HOUSE BILL NO. 368 An Act relating to release of persons before trial and before sentencing or service of sentence; relating to custodians of persons released, to security posted on behalf of persons released, and to the offense of violation of conditions of release; amending Rule 41(f), Alaska Rules of Criminal Procedure; and providing for an effective date. ANNE CARPENETI. ASSISTANT ATTORNEY GENERAL, CRINIMAL DIVISION, DEPARTMENT OF LAW, stated that the proposed legislation would address four areas: Establishes the crime of violating conditions of release; Authorizes courts to order performance bonds; Charges contempt of court for third-party custodian's failure to report condition violations; and Authorizes delayed reporting date for jail time. Ms. Carpeneti continued: Violation and Conditions of Release. In criminal cases, an accused has a constitutional right to be released on bail before trial. Persons who have been found guilty may be released before sentence is imposed or before ordered to serve a sentence. When releasing a person, the court may impose both general conditions, such as requiring that the accused violate no laws, and conditions specific to the particular case or defendant, such as forbidding an accused in a domestic violence case from contacting the victim. The safety of the victim often depends on the enforcement of release conditions. Currently, although it is a crime to willfully fail to appear as ordered by the court, there are few options for violation of other release conditions except for incarcerating the person. The legislation provides that it is a Class A misdemeanor for a person to violate release conditions if the person is charged with a felony and a Class B misdemeanor to violate conditions for a person charged with a misdemeanor. Performance Bonds. The bill clarifies the law by specifically authorizing the court to order the accused to post a performance bond, and requires that the court forfeit the security if the person violates a condition of no contact with the victim or witness in a proceeding. The court may forfeit the security if the accused violates other conditions. The standard for forfeiture of security in Rule 41(f), Alaska Rules of Criminal Procedure, is amended to require that security be forfeited unless the defendant could not comply due to circumstances beyond the control of the defendant. An example of such circumstances includes weather conditions that prevent airplane transportation, if there is no alternative way to travel to court. Third Party Custodians. Courts often release a defendant to the custody of a third party either an individual or an organization. Custodians are required to report to the court or the police if the defendant violates release conditions, but often do not. The bill provides that a third-party custodian can be found in contempt for failing to report immediately a defendant's violations of conditions of release ordered by the court, and requires the court to inform the custodian of the possible consequences of ignoring the duty to report. Delayed Reporting Date. The bill specifically gives the court the authority to order a person sentenced to a period of incarceration to begin serving the sentence at a date sometime after it was imposed. With overcrowded correctional facilities, this is useful to help avoid "bottlenecks" in admissions b proper scheduling. Representative Austerman asked the amount of discussion the bill had had on the third party provision. Ms. Carpeneti advised that if the person did not know that a violation had occurred, they would not be responsible to report it. Most custodians take their responsibly seriously. If the court takes the risk to release someone and they are not to contact the victim, that would require the custodian to notify the police if the defendant does contact the victim. It is important that they take that responsibility seriously. Representative Austerman asked if forfeiture of security would be a separate bond for being released. Ms. Carpeneti explained that there would be two types of security if the bill were passed: there would be the performance bond and the appearance bonds. The appearance bonds are similar to the traditional bail bonds. Representative J. Davies pointed out that bail bond people are concerned with how much they would need to charge to provide the "insurance" and the collateral requirements. He noted that Ms. Carpeneti had indicated that these would be discretionary. He asked how the legislation would impact a person's ability to get a bond. Ms. Carpeneti responded that it would be discretionary to lose the bond. She added that the bail bondsman could write appearance bonds or performance bonds. A bondsman could post a bond for a person who failed to appear. Ms. Carpeneti stated that judges could tailor the amount of the performance bond to an amount that a person could personally come up with. That would give the individual incentive to abide to the conditions of release. Representative J. Davies asked if there was a distinguishment between the mandatory and discretionary amounts. Representative J. Davies noted that he was more interested in the "no contact" portion of the legislation. Ms. Carpeneti explained that the bill provides that if a convicted person does contact the victim in violation of a performance bond, then the security would be forfeited. (TAPE CHANGE, HFC 00 - 105, Side 2) Co-Chair Mulder noted that currently, when person signs on as a third party custodian, they assume some responsibilities. Under the proposed legislation, the only penalties placed upon a third party would be in the event that the party disappears. They are then required to report it. Ms. Carpeneti noted that the bill stipulates that they must report it immediately. Co-Chair Mulder asked if the only change from current practice was that there would be enforcement. Ms. Carpeneti agreed and added that they could be found in contempt of court. Co-Chair Mulder wanted to guarantee that this would not be a "discouragement" to parties contemplating becoming the third party custodians. BLAIR MCCUNE, (TESTIFIED VIA TELECONFERENCE), DEPUTY DIRECTOR, ALASKA PUBIC DEFENDERS AGENCY, DEPARTMENT OF ADMINISTRATION, ANCHORAGE, commented that the Public Defender's agency is concerned with the legislation. He stated that prisoner overcrowding is a big problem in Alaska. If the number of prisoners increases, there will be serious consequences for overcrowding. Mr. McCune noted that the main concern is with performance bonds and the added offense of violation of prison release. He disagreed with Ms. Carpeneti's statement that there would not be any additional consequences for someone who had violated their conditions of release. Mr. McCune emphasized that there would be consequences and that those persons would not be considered for probation. He added that going back to jail would be a major consequence. Mr. McCune advised that there are bondsmen that write appearance bonds in many other areas of the State outside of Juneau, especially in Anchorage. The bondsmen write these because they are fairly predictable. Bondsmen have "ways of persuading" these folks to come to court quickly. He did not see the private bondsmen writing any of the performance bonds which would be a business risk. Mr. McCune acknowledged that the Public Defenders Agency is concerned that performance bonds would be prevalent and would add additional work and barriers to having people released. He reminded members that people in jail and facing bail are not in a good arguing position. Mr. McCune pointed out that there are so many conditions of release. He added that the bonding issue would place hardships on families that can not afford it. Another consequence is the violation and conditions of release. These consequences are real and the agency is concerned that these would become a plea bargaining tool, making it a Class A misdemeanor. Mr. McCune stressed that the current system is a fair system. People are being released from the jails, whereas, within the proposed law, unwarranted difficulties will continue to surface. Representative Phillips asked if the Public Defenders Agency supports penalties when there has been a violation of their conditions of release. Mr. McCune interjected that they do not support Section #3, the new law which makes it a misdemeanor to violate conditions. Mr. McCune added that these people generally do not go unpenalized. If it is a minor violation, they might not be penalized. If it were a serious violation, they would be put back in jail. If they were found guilty, they would have to go before the same judge that sentenced them and he would again determine the probation conditions. Mr. McCune emphasized that these are consequences when you are in jail. Ms. Carpeneti clarified that there would be no additional consequences outside of what there is on the original charge. She countered statements made by Mr. McCune. She noted that the bill provides that if a person is charged with a felony and conditions of release are violated, and then convicted, that would then be considered a Class A misdemeanor. However, if the person is charged with the underlying charge, and they violate the conditions of release and are convicted of that violation, it would then become a Class B misdemeanor. Representative J. Davies asked if there would be an additional consequence if the bond procedure were established. Ms. Carpeneti explained that the legislation would encourage people to provide for the conditions of release in two ways, which are the possibility of being charged for another crime and monetary consequences if conditions are violated. Representative J. Davies asked why the Department would need both civil penalties. Ms. Carpeneti replied that it is important for public safety that people released, abide by the conditions of their release. Representative G. Davis asked if there were statistics regarding the economic status of a person and how bonding would be determined for that person. He asked about the conditions for the very poorest of people. Ms. Carpeneti responded that judges are capable of looking at a person's resources and then making the bond appropriate. Vice Chair Bunde MOVE to report CS HB 368 (JUD) out of Committee with individual recommendations and with the accompanying fiscal note. There being NO OBJECTION, it was so ordered. CS HB 368 (JUD) was reported out of Committee with a "no recommendation" and with a fiscal note by Department of Corrections dated 2/11/00, the Department of Administration dated 2/11/00 and a zero note by the Department of Law dated 2/11/00.