Legislature(2001 - 2002)
04/10/2001 05:30 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SB 105 - VICTIMS' RIGHTS/ PRISONER'S PFD [Contains discussion of HB 133 and HB 134] CHAIR ROKEBERG announced that the next order of business would be CS FOR SENATE BILL NO. 105(FIN), "An Act relating to victims' rights; relating to establishing an office of victims' rights; relating to the authority of litigants and the court to comment on the crime victim's choice to appear or testify in a criminal case; relating to compensation of victims of violent crimes; relating to eligibility for a permanent fund dividend for persons convicted of and incarcerated for certain offenses; relating to notice of appropriations concerning victims' rights; amending Rules 16 and 30, Alaska Rules of Criminal Procedure, Rule 9, Alaska Delinquency Rules, and Rule 501, Alaska Rules of Evidence; and providing for an effective date." Number 2384 JULI LUCKY, Staff to Senator Rick Halford, Alaska State Legislature, came forth to present SB 105 on behalf of Senator Halford, sponsor. She stated: The sponsor sees this as a practical application of the Victims' Rights Amendment to the Alaska Constitution, which was ratified by popular vote in 1994 by over 86 percent of the voters. ... [With] the amendment to the constitution, victims also have certain rights in statute. We feel that this will be setting up an office that will ensure that these victims of violent crime are aware of their rights, and also will advocate on their behalf in the court system. [A prior version of] the bill did pass unanimously ... and was vetoed by the governor last year. We're hoping to not be vetoed this year. MS. LUCKY explained the changes between last year's House Judiciary Standing Committee version and the current version: As it left House Judiciary last year, it was located in the legislative branch. The bill that we introduced has it currently in the legislative branch, which ... we believe ... is better. As it left the House ... and conference committee last year, it was in the Department of Public Safety, which there were a lot of strenuous objections to. As far as the changes that are made in this year's bill, there [were] some changes in Senate Finance and on the Senate floor regarding a higher compensation cap for victims, which I believe is Section 2 of this bill. There's some added language requiring the victims' advocate to contract for services, which we believe fosters a complementary working relationship with victims' groups, and also allows the victims' advocate to privatize where appropriate. We added some language allowing grants to nonprofit victims' groups. As you may be aware, the funding mechanism is forfeited permanent fund dividends from repeat criminals. It is anticipated [that] there will be money to pay for the office and [have] additional funds. What we did was we added grants directly to nonprofit victims' groups as another allowable use of these funds that would be generated. There was an amendment offered in Senate Finance by Senator Donley regarding victims' choosing not to testify or appear at court, and there is also a proposed amendment ... to ... reword that language. ... TAPE 01-61, SIDE B Number 2483 MS. LUCKY continued explaining: ... We feel the victims go through a traumatic experience; some of them may not be able to testify based on fears or other problems that they have after the commission of the crime. ... Therefore, ... the statement shouldn't be made, "Well, the victim didn't care enough to come to court to testify and, therefore, we believe that the perpetrator shouldn't be sentenced to this amount of the crime." ... Senator Donley, after offering the amendment, spoke with the Department of Law and came up with some other language; they felt it was more appropriate to put this into the sentencing section as opposed to the victims' rights section of statute. CHAIR ROKEBERG asked whether that amendment is [22-LS0219\J.1, Luckhaupt, 3/26/01], and whether the sponsor approves of it. MS. LUCKY answered in the affirmative. Number 2442 CHAIR ROKEBERG stated that it has been suggested that [the legislature] is creating a new office and that there already is an existing contract for victims' rights activities. MS. LUCKY remarked that [the sponsor] believes the nonprofit victims' groups as well as the departments have done a good job focusing on the victim. The victims' advocate and the Office of Victims' Rights provide an advocate who is trained in the legal system and has confidentiality and standing to be able to find out what's going on, whereas a nonprofit victims' group might not. MS. LUCKY told members there is also the ombudsman function through which if someone feels his/her constitutional rights have been violated, he/she will have recourse. Victims could say, "We'd like you to investigate this and recommend some systemic changes." The ombudsman's office would then be able to make a report, the justice agency involved in the report would be able to review the report, and then those findings could be made public. Ms. Lucky said experiences in other states show that being able to have this conversation, have the report, and come up with recommendations makes the state more responsive to the victims. REPRESENTATIVE JAMES asked Ms. Lucky whether this office would be established under the legislature. MS. LUCKY concurred. REPRESENTATIVE JAMES asked whether it would have any relationship to the ombudsman's office. MS. LUCKY responded that the statutes almost mirror [those for] the ombudsman's office, but it would be a separate entity. This would deal specifically with violations of crime victims' rights and justice agencies. REPRESENTATIVE JAMES remarked that she finds the purpose of this very different from the ombudsman's office, and it is hard for her to see a relationship between this office and the legislature. MS. LUCKY explained: We believe that they are dealing with the victims, just like they would with constituents and the ... public safety and justice agencies. ... Some of the comments we've heard since we moved back in the legislature have been that ... people are having a problem, let's say, with the prosecutor's office; the witness coordinator isn't calling them back, or they're unable to find out what's going on with their case. ... The courts will say, "Well, we're ... the impartial body here, and we'll need to hear from the attorneys from the defense side and then the prosecution side, and then we will determine what needs to be done." ... The experience in other states has shown that people, when they feel like they're not getting a fair break from the police or they're not getting a fair break from the prosecutors or people are not calling them back, ... don't have any faith in the fact that calling another branch within that umbrella is going to give them any relief. ... Minnesota has a crime victims' ombudsman's office, and they have found that by calling this office, they feel that they have a neutral third party. MS. LUCKY, for an example, referred to a murder case cited in the bill packets. Number 2130 REPRESENTATIVE BERKOWITZ remarked that he has always thought this was a bad idea. He said he thinks the correct approach would be for [the state] to take the money and fund the victim witness coordinators and the district attorney offices across the state. Instead, a third party is going to be injected into an adversarial system that is not capable of doing that. REPRESENTATIVE BERKOWITZ noted that nothing in the investigation section [of the bill] precludes the victims' advocate from, for example, subpoenaing the notes of the prosecutor or the defense attorney. That item alone could be incredibly problematic. He asked how Ms. Lucky anticipates the impact of trying to subpoena those notes, which could be something as simple as thinking a witness is marginal. Those things, he said, can be devastating if they are widely disseminated. There is a reason why privilege and confidentiality are attached to them. On the defense side, he stated, anything that the defendant tells his or her attorney is sacrosanct. There is no provision in this legislation that would recognize those features of the criminal process. MS. LUCKY responded that she thinks the wish is that "throwing" money into the witness coordinator problem would fix the problem; however, since the witness coordinator is in the prosecutor's office, people feel that continually calling the prosecutor's office is biased. With regard to policy, Ms. Lucky said she thinks having a neutral party that looks out for the rights of the victims is the correct way to go. REPRESENTATIVE BERKOWITZ commented that he finds it ironic that [the legislature] has a majority that ostensibly wants to cut the budget and reduce government bureaucracy, but is doing the exact opposite with [this legislation]. CHAIR ROKEBERG announced that SB 105 would be held over. HB 133 - RESTITUTION FOR CRIMES OR DELINQUENCY HB 134 - CRIME VICTIMS RTS/CRIMES/PROTECTIVE INJ. [Contains discussion of SB 105] CHAIR ROKEBERG announced that next the committee would hear two bills: HOUSE BILL NO. 133, "An Act relating to restitution for criminal and delinquency acts; authorizing the state to collect restitution on behalf of victims of crime and delinquent acts and the release of certain information related to that collection; relating to the forfeiture of certain cash and other security for payment of other restitution; relating to access by the Violent Crimes Compensation Board to certain records regarding delinquency acts to award compensation to victims; relating to immunity for damages related to certain collections of restitution; amending Rule 82, Alaska Rules of Civil Procedure; and providing for an effective date," and HOUSE BILL NO. 134, "An Act relating to the rights of crime victims, the crime of violating a protective injunction, mitigating factors in sentencing for an offense, and the return of certain seized property to victims; clarifying that a violation of certain protective orders is contempt of the authority of the court; expanding the scope of the prohibition of compromise based on civil remedy of misdemeanor crimes involving domestic violence; providing for protective relief for victims of stalking that is not domestic violence and for the crime of violating an order for that relief; providing for continuing education regarding domestic violence for certain persons appointed by the court; making certain conforming amendments; amending Rules 65.1 and 100(a), Alaska Rules of Civil Procedure; amending Rules 10, 11, 13, 16, and 17, Alaska District Court Rules of Civil Procedure; and amending Rule 9, Alaska Rules of Administration." Number 1934 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), came forth to present HB 133 and HB 134. He stated that in 1984 the Alaska voters overwhelming passed the Victims' Rights Amendment to the constitution, but 15 years earlier, in 1979, the Department of Law was already at the forefront of trying to provide for victims' rights. MR. GUANELI explained that at that time, [the department] applied for federal grants that were available to provide for paralegal assistants in the district attorneys offices to act as assistants for victims and witnesses, to help guide them through the court process, and to help them to overcome the trauma that comes with testifying in court proceedings. [The DOL] provided [the paralegals and the prosecutors] with training, which continues today. Every year the criminal division of the DOL puts on a three-day conference funded by federal funds under the Violence Against Women Act. Training is provided in topics such as domestic violence, sexual assault, dealing with child victims, and cross-cultural communication with victims. Also, through the federal grant, [the DOL] has a volunteer coordinator whose job is to recruit volunteers from across Alaska to help out in the DAs (district attorneys) office, especially with contacting victims. MR. GUANELI went on to say that [the DOL] has provided brochures for victims of domestic violence, explaining what families should know about child sexual abuse, sexual assault, crime victims' rights, and personalized safety plans. These brochures are in English, Yupik, and Inupiat. He noted that [the DOL] has done this because it is the right thing to do. [The DOL] realized long ago that the reason it loses criminal cases is that victims and witnesses don't cooperate. MR. GUANELI told members the Department of Corrections [DOC] also has recognized that victims are important, and has an automated victim-notification system that informs victims of when offenders are being released from prison. Every pre- sentence report filed in felony cases has a specific section on victim impact. MR. GUANELI reported that the DOC also has a victims' services unit that provides training to all DOC employees and provides classes to the offenders on victim impacts. The Division of Juvenile Justice has changed its focus to an equal focus on the offender and the victim; the division has found that bringing the victim into the process of dealing with juvenile offenders is helpful for the juvenile offender and the victim to bring the matter to closure. Number 1683 MR. GUANELI noted that [the DOL] also listens to victims through the Council on Domestic Violence and Sexual Assault as well as the Network on Domestic Violence [and Sexual Assault]. Last fall, there was a victims' roundtable at which victims came together and told [the department] about some of the problems that they have been having. As a result, [the department] discovered that one of the primary problems [victims] have is collecting restitution. House Bill 133 provides a more effective way of collecting restitution for victims. MR. GUANELI stated that the DOC has put on a number of community justice forums on crime and victimization. [The Department of Law] has also heard from victims of theft that when the stolen property is pawned, they have a difficult time getting it back from pawnshops. Part of HB 134, therefore, provides a streamlined method for establishing their claims to that property. MR. GUANELI reported that [the department] has also listened to victims who have said it is great to have restraining orders against domestic violence, but there is a real gap in the law - there is no easy way to get a restraining order against someone who is stalking them. Providing a protective order that guards against stalking as well as domestic violence is part of HB 134. MR. GUANELI noted that these bills are long and appear to be complex, but [the DOL] has a great deal of experience in collecting fines and judgments in favor of the state. House Bill 133 directs those same efforts to the civil division of the DOL and puts that unit to work collecting restitution on behalf of victims. MR. GUANELI explained that HB 134 does a number of things, some of which were enacted last year. This year's bill adds the restraining order for victims of stalking, and it provides for additional remedies involving contempt of court for violations of protective orders where there is no effective remedy today. All of the provisions are ones that victims and victims' groups have said they need. Although it is late in the session, he said, it is important to the administration and the victims that HB 133 and HB 134 be enacted this year. Number 1467 MR. GUANELI explained that combining these two bills with SB 105 will create a mechanism for getting these bills enacted this year and for having a comprehensive victims' package. Through some informal discussions with Senator Halford's office, he said, he believes the Senator would consider this. He believes it is a win-win situation - a win for those in legislative leadership positions, and a win for victims - if all three bills can get passed. MR. GUANELI said he believes SB 105 contains enough protections against potential abuses for [the DOL] to be comfortable with it. He added that in some cases it is important for victims to have a neutral advocate - someone outside of the prosecutor's office. MR. GUANELI remarked that he is not alarmed by the notion that there might be a legislative-branch employee investigating [the DOL's] activities. In addition to reports that might criticize some agencies, there ought to be reports that indicate when agencies are doing a good job. MR. GUANELI noted that the lead-in to the title of SB 105 indicates it is an Act relating to victims' rights. He said he thinks victims' rights is precisely what HB 134 is. Under the constitutional provision relating to victims' rights, one of the primary victims' rights is the right to receive restitution [from] the offender. The only effective way to do that is to provide a mechanism in the DOL using its existing collection unit. In conclusion, he stated that he thinks the language related to victims' rights is broad enough to encompass both of the governor's bills [HB 133 and HB 134]. Number 1223 REPRESENTATIVE BERKOWITZ asked Mr. Guaneli whether he would take a look at protections that could be added to SB 105 regarding work product and attorney-client [privilege]. MR. GUANELI responded that he would be happy to take a look at that. He noted that the current ombudsman bill also provides broad subpoena power for the ombudsman. In the past, ombudsmen have done limited investigations of the prosecutors' offices. Further, he noted that he doesn't believe there has ever been a situation in which the ombudsman wanted any kind of confidential prosecutor's notes. Number 1163 CINDY CASHEN, Juneau Chapter, Mothers Against Drunk Driving (MADD), came forth in support of HB 133. She stated: The MADD Juneau Chapter strongly supports the governor's victim rights package. MADD's mission statement includes aiding the victim of drunk driving. This bill is directly aimed at dealing with the drunk driving victims, and unless you have ever lost someone to drunk driving, you have no idea how vital this bill is to us. When my dad was killed, our minds and bodies went into shock. Unfortunately, we faced before us a mountain of paperwork. ... Writing a check for the urn, signing permission for organ donation, rewriting the will - these are just a few of the personal ones we had to deal with. We also had to learn how the system worked in [terms] of my mother's future. We were fortunate in that Dad was wise in his decision-making concerning his possible early demise, but many others have not been as fortunate as us. But even though my father acted in such a manner, it took weeks and even months to sort through the paperwork, and even now, almost one year later, there is still some to be dealt with. Victims don't just get to grieve and mourn. We have to carry on with our lives, ... much as we sometimes wish not. Sometimes it is all we can do to get out of bed and get dressed. At times, to have the resources, the energy, [and] the capability to focus on financial matters is simply not possible. It is common for the victim's brain to be in a frozen state of shock, one which can last for several months, even as long as a year. I can tell you that that is what is happening to me. ... It is during this time, however, that decisions need to be made concerning financial restitution. So, how can a victim deal with such a huge, complicated subject when merely remembering someone's name is impossible? This bill would eliminate or take away much of the stressful work from the victim. This package would allow the victims to concentrate on healing. It was very frustrating watching my mother try to get on with her life and at the same time deal with paperwork. ... This package is a good thing. It shows the State of Alaska will care for its victims. Our chapter urges this committee to support this package. Number 0975 MS. CASHEN further described her personal situation: When my dad was killed, we were fortunate in that our drunk driver didn't fight back. He showed remorse and he dealt with it. We were the minority. But what happened was, we still had to go through the process, ... and it was extremely frustrating trying to figure why it took so long, for instance, to arrest him. It took weeks to arrest him, and it drove my mother crazy. ... But ... we were fortunate ... [to have] this particular woman - she was a victims' advocate, but it was not her job to do what she did. What she did is what is written in this bill: ... she saved my mother's life. She became the go-between, and she explained to my mother what was going on. And for some reason ... when she said, "This is what's happening, this is what the police officers are doing, this is what the prosecutor is doing, this is what the defender is doing, and so forth," ... it was all right. When my mother had to wait for four days for the prosecutor to return a call because he's so over- worked and he has so many other cases that he did the best he could, ... she needed the answers now. ... This office would be able to do that. This office would care for the victim. Number 0827 LAUREE HUGONIN, Director, Alaska Network on Domestic Violence and Sexual Assault, came forth and stated: We are in a time right now where we're being challenged on the seriousness with which we take sexual assault, for example. The 9th [Circuit] Court of Appeals has struck down part of our sex offender registration system. And looking at their thinking behind that process, and seeing that ... some of the things that we considered when we were testifying for the legislation to help protect the public safety [were] seen as overbroad or too harsh, is disheartening. We've recently had a case in Alaska in a sentencing for a sexual assault in the second degree, which is a class B felony, in which the judge was making comments about not needing to listen to a victim in the context of a pre-sentence report or at a sentencing because he had heard her at trial and what really more did he have to learn? And on Sunday in Juneau we had a hostage situation where a perpetrator of domestic violence went into a church with a gun and held hostage his victim. In having all of those instances coming together at the same time when we're also looking at ways to help the system help victims and be responsive to what victims are saying as to what they need, is a very important nexus. Mr. Guaneli spoke about the roundtable that the victims and victim service providers had back in the fall where restitution kept coming up as a forefront effort - that if we could get restitution to the victims ... it would be one of the most helpful things that could happen. They could pay some of their bills; they could have a sense of justice. They don't always see that the perpetrator is in the jail, but they can see that they have had that court order probably enforced and listened to by having the money in their hands. ... And to do it in such a way where the burden is not on the victim to recover that restitution, which in many situations now is how we have the system working, ... will be very helpful. Number 0536 MS. HUGONIN went on to say: Some of the provisions in HB [134], we think, are also very critical to assisting victims in being able to feel more safe and take some steps toward accepting some justice. For violating protective orders there are seven provisions where it can be a class A misdemeanor if you violate that order. Unfortunately, there seems to be a need to have those provisions violated more than once before the case is in a situation where it can be successfully prosecuted at that level of crime. Allowing for contempt violations to be prosecuted, I think, will be a more immediate way to say, "You can't do that, and here's a penalty." In some studies that have been done with perpetrators of domestic violence, it seems that the more quickly you can say, "Don't do that," ... and there's a penalty and it's immediate, their behavior changes. ... I think that having a way that is easy for victims of stalking ... to get some protection is very important. I don't think there are a lot of cases in Alaska where this would be applicable, but there are some. ... One of the provisions that was in a bill last year that made it through the House and not through the Senate was to change the definitions in the statute involving civil compromise. It has an older definition of domestic violence, and the suggestion is to change it to a crime involving domestic violence so it would capture the ... definition from the 1996 DV [domestic violence] Act. I think that's important because it particularly adds dating relationships. The federal Violence Against Women Act, too, has added dating relationships into its definition of domestic violence. ... Prior to 1996, we did have people in dating relationships that were violent; we afforded them the protection of being able to get a protective order. So we think it makes sense in this situation to have them excluded from that civil compromise. A final section that may not get a lot of debate ... is a section that requires training for mediators, child custody investigators, and guardians ad litem. ... There'd be a training that's sponsored by the Council on Domestic Violence and Sexual Assault, so we can have some faith in the accuracy of the information that they're receiving in its currentness and its applicability to situations in which they will be making determinations that truly affect the lives of the families that are involved. We hope for your thoughtful consideration of these bills. If the way to get them through is to put them in Senate Bill 105, then we hope that's something that you're able to work out, that you would consider being cosponsors of the legislation, and that you would do what you could to ensure its passage this session. Number 0214 CHAIR ROKEBERG announced that HB 133 and HB 134 would be held over.
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