Legislature(2009 - 2010)HOUSE FINANCE 519
04/12/2010 01:30 PM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| SB110 | |
| HB324 | |
| HB283 | |
| HB126 |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 110 | TELECONFERENCED | |
| + | SB 222 | TELECONFERENCED | |
| + | HB 324 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 283 | TELECONFERENCED | |
| += | HB 126 | TELECONFERENCED | |
HOUSE BILL NO. 324
"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."
3:13:38 PM
Co-Chair Hawker moved to adopt work draft 26-GH2910\S
Luckhaupt 4/11/10.
Co-Chair Stoltze OBJECTED.
Mr. Svobodny stated that Section 1 of the bill moves the
offense of failure to appear in court from Title 12 to
Title 11. The current bail bill was passed in 1966 and has
not been updated or moved when the criminal code was
revised in 1978 by the legislature. The section moves the
location of the crime from the criminal section of the law
to the criminal law. The state must prove that a person
knew that they must appear in court. This bill clarifies
that we are not able to prove the negative. The section
does not refer to strict liability which means that despite
a person's excuse, if a law is broken, they are prosecuted.
The law here provides an affirmative defense.
Mr. Svobodny continued with Section 2. He pointed out that
the section allows for police arrest without a warrant for
violating a condition of release. Section 3 establishes the
procedures for obtaining bail in any particular case. The
section aligns with present bail conditions and adds
conditions deemed appropriate by the court system.
3:19:41 PM
Mr. Svobodny stated that the section requires a person
released from court to be released on bail or their own
recognizance. The signed conditions of release can cost the
court system time in the state's view. For important events
the state requires a signature for the conditions of
release. A provision where a judge can change bail at any
time he or she deems appropriate is dropped.
3:22:56 PM
Mr. Svobodny noted that the process describes the various
circumstances regarding appropriate conditions of release.
He pointed out Section 4 and the burden of persuasion or
proceedings which establishes that the state has the burden
of proving the person is a threat to society. A defendant
must go forward to show that they are not a danger to the
community. When the charge before the court is an
unclassified felony, the defendant must show the court why
they are likely to appear or why they do not present a
danger to the community. The next situation includes a
previous felony offense which is included in the CS. A
person seeking bail while engrossed in another case on bail
must come forward to prove that they can follow the
conditions release.
3:27:44 PM
Mr. Svobodny noted that Section 4 addresses situations of
extradition. He commented on the debate about bail in a
case of extradition. Alaskan courts have held that
following a governor's warrant there is not bail following
a case of extradition. A person who fled another
jurisdiction may flee the current one or may prove a danger
to the community. Evidence can be presented on the normal
conditions of release if a court can be convinced.
Mr. Svobodny discussed special conditions that apply in
special cases. He noted specific provisions for specific
crimes. For alcohol related crimes, the court can impose
certain conditions. He pointed out special provisions for
crimes that involve drug offenses.
3:32:15 PM
Mr. Svobodny continued with Section 5 and the protection of
the public. A third party custodian might be issued.
Standards for the appointment of third party custodians do
not yet exist. He provided an example. The bill does
contain exclusions for people who are seeking third party
custodians.
Representative Gara suggested that the sectional analysis
be reserved for questions.
3:35:00 PM
Mr. Svobodny stated that the Court of Appeals overturned a
decision made by the legislature about a prohibition for
people charged with committing a crime of domestic violence
that resolves the dispute. The law requires a twenty day
cooling off period. The defendant must show that they will
not present a danger to the person. Currently the law
states that a person must be brought before a court within
twenty four hours to set bail, but this bill changes the
time to forty eight hours.
3:37:40 PM AT EASE
3:39:33 PM RECONVENED
QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF
ADMINISTRATION, commented page seven, line eight, which
could impact the agency in terms of the conduction of bail
hearings. If judges interpret the section in a highly
technical manner, the change would require the defense
council to use evidence related to the defense to rebut
that presumption. The section could be interpreted
differently, but if elected, defense attorneys are required
to make a decision. He commented on Page 12, Line 13 in
which defense is required to use evidence about the event
itself to meet the burden that might commit them to a
defense of the disclosure of defense theories and evidence.
Vice-Chair Thomas asked if Mr. Steiner had spoken with the
sponsors of the bill about his concerns. Mr. Steiner
responded yes.
Mr. Svobodny responded that a person must illustrate
whether they are a danger to various entities. He continued
with Page 12, Line 13 the addresses domestic violence
situations and cooling off period. The section allows for a
finding that the court must make in the circumstances with
a domestic case.
3:46:33 PM
JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION (ACLU) OF ALASKA (via teleconference),
expressed ACLU's concerns with respect to the
constitutionality of the bill. He noted that prior
correspondence with the Judiciary Committee has been placed
on the BASIS system in the documents section. He pointed
out Page 3, Lines 23 which encompasses the change to a
forty eight hour period for an initial hearing. He stated
that ACLU believes that the standard of 24 hours in Alaska
is effective and it may be unreasonable to statutorily or
legislatively change from a 24 hour to a 48 hour period.
Page 5, Line 23-24 along with Page 6, Lines 12-15 allow for
conditions that enable the court to mandate that a person
maintain employment or that they follow a medical
provider's treatment. These requirements apply to a person
that has been charged but not yet convicted making their
rights those of an innocent person. He believed the
requirement unconstitutional as a judicial mandate on an
individual who is not yet under court supervision. He
continued with Page 7, lines 8 and 9, which is the area of
greatest concern for the ACLU. The Alaska constitution sets
forth that a person has a right to bail. To reverse the
statute by legislative action is constitutionally
inappropriate. He commented that the exception for the
presumption of bail was with capital offense where the
evidence is great. That high standard governs and to create
a rebuttable presumption would prove improper. He continued
with Page 8, Lines 8-28 which include the mandate that an
individual would be required to submit to a search without
a warrant. He continued with Page 10, Line 15-19 and the
imposition of third party custodian status. The presumption
for bail is that a person is entitled to bail and the court
imposition of conditions should be less restrictive. He
recommended additional language stating that a court
finding of an imposition of a third party custodian is the
least restrictive means to assure that a person appears for
the safety of the victim.
3:52:50 PM
Representative Doogan asked about the unconstitutional
nature of the bill.
Mr. Svobodny addressed the concerns presented by Mr.
Mittman. He addressed the initial concern about the change
from 24 to 48 hours. He noted that Alaska is one of three
states with a 24 hour requirement. He pointed out that the
Supreme Court agreed to 72 hour limits.
Mr. Svobodny addressed Mr. Mittman's complaints regarding
conditions of bail including use of medication are
conditions commonly set by the court. Often, people are
incarcerated that have mental illness or diabetes.
Conditions of release are typically set by the court at a
hearing where there has been a finding of probable cause
that a person has committed the crime. The court then has a
responsibility about the least restrictive alternative for
the person. The law presumes that the person will be
released on their own recognizance unless they present a
danger to flee or a danger to the victim or the community.
The judge must then establish conditions of release to
protect the interests of the people.
Mr. Svobodny continued with Page 7, Lines 8 and 9. A
presumption includes the person who proves the proposition
that a person is a flight risk or a danger to the
community. The presumption is found in the federal law and
many other states.
3:59:40 PM
General Sullivan stated that HB 324 is the most important
legislation this session since bail legislation has not
been reformed since the 1950s. He acknowledged the value of
victims' safety. He commented that if a community has the
guts to put a person in jail and he is eligible for bail
that places innocent people at risk. He outlined the broad
approach to the issue of bail. He believed that the
provisions were important as they promote safety. He
believed that the presumption issue suggested that the
state must keep up with the federal rules. He emphasized
that the approaches in the bill were important to keeping
Alaskan communities and victims safer.
4:05:13 PM
Representative Doogan requested clarification on the issue.
Mr. Svobodny responded that every person has a right to
bail. If the state notes that a person is dangerous then
the right to bail is limited. The presumption shifts when a
defendant can prove that they are not flight risks. He
referred to Page 8, Line 28 and the reference to searches.
He clarified that the police cannot search a person
indiscriminately. The law states "to submit to a search of
the defendant's personal property, residence, vehicle, or
any vehicle over which the defendant has control for the
possession of alcoholic beverage or illegal drugs and drug
paraphernalia by a peace officer has a reasonable suspicion
that the defendant is violating the terms of the
defendant's bail release." If there is a nexus between the
condition and the crime, conditions of bail release can be
imposed including searches based upon reasonable suspicion.
Mr. Svobodny addressed the question regarding the third
party custodian. He noted that a third party custodian is a
tool the judge uses to retain the defendant. Third party
custodians exist following a court finding of probable
cause that the person has committed the crime.
4:09:47 PM
Co-Chair Stoltze removed his objection. There being NO
OBJECTION, it was so ordered and Version S was ADOPTED.
Representative Kelly asked about Page 7 and the rebuttable
presumption. He asked about other state's policies
regarding rebuttable presumption. Ms. McLean answered that
eleven states have expressly rebuttable presumption.
4:12:29 PM AT EASE
4:13:32 PM RECONVENE
Co-Chair Stoltze noted all zero fiscal notes except one for
$50 thousand for the draft CS recently adopted.
Representative Gara explained that with rebuttable
presumption additional time is not necessary. He MOVED to
Zero out the fiscal note dated 4/12/10. The $50 thousand
was reduced to zero.
4:16:09 PM
Vice-Chair Thomas MOVED to report CSHB 324 (FIN) out of
Committee with individual recommendations and the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
CSHB 324 was REPORTED out of Committee with a "do pass"
recommendation and with attached new zero note by the
Department of Administration, attached new zero note by the
House Finance Committee for the Alaska Courts System, and
previously published fiscal notes: FN1 (ADM), FN3 (COR),
FN4 (LAW), and FN5 (DPS).
4:18:07 PM