' rights. He asked the sponsor to touch on
that.
REPRESENTATIVE SAMUELS said Article 1, Section 24 lists a myriad
of rights that victims have including: right to be reasonably
protected from the accused; the right to bail; the right to be
treated with dignity, respect and fairness; the right to a
timely disposition of a case; and the right of the accused to be
present at a criminal or juvenile proceeding. A governor
wouldn't be required to follow the procedure, he said, but more
than likely all would choose to do so.
3:56:35 PM
SENATOR McGUIRE said the argument is practical and compelling,
but the phrase "may not grant" on page 1, line 4 raises a
separation of powers issue. That changes the generous grant
authority and requires a governor to take another step before
executing that power. With that in mind, she suggested placing
the burden on the board and saying, "The board of parole shall
send a notice to the victim irrespective of whether or not the
application has been forwarded to the board." It's okay for the
legislature to make a direct requirement on the parole board,
but requiring the governor to make the extra step is shaky
constitutional ground, she stated.
3:59:01 PM
REPRESENTATIVE SAMUELS said if the parameters and procedures
aren't established, then midnight pardons won't stop. He noted
that the number of days is a concern to some, but the parole
board said six months is a good timeframe to review the case,
process the application, and contact the victim. If that
presents a constitutional problem then it can be revisited, he
stated.
SENATOR McGUIRE said the goal is to keep the law from getting
thrown out so she prefers to take the most conservative route.
She suggested that keeping the discretionary word "may" in the
bill instead of " shall". "You still put the political heat on,
you still wage the public relations campaign, and you still have
the requirements on the book and you don't get it thrown out by
a court." The legislature simply doesn't have the ability to
strap the governor's hands, she said.
SENATOR WIELECHOWSKI asked the DOL opinion on the
constitutionality of the bill.
MR. SVOBODNY responded, there is an issue of how much time it
takes. 180 days represents the first half year in office and the
last half year in office so that cuts the governor's ability to
grant pardons by 25 percent. "I don't think that's correct," he
said. Nothing says an application made during the last two weeks
of one governor's term would not carry over to the next
governor.
The legislature has the authority to establish procedures for
granting pardons and that takes time. However, it is better to
pick a number that everyone is used to so that it is viewed as
procedural rather than cutting into the governor's authority. "I
don't know where that line is - whether it's at 120 days or 60.
I certainly feel more comfortable in saying it's a procedural
issue if it's 30 days, 45 days, 60 days.
CHAIR FRENCH said his view is that this is a way to harmonize
the victims' right amendment and governor's power to grant
clemency.
SENATOR WIELECHOWSKI asked if the power to pardon runs with the
governor as a person or with the governor's office. There is an
argument that it runs with the office and if it does, this isn't
an infringement at all, he said. "A governor in their last two
weeks could offer up this pardon and then ... that person is no
longer in office, but you still have a governor who still has
that ability to pardon."
MR. SVOBODNY opined that the authority is while in office.
4:05:44 PM
CHAIR FRENCH closed public testimony and asked if the committee
had discussion or amendments to offer.
4:05:56 PM
SENATOR WIELECHOWSKI made a motion to delete "application" and
insert "consideration" on page 2, line 7.
CHAIR FRENCH found no objection and announced that Amendment 1
carries.
SENATOR McGUIRE asked the sponsor to restate how he decided upon
180 days.
REPRESENTATIVE SAMUELS replied that Mr. Jones from the board of
parole said it would take about that much time to go through the
normal application process and contact the victim.
SENATOR McGUIRE asked Mr. Jones if 120 days would be unfeasible.
MR. JONES said he had reconsidered his original answer and was
ready to go on record stating that 120 days would be adequate.
4:07:47 PM
SENATOR McGUIRE made a motion to delete "180" and insert "120"
from page 1, lines 7 and 8 and any conforming amendments. She
explained the reason is to reflect customary deadlines that are
recognized in the law.
CHAIR FRENCH said his review of the bill indicates that "180"
appears just twice - on line 7 and line 8 of page 1.
CHAIR FRENCH found no objection and announced that Amendment 2
carries.
4:09:01 PM
SENATOR McGUIRE made a motion to report SCS CSHB 69, as amended,
from committee with individual recommendations and attached
fiscal note(s).
CHAIR FRENCH announced that without objection SCS CSHB 69(JUD)
moved from committee.
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