Legislature(1997 - 1998)
04/24/1997 08:07 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 245 - DOM. VIOL. ASSAULTS;PRISONER CONTACTS The next order of business to come before the House State Affairs Standing Committee was HB 245, "An Act relating to minimum sentences for assault in the fourth degree that is a crime involving domestic violence; providing that a prisoner may not contact the victim of the offense when provided access to a telephone or otherwise immediately after an arrest; and amending Rule 5(b), Alaska Rules of Criminal Procedure." Number 0360 REPRESENTATIVE FRED DYSON, sponsor of HB 245, explained the bill tightened the restraints that the state had on domestic violence perpetrators by setting progressively stiffer penalties; and by prohibiting the perpetrator from using the mandated phone call to further harass the victim. Number 0487 REPRESENTATIVE IVAN applauded the sponsor and announced his support for the bill because it protected families from domestic violence. Natives were the minority in the state but the majority in the prison population. Number 0520 CHAIR JAMES stated the disparity between the Native and non-Native incarcerated population was evident. We were all striving to reduce incarceration as a result of discrimination. Number 0558 CHAIR JAMES asked how the phone calls would be controlled? Number 0586 REPRESENTATIVE ETHAN BERKOWITZ replied sometimes law enforcement dialed the phone number; and, sometimes a sign was posted to indicate if the phone was monitored or not. Number 0635 CHAIR JAMES wondered about a victim indicating that the perpetrator called when in fact he did not. How would that be verified? she asked. Number 0668 REPRESENTATIVE BERKOWITZ replied it could be verified by keeping track of the phone numbers dialed. If it was a false report it would be a different type of crime created by the victim. CHAIR JAMES asked, for clarification, if there was a way to monitor the phone numbers dialed? REPRESENTATIVE BERKOWITZ replied, "Yes." Number 0690 REPRESENTATIVE AL VEZEY applauded the intent of the bill and agreed with the direction. However, he wondered if the language "employer" should be included to challenge the department's authority to investigate a legitimate relationship. He explained recently he had been the subject of an investigation by the Department of Corrections due to an employee-employer relationship with a prisoner. Number 0802 PATRICK FLYNN, Researcher to Representative Ethan Berkowitz, explained the term "friend" was considered broad enough to include employer. Number 0856 REPRESENTATIVE VEZEY wondered why the Department of Corrections would feel it was necessary to investigate a person who had a statutory right to visit a prisoner. "We don't make exception here for the moral standing of this friend or relative." Number 0891 REPRESENTATIVE BERKOWITZ explained that anybody could contact the lawyer and the lawyer had the right to visit his or her incarcerated client. The courts would interpret the term "friend" broadly; it was used more for the purposes of social graces. Number 0926 REPRESENTATIVE VEZEY apologized. He had misread the bill. He thought it was the friend or relative that had the right to visit, it was the attorney. Number 0956 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, explained the council had not had an opportunity to review the bill but the concepts introduced were ones that the council supported. The first issue of prohibiting the perpetrator from contacting the victim, was brought to the council's attention by a police officer from a small police department when a prisoner tried to contact the victim within 15 minutes of his arrest. In regards to the issue of enforcement, there were a number of smaller jails and facilities where the officer actually dialed the number. In other cases, the victims informed law enforcement of the contact which could be traced and verified. The second issue of increasing penalties for repeated first degree assault offenses was of concern because there had not been additional consequences for additional charges. The new domestic violence law was trying to intervene earlier in the domestic violence cycle and to hold the offender accountable. Therefore, the additional consequences sent the right message. Number 1097 CHAIR JAMES cited a case of a prisoner in Fairbanks who repeatedly called a young girl on the phone. She wondered about the controls involved. She did not believe a prisoner should have the benefit of picking up a phone and calling anybody. Number 1183 ROBERT COLE, Director, Division of Administrative Services, Department of Corrections, explained telephone use by inmates was a serious issue a few years ago due to a conspiracy that resulted in a bombing and murder. As a result, all calls were monitored at the facility. He would provide to the committee members a detailed description of the telephone security for the entire set of institutions. CHAIR JAMES stated she would appreciate a description. It was a problem that had yet to be fixed. We were pursuing a "no frills" bill for prisoners so it seemed an incarcerated prisoner should be out of touch, except under special conditions. Number 1246 REPRESENTATIVE BERKOWITZ explained there was a provision in the "no frills" bill addressing the issue. Number 1256 MR. COLE stated for the past four years to five years Mr. Allen J. Cooper, Division of Institutions, Department of Corrections, had tried to get private telephone companies to install a surveillance system across all of the institutions, but there were problems with the volume and rate structure. Number 1315 REPRESENTATIVE DYSON asked what the difference was between a third degree and fourth degree assault? Number 1329 MS. ANDREEN replied a fourth degree assault was a Class A misdemeanor while a third degree assault was a Class C felony. The difference was in the weapon used in the assault. Number 1348 REPRESENTATIVE DYSON asked if judges in domestic violence cases tended to assign offenders to attend an anger management program? Number 1361 MS. ANDREEN replied it varied from community to community; and, from judge to judge. The new domestic violence law provided for a batterers program to accept referrals from the court system or the Department of Corrections as a condition of release. The programs had to meet standards established by corrections in conjunction with the council. The standards were now in place but there was no funding to implement them. However, we currently had a small reimbursable agreement with the court system so someone was on-line as of this month to start monitoring. Number 1411 REPRESENTATIVE DYSON stated, for clarification, that the new domestic violence law mandated a class for batterers; and, that many of the courts did not have a service readily available to send a batterer to but the future was optimistic. Number 1442 MS. ANDREEN stated it would be interesting to see how it worked. We were aware of approximately 20 to 25 programs around the state that were interested in receiving approval. Most were located in the high population areas - Anchorage, Fairbanks and Juneau. There were going to be a number of areas in the state that were a long way from having a batterers intervention program. It was important to not look at it as an either-or situation because many viewed an intervention program as an easy out or a way out of jail when there was not verifiable proof that a batterers program was effective. Therefore, it was important that the courts used a combination of options. Number 1488 REPRESENTATIVE VEZEY wondered, if assault in the third degree involved a weapon, what weapons were involved in a first and second degree assault. Weapons of mass destruction, or what? he asked. Number 1505 REPRESENTATIVE BERKOWITZ replied it depended on causal injury. He read the various provisions of assaults from the statute. They were each a sliding scale that could be argued either way for the different portions. Number 1600 BARBARA BRINK, Acting Public Defender, State of Alaska, was the next person to testify via teleconference in Anchorage. She noted the unintended consequences of the bill. Mandatory minimum sentences removed the ability of any judge to fation an appropriate punishment. A judge was suppose to consider the seriousness of the harm, the rehabilitation potential, the deterrent value of a sentence, the isolation of the defendant, and society's requirement to reaffirm its norms. She feared a mandatory minimum sentence would discourage people from admitting their conduct. In addition, a mandatory minimum sentenced created an anomaly in the overall scheme of assault charges. Under the bill a person would be required to receive 30 or 60 days in jail - more time than if he or she committed a more serious felony offense. She cited last year the state prosecuted 1,279 domestic assaults. The municipality of Anchorage prosecuted an additional 1,500 assaults. It was estimated that about 30 percent to 50 percent of the cases were repeat offenders. Therefore, if even a small portion of the cases chose to go to trial instead of pleading out, the financial burden on the public defender and the court system would be enormous. She could not predict how many would go to trial, however. She reiterated a person who had the opportunity to plead his or her case to a judge was much more likely to go this way. But a person facing a mandatory jail sentence was more likely to take any avenue to get off, including a jury trial. Moreover, if was important to ensure that a prisoner was notified of the prohibition of contacting the victim. Unless there was a clear posting of the notification, a prisoner would not know. It was important given the fact that most called their relatives once incarcerated. Number 1770 CHAIR JAMES asked Ms. Brink if the bill would deter repeat offenses? Number 1795 MS. BRINK replied she wished there was proof that harsher penalties and punishments deterred repeat offenses. Domestic violence; however, by definition, was an emotionally charged situation usually aggravated by the influence of a substance. She feared it would discourage some people from calling the police knowing that the consequences would be an automatic 60 days in jail. Often the police were called just to remove people from the situation and whether or not a harsher penalty was appropriate should not be determined by the victim. Number 1839 CHAIR JAMES agreed that domestic violence was spontaneous and aggravated by certain conditions. Therefore, everyone should agree in addressing the issue in a preventative way. Number 1910 MS. BRINK stated she understood the need for graduated penalties. Her experience had shown that it already happened in court, however. Judges sentenced a repeat offender harsher than a first- time offender. It simply was a matter of whether or not you wished to determine the sentence or a judge. Number 1976 ETHEL L. BARENZ was the first person to testify in Juneau. She needed this type of bill because her offender had over 18 different types of assaults on his record. "Even though with that he was not sentenced severely enough to realize that he needed to leave me and my children alone for us to be safe." Consequently, he was out from the assault charge within three months. She, therefore, supported stiffer penalties. Number 2010 REPRESENTATIVE BERKOWITZ asked Ms. Barenz if alcohol was involved in his offenses? Number 2017 MS. BARENZ replied most of his offenses were alcohol related. He had a problem with alcohol and attended many rehabilitation programs. But, every time he was kicked out of the rehabilitation program he would stalk and threaten her and her family. Number 2044 REPRESENTATIVE VEZEY commented that the assailant of Ms. Barenz was jailed for 90 days when the bill talked about 30 and 60 day sentences. He was a little confused. MS. BARENZ replied her assailant was sentenced to jail for 90 days after 18 offenses, not a first or second offense. The judge in court indicated that he was approaching "worse offender status" for driving under the influence and assault. For him, 30 or 60 days would not work, but for a lot of people it could be a deterrent. Progressive terms were needed for the general public as well. Number 2076 REPRESENTATIVE VEZEY asked Ms. Barenz if her testimony, therefore, would not affect his sentence, but it would be a rehabilitative step towards future offenders? MS. BARENZ stated that many offenders were released after 10 to 15 days. They were able to pretend all the way through the rehab program and were able to convince their families to take them back. "If they had to stay in jail it would have made a difference because for one thing they would have felt more punished and a lot of these women would have had a better chance to get out of the situation to get enough counselling to be able to go on with their lives." The offender would be out of their lives for enough time for them to take these further steps. Number 2142 CARLA TIMPONE, Lobbyist, Alaska Women's Lobby; and, Co-Chair, AWARE Shelter, was the next person to testify in Juneau. Both the Alaska Women's Lobby and AWARE supported the bill. She had over 20 years experience with domestic violence. It was a crime of a different stripe than most other types of crimes because of the nature of its intimacy. However, it should not be individualized too much because men who batter only batter. "They don't get into bar fights by enlarge. They don't assault their co-workers. They don't assault their superiors. They are generally upstanding and otherwise law abiding members of the community. And the only people they harm are their families." In her experience both professionally and personally, by the time an offender came to the attention of the criminal justice system, he had been a repeat offender. By the time she got enough courage to have her husband arrested, within 20 minutes he was out of jail and climbing up the fire escape. It was a very scary situation to be in. MS. TIMPONE further stated it was important not to confuse aggravating factors with causal factors. In her experience, when a batterer was treated for a substance abuse, you then had a sober batterer, if the underlying issues of why this person batterers were not dealt with. In addition, it was crucial for rehabilitation that a batterer took responsibility for his or her actions which included time in jail as well as rehabilitation programs. Number 2268 CHAIR JAMES stated it was interesting that we always included men as the batterer which was the case - generally. She knew of cases, however, where it was the woman who was the batterer. MS. TIMPONE explained she used the term "man" in the gender neutral tense. The statistics indicated that men were victims of battering less than .2 percent of the time. Number 2293 CHAIR JAMES stated that she always said the same thing for driving while intoxicated (DWI) - by the time someone was picked up for DWI it was not their first offense. It was generally the first time that he or she got caught but not the first offense. In the case of domestic violence, it was also very unusual that the first case reported was the actual first case, or else the victim would not have come to the position to take action. The whole issue of domestic violence was distressing because it was hard to control. "We live in a country where our home is our castle and our privacy should be protected at home." It was very difficult to penetrate that privacy without violating someone's rights. There was no harm in trying, however. Number 2356 REPRESENTATIVE VEZEY stated that the increased sentence time in Sec. 3 were small increments. This was just a Band-Aid approach. He explained the philosophy for corrections was rehabilitation at the time the Constitution of the State of Alaska was written. The philosophy now was to protect the public. It was time to come to grips that sexual predators could not be rehabilitated and that the only way to protect society was to remove these individuals. The bill was going in the right direction, but he seriously questioned if there was a benefit to increase a sentence from 20 days to 30 days. Was 10 days going to provide society anything more than 10 days of protection? he asked. Number 2426 CHAIR JAMES replied the testimony indicated that 20 days and 90 days were a big difference in the lives of the victims by helping them feel protected. REPRESENTATIVE VEZEY replied the bill did not address 90 days. Number 2431 REPRESENTATIVE BERKOWITZ stated at 20 days there were no residential treatment programs. He agreed that alcohol aggravated the situation. An offender could get "soft bed time" if he went through an in-patient alcohol treatment program. The programs were usually 28 days and 40 days. Hence, the 30 days and 60 days in the bill. TAPE 97-49, SIDE B Number 0001 REPRESENTATIVE BERKOWITZ further stated the savings would come from reducing the rate of incidences and removing drugs and alcohol from the equation. Given the budget restraints, it was a very cost effective way of addressing the situation. Number 0023 REPRESENTATIVE DYSON stated it was tempting to go from 20 days to 200 days. In addition, there were batterer programs in the state such as the anger management program by Patrick Flynn's mother, contrary to what Representative Berkowitz indicated. Number 0051 CHAIR JAMES stated testimony from Ms. Andreen indicated that we were not absolutely sure how well the programs worked. Number 0061 REPRESENTATIVE BERKOWITZ explained that he said there were no residential treatment programs, not batterer programs. Number 0068 REPRESENTATIVE KIM ELTON stated, in response to Representative Vezey's comments, sometimes the most difficult thing we did was take incremental steps rather than fix the whole problem at once. There was the constant tension of whether or not to take the incremental step or a comprehensive approach. He felt frustrated with an incremental step approach but any step in the right direction indicated success. REPRESENTATIVE ELTON further stated that prevention was just as important as dealing with the consequences. "If prevention worked 10 percent of the time then good. If prevention worked 20 percent of the time then even better." It was the same as prevention in health care. "You can take your inoculations and do everything else and that doesn't necessarily guarantee that you're going to live a healthy and long life. But it incrementally adds to the chances that you may." Number 0183 CHAIR JAMES stated the one unintended consequence that she feared from a longer sentence was the influence on the person who made the charge, particularly in cases where the batterer supported the family financially. She wondered if it would deter reporting. She was willing to try and move the bill forward, however. Number 0282 REPRESENTATIVE IVAN announced he supported the bill as written. He had observed the shelter program in the community of Dillingham which was working very well. The bill was an additional tool for the law enforcement community and for the people who assist victims. He had observed in his community a sibling who protected a family member by putting the head of household in jail who was asked to come back by the mother because of her dependence on him for the survival of the family. Number 0346 REPRESENTATIVE BERKOWITZ explained that the mandatory 20 day sentence for the first offense existed only if the offense occurred during the existence of a domestic violence restraining order. There was no mandatory minimum if there was not a restraining order in effect. Number 0374 REPRESENTATIVE DYSON moved that HB 245 move from the committee with individual recommendations and the attached fiscal note(s). There was no objection, HB 245 was so moved from the House State Affairs Standing Committee.
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