Legislature(1999 - 2000)
03/29/2000 09:30 AM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE BILL NO. 366
An Act relating to the rights of crime victims, the
crime of violating a protective order or injunction,
mitigating factors in sentencing for an offense, and
the return of certain seized property to victims;
expanding the scope of the prohibition of compromise
based on civil remedy of misdemeanor crimes involving
domestic violence; amending Rules 10, 11, 13, 16, and
17, Alaska District Court Rules of Civil Procedure and
Rule 9, Alaska Rules of Administration.
ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL
DIVISION, DEPARTMENT OF LAW, stated that HB 366 deals with
victims' rights. It does not adopt any major changes in the
law, but does adopt changes that are important to victims'
suffering the circumstances which the bill addresses. The
bill does four things:
? Allows a mitigated presumptive sentence for speedy no
contest or guilty pleas;
? Simplifies procedures for victims to recover stolen
property;
? Establishes a crime for violating protective
injunctions in child in need of aid cases;
? Extends current disallowance of civil compromise in
some domestic violence cases to all domestic violence
cases.
Ms. Carpeneti noted that a court can not issue an injunction
for a child in need of aid case unless it makes a finding
that the individual has abused the child physically or
sexually.
Representative G. Davis stated that portion concerned him
given the "subjective present danger". Ms. Carpeneti
explained that would not be affected in this bill. Co-Chair
Therriault clarified that on Page 2, new language was being
added which was a reference to the domestic violence
section. Ms. Carpeneti added that was a provision contained
in Title 11,which makes it a crime to violate a domestic
violence protective order.
Co-Chair Mulder commented that Section 3 was a different
focus from the rest of the bill. Ms. Carpeneti replied that
Section 3 deals with victims of property crimes. It provides
a simplified procedure for getting the property back. That
section addresses only those cases where the property is in
the possession of the law enforcement. The language provides
for a simplified procedure. It would allow the pawnbroker
to have their say and due process and the right to present
his or her case.
Co-Chair Mulder asked how the court would make a decision
involving the pawnbroker. Ms. Carpeneti replied that the
owner of the property has a higher interest than the
pawnbroker. Co-Chair Therriault interjected that "victims'
rights" brings the bill together.
Ms. Carpeneti added that the bill would adopt as a statutory
mitigator, if the defendant acted after being charged with a
crime, to alleviate the effect of the crime on the victim,
by pleading guilty within 30 days of the charges. The
mitigator would have already been recognized by the Court of
Appeals as a non-statutory mitigator. There is a provision
in law which allows for civil compromise of certain
misdemeanor charges. Right now, the law allows civil
compromise but it does not allow it in about 98% of the
domestic violence cases. The new language would make that
clear.
Representative G. Davis referenced the "mitigating"
stipulation. He asked if the judge would have the option of
reducing the mandatory sentence. Ms. Carpeneti responded
that mitigatory sentencing applies to presumptive
sentencing. That would apply to first time classified
felonies, first time unclassified felonies and second time
felonies.
Co-Chair Therriault referenced the Department of Law's,
Public Defender fiscal note. He believed that there would
be less work for the mitigator. Ms. Carpeneti commented
that she did not understand the new roll of the mitigator
position, which is being requested. She stated that law
currently allows for a civil compromise and admitted that
this request would be minor change to current law. Ms.
Carpeneti added that a court would have to approve a civil
compromise, regardless.
Representative J. Davies MOVED to adopt Amendment #1, 1-
GH2024\A.1, Luckhaupt, 3/28/00. [Copy on File]. Co-Chair
Mulder OBJECTED.
Representative J. Davies explained that the Council on
Domestic Violence had submitted the amendment. The
amendment speaks to a time when a person commits a crime,
violating a protective order. The intent of the amendment
would be to relax the requirement that the order needs to be
filed. Given that, if there was a valid protective order
issued in another state, it would provide that same standard
in Alaska. At this time, filing could be an issue. The
amendment would fit under the order of protecting victims of
crime.
Co-Chair Mulder asked if this concern had been presented to
the Department before this meeting. Ms. Carpeneti clarified
that it had not. Co-Chair Therriault asked if there was a
Department position on the amendment. Ms. Carpeneti stated
that philosophically, it would be a good idea, however, the
civil provision of the domestic violence law provides that a
protective order from another state has to be filed to be
enforced civilly. By allowing it to be criminal would
present an anomaly in law which needs to be fixed. She
noted that the federal government does not require filing of
protective orders for them to be enforced.
Representative G. Davis asked if Alaska was more stringent
than other states. Ms. Carpeneti replied that the way the
amendment was written, it requires protective orders. In
order for it to be a violation of crime, it would have to
come under the statutes.
(TAPE CHANGE, HFC 00 - 87, Side 2).
Co-Chair Mulder stated that ultimately, the victim would
have to have contact with the enforcement agency at some
point. Otherwise, they would have false protection. Ms.
Carpeneti commented that a problem could result if someone
came to our State and did not know that they had to file a
protective order or did not have time to file it before they
were victimized.
Representative Phillips asked why the amendment was not
considered when the bill was drafted or discussed in the
House Judiciary Committee.
LAUREE HOGONIN, DIRECTOR, ALASKA NETWORK ON DOMESTIC
VIOLENCE AND SEXUAL ASSAULT (ANDVSA), JUNEAU, explained that
ANDVSA was not aware that out-of-state orders could not be
prosecuted until ten days ago. This concern came up at a
national meeting, as an active piece of law right now,
enforcing out-of-state protective orders across the nation.
The discussion came up about prosecuting the out-of-state
orders. It had been left out of this area of protective
orders issued from other states. This could happen because
the victim was not familiar with the Alaska Statute or
because in several other states, filing is not a
requirement. When this came to the attention of the ANDVSA
staff, Ms. Hogonin noted that she spoke with Ms. Carpeneti
and Representative J. Davies to help fix the problem.
Representative Phillips asked if the Alaska orders include a
phrase noting that if you transfer out of the state, you
must make contact with the public safety officers of the
state that you are going to. Ms. Hogonin replied that does
not happen because there are two functions at looking at
protective orders with full faith and credit. The issuing
state is responsible for determining who is protected, the
terms and conditions of the order and how long that order is
in effect. The enforcing state is responsible for how that
order is enforced, the arresting authority of responding to
it, and the notification and penalty of procedures. It
would not be necessary or practical for the Alaska order to
indicate that you have to contact law enforcement or the
court in the state you are moving to as that may not be the
law for that state which may not require filing.
Ms. Carpeneti stated that, AS 18.66.140 would require a
change in order to comply with the need. She acknowledged
that the amendment could fit under the content of the
proposed bill.
Ms. Hogonin stated that there is work being done by two
different national groups in the process of developing a
model code for enforcement of protective orders, one through
the United States Attorney General and the other through the
Department of Justice. She noted that this would be an
opportunity for Alaska to include a tool to take care of
situations so to have a valid protective order from another
state for those victims who either don't know that they are
suppose to file or have not had the opportunity to file. If
they had a confrontation, inclusion of this language would
allow for a prosecution if they were violated.
Co-Chair Mulder questioned if there should be a fiscal note
submitted by Department of Public Safety.
HB 366 was HELD in Committee for further discussion.
| Document Name | Date/Time | Subjects |
|---|