Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/19/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB257 | |
| SB252 | |
| SB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 92 | TELECONFERENCED | |
| *+ | SB 257 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 252 | ||
SB 252-FAILURE TO APPEAR; RELEASE PROCEDURES
1:46:15 PM
CHAIR FRENCH announced the consideration of SB 252.
SUSAN MCLEAN, Director, Criminal Division, Department of Law
(DOL), said that SB 252 revises the bail statute. Over the past
40 some years it has been added to and has become somewhat
unwieldy and difficult to reference quickly during court
arraignments. The intent is to revise the statutes and enhance
public safety in Alaska and to give voice to the constitutional
amendment giving rights to crime victims.
SB 252 incorporates concepts from federal bail law and adapts
them to Alaska conditions. The bill generally would do the
following:
· Require the person charged with a serious sex offense to
prove that the release conditions before trial will protect
the victim and the public.
· Adopt standards for persons who may be appointed as third-
party custodians for persons who are released on bail.
· Prohibit a person who is found guilty of a serious sex
offense from being released before sentencing or during an
appeal of a conviction.
· Protect victims of domestic violence by setting standards
that the court must find before allowing a perpetrator of
domestic violence to return to the victim's residence.
· Change the time for arraignment from 24 hours to 48 hours.
MS. MCLEAN asked if the committee would like her to do a
sectional analysis.
1:50:01 PM
CHAIR FRENCH replied it would be helpful.
MS. MCLEAN said Section 1 addresses two issues with failure to
appear. First, it moves the crime of failure to appear from
Title 12 to Title 11. It also addresses the problem that was
raised when a second culpable mental state was added to the
crime of failure to appear. This would provide an affirmative
defense that the defendant, due to unforeseeable circumstances
outside his or her control, was prevented from appearing at the
hearing, and that the defendant notified the court orally and in
writing that he or she was unable to appear. The penalties would
be the same as under the current law, except that the bill adds
a violation for failure to appear if the crime charged was a
violation.
Section 2 includes a conforming amendment to AS 12.25.030(b),
which changes the standard for a law enforcement officer to make
an arrest without a warrant in certain cases from "reasonable
cause" to "probable cause" to clarify that the standard in all
cases is probable cause. It also allows an officer to arrest a
person for violations of conditions of release if they have
probable cause to believe that the person has violated
conditions of release. This allows the officer to arrest a
person without a warrant if the violation of conditions of
release is occurring in the officer's presence.
1:52:12 PM
Section 3 adopts a new section, AS 12.20.006, that describes
release procedures for a person charged with a crime. The
procedures are similar to sections of existing law, but the bill
also includes the following:
· Before a third or subsequent bail hearing, the bill
requires 48 hours notice to any surety involved so that
the surety has an opportunity to attend the hearing.
1:53:01 PM
CHAIR FRENCH reviewed page 4, lines 14-16, and asked what the
provision is getting after.
MS. MCLEAN replied it gets at persons who ask for repeated
subsequent bail interview hearings. It requires the person to
articulate what conditions have changed, other than the
inability to make bail, since his or her last bail interview
hearing. This puts a written record before the court of the
person's prior record and what should be considered before the
court determines whether or not a bail hearing should be set.
CHAIR FRENCH noted that the next provision requires at least
seven days notice for a new request and asked if there's a
provision in current law that keeps a person from coming back to
court every day asking for a new bail review.
MS. MCLEAN replied there's very little, but current law does
require the person to state what has changed in their situation
such that their bail should be changed. What typically happens
is that on a daily basis a person says they have a different
third-party custodian. This makes the prosecutors scramble to
find the victim who has a right to be informed of every bail
hearing. Likewise, the court has to schedule a bail hearing on
short notice when it probably already has all the information it
needs to set bail. It's not unreasonable to ask that a person
give seven days notice, she said.
1:56:19 PM
CHAIR FRENCH said the committee will at some point ask Mr.
Wooliver how demanding bail requests are on the court's time.
MS. MCLEAN continued to explain the changes to existing law in
Section 3.
· The bill requires a person being released to sign a release
agreement that describes the terms that the court has set.
· The bill eliminates a current provision that allows a
judicial officer to change, add to, or eliminate
conditions of release at any time. The law already
provides the bail review hearing for making such changes
and the provision sort of leaves the victim in the dark.
They might not be notified and wouldn't have an
opportunity to be heard on the topic.
Section 4 adds new sections that address release before trial
for persons charged with a crime. The proposed AS 12.30.011
adopts standards and conditions for release in general -
including a requirement to obey all laws, appear in court when
ordered, and keep in contact with their attorney. The proposed
AS 12.30.016 adopts standards and conditions for release for
specific crimes. The section is designed to streamline the
procedures for release, and many of the provisions are found in
current law.
1:58:58 PM
CHAIR FRENCH said he's surprised that the drafter didn't choose
to repeal and reenact the provisions rather than adding new
sections.
MS. MCLEAN directed attention to Section 27, which` proposes to
repeal all the discrete conditions of release for different
crimes.
MS. MCCLEAN continued the analysis of Section 4 pointing out
that AS 12.30.011 subsection (d) provides evidentiary burdens
that a court must apply in making a decision about whether to
release a person on bail. The bill proposes a rebuttable
presumption, which may be overcome by a preponderance of
evidence, that no condition or combination of conditions will
assure the defendant's appearance or the safety of the victim
if:
· The person is charged with an unclassified felony, a class
A felony, or a sexual felony;
· The person is charged with a felony and has a previous
conviction for a felony that is less than five years old;
· The offense was committed while the defendant was on
release for another offense; or
· The charge is for a crime involving domestic violence, and
the defendant has been convicted of a crime of domestic
violence within the past five years.
AS 12.30.016 adopts the additional conditions that may be
imposed in particular cases, most of which are found in current
law.
· Subsection (b) provides special conditions for persons
charged with Title 4 violations such as selling alcohol or
bootlegging and charged with drunk driving and refusing to
submit to a breath test. A judicial officer may, for
example, order a person to submit to a breath test when
requested to do so by a law enforcement officer.
· Subsection (c) provides special conditions that may be
imposed on a person charged with a violation of the drug
laws. For example, a person may be prohibited from
entering or remaining in a place where a controlled
substance is being used, manufactured, grown, or
distributed.
· Subsection (d) adopts a mandatory requirement of $250,000
cash bond for a person charged with manufacturing
methamphetamine, unless the defendant proves to the court
that his or her role was only as an aider or abettor and
that they did not stand to gain financially. This is a
provision in current law.
· Subsection (e) adopts specific conditions for a person
charged with stalking when it is not involving domestic
violence. This provision is similar to current law.
· Subsection (f) adopts specific conditions for a person who
is released after having been charged with a sexual
offense. The court may order the defendant to have no
contact with someone under age 18, except that made during
the normal course of business in a public place. The court
is required to notify the victim of the hearing, or make
reasonable efforts to do so, and to consider the victim's
comments when making a release decision. This is in
current law.
2:03:33 PM
Section 5 adopts new standards for the appointment of a third-
party custodian for a person released before trial. The court is
required to ensure that a proposed custodian is physically able
to perform the duties of a custodian, and requires them to
report immediately if the defendant has violated conditions. It
also prohibits a person from acting as a third-party custodian
under certain circumstances, such as being a witness in the
case, having a recent conviction, or having been recently
charged with a crime.
Section 6 attempts to address the issue in the Williams v. State
case relating to general release conditions of a person charged
with a crime involving domestic violence. It contains language
that conforms to the new sections of the bill.
Section 7 is in response to Williams, which held that the
statute prohibiting a person from returning to the home of a
victim was overly broad. That case said that the court could
enter such a prohibition but it must consider specific
conditions. In cases of domestic violence the defendant could
not return to the home of the victim for at least 20 days; the
victim would need to consent to the return; the defendant could
not have a prior conviction for domestic violence; and the
defendant would need to establish by clear and convincing
evidence that his or her return to the residence would not pose
a danger to the victim.
2:05:54 PM
Section 8 rewrites the provision for appeal from conditions of
release, but it does not reenact the current provision that
allows the court to amend the release order at any time. Rather,
it requires the person to follow the procedures adopted for
asking the court to amend conditions of release. The appeal
procedure of the trial court's bail decision is similar to
current law.
Section 9 adds a new section to address the temporary release of
a person for an emergency such as the death of a family member.
This is similar to the current law under AS 12.30.010(a).
Section 10 addresses the release of a person who has been found
guilty but not yet sentenced or whose conviction is being
appealed. It allows the release under the general provisions of
AS 12.30, but the person seeking release is required to
establish by clear and convincing evidence that the release
would reasonably assure the person's appearance and would
reasonably assure the safety of the victim and the community.
The bill would prohibit the release of a person found guilty of
all sexual felonies, and a person found guilty of a class B
felony or class C felony who has been convicted of a felony in
the prior 10 years. This avoids the equal protection of law
problems in Bourdon v. State.
2:08:29 PM
Section 11 makes clarifying changes to the law pertaining to the
release of a material witness who is not responding to a
subpoena to appear; he or she may be arrested. After the witness
has been deposed, he or she may be released under the bail law
unless his or her presence is required at trial.
Section 12 specifies that a person who is in custody with a
petition to revoke probation does not have an automatic right to
be released under AS 12.30, but he or she may seek release. The
bill provides that the probationer must establish by clear and
convincing evidence that conditions on his or her release will
reasonably assure the appearance of the probationer and the
safety of the victims, other persons, and the community.
[Section 13 is a conforming amendment to current law.]
Section 14 clarifies that for purposes of the bail statute, a
conviction occurs at the time a person is found guilty, either
by verdict or by plea.
Sections 15-29 are either definitions or conforming amendments
with the exception of Section 26 that amends Rule 603(b), Alaska
Rules of Appellate Procedure, to clarify that the release of a
person whose conviction is being appealed may be allowed under
the provisions of AS 12.30.
2:10:33 PM
CHAIR FRENCH focused on the new subsection (d) on page 7 that
addresses a person who has been charged with a crime and is
seeking release from jail ahead of trial. He observed that to
some extent the bill tracks the federal bail statutes, but the
U.S. Constitution and the Alaska Constitution articulate the
right to bail differently. Under the Eighth Amendment the right
to bail is a right to be free of excessive bail, whereas the
Alaska Constitution is much more emphatic. It says that a person
has a positive right to be released on bail ahead of trial.
MS. MCLEAN said that's correct provided the victim and the
community will be protected and that the person will appear at
trial.
2:13:49 PM
CHAIR FRENCH asked if she's had occasion to ask for a memo on
this because he foresees potential problems.
MS. MCLEAN offered to provide a memo at the next hearing based
on research that Ms. Carpeneti has done.
2:15:05 PM
CHAIR FRENCH found no further questions and announced he would
hold SB 252 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB_257_Sponsor_Statement.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB 257 Juneau DistCourt LOS.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB257 Letter of Support.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB257 Ketchikan Magistrate LOS.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB257 JYC Bd LOS.doc |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB92 Sponsor Statement.pdf |
SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| SB 92 Sectional.pdf |
SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| SB92 Press.pdf |
SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| SB92 Letters of Support.pdf |
SFIN 3/26/2010 1:30:00 PM SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| Wasilla PD LOS.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |