Legislature(1995 - 1996)
04/10/1996 01:12 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 268 - PRETRIAL RELEASE FOR CERTAIN OFFENSES MR. MICHAEL PAULY, staff to Senator Leman came forward to read the sponsor statement regarding SB 268 into the record. "Mr. Chairman, Members of the Committee, for the record my name is Michael Pauly, staff for Senator Leman, the sponsor of Senate Bill 268. This legislation was introduced to address the serious problem of drug offenders committing additional crimes while they are out on bail, awaiting trial. The Anchorage Police Department has reported numerous instances of these offenders who are released on bail being arrested on the same or similar charges, even before trial has occurred on the original offense. It is our understanding that other police departments in the state have experienced similar problems. Senate Bill 268 would amend Alaska statutes to require the courts to consider setting specific conditions on pre-trial release. For example, the courts could set a curfew time and prohibit the defendant from associating with certain persons or visiting certain places where controlled substances are known to be distributed or used. The court could prohibit the use of cellular phones and other communication devices which are commonly used in the drug trade. In addition, the defendant could confined to his or her residence, the defendant could be required to undergo drug or alcohol testing, or submit to police searches for controlled substances. The violation of one or more of these conditions would be grounds for bringing the defendant back into custody, and would therefore empower both the courts and the police departments to protect the public with these flexible conditions on pre-trial release. I want to mention that Senate Bill 268 was amended on the Senate floor so that the pre-trial release conditions will also apply to violations of alcoholic beverage laws. Specifically, the amendment broadens the scope of the bill to include violations of alcohol license or permit requirements, and to violations of the law in local option areas which have elected not to permit the sale, possession, or production of alcoholic beverages. Senate Bill 268 has been endorsed by the Municipality of Anchorage and the Advisory Board on Alcoholism and Drug Abuse with the Department of Health and Social Services." Number 1096 REPRESENTATIVE GREEN asked if that in current law that these restrictions cannot be imposed on probationers or that they can be imposed, but they can't be verified without some other cause. MR. PAULY stated that he was not aware that it is impossible for these conditions to be put forth, but the legislation does require that the courts shall consider the conditions and impose one or more conditions it considers reasonably necessary to protect the public safety and security. At least one of these conditions would be required to be imposed as the court deems appropriate. REPRESENTATIVE GREEN wondered if this was encouraging or supporting what a judge may do as opposed to them ordering a person to do something. Does this legislation change what a judge can do now. MR. PAULY thought that this legislation definitely encourages a judge and puts the options in statute, but it does state that one or more of these conditions should be imposed. To this extent, this legislation is saying that there will be no pre-trial release without some strings attached. Number 1200 CHAIRMAN PORTER referred to some restrictions on page 2, line 20 which came out of an Anchorage case according to his recollection, regarding prostitutes returning to their "corners." As he recalled, as a result of the case decision, the court bail restriction was challenged and it was upheld. He thought there had to be additional exceptions applied to the extent that if they had lawful employment in this area or it they had to travel through this area to get to and from work, etc. He asked Mr. Pauly if he recalled any discussion regarding this issue. MR. PAULY said that the language in the legislation before the committee now had changed from the language in the original bill. The original language was quite broad in scope, it simply said that not to be present or within a designated area near certain locations. This was where they started and this is how the language has been refined and narrowed. Unfortunately, he was not present during the discussion of this related amendment and couldn't comment specifically whether or not it was drafted to address the case which Chairman Porter referred to. Number 1293 REPRESENTATIVE TOOHEY referred to page 2, line 18 where someone on pre-trial could not be present around people who are drinking alcohol. She used the example of a child being present at their parent's home during pre-release while their parents were drinking. She didn't know how picky they were going to be, but this could mean having to throw out a perfectly good bottle of wine. CHAIRMAN PORTER stated that under specific situations this would be true. MR. PAULY added that this language on alcoholic beverages was part of the amendment which was introduced by Senator Adams on the Senate floor and approved. He understood that this language was added to give a judge discretion in a local option area where consumption or sale of alcohol is not permitted. This would be a legitimate condition in such a community. Number 1383 CHAIRMAN PORTER generally asked about the language regarding someone who cannot engage in illegal conduct during pre-trail and wondered if this could be considered double jeopardy. MR. PAULY said he was not aware as to whether this situation was discussed. He deferred to the Department of Law. Number 1445 DON DAPCEVICH, Executive Director, Governor's Advisory Board on Alcoholism & Drug Abuse, Department of Health & Social Services stated that the board supported this bill for two reasons, one, to discourage illegal alcohol or illicit drug use because it is such a big problem in our communities and when someone who sells drugs is awaiting trial it inevitably reaches the people they try to serve in a negative way. From a treatment aspect they are concerned about this, but also they are concerned about this from a prevention aspect in that there is a message to be delivered when drug users are arrested and immediately are released back onto the streets to sell drugs again. REPRESENTATIVE TOOHEY asked about someone being released who has an alcohol or drug problems and would this be taken into consideration. She noted Alaska's bad stalking murders which take place during pre-trial release and 90 percent of the time these perpetrators have been on alcohol. MR. DAPCEVICH noted that the original bill as he understood it when presented on the Senate side had a provision that mandated treatment. It was withdrawn. Their recommendation was not to withdraw it, but rather require an assessment for treatment be mandated as an option, but this wasn't included. Number 1622 REPRESENTATIVE DAVID FINKELSTEIN stated that he assumed this legislation would apply to everything in the world of drugs. He asked Mr. Dapcevich if he had any sense from his experience whether this would be applied to marijuana. MR. DAPCEVICH said he assumed and hoped that it applied to marijuana. REPRESENTATIVE FINKELSTEIN asked if this was because of a fear that someone would be using marijuana for a second time while they are on probation. MR. DAPACEVICH said that maybe this would be an issue, but the more paramount issue was the sale of this marijuana. Number 1715 JANE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault came forward to testify and commented on Section 2 of the legislation which pertains to conditions to release and domestic violence cases. The Council felt that this Section strengthens the court's ability to order the necessary conditions for releasing (indisc. - trailed off.) REPRESENTATIVE FINKELSTEIN noted the terms and conditions of release under this Section and it's reference to conditions set out under AS 12.30.020. He asked what these conditions were. Number 1798 CHAIRMAN PORTER read these conditions regarding restrictions on travel, custody, etc., outlined in AS 12.30.020. REPRESENTATIVE TOOHEY referred to the stalking provisions again. If someone is stalking a victim, along with other illegal behaviors, she asked if stalking would keep these people in prison regardless. CHAIRMAN PORTER said that this was not the case and cited the presumption of innocence which drives the necessity for bail in all cases, including stalking. Number 1966 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law answered some questions which were brought up during the on-going testimony. She noted that all of these conditions in this pending legislation were discretionary, not mandatory. In terms of the alcohol treatment, they had a concern about the presumption of innocence in a pre-trial release, that some alcohol treatments require some degree of relinquishment of fifth amendment rights to admitting problems, etc. MS. CARPENETI also addressed the double jeopardy issue. She stated that if someone broke a law while they were released on bail they could be charged with this crime. In this situation bail could be denied this person, but this person could not then be charged with the original charges, as well, as the crime during pre-trial release. Number 2090 REPRESENTATIVE FINKELSTEIN offered a conceptual amendment to remove the simple possession of marijuana listed under schedule 6 (a) of the drug categories from the bill. He felt as though the bill was great and made a lot of sense, but the one thing which doesn't fit is this particular possession and the proposed penalties. He used the example of some young person charged with minor possession and on pre-release not being allowed to associate with someone using drugs or alcohol. He noted statistics of Alaskans under the age of thirty to some degree use marijuana, some 28 percent. He also used the argument of individuals using cellular phones for their jobs. He also noted the constitutional ramifications of simple possession of marijuana. CHAIRMAN PORTER made the argument that these conditions outlined in this present legislation were discretionary and the court will consider these things when reasonably necessary. "I doubt very seriously if many courts would deem all of these things on an eighteen year old that was caught with a joint, but at the same time I don't want to make an exception for an eighteen year old with a joint because somebody might get the wrong impression that we don't think that's a serious offense and some of us do." He guessed he would object to this amendment. TAPE 94-49, SIDE A Number 043 CHAIRMAN PORTER requested a roll call vote. Conceptual amendment number one failed. REPRESENTATIVE TOOHEY made a motion to move CSSB 268(JUD) with individual recommendations and attached zero fiscal notes. There being no objection, it was so moved.
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