Legislature(1999 - 2000)
03/20/2000 01:40 PM Senate 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 TAYLOR commented was a previous hearing on HB 67 and a
committee substitute is a result of that hearing.
REPRESENTATIVE ROKEBERG said he appreciates what the Judiciary
Committee has done to put more teeth into the bill. He has worked
with the Department of Corrections so there will not be a fiscal
note requiring expenditure by the state. He agrees with the
committee substitute (version M) and has come up with a proposed
amendment which adds additional language on whether or not the
sentencing for an appeal should be for a greater period. In other
words, time served will not be applicable.
Number 1277
CHAIRMAN TAYLOR asked if the same thing is not accomplished with
section 2 of the committee substitute as with the amendment, which
adds a paragraph saying people will not be released on bail either
before sentencing or pending appeal after conviction.
REPRESENTATIVE ROKEBERG said he has no objection to this. He asked
if this is in light of the amendment.
CHAIRMAN TAYLOR responded it looks like the amendment accomplishes
the same thing as section 2.
Number 1326
REPRESENTATIVE ROKEBERG explained that the amendment gives the
court some discretion--this is mandating language under the CS.
The amendment tries to give the judge some discretion if he thinks
the sentence being imposed is shorter than the time spent waiting
for the sentence to be imposed.
SENATOR HALFORD noted that the amendment says, "unless the court
finds it likely that if not released on bail," and he suggested
the amendment say, "unless the court finds that." Senator Halford
said this needs to be a real finding by adding "unless the court
finds that if not released on bail the person will remain in
custody...."
REPRESENTATIVE ROKEBERG said he has no authorship in the amendment,
this will be in an initial arraignment hearing or bail hearing
where it would be the most likely time for this to come up. This
is why the first section of the bill makes sure notice is given
and the participants in the crime will not have an opportunity to
speak to the judge.
CHAIRMAN TAYLOR responded that this does not happen in this
legislation. This is not for the first hearing, it is before
sentencing or pending appeal after conviction.
REPRESENTATIVE ROKEBERG said he stands corrected, he has no problem
with changing the language.
Number 1437
SENATOR ELLIS asked how this bill will work in small town Alaska.
It does not look like the CS clarifies this in anyway. Did the
committee decided not to address this concern?
CHAIRMAN TAYLOR said he could not remember coming up with anything
that worked in a small community. The primary thrust of the bill
had been one of notification so that the victim, at least, had a
chance to say he was living in a small community--maybe this should
be taken into consideration prior to conviction or sentencing. The
main issue of this legislation is to address people who have been
convicted and are still walking around because they filed an appeal
or are just awaiting sentence. The Chairman does not remember
addressing this topic with a drafter.
Number 1535
SENATOR ELLIS addressed section 1(b)(2), that the person reside in
a place where the person is not likely to come into contact with
the alleged victim of the offense; and. Is this making a public
policy that encourages sex offenders to leave rural communities and
go to the city?
REPRESENTATIVE ROKEBERG noted that section 1 (b), The court may
impose any of the following conditions on a person charged with an
offense under AS 11.41.410-11.41.438 or 11.41.450 - 11.41.458,
"may", is discretionary, which gives the judge the ability to take
this under consideration. These points of view are not mandated,
this is to remind the judge to look at these types of things. This
is something the judge certainly will take into consideration.
Number 1535
SENATOR ELLIS asked if the definition of indecent exposure
distinguishes between a prank activity and other activity.
SENATOR TORGERSON stated he thinks 11.41.458 deals with this issue.
He asked if this is not dealt with now with restraining orders and
other things. Does "may" do anything different than what is
already in law. Senator Torgerson noted that section c seems to be
the only section not being repeated by existing law.
Number 1725
MS. ANNE CARPENETI, representing the Criminal Division of the
Department of Law (DOL), said DOL is concern about the addition of
section 2. Section 2 makes it mandatory that a person may not be
released on bail pending sentencing or pending appeal in all cases
involving sexual assault and abuse--this also covers first time
indecencies. With first time indecencies, without a presumptive
sentence, the concern is people will be put in jail and not
released until after their sentence is decided. The problem is
that the Department of Corrections will not give a person treatment
for sexual offenses until their appeal has been decided. HB 67
mandates that a person go to jail, and that person will probably be
released without there being time for treatment. This is a real
concern of DOL.
SENATOR HALFORD asked what the minimum time required is for sex
offender treatment.
Someone from the audience responded 18 months.
MS. CARPENETI said the average time for first time class B
offenders is about two years, maybe a little more, allowing time
for treatment.
Number 1826
SENATOR HALFORD noted that under the Rokeberg amendment language,
if a person is not released on bail they will remain in custody
more than they would otherwise remain in custody. He asked if this
doesn't solve the problem.
MS. CARPENETI responded it may solve the problem for sentences, but
it does not solve the problem for appeals because the sentencing
judge has no idea how long it will take the appellate court to rule
on a particular case. The average time for deciding an appeal is
about two years. This is about the time a person will be serving
for a B felony and it is more time than for a class C felony.
SENATOR HALFORD asked what the lowest degree pled back for a rape
case is?
MS. CARPENETI answered it is an unclassified felony, if rape can be
proved.
Number 1972
SENATOR HALFORD commented the first part of the bill deals with
"before a conviction" and the second part of the bill deals with
"after a jury has found a person guilty of an offense." He said
"then they will be walking around while it is appealed for two
years."
MS. CARPENETI suggested that conditions of release be considered
for this legislation, which will put a few more teeth in DOL's
ability to deal with people who violate their conditions of
release. In the big picture, this would be a better approach than
mandating people go to jail. She is less concerned with pending
sentencing than pending appeal because it is an unknown.
SENATOR HALFORD stated this is already what the law does with
unclassified and class A felons.
MS. CARPENETI agreed, but she said "these people serve a lot more
time."
Number 1972
SENATOR HALFORD noted that HB 67 is only upgrading what is already
done to a lower class of crime.
MS. CARPENETI agreed.
SENATOR HALFORD said he would go along with the language in
Representative Rokeberg's bill, but he noted there is a lot of
difference between section 1 and 2.
Number 2065
SENATOR TORGERSON asked if the language in this bill will give the
court the authority to actually relocate someone.
MS. CARPENETI responded she does not think the court can order
someone out of town.
Number 2108
SENATOR HALFORD indicated the court can order someone out of town
as a condition of bail--it is done all the time. Senator Halford
said "the condition of bail can be third party custodian and if a
person does not have one they stay in jail."
MS. CARPENETI agreed, the court can have a person stay in jail, but
whether or not they can order a person to move out of town would
probably depend on the circumstances.
SENATOR TORGERSON asked if this is only a condition of bail.
CHAIRMAN TAYLOR answered it is release before trial.
Number 2126
MS. CARPENETI said there are options available that give DOL more
ability to deal with people who violate conditions of release.
Presently if a person is released pending sentencing, appeal, or
pending trial and they break a condition of release, DOL can put
them back in jail but it is on the original charge, so they will
get credit for time served on the original charge. HB 67 provides
for another offense of violating the conditions of release--which
ups the stakes and gives DOL the ability to charge the person with
another offense. The court can, at this point, order a person
incarcerated pending sentencing and pending appeal--they do not
have to let them out.
SENATOR HALFORD suggested that the language on line 24 in the CS be
replaced with the language in amendment 1-LS0197\M.1 (Luckhaupt,
3/2/00), with the exception that it not include on line 2 of the
amendment the words "it likely."
(3) a crime under AS 11.41.410 - 11.41.438 or 11.41.450 -
11.41.458, unless the court finds that, if not released on bail,
the person will remain in custody before
(A) sentencing for a greater period than the
term of imprisonment the person is likely to be sentenced
to serve: or
(B) appeal for a greater period than the tem
of imprisonment the person was sentenced to serve.
REPRESENTATIVE ROKEBERG commented that the only thing he would be
concerned with is the fiscal impact on the appeal process.
CHAIRMAN TAYLOR asked if the bill, as amended, impact the fiscal
note previously submitted by DOC.
Due to a tape malfunction, the following testimony was not
recorded.
MS. CANDACE BROWER, Department of Corrections, responded that the
amendment has taken care of some of the problems and she is not
sure what the fiscal impact will be. She commented that she will
working on a new fiscal note.
MS. BROWER also testified that some offenders can receive
relatively short sentences and receive some sex offender pre-
treatment or pre-release treatment at the Lemon Creek Correctional
Center. If an offender is on appeal status, he is precluded from
treatment because he must admit his offense in order to receive
treatment. If the person is unable to make bail, pending appeal,
they will most likely be released without treatment.
SENATOR HALFORD moved SCS CSHB 67(JUD)am, version M. There being
no objection, the motion carried.
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