Legislature(1999 - 2000)
02/24/1999 01:10 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
HB 67 - BAIL HEARING FOR SEX OFFENDERS CHAIRMAN KOTT announced the first order of business is HB 67, "An Act relating to release of certain persons alleged to have committed certain sexual offenses." CHAIRMAN KOTT called on Representative Norman Rokeberg, sponsor of the bill. Number 0052 REPRESENTATIVE ROKEBERG explained the nature of this bill arose at the request of a constituent due to the failure of notifying that constituent's ability to testify before the court as required by statute. He explained the offender was released on bail then re-offended. He called on Janet Seitz to explain further. Number 0210 JANET SEITZ, Staff to Representative Norman Rokeberg, Alaska State Legislature, explained the constituent is the parent of a minor child who was sexually abused by a neighbor. The victim's mother was not notified of the bail hearing at which time she could have testified. At the hearing on whether or not to release the perpetrator the judge did not go along with the recommendation of a 24-hour custodial supervision. The perpetrator was released until sentencing that will occur sometime this month on a type of loose supervision. The perpetrator doesn't live next door to the victim anymore, but the victim's mother is concerned and wants closer supervision for those accused of a sex offense against a minor. Number 0303 REPRESENTATIVE ROKEBERG explained at first it seemed like a simple exercise, but it really opens up for discussion the entire system of implementing victims' rights under the state constitution with the rights of the accused. He explained the act of notification is problematic because language in statute says either the law enforcement can give notice "or" the district attorney. The Department of Law acknowledges its responsibility in giving notice, but sometimes speedy arraignments don't allow for proper notification. In this case, there was a plea change and instead of going to superior court for a full bail hearing there wasn't enough time for notification. Consequently, Representative Rokeberg wants to mandate a 24-hour supervision, but in doing so he has opened up discussions on victims' rights versus the accused, timely notifications, and who is responsible for timely notifications. The intent of the bill is to make sure a victim has the ability to make that victim's view known to the court. He recognizes that there are speedy trial provisions in statute and fiscal impacts on the Department of Corrections due to delays. He also recognizes that a provision to ensure a notification could upset the flow of activity and proceedings of the court system. He suggested taking testimony from the Department of Law and holding the bill over for further consideration. He wants to ensure that the bill accomplishes its goal, but that it does not create other problems or unintended consequences. CHAIRMAN KOTT announced for the record that all members were present at the call to order. Number 0550 REPRESENTATIVE JAMES stated she fails to see why the change of plea and the quick decision put the offender out into society without any supervision. The fact that he plead guilty to the sexual assault of a minor alone ought to have triggered supervision. Number 0603 REPRESENTATIVE ROKEBERG replied the issue surrounds a subsequent sentencing hearing. The perpetrator had the right to bail prior to sentencing. Number 0623 REPRESENTATIVE CROFT noted the perpetrator had the right to bail as long as the judge didn't find that that perpetrator posed a threat to the victim or anybody else. It is a condition of bail under any circumstance. REPRESENTATIVE JAMES stated she doesn't understand the decision made by the judge according to existing law. REPRESENTATIVE ROKEBERG responded the point is the victim didn't have a chance to make any of the circumstances known to the court in order to impact the conditions of bail. Number 0663 REPRESENTATIVE CROFT explained there seems to be three concepts involved here: notification, testimony and supervision. In other words, notifying a victim of a hearing, listening to the testimony and the problems of either requiring or not requiring a person to testify, and determining supervision. In this instance, there was a breakdown in notification. He doesn't know whether there is a significant problem with letting a person testify or not, and he doesn't know whether supervision should or shouldn't be tightened up. Number 0710 REPRESENTATIVE ROKEBERG explained the court system has an opinion on the issue of testimony and will suggest an amendment. Number 0751 REPRESENTATIVE MURKOWSKI referred to a murder trial in Fairbanks whereby a victim's mother was not notified of when the jury's verdict was released. After meeting with Janice Lienhart with Victims for Justice, it is her understanding that it is a practice of the various judges as to whether or not a judge provides notice to a victim. According to Ms. Lienhart, there are certain judges who are very conscientious and other judges simply "space it." Representative Murkowski announced she is now confused and curious about notification requirements in general. Number 0825 REPRESENTATIVE ROKEBERG referred to AS 12.61.010 and stated a crime victim has the right to be notified of the date of trial, sentencing, including a proceeding before a three-judge panel, an appeal, any hearing in which the defendant's release from custody is considered, and the notification of a sentence hearing or court proceeding. Number 0850 REPRESENTATIVE MURKOWSKI stated a judge has the right to do it, but if a judge forgets... REPRESENTATIVE ROKEBERG interjected and stated in this instance a notification would have allowed the victim and/or guardian to indicate the need for 24-hour supervision, for example. Number 0879 REPRESENTATIVE KERTTULA noted it looks like AS 12.61.010 requires that a victim be given notice, but it might not be happening appropriately. REPRESENTATIVE ROKEBERG stated the problem is the language reads "or". The law enforcement agency "or" the prosecuting attorney can give notice. It might be a situation of "who's on first" in some courts. The Department of Law has indicated it has that responsibility, but sometimes there is a breakdown, especially when a young attorney is faced with a stack of arraignment cases. The committee needs to consider whether that part of the statute needs to be fixed. That part of the statute is relatively new and clearly there are some problems that need to be massaged. Number 1015 REPRESENTATIVE CROFT stated there are certainly breakdowns, but it can be very difficult to find these victims. In other words, some victims try not to be found because of the crime involved. He suggested if notification is made into an absolute requirement then there should also be language pertaining to reasonable efforts. Number 1078 REPRESENTATIVE ROKEBERG explained the bill is narrow in scope, but it has opened up the notification issue and its application to any kind of crime. He referred to it as a judgement call and wondered whether a fix should apply to all types of crimes, or focus on sexual offenses against minors. Domestic violence cases should also be looked at because those cases can rise to the same level of re-offense. These are things the committee needs to look at while at the same time considering the constitutional rights of victims and the accused. Number 1172 REPRESENTATIVE CROFT referred to AS 12.61.015 and stated it spells out the duties of the prosecuting attorney for felonies and domestic violence. He suggested folding some of the sexual assault of a minor language into that specific provision. Number 1201 REPRESENTATIVE ROKEBERG stated that suggestion will be brought up by the Department of Law. Number 1247 ANNE D. CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, noted the division has been working with the sponsor and has some suggestions regarding Section 3. She took full responsibility on behalf of the department for the lack of notification in the case involved. The department messed up and is sorry. In general, however, she thinks the department does a good job notifying victims. Number 1310 REPRESENTATIVE MURKOWSKI asked Ms. Carpeneti what the reasonable efforts are that the department makes in notifying victims. MS. CARPENETI replied she would have to talk to the victim witness coordinators for specifics. It depends on the severity of the case and the interest of the victim. She knows that messages are left at work and at home, and forms are given out. It is tough, however, for the justice system to grind to a halt if contact can't be made. In the case of bail hearings and certain proceedings, it is hard to anticipate in advance enough time to provide notification by mail so efforts are made by phone. Number 1359 REPRESENTATIVE CROFT asked Ms. Carpeneti whether the victim witness coordinator she mentioned earlier is specifically charged with notifying victims. MS. CARPENETI replied there is a statewide victim assistance program including a coordinator, and there are people in the district attorneys office who do just that. She explained this issue arose in the 1970's when money was provided by the federal government and since then it has grown proportionally. Number 1429 CHAIRMAN KOTT asked Ms. Carpeneti how a victim who lives in the rural part of the state is notified when there is a short notice for a bail hearing. MS. CARPENETI replied a person can testify via telephone and hearsay is acceptable at bail hearings. A person can give a position to an advocate or district attorney and in turn relay it to the judge. In relation to the bill, the division has problems with Section 3 because it requires a judge to solicit comments from a victim. She said, "We don't want to have to require victims who don't want to appear in court come in, and especially children, and make yet another traumatic appearance in front of the court." She suggested considering before the release of a person charged, a pending trial, a sentencing or an appeal, for the court to ask the district attorney or a representative of the state whether or not a victim has been notified or whether reasonable efforts have been made. At which time, if an oversight has been made it can be corrected. Number 1532 REPRESENTATIVE CROFT stated the suggestion goes only to the issue of notification, and asked Ms. Carpeneti whether that would slow things down. MS. CARPENETI replied she thinks it would work and she doesn't think it would slow things down because generally victims will have been notified as a matter of procedure. Number 1590 REPRESENTATIVE ROKEBERG asked Ms. Carpeneti whether an amendment is needed to exclude the sex offense in Section 3. MR. CARPENETI replied she is just addressing subsection (i) in Section 3. REPRESENTATIVE ROKEBERG asked Ms. Carpeneti to indicate for the record that the Department of Law takes responsibility for notifying victims in relation to the issue of notification between law enforcement "or" prosecutors. He also asked how the procedure works. MS. CARPENETI replied the statute provides that everybody has a responsibility - the court system, law enforcement and prosecutors. But, AS 12.61.015 gives the responsibility of various notifications to the prosecuting attorney and the Department of Law takes that responsibility for felonies and domestic violence cases. Number 1685 DOUG WOOLIVER, Administrative Attorney, Administrative Staff, Office of the Administrative Director, Alaska Court System, stated the court system has been working with the sponsor on the bill. His initial concern was the language "shall" in Section 3 because not all victims want to comment leaving the question what should be done when there is no one in court to solicit comments from. The court system suggests language saying "if a victim is present and wishes to testify the judge shall solicit comments from that person" making it clear that the process doesn't have to stop if a victim has chosen not to come to court and making it clear that a judge has an affirmative duty to make sure that a victim is heard from. The suggested language, however, doesn't get to the issue of notification. He explained in many victims' rights provisions there are no obvious remedies. For example, a defendant has a constitutional right to bail so the questions become, can a hearing be put off until the victim is notified and/or at what point is an offender's rights violated? In addition, the courts are very familiar with reasonable efforts. But, a reasonable effort creates the issues/questions of bumping a case to the bottom of the day's calendar, holding it over to the next day, and holding a defendant when a case is bumped from a Friday to a Monday. Those are the types of questions that the court system has been wrestling with in working with the sponsor for a remedy. The bill is aimed at a smaller class of cases, but the same problem arises in all cases because the constitution grants people the right to attend and speak at these proceedings. Whatever the remedy, it needs to consider the bigger issues involved not just the focus of the bill. Number 1878 REPRESENTATIVE JAMES asked Mr. Wooliver in this case because the perpetrator changed that perpetrator's plea whether the victim should have been notified of the hearing earlier. MR. WOOLIVER replied yes. The notice provision still stands regardless of whether there is a change of plea. REPRESENTATIVE JAMES stated the change of plea should not have affected the outcome. MR. WOOLIVER responded right. Number 1920 REPRESENTATIVE CROFT explained the right to bail in the constitution is not absolute. In other words, it is not a right to bail, but a right to have bail considered based on certain criteria. MR. WOOLIVER replied there is a constitutional right to bail, but there can be conditions set such as a dollar amount. The only exception is for capital crimes, but there aren't capital crimes in Alaska. He reiterated everybody in the state is entitled to bail, but they might not be able to meet the conditions. It can't be denied, however. REPRESENTATIVE CROFT asked Mr. Wooliver whether bail can be denied if that person is a clear danger to society or a victim. MR. WOOLIVER replied, "You couldn't just say 'no' bail." However, conditions can be set that are extremely restrictive. REPRESENTATIVE CROFT asked Mr. Wooliver to give an example of a restrictive condition other than money. MR. WOOLIVER replied 24-hour surveillance by a third party custodian requiring the custodian to be with that person every waking and sleeping moment. Number 1999 REPRESENTATIVE CROFT asked Mr. Wooliver what the time limitations are currently in constitution or statute. MR. WOOLIVER replied a person is entitled to bail at that person's first appearance before a judicial officer for felonies. A victim has the right to be notified and present at that person's hearing, according to the state constitution. A person can be arrested and taken to a magistrate immediately for arraignment for misdemeanors. Number 2041 REPRESENTATIVE CROFT stated the bail is set, but that person is not necessarily released. He asked Mr. Wooliver what is the typical time... MR. WOOLIVER interjected and stated, according to his understanding, bail is set high in district court to hold a person over until superior court where a true arraignment is held for felonies. In superior court a person is notified of the charges and offered a plea followed by a bail hearing. Initially, a person shows up at district court and under statute that is when bail has to be set. Number 2072 REPRESENTATIVE CROFT wondered whether a statute that says, "you cannot set bail until reasonable efforts have been made" would be unconstitutional, but a statute that says, "you can set bail at no less than one billion dollars, until reasonable efforts have been made to notify the victim" would be constitutional. MR. WOOLIVER replied he is not sure. There are also provisions pertaining to unreasonable bail. A person has the right to meet bail, particularly if that person isn't found to be extraordinarily dangerous. Under statute, those provisions can or must be considered by a judge. They are not mandated. He doesn't know whether the legislature can or cannot mandate a person charged to be subject to an unreasonable bail. REPRESENTATIVE CROFT asked Mr. Wooliver whether the legislature can set a limit at all reasonable or not. Does reasonable mean there needs to be an individualized consideration? he further asked. MR. WOOLIVER replied he is not sure whether a specific amount can be set in statute. REPRESENTATIVE CROFT asked Mr. Wooliver whether the practice of setting bail at the first adjudicative session is a statutory or constitutional requirement. MR. WOOLIVER replied it is a statutory requirement, but he is not sure if it reflects a certain constitutional requirement. Number 2173 REPRESENTATIVE KERTTULA stated, in looking at notes to the constitution, all circumstances would have to be looked at instead of just setting pro forma bail. She explained, normally, if a judge wants to set bail that can't be met that judge makes it cash-only and high enough to avoid a bondsman. Number 2204 REPRESENTATIVE ROKEBERG stated, not having been a part of the court system in any capacity, he is troubled by the comments coming from the court's counsel regarding the unwritten rule of making a bail unattainable to accommodate the flow of business. There could be an instance when a person could meet an "unattainable" bail. He reiterated he is uncomfortable with the assumption that a perpetrator is not going to get out by not meeting bail on a first appearance. He asked Mr. Wooliver what the time line is between the arraignment and the next subsequent step. Number 2270 MR. WOOLIVER replied he is not sure exactly when a perpetrator is arraigned, but believes it is the next day. A bail hearing can be put off as well in order to find a third party custodian, for example. In speaking with judges, however, victims have almost always been notified by that time. The problem is with the initial appearance in district court where an arraignment can happen immediately or within less than 24 hours. The problem is not in superior court. Number 2313 REPRESENTATIVE ROKEBERG stated, in trying to find the point of mandating a notification, he suggests looking at a second bail hearing and placing conditions on a release. It would minimize the number of occurrences thereby dispensing the notification at the first hearing, unless there's a constitutional requirement. He explained he is trying to find a practical place in the chain of events to perfect a notification without putting an undue burden and cost on the system. Number 2343 CHAIRMAN KOTT stated it is his understanding that excessive bail is unconstitutional which is why an unreasonable standard is used. He asked Mr. Wooliver whether that is also his understanding. MR. WOOLIVER indicated in the affirmative. CHAIRMAN KOTT asked Mr. Wooliver whether there is a time limit established on the right to a speedy trial and whether a subsequent bail hearing would have an effect on that provision. MR. WOOLIVER replied the speedy trial provision is 120 days. It is frequently backed up with motions, but that is the starting point. Number 2384 REPRESENTATIVE GREEN asked Mr. Wooliver whether the constitutional right to bail is prior to being found guilty. MR. WOOLIVER replied there is a constitutional right to bail prior to trial. Most provisions after trial and prior to sentencing are statutory. However, there is no constitutional right to be released after conviction. Number 2414 REPRESENTATIVE GREEN wondered whether the problem could be fixed in statute. MR. WOOLIVER replied in the affirmative. Number 2420 CHAIRMAN KOTT referred to the language, "a judicial officer shall solicit comments", and asked Mr. Wooliver whether this could turn into a mini-trial with cross-examination of the victim. MR. WOOLIVER replied if a victim is sworn in to testify that victim is subject to cross-examination. However, frequently a victim will offer a statement over the phone or in the form of a letter, and in that case it won't turn into a trial. Number 2457 REPRESENTATIVE CROFT asked Mr. Wooliver whether this issue has come up in any other state. MR. WOOLIVER replied as the result of researching case law and reviews, he has only found references to the problems, but he hasn't seen resolutions to the problems. TAPE 99-8, SIDE B Number 0001 REPRESENTATIVE ROKEBERG states he feels like he owes the committee an apology for bringing forward this issue. But, an individual has been injured by a system with faults, and those faults are not small, technical corrections but a function of having to look at the entire judiciary system and how it relates to victims' rights. Number 0049 REPRESENTATIVE JAMES asked Mr. Wooliver what kind of cure is there for the victim since that victim's rights were not effected. MR. WOOLIVER replied that is the crux of the problem. The law knows how to deal with violations of defendants' rights, but it is not familiar with victims' rights. Victims have always be a part of the process, but not as a legal entity. When a defendant's rights are violated, the remedies are well established and not hard to find. But, when a victim's rights are violated a prosecution or court's offenses can't be held against the defendant. He said, "You can't take that out on the defendant by saying okay well the prosecution just simply has refused to notify the victim so you have to stay in jail. That isn't an option." Short of creating civil penalties against the state, he doesn't know what kind of remedies there are for those types of violations. Number 0128 REPRESENTATIVE JAMES noted the issue begs for a solution, particularly if a victim is re-victimized due to the failure of a notification. She asked Mr. Wooliver whether he agrees that the statutes are just missing those conditions and should they be prescribed. MR. WOOLIVER replied the statutes are the appropriate place for a remedy, if someone can come up with one. It might be easier, however, to try to reduce the instances of failure, such as providing more resources for victim advocates within the Department of Law. Number 0174 REPRESENTATIVE JAMES asked Mr. Wooliver whether there is a provision that wouldn't allow a hearing to go forward providing that a victim hasn't been notified. MR. WOOLIVER replied according to some judges that he talked to a hearing could be held off until the next day for example. None of the judges were clear about whether that is allowed, however. There isn't an obvious answer provided in case law. He reiterated judges are very familiar with the reasonable-effort standard. Number 0240 REPRESENTATIVE JAMES commented putting victims' rights in constitution has more force than statute, and stated a solution to this issue has to be found. MR. WOOLIVER stated some of these rights have been in statute for a long time and they aren't just statutes anymore. In other words, a person has a constitutional right to be allowed to attend these proceedings. Number 0261 CHAIRMAN KOTT asked Mr. Wooliver, when soliciting comments from a victim, whether it is satisfactory to notify that victim's guardian if underage. MR. WOOLIVER replied he is not sure how it works in practice. There is confusion because the definition of "victim" in statute is a minor or parent or guardian. It is not clear whether that means "or" or "and". For example, if a minor wants to speak but the mother won't allow that minor to speak, it isn't clear in statute whether the victim is the minor "or" mother, or the minor "and" the mother. There is also a problem when there is conflicting testimony. He doesn't know, therefore, whether notifying a minor is adequate or whether the parent or guardian would also have to be notified. Number 0321 CHAIRMAN KOTT commented this could be a tangled mess when for example a victim is a daughter, the perpetrator is a father, and the mother is in love with the father and doesn't want to do anything to harm that relationship. Number 0341 REPRESENTATIVE ROKEBERG asked Mr. Wooliver whether there is anything in statute now or even as a matter of court rule to force a judge to ask whether reasonable efforts have been made to contact a victim. MR. WOOLIVER replied no there is nothing required in statute or court rule even though it is the practice of some judges. REPRESENTATIVE ROKEBERG replied the word "some" judges is the point he wants to make. He asked Mr. Wooliver whether mandating that is going in the right direction. MR. WOOLIVER replied yes. Number 0381 REPRESENTATIVE GREEN stated, in reference to Representative Rokeberg's apology to the committee, often times the wheels of justice and the wheels of this committee grind slow and fine. That is good, however, because is educates the committee members who are not lawyers and creates better laws. Number 0415 REPRESENTATIVE MURKOWSKI noted that paychecks used to be held if an opinion was not released within six months in an effort to not get judges to sit on cases. She stated that might by a type of incentive a judicial officer needs. Number 0480 CHAIRMAN KOTT announced that the committee is waiting for the mother of the victim to testify via teleconference. CHAIRMAN KOTT called for a brief at-ease at 1:08 p.m. and called the meeting back to order at 1:12 p.m. CHAIRMAN KOTT explained the committee has made a reasonable effort to contact the victim's mother and unfortunately she is not available. CHAIRMAN KOTT announced it is his intent to hold the bill over for further consideration. REPRESENTATIVE ROKEBERG pledged his desire to work further on the bill and to schedule time to invite the victim's mother to testify. He would like to get her testimony on record. REPRESENTATIVE JAMES wondered whether there should be a determination of exactly who the victim is and who has the right to speak. It needs to be determined ahead of time and should be part of a fix to this issue. CHAIRMAN KOTT agreed and stated it needs to be delineated clearly. CHAIRMAN KOTT announced the bill will be held over for further consideration.
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