Legislature(1997 - 1998)

02/23/1998 01:45 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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."                                                                    
                                                                               
JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL OF DOMESTIC                         
VIOLENCE AND SEXUAL ASSAULT testified in support of HB 245.                    
She observed that she was alerted by a police officer to the                   
problem of abusers calling their victims within hours of                       
their arrest.  She emphasized domestic violence perpetrators                   
who are exercising an on going cycle of control over their                     
victims will use whatever means they have to continue their                    
control.                                                                       
                                                                               
Ms. Andreen stressed that contact by the defendant to the                      
victim should be limited before the first judicial hearing.                    
This allows victims time to decide whether they should seek                    
a civil protective order and to make plans for the safety of                   
themselves and their children.  The judge can determine                        
whether or not there can be contact at the first judicial                      
hearing.                                                                       
                                                                               
Ms. Andreen spoke in support of increased penalties for                        
repeat domestic violence offenders.  She maintained that                       
domestic violence offenders are not held as accountable by                     
the criminal justice system as offenders of other offenses.                    
She stated that the Council supports 30 days for a second                      
offense and 60 days for a third offense when it is a fourth                    
degree assault and a prior history of domestic violence.                       
                                                                               
Ms. Andreen spoke in support of criminalizing unlawful                         
contact.  It is a criminal offense to violate a civil order                    
preventing contact.  There are no quick consequences for                       
someone who has been ordered by the court not to have                          
contact as a condition of pretrial or presentencing release,                   
probation or parole.                                                           
                                                                               
Ms. Andreen pointed out that the these issues fall in line                     
with recommendations of the Governor's Domestic Violence                       
Summit held in December 1997.  The Summit concluded that                       
offenders need to be held more accountable for their                           
actions.  She stressed that the importance of giving the                       
court system and the criminal justice system sanctions and                     
controls in order to hold offenders accountable.  She                          
asserted that it is important that the violation of                            
conditions of release be criminalized.                                         
                                                                               
Co-Chair Therriault provided members with proposed committee                   
substitute, Work Draft 0-LS0450\R, dated 2/21/98 (copy on                      
file).                                                                         
                                                                               
Representative Davies MOVED to ADOPT Work Draft 0-LS0450\R,                    
dated 2/21/98.  There being NO OBJECTION, it was so ordered.                   
                                                                               
Co-Chair Therriault reviewed the committee substitute. "A                      
person is arrested for a crime involving domestic violence"                    
was added on page 1, line 10.  A proposed Amendment 2 would                    
broaden this language by adding "or a crime against a person                   
(copy on file).  There was a conforming change in section 3.                   
There was a court rule change in section 10.  On page 1,                       
line 13 a person is guilty if they "attempt to initiate                        
communication with the alleged victim of the crime that was                    
the basis for the person's arrest."                                            
                                                                               
Representative Davies referred to page 2, line 17.  He noted                   
that AS 12.30.025 specifically exempts domestic violence.                      
                                                                               
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES                     
SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW clarified that                   
AS 12.30.025 should be omitted.                                                
                                                                               
Representative Davies MOVED ADOPT Amendment 1, delete AS                       
12.30.025 on page 2, line 17.  There being NO OBJECTION, it                    
was so ordered.                                                                
                                                                               
Co-Chair Therriault MOVED to ADOPT Amendment 2. Amendment 2                    
would add "or a crime against a person".  There being NO                       
OBJECTION, it was so ordered.                                                  
                                                                               
Co-Chair Therriault clarified that Amendment 2 includes a                      
title change to incorporate the reference of crimes against                    
a person into the title.                                                       
                                                                               
Representative Davies provided members with a spreadsheet                      
detailing the sentencing of domestic violence cases in 1986                    
(copy on file).  He observed that, in 1986, 400 of 1279                        
domestic violence offenders received no jail time.  He                         
estimated that under HB 245 half of these cases would                          
receive jail time.  He observed that if half of these                          
offenders received 20 days, the budget would be impacted by                    
approximately $400 thousand dollars a year. To approximate                     
the cost of the legislation he assumed that 5 percent of the                   
offenders that did not receive jail time in 1986 would                         
receive 20 days; 10 percent of the offenders that received 1                   
- 5 days in 1986 would receive 15 days; and 15 percent of                      
the offenders that received 6 - 10 days in 1986 would                          
receive 10 days.  He concluded that there would be an                          
additional cost of $87.5 thousand dollars a year.  He                          
maintained that the indeterminate fiscal by the Department                     
of Corrections is under-estimated.                                             
                                                                               
Representative Davies spoke in support of a revised fiscal                     
note for the Department of Corrections of $80 thousand                         
dollars.                                                                       
                                                                               
Ms. Carpeneti observed that the statistics do not identify                     
the number of previous offenses.  She assumed that offenders                   
that did not receive jail time were convicted on a first                       
offense without a violation of a protective order.  She                        
concluded that the legislation does not represent a                            
significant departure from what is currently occurring.                        
                                                                               
Representative Davies argued that there would be a cost.  He                   
requested that the legislation be held for further                             
consideration of the fiscal note.                                              
                                                                               
(Tape Change, HFC 98 - 38, Side 2)                                             
                                                                               
Ms. Carpeneti noted that the Department of Corrections based                   
their fiscal note on estimations by the Department of Law.                     
                                                                               
Representative Fred Dyson acknowledged Representative                          
Davies' logic as irrefutable.  He observed that those that                     
are in the field have a different conclusion.  He spoke in                     
support of moving the legislation.  He suggested that the                      
impact is unknown.  He pointed out that the legislation may                    
act as a deterrent.                                                            
                                                                               
Representative Ethan Berkowitz pointed out that it is hard                     
to determine the cost.  He observed that a reduction of                        
domestic violence cases would be accompanied by a decrease                     
in social costs to the State.  He felt that the legislation                    
would reduce the instances of domestic violence.                               
                                                                               
Representative Davies stated that he supports the                              
legislation.  He expressed concern that the Department has                     
sufficient funding to implement the legislation.                               
                                                                               
Co-Chair Hanley pointed out that the Department of                             
Corrections does not have a lot of options for sentenced                       
offenders.  He stated that the cost will be addressed                          
through the budget.                                                            
                                                                               
Representative Davies emphasized that there is a tendency                      
for the system to adjust to reality.  He suggested that if                     
there are no cells that charges will be adjusted down.                         
                                                                               
In response to a question by Representative Kohring, Co-                       
Chair Therriault clarified that the restriction on calls, to                   
the victim, would only be placed on individuals between the                    
time of arrest and the initial appearance before a judge.                      
The judge would determine if there should be further                           
restrictions on the individual's right to contact a victim.                    
Representative Dyson added that the intent is to prevent                       
intimidation of the victim by the defendant.                                   
                                                                               
Representative Davies MOVED to ADOPT an amended fiscal note                    
for the Department of Corrections of $80 thousand dollars.                     
Co-Chair Therriault OBJECTED.  He observed that the sponsor                    
can work with the Department to refine the fiscal note as                      
the legislation travels through the system.                                    
                                                                               
A roll call vote was taken on the motion to adopt a revised                    
fiscal note of $80 thousand dollars for the Department of                      
Corrections.                                                                   
                                                                               
IN FAVOR: Davies, Grussendorf, Moses                                           
OPPOSED: Davis, Foster, Kelly, Kohring, Martin, Mulder,                        
Therriault, Hanley                                                             
                                                                               
The MOTION FAILED (3-8).                                                       
                                                                               
Representative Davies MOVED to ADOPT Amendment 3.  Co-Chair                    
Therriault OBJECTED.                                                           
                                                                               
Representative Berkowitz explained that Amendment 3 would                      
allow the prosecuting agency to seek an additional crime for                   
the violation of a no contact order.  Co-Chair Therriault                      
questioned if prosecutors could reinstate the suspension of                    
sentence.  Representative Berkowitz noted that the worst                       
recidivists would receive the maximum misdemeanor sentence.                    
They would not have any suspended sentence.                                    
                                                                               
Co-Chair Therriault observed that the amendment would                          
restrict contact of the witness and the victim.                                
                                                                               
Ms. Carpeneti clarified that Amendment 3 addresses what                        
happens to a person after a judge has ordered them not to                      
have contact with a victim or a witness to a crime.  She                       
observed that there is no good, effective way of enforcing a                   
court order for restrictive contact.                                           
                                                                               
Co-Chair Hanley referred to page 1, section 1, subsection                      
(2).  Ms. Carpeneti explained that the "order" refers to                       
release on bail, conditions of probation, or judgement in                      
sentencing.  Subsection 1 observes that the individual has                     
been ordered not to contact the victim or witness as a                         
condition of an order.  Subsection 2 occurs when they have                     
contacted the person in violation of the terms of the order.                   
She acknowledged that a judge could order the person back to                   
jail if there is a suspended sentence or find them in                          
contempt of court.  A contempt finding would result in a                       
$100 dollar fine.  She emphasized that Amendment 3 would be                    
a more effective deterrent then current options available to                   
the court.  She observed that offenders violate their                          
contact orders fairly regularly.  She stressed that                            
Amendment 3 would be an effective deterrent in the most                        
serious cases where people keep contacting their victim.                       
                                                                               
In response to a question by Co-Chair Therriault, Ms.                          
Carpeneti explained that the witness may be a child who                        
lives in the house where there is a domestic violence                          
assault.  Access can be restricted as a condition of release                   
under current law.                                                             
                                                                               
In response to a question by Representative Mulder, Ms.                        
Carpeneti noted that some judges believe they already have                     
the authority to order a defendant not to contact a victim                     
for any period of time that seems reasonable under the                         
circumstances.  Other judges do not think they have the                        
authority.  The amendment would make it clear that all                         
judges have the authority to restrict contact.                                 
                                                                               
A roll call vote was taken on the motion to adopt Amendment                    
3.                                                                             
                                                                               
IN FAVOR: Davies, Foster, Grussendorf, Martin, Mulder,                         
Hanley                                                                         
OPPOSED: Davis, Kelly, Kohring, Therriault                                     
                                                                               
Representative Moses absent from the vote.                                     
                                                                               
The MOTION PASSED (6-4).                                                       
                                                                               
Representative Dyson observed that most members have not had                   
the experience of being beaten until they are terrorized.                      
He recounted his own experiences.  He emphasized the terror                    
victims feel when their abusers confront them.  He stressed                    
that victims would benefit from extra tools to prevent                         
contact by their abusers.                                                      
                                                                               
Co-Chair Hanley MOVED to report CSHB 245 (FIN) out of                          
Committee with the accompanying fiscal notes.  There being                     
NO OBJECTION, it was so ordered.                                               
                                                                               
CSHB 245 (FIN) was REPORTED out of Committee with "no                          
recommendation" and with two fiscal impact notes, one by the                   
Department of Administration and one by the Department of                      
Corrections; and with two zero fiscal notes, one by the                        
Department of Administration and one by the Department of                      
Public Safety.                                                                 

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