Legislature(1997 - 1998)
02/19/1998 01:45 PM House FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 245
"An Act relating to minimum sentences for assault in
the fourth degree that is a crime involving domestic
violence; providing that a prisoner may not contact
the victim of the offense when provided access to a
telephone or otherwise immediately after an arrest;
and amending Rule 5(b), Alaska Rules of Criminal
Procedure."
REPRESENTATIVE FRED DYSON stated that HB 245 would
establish two important steps against domestic violation
(DV) in the State. It would place into effect graduated
minimum sentences for domestic violence offenders. Just as
the law recognizes the need to ratchet up penalties for
drunk drivers, mandatory minimum sentences for repeat DV
offenders delivers the message that Alaska will no longer
tolerate this cycle of violence.
HB 245 would prevent defendants from using their "one phone
call" to contact their victims following their arrest.
Victim groups and police departments throughout the State
recognize this action as another important step in the
fight for victims' rights.
Representative Dyson urged members to consider work draft
version 0-LS0450\P, Luckhaupt, 1/16/98 the "P" version
rather than the 0-LS0450\Q, Luckhaupt, 2/19/98 the "Q"
version.
Representative Kelly asked if the intent was that the
offender not communicate at all with the victim or not
engage in threatening speech with the victim. He pointed
out that currently, threatening speech is a crime.
REPRESENTATIVE ETHAN BERKOWITZ responded that the "P"
version contained language addressing Representative
Kelly's concern. The "Q" version specifies only domestic
violence offenses. He believed that it would be
appropriate to preclude any contact between an offender and
the victim. That contact could be construed as "witness
tampering" conditions which domestic violence are
vulnerable too.
Co-Chair Therriault noted that the "Q" version would place
restrictions on crimes that relate to domestic violence.
These crimes are specified only in three sections of the
proposed bill. He recommended that there could be other
crimes against a person that the restrictions could apply
too.
Co-Chair Therriault questioned language used on Page 2,
Section 4, relating to the minimum terms of imprisonment.
He requested additional information to substantiate the
recorded numbers. He inquired if they were the average
sentences ordered by judges and if they were, would they
not then become the minimum. He believed that ultimately,
people would be sentenced to the average and that the zero
fiscal note would not adequately reflect the impact of such
action. Co-Chair Therriault focused on the amendment
distributed by the Department of Law. [Copy on file]
Representative Berkowitz responded to comments by
Representative Therriault. Regarding minimum sentence, an
expectation exists that if there were a minimum prison
sentence handed down by the judge, there would then become
a deterrent for anyone anticipating committing such a
crime. He added that the amendment had proposed a minimum
fine as clarified by the Department of Law. Currently,
there is no easy way to pursue someone who has violated the
order once the sentence has been passed down. The
legislation would provide clear definition for the
prosecution.
Co-Chair Hanley questioned the problem, the legislation
attempts to address. Representative Dyson replied that it
would provide consistency in domestic violence sentencing,
with progressive and harsher sentences for the repeat
offenders. Co-Chair Hanley asked if it currently was a
crime to make a threatening phone call. Representative
Berkowitz explained that it could be construed as
harassment.
ANNE D. CARPENETI, ASSISTANT ATTORNEY GENERAL, DEPARTMENT
OF LAW, offered to answer some of the questions raised by
the Committee. She commented that the phone call made
might not be an intentionally threatening call, although
any call made to the victim could be threatening if it were
made immediately following the arrest. Co-Chair Hanley
asked how would it be posted that the offender would be
allowed only one call and that call could not be to the
victim. Ms. Carpeneti explained that a notice could be
posted on the telephone.
Representative Kelly asked for the criteria used by the
police officer to make the arrest. Ms. Carpeneti explained
that the police officer would go to the scene of the crime,
observe the damages, talk to the witnesses and then make a
determination if there had been a probable cause violation
of the law. She advised that many injuries do not surface
immediately following the incident.
Representative Kelly ascertained that the legislation could
be taking away someone's right to communicate with their
family. Ms. Carpeneti noted that the prohibition would be
made after the decision that there had been probable cause
to arrest the offender. The proposed action would not apply
to cases before the police officer made that determination.
Representative J. Davies voiced concern that the only
control used to achieve the goal would be a note on the
phone. He elaborated that there must be control over the
number dialed. Ms. Carpeneti understood that the police
officer would dial the number and would then leave the
room. If the person then decided to dial another number,
they would be violating the proposed statute, which would
then become a further offense. Representative Berkowitz
added that the way in which this would be handled would
depend on the facility where the offender had been brought.
Representative Dyson agreed with Representative J. Davies'
concern, noting that to expect an honor system to work with
this client population would be a contradiction of terms.
He hoped that each jurisdiction would do the necessary
things to preclude the call being made to the victim. The
purposed law should empower them to do that screening.
Representative G. Davis commented that a phone call
involves two parties and that the person answering has the
power to hang up. He voiced concern with the proposed
language "probable cause", and questioned the amount of
discretion given to the law enforcement community.
BARBARA BRINK,(TESTIFIED VIA TELECONFERENCE), DIRECTOR,
PUBLIC DEFENDER AGENCY, DEPARTMENT OF LAW, ANCHORAGE, noted
that in current law it is a crime to call a victim and
threaten them. There are a wide variety of statutes, which
cover the dialed conversation depending on how egregious
the content was. She cautioned the Committee in fashioning
a rule that was so broad that it would take away the right
to communicate with one's family.
Ms. Brink noted that not every victim has the same needs.
Victims even of domestic violence often want to communicate
with their families. She pointed out that in many cases
these people live together, have children together, debts,
bills and co-mingled assets. She stressed that it is not
every victim who wants to preclude communication.
Ms. Brink commented that the provision involving probable
cause creates a grave concern. In identifying who the
people in prison are, it is important to remember that in
Alaska, an assault charge could be given for disorderly
conduct. In this State, if a police officer investigates a
domestic violence complaint, there is a mandatory arrest
provision.
Passage of such broad language in the bill, would preclude
any contact with other people who have been "thrown into
this mitt". She pointed out that if a kid went for a "joy
ride" in their dad's car and got stopped, he would not be
able to call home.
Ms. Brink voiced concern with mandatory minimum sentences
and that no matter how many cases there are, each
individual situation has "quirks" associated with it. A
mandatory minimum sentence removes the judges ability to
fashion appropriate punishment considering all the
circumstances of that case. The criminal code passed in
1982 tried to make a logical and sensible system out of it.
Ms. Brink noted that she did not understand the fiscal
costs associated with the bill. When a prosecuting
attorney represents someone charged with an offense,
statistics will conform to the national average. At
present time, over 90% of the cases are settled without
going to a jury trial. She believed that one reason many
cases are settled is that they can make a "pitch" in front
of the judge. If a person realized that they were
definitely going to go to jail for 30 days, they would be
more reluctant to accept responsibility.
Ms. Brink advised that domestic violence is a crime with
such heated emotions on both sides that a deterring value
of a higher sentence would not come into the perpetrator's
mind when he is in the middle of the scene.
Representative Kelly requested clarification regarding the
mandatory arrest provision. Ms. Brink understood that the
Victim's Crime Act, passed last session, stipulates that
when a police officer is sent to a scene, the police
officer is required to make an assessment of that situation
and determine who was the principle aggressor. She
believed that the police officer was responsible to make an
arrest.
Ms. Carpeneti countered that the Domestic Violence Act,
passed two years ago by the Legislature, did contain a
mandatory arrest for domestic violence only upon a
determination of probable cause that domestic violence had
occurred. She reiterated that police officers are not
required to make an arrest at a scene where there is
nothing going on. Even under the circumstances of probable
cause, a mandatory arrest applies when a police officer,
after an investigation determines that probable cause
exists. The reasoning is to diffuse very dangerous
situations, removing the violator from the home in order
that more violence does not occur.
Ms. Carpeneti continued response to the testimony given by
Ms. Brink. She clarified that there are other crimes that
can be committed if a person threatens another person over
the telephone. The proposed legislation addresses the
telephone call itself, which by itself could be a threat.
The expectation is that not many cases will arise from this
law and that the proposed legislation would hopefully
establish deterred defense. The victims right to
communicate with the defendant would not be taken away.
Co-Chair Hanley asked how soon would the defendant be given
the right to make the initial call and then how much time
would need to lapse between that call and the call to the
victim. Ms. Carpeneti replied that the first call could
be made immediately following the arrest. Representative
Berkowitz and Ms. Carpeneti agreed that a person has the
right to one phone call; subsequent calls do not fall under
the statute. Ms. Carpeneti suggested adding clarifying
language regarding concerns and timing of the phone call.
Co-Chair Hanley thought that a problem could arise if the
victim accompanied the perpetrator to the jailhouse given
the proposed language. Ms. Carpeneti advised that the
legislation was not intended to cut off communication for
married couples sharing accounts and assets in common.
(Tape Change HFC 98- 33, Side 2).
Representative Berkowitz emphasized that "no contact" means
"no contact". If a victim wants to communicate with the
defendant, the normal course would be to get the bail
conditions released. Also, a judge can lift at anytime the
"no contact" order.
Ms. Carpeneti thought that the situation could vary
throughout the State depending on the facility, which the
offender had been taken to. She thought that the victim
would not want contact until the defendant had come before
the judge and then at that time, the court could make the
"no contact" order.
Co-Chair Hanley asked if the proposed mandatory minimum
sentences would be consistent with those in current
domestic violence legislation. He asked if it would be
possible to be convicted of two crimes. Ms. Carpeneti
replied that currently, presumptive sentencing does exist.
Representative J. Davies advised that the right to
communication would be exercised through AS 12.25.150(b).
Representative Kelly asked at what point would the victim
loose the window of time to drop charges. Representative
Berkowitz advised that in the State Of Alaska, victims
never have that right because if you give the victim the
ability to drop charges, the defendant then has leverage
over the victim. He stressed that a crime against a
person, is a crime against an entire community.
Representative Kelly questioned the advantage of the
proposed legislation. Representative Berkowitz advised
that it could be assessed as "witness tampering" if the
defendant tried to manipulate the victim. A conversation
would have to be threatening for the legislation to apply.
Representative Kelly asked how many hours would need to
pass before the defendant could ask the victim about the
family. Representative Berkowitz advised that period would
extend from immediately after the arrest until the
arraignment, less than twenty-four hours.
In response to concerns of Representative Kelly,
Representative Berkowitz explained that if the victim was
in custody, and assuming that there was an order of no
contact by the arresting magistrate, there could be a
narrow window when the defendant could talk to the victim.
Representative Kelly questioned how that could occur as the
defendant would be locked up. Representative Berkowitz
explained that after the formal arraignment occurs, the
victim could indicate that they need to speak with the
defendant; the judge would then be in control of that
determination. Representative Kelly reiterated his concern
with the long-term contact limitation proposed in the
legislation.
Co-Chair Hanley pointed out that in present law, the judge
could issue a "no contact order" or a restraining order.
Ms. Carpeneti pointed out that the legislation does not
address long-term communication. After the person is
arraigned, the Court has the ability to order the defendant
not to have any contact with the victim. She stressed that
the Court uses common sense in making those determinations,
and that the Court can establish procedures in which
business can be taken care of between the two people.
Co-Chair Hanley spoke to the difference between version "P"
and version "Q". The "P" version contains broader language
in relationship to the person who commits the crime and the
person who is the victim. The "P" version is also more
wide spread and is not just crimes against another person.
He recommended adopting the version that specifies crimes
against a person rather than the "P" version. He requested
further information on the proposed amendment. [Copy on
File].
Ms. Carpeneti stated that the amendment addresses concerns
that once the Court had ordered a person not to have
contact with the victim, following the hearing, the
defendant would then be ordered again not to contact the
victim for safety reasons. She commented that at this
time, there is no good way to enforce that order. The
amendment would propose that an additional crime be added
to implement the order. Co-Chair Hanley pointed out that
the amendment would create a different charge.
Representative J. Davies questioned if violation of the
offense as recommended in the amendment would result in a
class A misdemeanor. Ms. Carpeneti noted that the maximum
punishment for that offense would be 1 year in jail or a $5
thousand dollar fine.
Representative J. Davies created a hypothetical situation
in which the defendant is charged with domestic violence
and then the complaint withdrawn; if no other contact was
violated, would they then be responsible only for the "no
contact" charge. Ms. Carpeneti replied that could be
possible, although, highly unlikely. Co-Chair Hanley
disagreed. He thought that there would be many defendants
who would violate the "no contact" order.
Co-Chair Hanley recommended that the proposed legislation
be held over in order to create a new committee substitute
to consolidate concerns of Committee members and
incorporate the amendment.
HB 245 was HELD in Committee for further consideration.
(Tape Change HFC 98- 35, Side 1).
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