02/24/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB186 | |
| SJR21 | |
| SB257 | |
| SB265 | |
| SB252 | |
| SB241 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| = | SJR 21 | ||
| = | SB 265 | ||
| = | SB 252 | ||
| = | SB 241 | ||
| + | SB 209 | TELECONFERENCED | |
| *+ | SB 239 | TELECONFERENCED | |
| + | SB 244 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 257 | ||
| = | HB 186 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 24, 2010
1:34 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Lesil McGuire
Senator John Coghill
MEMBERS ABSENT
Senator Dennis Egan
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 186(FIN) AM
"An Act declaring that certain firearms and accessories are
exempt from federal regulation."
- MOVED CSHB 186(JUD) am OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 21
Proposing amendments to the Constitution of the State of Alaska
relating to and increasing the number of members of the house of
representatives to forty-eight and the number of members of the
senate to twenty-four.
- MOVED SJR 21 OUT OF COMMITTEE
SENATE BILL NO. 265
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- MOVED CSSB 265(JUD) OUT OF COMMITTEE
SENATE BILL NO. 252
"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 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."
- HEARD AND HELD
SENATE BILL NO. 241
"An Act relating to post-conviction DNA testing, to the
preservation of certain evidence, and to the DNA identification
registration system; relating to post-conviction relief
procedures; relating to representation by the public defender;
amending Rule 35.1, Alaska Rules of Criminal Procedure; and
providing for an effective date."
- HEARD AND HELD
SENATE BILL NO. 257
"An Act relating to funding for youth courts; and relating to
accounting for criminal fines."
- MOVED SB 257 OUT OF COMMITTEE
SENATE BILL NO. 209
"An Act providing the Alaska State Council on the Arts the
authority to adopt regulations relating to its statutory powers
and duties; and providing for an effective date."
- BILL HEARING POSTPONED
SENATE BILL NO. 239
"An Act relating to ignition interlock devices, to refusal to
submit to a chemical test, and to driving while under the
influence."
- BILL HEARING POSTPONED
SENATE BILL NO. 244
"An Act providing that, during the governor's term of office,
the duty station of the governor is Juneau, and prohibiting
payment of certain travel allowances for use of the governor's
personal residence."
- BILL HEARING POSTPONED
PREVIOUS COMMITTEE ACTION
BILL: HB 186
SHORT TITLE: AK FIREARMS EXEMPT FROM FED. REGULATION
SPONSOR(s): KELLY
03/12/09 (H) READ THE FIRST TIME - REFERRALS
03/12/09 (H) JUD, FIN
04/06/09 (H) JUD AT 8:00 AM CAPITOL 120
04/06/09 (H) Moved CSHB 186(JUD) Out of Committee
04/06/09 (H) MINUTE(JUD)
04/07/09 (H) JUD RPT CS(JUD) 4DP 2NR
04/07/09 (H) DP: LYNN, COGHILL, GATTO, RAMRAS
04/07/09 (H) NR: GRUENBERG, HOLMES
04/11/09 (H) FIN AT 9:00 AM HOUSE FINANCE 519
04/11/09 (H) Moved CSHB 186(FIN) Out of Committee
04/11/09 (H) MINUTE(FIN)
04/13/09 (H) FIN RPT CS(FIN) 5DP 5NR
04/13/09 (H) DP: KELLY, AUSTERMAN, FAIRCLOUGH,
HAWKER, STOLTZE
04/13/09 (H) NR: THOMAS, GARA, CRAWFORD, SALMON,
JOULE
04/16/09 (H) TRANSMITTED TO (S)
04/16/09 (H) VERSION: CSHB 186(FIN) AM
04/17/09 (S) READ THE FIRST TIME - REFERRALS
04/17/09 (S) JUD, FIN
02/01/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/01/10 (S) Heard & Held
02/01/10 (S) MINUTE(JUD)
02/17/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/17/10 (S) Heard & Held
02/17/10 (S) MINUTE(JUD)
BILL: SJR 21
SHORT TITLE: CONST. AM: INCREASE NUMBER OF LEGISLATORS
SPONSOR(s): COMMUNITY & REGIONAL AFFAIRS
04/09/09 (S) READ THE FIRST TIME - REFERRALS
04/09/09 (S) STA, JUD, FIN
02/02/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
02/02/10 (S) Moved SJR 21 Out of Committee
02/02/10 (S) MINUTE(STA)
02/03/10 (S) STA RPT 5DP
02/03/10 (S) DP: MENARD, FRENCH, MEYER, PASKVAN,
KOOKESH
02/08/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/08/10 (S) Scheduled But Not Heard
02/12/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/12/10 (S) Heard & Held
02/12/10 (S) MINUTE(JUD)
02/22/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/10 (S) -- MEETING CANCELED --
02/24/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 265
SHORT TITLE: 2010 REVISOR'S BILL
SPONSOR(s): RULES BY REQUEST OF LEGISLATIVE COUNCIL
02/08/10 (S) READ THE FIRST TIME - REFERRALS
02/08/10 (S) STA, JUD
02/16/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
02/16/10 (S) Moved SB 265 Out of Committee
02/16/10 (S) MINUTE(STA)
02/17/10 (S) STA RPT 2DP 1NR
02/17/10 (S) DP: MENARD, MEYER
02/17/10 (S) NR: FRENCH
02/22/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/10 (S) -- MEETING CANCELED --
02/24/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 252
SHORT TITLE: FAILURE TO APPEAR; RELEASE PROCEDURES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/03/10 (S) READ THE FIRST TIME - REFERRALS
02/03/10 (S) JUD
02/12/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/12/10 (S) <Bill Hearing Postponed>
02/15/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/10 (S) Scheduled But Not Heard
02/19/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/19/10 (S) Heard & Held
02/19/10 (S) MINUTE(JUD)
02/22/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/10 (S) -- MEETING CANCELED --
02/24/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 241
SHORT TITLE: POST-CONVICTION DNA TESTING; EVIDENCE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/27/10 (S) READ THE FIRST TIME - REFERRALS
01/27/10 (S) JUD, FIN
02/22/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/10 (S) -- MEETING CANCELED --
02/24/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 257
SHORT TITLE: YOUTH COURTS AND CRIMINAL FINES
SPONSOR(s): EGAN
02/05/10 (S) READ THE FIRST TIME - REFERRALS
02/05/10 (S) JUD, FIN
02/19/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/19/10 (S) Heard & Held
02/19/10 (S) MINUTE(JUD)
WITNESS REGISTER
KATHRYN KURTZ, Assistant Revisor of Statutes
Legislative Legal Services
Legislative Affairs Agency
Juneau, AK
POSITION STATEMENT: Introduced SB 265.
SUE MCLEAN, Director
Criminal Division
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Provided supporting testimony to SB 252.
DOUG WOOLIVER, Administrative Attorney
Alaska Court System
POSITION STATEMENT: Testified on SB 252 that the court sees an
impact with respect to the bail provision.
DWAYNE PEEPLES, Deputy Commissioner
Department of Corrections (DOC)
POSITION STATEMENT: Testified as to why DOC submitted a zero
fiscal note on SB 252
JEFFERY MITTMAN, Executive Director
ACLU-Alaska
Anchorage, AK
POSITION STATEMENT: Testified on SB 252 focusing on
constitutional rights and civil liberties.
QUINLAN STEINER, Public Defender
Public Defender Agency
Department of Administration (DOA)
Anchorage, AK
POSITION STATEMENT: Testified on SB 252 and agreed that
constitutional challenges are likely, primarily because the
burden of production is shifted to the defense.
ANNE CARPENETI, Attorney
Criminal Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Introduced SB 241.
ACTION NARRATIVE
1:34:19 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Senators Coghill,
Wielechowski and French were present at the call to order.
Senator McGuire joined the committee soon thereafter.
HB 186-AK FIREARMS EXEMPT FROM FED. REGULATION
1:34:46 PM
CHAIR FRENCH announced the consideration of HB 186. It was heard
previously. [CSHB 186 (FIN) am was before the committee.
1:35:08 PM
SENATOR WIELECHOWSKI moved to report HB 186 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, CSHB 186(JUD) am moved from the Senate
Judiciary Standing Committee.
SJR 21-CONST. AM: INCREASE NUMBER OF LEGISLATORS
CHAIR FRENCH announced the consideration of SJR 21. It was heard
previously.
1:35:58 PM
SENATOR WIELECHOWSKI moved to report SJR 21 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, SJR 21 moved from Senate Judiciary Standing
Committee.
SB 257-YOUTH COURTS AND CRIMINAL FINES
1:36:12 PM
CHAIR FRENCH announced the consideration of SB 257. It was heard
previously and appears to be noncontroversial.
1:36:35 PM
SENATOR WIELECHOWSKI moved to report SB 257 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, SB 257 moved from the Senate Judiciary
Standing Committee.
At ease 1:36 p.m. to 1:37 p.m.
SB 265-2010 REVISOR'S BILL
1:38:24 PM
CHAIR FRENCH announced the consideration of SB 265.
KATHRYN KURTZ, Assistant Revisor of Statutes, Legislative Legal
Services, said SB 265 corrects deficiencies, deals with obsolete
provisions, and addresses mistakes in the statutes. She said
that the Department of Law (DOL) has determined that this bill
makes important technical changes.
1:39:49 PM
CHAIR FRENCH said he has no questions because he looked closely
at the bill in a previous committee. He noted that there is a
proposed amendment based on comments made in that previous
committee. Finding no questions, he moved Amendment 1, labeled
26-LS1220\S.1.
AMENDMENT 1
OFFERED IN THE SENATE
TO: SB 265
Page 3, line 27, through page 4, line 1:
Delete all material and insert:
"* Sec. 6. AS 08.48.341(10) is amended to read:
(10) "limited liability
partnership: means a limited liability partnership or
a foreign limited liability partnership, as those
terms are defined in AS 32.06.995 [AN ORGANIZATION
REGISTERED UNDER AS 32.05.415 OR A FOREIGN LIMITED
LIABILITY PARTNERSHIP; IN THIS PARAGRAPH, "FOREIGN
LIMITED LIABILITY PARTNERSHIP: HAS THE MEANING GIVEN
IN AS 32.05.990];"
SENATOR COGHILL objected for an explanation.
1:41:02 PM
MS. KURTZ explained that the previous committee thought that the
language in Section 6 was overly complex and awkward. The
amendment makes no substantive change to the meaning of the bill
or to the underlying statute.
SENATOR COGHILL removed his objection.
CHAIR FRENCH announced that without further objection, Amendment
1 is adopted.
SENATOR MCGUIRE joined the committee.
CHAIR FRENCH closed public testimony and asked the will of the
committee.
1:42:50 PM
SENATOR MCGUIRE moved to report SB 265 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, CSSB 265(JUD) moved from the Senate
Judiciary Standing Committee.
At ease 1:43 p.m. to 1:44 p.m.
SB 252-FAILURE TO APPEAR; RELEASE PROCEDURES
1:44:12 PM
CHAIR FRENCH announced the consideration of SB 252. He asked Ms.
McLean to remind the committee where she stopped last hearing.
SUE MCLEAN, Director, Criminal Division, Department of Law
(DOL), replied she introduced SB 252 and provided a sectional
analysis. She said she was prepared to take up the provision
regarding the burden of proof.
CHAIR FRENCH asked her to remind the committee of the current
law and what the bill proposes in that regard.
MS. MCLEAN said that Mr. Mittman with the ACLU raised the issue
in a letter and if there was no objection she would take up the
issue by talking about his letter.
CHAIR FRENCH agreed.
MS. MCLEAN explained that in Section 4, page 7, line 19, the
bill proposes, for persons charged with specific crimes, that
there is a presumption that no condition of release or amount of
bail can assure the person's appearance or the safety of the
community. But it does not deny or attempt to deny the right to
bail, which is ensured under the U.S. Constitution and the
Alaska Constitution. This provision tracks the federal statute
that has been examined closely by federal courts and found
constitutional.
The important distinction is that the right to bail does not
mean that the defendant has the right to release. This provision
sets up a framework for what the court might consider when it
discusses bail in certain cases. The rationale is that in
certain cases there is either an enhanced risk that the person
will flee, or that he or she presents an obvious risk to the
community.
1:48:29 PM
MS. MCLEAN said it's important to remember that the burden here
is not the burden of proof; it is the burden of going forward.
The person has the burden of going forward with a preponderance
of the evidence to show what conditions of bail might be imposed
that will assure that he or she will appear and that the
community will be safe. In response, the state has the burden of
proof to show by clear and convincing evidence that the person
is a danger to the community or that there is no bail amount
that will assure his or her appearance.
CHAIR FRENCH asked if she is saying that the list of crimes on
page 7, line 23 [through page 8 line 5] is analogous to those in
the federal bail statute.
MS. MCLEAN replied the federal bail statute includes the crimes
listed in SB 252 and some other offenses, many of which are drug
offenses and RICO crimes.
1:50:08 PM
CHAIR FRENCH mentioned a recent case of a woman on release for
DWI who killed an Anchorage citizen while under the influence.
He asked if the woman would have had to overcome a rebuttable
presumption that she could not be released under this proposal.
MS. MCLEAN said yes, under subparagraph (C) on page 7, line 29.
She was charged with an offense that she committed while on
release for a charge or conviction of another offense.
CHAIR FRENCH asked if this proposed bail statute would have made
it more difficult for the woman to get out of jail in the first
place.
MS. MCLEAN answered no.
CHAIR FRENCH asked what bail decisions are being made in the
state that caused DOL to propose this statutory change.
MS. MCLEAN replied she hears anecdotally that some courts regard
the right to bail as analogous to the right to release. The most
common is a person who has been released OR (on his/her own
recognizance) and is again release OR even though the new charge
is far more serious. She is personally aware of a case in which
a person was released OR after having been charged with a sexual
abuse of a minor felony crime. That person was returned to the
village of 50 people where the crime occurred. In this sort of
situation it's extremely difficult to protect the victims and
DOL is asking the court to look at the subject of bail from this
context. The court should consider the factors and presume that
the defendant is dangerous or that the community can't be
protected. The defendant should have the burden of explaining to
a judge why he or she will show up or will not be a danger if
released. She emphasized that the bill makes no attempt to set
any kind of rules about the kind of evidence that may be
proposed.
1:54:11 PM
SENATOR COGHILL asked for an explanation of the timeframe and
the difference in bail for these higher class felonies and other
crimes.
MS. MCLEAN explained that when a person is arrested he or she is
immediately brought before a judicial officer who sets bail. If
the offense is serious the bail will typically be quite high or
the conditions will be difficult to meet. A person charged with
a felony has the right to a preliminary hearing or an indictment
within 10 days if they remain in custody. She noted that
Anchorage has a pre-indictment program so it's a little
different, but most DOL offices try to get the case to a grand
jury or preliminary hearing within 10 days at which time the
subject of bail is revisited before the superior court. By the
time 10 days has passed, the person may have come up with a plan
to assure that people are safe or that he or she will appear as
ordered. Often the bail that was set at the magistrate court is
continued.
SENATOR COGHILL asked if this is what occurs after the
indictment.
MS. MCLEAN clarified that it actually applies to an initial bail
setting.
SENATOR WIELECHOWSKI questioned how the bill could possibly have
a zero fiscal note. "I imagine you're going to have huge numbers
of people who are all of a sudden denied bail and sitting in our
corrections facilities or small jails…," he said.
MS. MCLEAN replied she can't speak to the Department of
Corrections fiscal note, but this won't change what DOL does
with respect to going to bail hearings.
CHAIR FRENCH deferred the question about the fiscal impact of
the provision until the committee hears from the court and
corrections. He clarified for the record that bail is set when a
person is charged with a crime and it continues until the person
is found innocent or guilty.
MS. MCLEAN agreed and added that for minor offenses the person
is sometimes released OR and is given some conditions.
1:57:11 PM
SENATOR WIELECHOWSKI asked if any thought has been given to
providing victims the statutory right to a timely disposition of
a case.
MS. MCLEAN replied the constitutional provision includes
something like that.
SENATOR WIELECHOWSKI noted that some states have more specific
definitions of "timely disposition" than is provided in the
overly broad constitutional provision. He asked if she has a
position on including something like that.
MS. MCLEAN replied she is happy to discuss that, but the state
always assumes that it will go to trial in 4 months. She
recognizes that when cases drag on it can be extremely difficult
for the victims, but it's often because the defendant has waived
the time so that the defense has more time for discovery and
preparation.
CHAIR FRENCH commented that it's frustrating for victims when a
defendant waives the time to trial, but the courts are reluctant
to push that because of concerns about being overturned on
appeal.
CHAIR FRENCH asked how many cases per year this fairly
significant change in the bail statute might pertain to.
MS. MCLEAN offered to provide the information.
CHAIR FRENCH asked her to send the information to his office. He
added that he recognizes that the federal government made this
change, but the U.S. Eighth Amendment isn't the same as Article
1, Section 12 of the Alaska Constitution.
2:00:43 PM
DOUG WOOLIVER, Administrative Attorney, Alaska Court System,
said the court isn't taking a position on the bail issue, but it
does have a different view on the impact. The Department of Law,
the Public Defender Agency, and the Office of Public Advocacy
have submitted zero fiscal notes, but the court sees that this
will add a fair amount of time to bail hearings in a significant
number of cases. Most of the comments he's received from judges
indicate that bail hearings will take a lot more time. "Maybe
they should, but there is a fiscal impact on that." The court
hasn't submitted a fiscal note largely because it is working
with DOL to address concerns and questions. Their fiscal
analysis might change depending on what happens to the bill.
CHAIR FRENCH asked if someone with the court is working on a
fiscal note.
MR. WOOLIVER replied it's his responsibility.
CHAIR FRENCH asked him to describe what he hopes will come from
the conversations regarding the bail provision.
MR. WOOLIVER replied the court doesn't really care if this
provision is there or not; it just wants to make sure it has
resources available to deal with it because the court sees a big
impact. The other departments see none so we need to figure it
out, he said..
2:04:32 PM
CHAIR FRENCH asked him to provide the following information:
· How many bail hearings the court currently conducts
statewide.
· How many of those bail hearings would be subject to these
new rules if they were adopted.
MR. WOOLIVER agreed to provide information and noted that one
judge estimated there are as many as 15,000 bail hearings per
year.
SENATOR WIELECHOWSKI asked him to include an estimate of the
additional time for each hearing because he believes that each
hearing has the potential to go on for hours if not days.
CHAIR FRENCH asked what other provisions the court has concerns
about.
MR. WOOLIVER directed attention to Section 3, page 4, lines 14-
16, which is a provision directing the clerk of the court to do
a criminal background check using court records before a second
bail review hearing. The court would very much like to see this
provision removed because it is redundant and would be very
expensive and time consuming, he said. The prosecution and
defense should have already presented all the criminal
background information that's relevant to any bail decision at
the first hearing. Even if the court were to do this the record
would be incomplete because it would not include any out-of-
state cases.
2:08:29 PM
DWAYNE PEEPLES, Deputy Commissioner, Department of Corrections
(DOC), introduced himself.
CHAIR FRENCH asked what fiscal impact the proposed change in the
bail statute will potentially have on the Department of
Corrections.
MR. PEEPLES replied it's difficult to determine until they know
how the courts will handle the change. DOC submitted a zero
fiscal note because the number of "mandays" of incarceration
probably wouldn't change. However, there will be a shift of
burden from prisons to state or community jails. An accused
person who is unable to get bail would be in jail until the
adjudication process is completed. The sentence that is passed
down includes the time served during the un-adjudicated phase.
2:10:50 PM
SENATOR WIELECHOWSKI suggested that it would be more appropriate
to submit an indeterminate fiscal note. There's a fiscal impact
if people are found innocent after serving time, he said.
MR. PEEPLES said whether it says zero or indeterminate, it means
that at this point they can't figure it out. They may get a
better handle on it once they see what the court is producing.
CHAIR FRENCH asked if the concern is that individuals who used
to be released back into the community awaiting the resolution
of their trial would now be kept in jail and transported to a
longer-term regional facility such as in Juneau.
MR. PEEPLES replied that could happen. Many small communities
have jails, but each has a limitation on how long somebody can
be held. The range is one week to three weeks to 30 days. If the
local court or magistrate denies bail, the person would at some
point be transported to the regional facility such as Lemon
Creek. That would primarily be done by the Department of Public
Safety.
CHAIR FRENCH said Ms. McLean would point out that these are
people who have been charged with high level, and sometimes
repeat, felony offenses.
2:13:34 PM
JEFFERY MITTMAN, Executive Director, ACLU-Alaska, said he
submitted written testimony focusing on constitutional rights
and civil liberties. He and others analyzed the bill to see if
the proposed statutes would be in compliance with both the U.S.
and Alaska constitutions. The leading case on this matter is
Martin v. State. In that 1974 case the Alaska Supreme Court
noted that in that appeal it was not necessary to decide whether
appellants were entitled to bail under the Eighth Amendment to
the U.S. Constitution. The court then reviewed the Alaska
Constitution and stated that under Article 1, Section 11 every
accused person is guaranteed the right to be released on bail
except in capital offenses where proof is evident. It further
notes that in Alaska an implied limitation would contravene the
language of the constitution and its intended purpose as stated
at the Constitutional Convention.
Overall, the ACLU is taking the orientation that the Alaska
Supreme Court has been fairly clear in interpreting a specific
provision of the state constitution. This is of greater import
and protection than the federal standard, he said.
MR. MITTMAN said the issue here is that a person accused of a
crime is presumed innocent and essentially has the presumption
to liberty that an un-accused person would have. In a bail
hearing the court certainly should consider information
regarding the safety of the community and whether or not the
accused is a flight risk. But the overall effect of this bill is
to unconstitutionally reverse the intention of the constitution.
2:16:57 PM
CHAIR FRENCH asked if he's aware that this proposal parallels a
provision in the federal criminal code.
MR. MITTMAN said yes and the comments of constitutional delegate
Vick Fischer about narrowing the limitations on granting of bail
make it clear that the bail provision was of specific import to
the drafters of the Alaska Constitution. That there is a federal
bill that may allow for stricter limitation on bail hearings or
the granting of bail, in this case is rendered moot by the
Alaska Constitution and the decision in Martin v. State, he
said.
CHAIR FRENCH remarked that it's a pleasure to have the
opportunity to talk to a drafter of the Alaska Constitution. He
asked Mr. Mittman if he had further comments.
MR. MITTMAN said the rebuttable presumption on page 7 tries to
reverse through statute the presumption that an accused person
has a right to bail, and that's not permissible. It would be
subject to almost immediate litigation and given the decision in
Martin v. State there's little question about the result.
2:19:28 PM
SENATOR MCGUIRE suggested that if the committee can't agree on
this because of questions about constitutionality, it might
instead consider looking at conditions that might be set at the
bail hearing itself.
CHAIR FRENCH said it's a good conversation to have. Clearly, the
public is protected the most when someone is kept in jail, but
there are costs and risks associated with that. There isn't a
simple answer.
He asked Mr. Steiner to provide his perspective on the proposed
change in the presumption regarding release on bail.
2:22:35 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Department of Administration (DOA), said he agrees with Mr.
Mittman that constitutional challenges are likely, primarily
because the burden of production is shifted to the defense. In a
bail hearing the defense can rely on the state having to meet
its burden of proving that bail isn't sufficient, but here the
defense may have to meet some burden of going forward in order
to put the state to its burden. That may require the defense to
disclose its view of the case, which is problematic in terms of
the constitutional arguments and the time that these hearings
would take. This is really the only distinction because this
burden is juxtaposed against the way a person is charged and the
crime he or she is charged with so it puts the state's case
directly at issue in rebutting it in the bail hearing. That is
not the case at present.
MR. STEINER noted that this also appears to cover not just the
higher level felony cases but also the lowest level
misdemeanors. Even a repeat criminal trespass would be subject
to this bail hearing if a person were to commit a subsequent
trespass while on conditions of release.
CHAIR FRENCH suggested he contact Rich Kurtner to see if federal
bail hearings are more complex and lengthy.
MR. STEINER agreed, and added that their zero fiscal note
reflects that it's not predictable whether or not this will drag
out bail hearings or how many cases this will apply to. Getting
numbers from the court or corrections will help in evaluating
that, he said.
2:26:48 PM
CHAIR FRENCH said he was surprised to see that the Public
Defender Agency also submitted a zero fiscal note because it
would seem that it would create more work for the agency.
MR. STEINER replied it's a matter of predictability; at this
point there's no way to come up with a defensible number.
SENATOR COGHILL said that since statehood Alaska hasn't had the
death penalty so this is trying to figure out bail for those
most egregious crimes. At the Constitutional Convention it was
supposed that for those kinds of cases there would be reasonable
cause to hold somebody. He opined that except for subparagraph
(C), there might be a good case; Article 1, Section 24, of the
constitution supports that. It says that crime victims have the
right to be reasonably protected from the accused through the
imposition of appropriate bail or conditions of release by the
court. That puts two constitutional provisions in the test so he
wouldn't out of hand call it unconstitutional.
CHAIR FRENCH clarified that Senator Coghill was reading from the
victims' rights amendment.
He asked Ms. McLean what other provisions the committee needs to
address.
2:28:58 PM
MS. MCLEAN said Mr. Mittman's second point was that Section 4,
subsection (b) proposes to improperly expand the court's
authority, but she would point out that most of the conditions
already exist and are being imposed under current law. The ACLU
was specifically concerned about the condition requiring the
person to maintain employment or, if unemployed, to actively
seek employment. She relayed that DOL doesn't see that this is
different than telling the person not to leave town. DOL
frequently hears that the person needs to be out with no bail or
they'll lose their job only to have the person quit their job
once they're out if there wasn't a condition to keep the job.
It's a mockery and it's not unreasonable for the court to
require someone to do what they said they'd do, she said.
MS. MCLEAN agreed that the ACLU interpretation of subsections
(b)(15) and (b)(16) sounds draconian, but the bill is specific
that this applies to people who are already on medication. She
argued that it's a reasonable condition of release that is aimed
at making sure that the person can be released. A lot of people
in the criminal justice system are mentally ill and they commit
crimes that they wouldn't otherwise commit when they don't take
their medication. The aim is to both protect the public and make
sure the person can be released, she said.
2:31:26 PM
MS. MCLEAN said Mr. Mittman next addresses failure to appear,
which has been a crime since 1966. He stated that changing the
crime of failure to appear would somehow increase the number of
parole violators in jail. She suggested the committee might want
to question his understanding because parole violators are not
being charged with failure to appear. They have been sentenced
and released either on mandatory or discretionary parole and
allegedly have violated their parole by committing new crimes or
doing what they were told not to do.
SB 252 addresses a case in which the court of appeals defined an
element in the crime of failure to appear that DOL didn't
believe was there. DOL has always assumed that the elements of
failure to appear were that the state had to prove that the
defendant knew their conditions of release and that they failed
to appear at court. This proposal says that those are the
elements and it gives the defendant the affirmative defense of
saying that he or she could not appear for certain stated
reasons. She related that in practice defendants are not being
prosecuted for failure to appear when they call the court saying
they can't show up; it's the defendants who simply disappear.
The purpose of this provision is for the Legislature to clarify
what its understanding was on the element of failure to appear.
2:33:24 PM
MS. MCLEAN said that Mr. Mittman next made the point that the
change in time for a bail hearing in Section 3 was problematic.
However, Section 3 deals with current law under AS 12.30.020,
which says that if a person is held, the prosecution has 48
hours in which to ask that the person be detained so that the
prosecution can come forward with evidence showing why the
person should continue to be held. Subsection (f) currently
provides that a person who remains in custody 48 hours after the
original bail is set has the right to a bail review hearing. The
new Sec. 12.30.006 does not change that.
MS. MCLEAN pointed out that Section 20 of the bill does ask for
an amendment to Rule 5 of the Alaska Rules of Criminal Procedure
to allow the state up to 48 hours to bring a person who has been
arrested before a judicial officer for an initial appearance.
The current rule allows the state just 24 hours' which in some
cases is simply not possible.
2:35:00 PM
CHAIR FRENCH said he believes the majority of defendants are
arraigned within 24 hours, but at a future hearing he'd like to
know specifically how many jurisdictions embrace the "48 hour
rule."
MS. MCLEAN agreed to provide the information.
MS. MCLEAN said that Mr. Mittman also argues that under the bill
conditions of release encompass search, but those conditions
exist already. Mr. Mittman cited a Ninth Circuit case that
endorsed the right of pretrial defendants to be free of
suspicionless searches and DOL also endorses that right. These
conditions of release have been in effect for a very long time
and they are reasonable, she said. Case law says there should be
a nexus between conditions of release and the charge. The bill
proposes alcohol conditions that apply to people charged with an
alcohol offense and drug conditions that apply to a person
charged with a drug offense.
The last point Mr. Mittman made is that the third party
custodian provision in Section 5 would limit a pretrial
defendant's liberty, but the court has always been permitted to
require a third-party custodian in addition to other conditions,
she said. Current law is AS 12.30.030(b). The change the bill
proposes is to set qualifications for third-party custodians.
DOL's concern is that at present there are no conditions or
requirements for third-party custodians. The proposed
requirements include not having a pending charge, being able to
see and hear the defendant 24 hours a day, and not being on
felony probation. They aren't unreasonable for someone who has
taken on the responsibility of watching over a person who is on
conditions of release from jail. Some people undertake this
responsibility as a job, which is a concern because DOL's
understanding has always been that the Legislature's vision was
that the defendant would ask a friend or family member to be a
third party
2:39:44 PM
MS. MCLEAN said that today she received a suggestion to change
"electronic mail" to "electronic communication" on page 10, line
8.
CHAIR FRENCH made a note of the suggestion and announced he
would hold SB 252 in committee for further work.
SB 241-POST-CONVICTION DNA TESTING; EVIDENCE
2:41:20 PM
CHAIR FRENCH announced the consideration of SB 241.
ANNE CARPENETI, Attorney representing the Criminal Division,
Department of Law (DOL), related that the governor wanted SB 241
to include two parts. It reprises much of the evidence retention
bill from last year and it establishes procedures for dealing
with requests for post conviction DNA testing that are based on
federal law. The intent is to achieve a balance to allow
somebody who is innocent to bring a request for post conviction
DNA testing because nobody wants an innocent person to remain in
jail.
2:44:28 PM
MS. CARPENETI described the following differences between SB 110
- the evidence preservation bill - and SB 241:
· SB 241 clarifies that evidence that is not biological
material must be kept until the end of all possible
litigation in the particular case.
SB 110 provides that evidence that is not
biological material should be kept until the case
is solved. This would work but it would depend on
the meaning of "solved."
· SB 241 provides that for crimes of sexual assault
in the first degree and sexual abuse of a minor
in the first degree, the biological material has
to be saved until the person is off probation,
parole, or any other condition of their
conviction. It does not extend to the time that
they have to register as a sex offender.
SB 110 provides that biological material should
be kept for the period of time that the person is
required to register as a sex offender. People
convicted of sexual assault in the first degree
and sexual abuse of a minor in the first degree
were required to register for their entire life.
· SB 241 and SB 110 have similar remedies but SB
241 provides that a court cannot reverse or
vacate a conviction solely on the basis that a
police department has not followed the
requirements of this new section. The rationale
is that this is a new burden and a court
shouldn't vacate a conviction because the police
department didn't get it right.
· SB 241 envisions the task force as a group of
people who would adopt standards of procedure for
the safe storage and retention of evidence so
that it is available for post-conviction relief.
A member of the court is on the task force
because the court sometimes keeps evidence.
CHAIR FRENCH asked Ms. Carpeneti to start with Section 6 and
walk through the new DNA testing procedure.
2:48:58 PM
MS. CARPENETI explained that the current post-conviction relief
statutes are amended to say that a person seeking post-
conviction DNA testing because of new evidence must proceed
under the new chapter AS 12.73 rather than under the current
law, AS 12.72.
Section 6 provides the following:
· A person convicted of a felony against a person who has not
been unconditionally discharged may apply to the superior
court for DNA testing. Unconditional discharge is defined
in the bill as the release from disability arising under a
sentence, including probation and parole, but not sex
offender registration.
· A person who wants to make application for post-conviction
relief must submit to the court an affidavit attesting:
· He or she did not commit the offense for which
they were convicted or a lesser included offense.
· He or she did not solicit another person, or aid
and abet the commission of the offense or any
lesser included offense. She noted that the
purpose of the bill is to allow relief for a
person who has been mistakenly convicted.
· He or she did not admit or concede guilt in
any official proceeding for the offense that
was the basis of the conviction.
MS CARPENETI suggested the committee amend the bill to say that
a guilty plea or nolo contendere plea by itself is not an
admission or concession of guilt. But if someone has stated
under oath to a parole board that he or she was guilty that
should preclude the person from getting post-conviction DNA
testing. She cited the Osborne case when that happened and said
that DOL thinks that people need to be held responsible for
things they say under oath in a court of law.
2:53:40 PM
Section 6 further provides:
· The applicant must try to get an affidavit from his or her
attorney explaining the reasons for not obtaining DNA
testing initially. She noted that DOL looks at this as a
way to encourage defendants to get DNA testing at the time
that they are charged.
· Post-conviction DNA testing would be permanently waived if
a person made a tactical decision at trial not to proceed
with DNA testing. This requirement is similar to federal
law. Other post-conviction remedies would continue to be
available.
MS. CARPENETI described the findings required for the court to
order post-conviction DNA testing.
· The evidence to be tested must be subject to a chain of
custody and retained in a way that ensures that it hasn't
been tampered with and is reliable.
· The testing must be reasonable and use accepted scientific
practices.
· The applicant must identify a theory of defense to
establish their innocence that is not inconsistent with the
theory pursued at trial.
· The applicant was convicted and the identity of the
perpetrator was an issue in the trial. She noted that this
is related to the requirement that the theory the applicant
is requesting is not inconsistent with the trial defense.
· There is a reasonable probability, in light of the
evidence, that the requested DNA testing could conclusively
establish that the person is innocent.
MS. CARPENETI said the bill also specifically allows the
prosecution and defendant to agree to post-conviction testing if
it's reasonable.
2:58:23 PM
MS. CARPENETI directed attention to page 10, Sec. 12.73.040, on
timeliness. There is a presumption that the application is
timely if it is brought within three years of the conviction.
This may be rebutted if there has been previous application for
post-conviction DNA testing. There is also a presumption of
untimeliness if the application is brought after three years.
This presumption can be rebutted if the applicant was
incompetent and that contributed to the delay in filing the
application, or for other good cause. She noted that the House
bill says that the presumption can be rebutted for a good cause.
CHAIR FRENCH said the committee would take the suggestion.
MS. CARPENETI said the Innocence Project disagrees, but DOL
continues to believe that there is a good reason for making the
application sooner rather than later if it's reasonably
possible.
She said that the bill also amends AS 44.41.035(b), the data
bank. The suggestions came primarily from the Department of
Public Safety; some is clarifying language. For example, current
statutes do not specifically provide that a person who has been
found innocent can get their DNA removed from the data bank. The
federal government has said that change must be made.
MS. CARPENETI reiterated that the taskforce is somewhat
different than in SB 110 because the focus was on technical
issues rather than broader policy issues.
She concluded saying that it's a balancing act to ensure that
innocent people aren't in jail and at the same time make sure
that people don't get another bite at the apple and continue
recreational litigation.
CHAIR FRENCH announced he would hold SB 241 in committee for
further work.
3:01:38 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:01 p.m.
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