HOUSE BILL NO. 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." JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL OF DOMESTIC VIOLENCE AND SEXUAL ASSAULT testified in support of HB 245. She observed that she was alerted by a police officer to the problem of abusers calling their victims within hours of their arrest. She emphasized domestic violence perpetrators who are exercising an on going cycle of control over their victims will use whatever means they have to continue their control. Ms. Andreen stressed that contact by the defendant to the victim should be limited before the first judicial hearing. This allows victims time to decide whether they should seek a civil protective order and to make plans for the safety of themselves and their children. The judge can determine whether or not there can be contact at the first judicial hearing. Ms. Andreen spoke in support of increased penalties for repeat domestic violence offenders. She maintained that domestic violence offenders are not held as accountable by the criminal justice system as offenders of other offenses. She stated that the Council supports 30 days for a second offense and 60 days for a third offense when it is a fourth degree assault and a prior history of domestic violence. Ms. Andreen spoke in support of criminalizing unlawful contact. It is a criminal offense to violate a civil order preventing contact. There are no quick consequences for someone who has been ordered by the court not to have contact as a condition of pretrial or presentencing release, probation or parole. Ms. Andreen pointed out that the these issues fall in line with recommendations of the Governor's Domestic Violence Summit held in December 1997. The Summit concluded that offenders need to be held more accountable for their actions. She stressed that the importance of giving the court system and the criminal justice system sanctions and controls in order to hold offenders accountable. She asserted that it is important that the violation of conditions of release be criminalized. Co-Chair Therriault provided members with proposed committee substitute, Work Draft 0-LS0450\R, dated 2/21/98 (copy on file). Representative Davies MOVED to ADOPT Work Draft 0-LS0450\R, dated 2/21/98. There being NO OBJECTION, it was so ordered. Co-Chair Therriault reviewed the committee substitute. "A person is arrested for a crime involving domestic violence" was added on page 1, line 10. A proposed Amendment 2 would broaden this language by adding "or a crime against a person (copy on file). There was a conforming change in section 3. There was a court rule change in section 10. On page 1, line 13 a person is guilty if they "attempt to initiate communication with the alleged victim of the crime that was the basis for the person's arrest." Representative Davies referred to page 2, line 17. He noted that AS 12.30.025 specifically exempts domestic violence. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW clarified that AS 12.30.025 should be omitted. Representative Davies MOVED ADOPT Amendment 1, delete AS 12.30.025 on page 2, line 17. There being NO OBJECTION, it was so ordered. Co-Chair Therriault MOVED to ADOPT Amendment 2. Amendment 2 would add "or a crime against a person". There being NO OBJECTION, it was so ordered. Co-Chair Therriault clarified that Amendment 2 includes a title change to incorporate the reference of crimes against a person into the title. Representative Davies provided members with a spreadsheet detailing the sentencing of domestic violence cases in 1986 (copy on file). He observed that, in 1986, 400 of 1279 domestic violence offenders received no jail time. He estimated that under HB 245 half of these cases would receive jail time. He observed that if half of these offenders received 20 days, the budget would be impacted by approximately $400 thousand dollars a year. To approximate the cost of the legislation he assumed that 5 percent of the offenders that did not receive jail time in 1986 would receive 20 days; 10 percent of the offenders that received 1 - 5 days in 1986 would receive 15 days; and 15 percent of the offenders that received 6 - 10 days in 1986 would receive 10 days. He concluded that there would be an additional cost of $87.5 thousand dollars a year. He maintained that the indeterminate fiscal by the Department of Corrections is under-estimated. Representative Davies spoke in support of a revised fiscal note for the Department of Corrections of $80 thousand dollars. Ms. Carpeneti observed that the statistics do not identify the number of previous offenses. She assumed that offenders that did not receive jail time were convicted on a first offense without a violation of a protective order. She concluded that the legislation does not represent a significant departure from what is currently occurring. Representative Davies argued that there would be a cost. He requested that the legislation be held for further consideration of the fiscal note. (Tape Change, HFC 98 - 38, Side 2) Ms. Carpeneti noted that the Department of Corrections based their fiscal note on estimations by the Department of Law. Representative Fred Dyson acknowledged Representative Davies' logic as irrefutable. He observed that those that are in the field have a different conclusion. He spoke in support of moving the legislation. He suggested that the impact is unknown. He pointed out that the legislation may act as a deterrent. Representative Ethan Berkowitz pointed out that it is hard to determine the cost. He observed that a reduction of domestic violence cases would be accompanied by a decrease in social costs to the State. He felt that the legislation would reduce the instances of domestic violence. Representative Davies stated that he supports the legislation. He expressed concern that the Department has sufficient funding to implement the legislation. Co-Chair Hanley pointed out that the Department of Corrections does not have a lot of options for sentenced offenders. He stated that the cost will be addressed through the budget. Representative Davies emphasized that there is a tendency for the system to adjust to reality. He suggested that if there are no cells that charges will be adjusted down. In response to a question by Representative Kohring, Co- Chair Therriault clarified that the restriction on calls, to the victim, would only be placed on individuals between the time of arrest and the initial appearance before a judge. The judge would determine if there should be further restrictions on the individual's right to contact a victim. Representative Dyson added that the intent is to prevent intimidation of the victim by the defendant. Representative Davies MOVED to ADOPT an amended fiscal note for the Department of Corrections of $80 thousand dollars. Co-Chair Therriault OBJECTED. He observed that the sponsor can work with the Department to refine the fiscal note as the legislation travels through the system. A roll call vote was taken on the motion to adopt a revised fiscal note of $80 thousand dollars for the Department of Corrections. IN FAVOR: Davies, Grussendorf, Moses OPPOSED: Davis, Foster, Kelly, Kohring, Martin, Mulder, Therriault, Hanley The MOTION FAILED (3-8). Representative Davies MOVED to ADOPT Amendment 3. Co-Chair Therriault OBJECTED. Representative Berkowitz explained that Amendment 3 would allow the prosecuting agency to seek an additional crime for the violation of a no contact order. Co-Chair Therriault questioned if prosecutors could reinstate the suspension of sentence. Representative Berkowitz noted that the worst recidivists would receive the maximum misdemeanor sentence. They would not have any suspended sentence. Co-Chair Therriault observed that the amendment would restrict contact of the witness and the victim. Ms. Carpeneti clarified that Amendment 3 addresses what happens to a person after a judge has ordered them not to have contact with a victim or a witness to a crime. She observed that there is no good, effective way of enforcing a court order for restrictive contact. Co-Chair Hanley referred to page 1, section 1, subsection (2). Ms. Carpeneti explained that the "order" refers to release on bail, conditions of probation, or judgement in sentencing. Subsection 1 observes that the individual has been ordered not to contact the victim or witness as a condition of an order. Subsection 2 occurs when they have contacted the person in violation of the terms of the order. She acknowledged that a judge could order the person back to jail if there is a suspended sentence or find them in contempt of court. A contempt finding would result in a $100 dollar fine. She emphasized that Amendment 3 would be a more effective deterrent then current options available to the court. She observed that offenders violate their contact orders fairly regularly. She stressed that Amendment 3 would be an effective deterrent in the most serious cases where people keep contacting their victim. In response to a question by Co-Chair Therriault, Ms. Carpeneti explained that the witness may be a child who lives in the house where there is a domestic violence assault. Access can be restricted as a condition of release under current law. In response to a question by Representative Mulder, Ms. Carpeneti noted that some judges believe they already have the authority to order a defendant not to contact a victim for any period of time that seems reasonable under the circumstances. Other judges do not think they have the authority. The amendment would make it clear that all judges have the authority to restrict contact. A roll call vote was taken on the motion to adopt Amendment 3. IN FAVOR: Davies, Foster, Grussendorf, Martin, Mulder, Hanley OPPOSED: Davis, Kelly, Kohring, Therriault Representative Moses absent from the vote. The MOTION PASSED (6-4). Representative Dyson observed that most members have not had the experience of being beaten until they are terrorized. He recounted his own experiences. He emphasized the terror victims feel when their abusers confront them. He stressed that victims would benefit from extra tools to prevent contact by their abusers. Co-Chair Hanley MOVED to report CSHB 245 (FIN) out of Committee with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 245 (FIN) was REPORTED out of Committee with "no recommendation" and with two fiscal impact notes, one by the Department of Administration and one by the Department of Corrections; and with two zero fiscal notes, one by the Department of Administration and one by the Department of Public Safety.