HOUSE BILL NO. 90 "An Act relating to bail." REPRESENTATIVE RALPH SAMUELS, sponsor, reported that HB 90 is a multi-part bill. He requested that the Committee hear the bail section of the bill first. KATHY HANSEN, OFFICE OF VICTIMS' RIGHTS, addressed Section 5 of the bill, which amends the law addressing when a person arrested for a crime may request a third and subsequent bail hearing. She explained that hope is that this section would balance the constitutional rights between the defendant and the victim in criminal matters. She pointed out that the section was dealt with during the last legislative session; however, the Office of Victims' Rights felt that further limits were needed on the defendant's right to repeat bail hearings. She related an example of a victim who had to attend multiple bail hearings. She wanted a defense attorney to be required to offer one bail proposal at the beginning of the case and present all information available at that time, not in several subsequent hearings. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION-JUNEAU, CRIMINAL DIVISION, DEPARTMENT OF LAW, described the bill as fine tuning several new laws from the last several years such as SB 218, which expanded the sentencing period and probation for felony sex offenders. One of the problems is that mandatory probation for sex offenders is longer than what is currently in statute for the maximum period of probation. She pointed out that when a cold case prosecutor was funded, fine tuning was needed on the statute of limitation for the prosecution of older murder cases. She also spoke of a bill prohibiting electronic distribution of indecent material to children, which only addressed indecent pictures of children. Indecent pictures of adults are not covered under current law and needs to be changed. A section of HB 90 puts into statute a standard for when a court should order credit against a term of incarceration for participation in a treatment program. Ms. Carpeneti described Section 1, which makes it a new crime for a sex offender on probation to violate a condition of probation. This was necessary because a sex offender could run out of jail time "hanging over their head" under current probation regulations. It is a class A misdemeanor if a person violates certain conditions of their probation. 1:53:34 PM Ms. Carpeneti related that Section 2 prohibits a person from sending indecent material that depicts adults to minors. Ms. Carpeneti reported that Section 3 is a conforming amendment that would allow the forfeiture of property such as computers used in committing electronic distribution of indecent materials to minors. Ms. Carpeneti explained that Section 4 adds "attempt, solicitation, and conspiracy to commit murder" and "hindering prosecution of murder" to crimes that may be brought at any time. The prosecution of cold cases has been hindered by the statute of limitations for these crimes, which is five years. Ms. Carpeneti related that Section 5 is the bail revision previously described by Ms. Hansen. 1:54:35 PM Ms. Carpeneti explained that Section 6 relates to Nygren credit, a case that addressed when a court should grant credit against a period of incarceration for time spent in a treatment program before a sentence is served. Credit may be given for time in a treatment program that is essentially similar to incarceration. It is important for this to be in statute to provide fairness and uniformity as to credit for time served in a treatment program. There are three criteria: the court orders treatment, the program meets the standards set forth in the bill, and the director of the program has informed the court that the person completed the requirements of the program. Ms. Carpeneti related that Section 7 changes the mandatory period of probation from 10 years to 25 years for felony sex offenses. Ms. Carpeneti said that Section 8 requires a person convicted of electronic distribution of indecent material to minors to register as sex a offender. Ms. Carpeneti explained that Section 9 requires a person to bring an action for post-conviction relief that is based on the claim that the person's attorney in a prior application for post-conviction relief was ineffective, within one year after the court's denial of the prior application for post- conviction relief is final. She reported that a law passed in 1995 helped cut down on "recreational litigation" by prisoners. Current law provides several chances for post- conviction relief; however, Section 9 would impose a time limit of one year. Ms. Carpeneti related that Section 10 provides that a prisoner not be awarded "good time" for any period spent in a treatment program, a private residence, or while under electronic monitoring. She maintained that good time should apply to good behavior during time spent in jail. 2:00:15 PM Representative Gara voiced concern, on page 6, about not allowing good time for time spent in a 24-hour intensive treatment program. He suggested that be allowed if the treatment program satisfies the criteria described in Section 6. Ms. Carpeneti related a problem in that treatment programs do not give good time, the Department of Correction does. Also, a treatment facility does not equal jail. Representative Gara maintained that good time for treatment could be at the discretion of the Department of Corrections. He stressed that rehabilitation is important. Ms. Carpeneti said it might work if the treatment program is similar to incarceration. 2:03:24 PM Representative Crawford thought that fewer would go into treatment if it did not count toward good time. Ms. Carpeneti agreed. She added an example of someone who does not finish treatment because it does not count toward good time. 2:04:53 PM Representative Gara wondered if the Department of Corrections is currently required to give good time for residential treatment. SHARLEEN GRIFFIN, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES, DEPARTMENT OF CORRECTIONS, explained that her understanding is that the Department currently has the discretion to determine good time. Representative Gara said he wants to make it consistent with what the law currently states. Ms. Carpeneti thought that it was currently discretionary for good time to be given for treatment. 2:08:13 PM MARTI GREESON, ALASKA MONITORING, ANCHORAGE, addressed Section 6. She spoke about electronic monitoring of non- violent alcohol-related offenders. She testified in support of allowing electronic monitoring time counting toward good time. Representative Gara voiced confusion about electronic monitoring credit toward good time. He summarized his understanding of good time. Ms. Carpeneti clarified that every prisoner in the state has the right to good time. It is to encourage them to behave while in jail. Representative Gara referred to Section 6, and questioned the court's role. Ms. Carpeneti clarified that the court does not grant good time. Section 6 deals with Nygren credit, which is credit for time served. She gave an example of someone who seeks treatment prior to conviction. After the person is convicted and the sentence is imposed, the judge can reduce the time to be served for the time spent in treatment. Section 6 is intended to standardize what programs the courts give credit for against a sentence to begin with. Good time is awarded by the Department of Corrections, applies to time off for good behavior after a person is incarcerated, and is a very effective tool. 2:14:34 PM Representative Gara asked if Section 6 does not allow for someone with an electronic monitoring device before conviction to get credit for time against an imposed sentence. Ms. Carpeneti said yes. Representative Gara asked if Section 10 deals with the Department of Corrections not counting 30 days of residential treatment against jail time. Ms. Carpeneti said yes. 2:15:55 PM Vice Chair Stoltze MOVED to ADOPT Amendment 1: Page 4, lines 30-31 and page 5, line 1: Following "appearances" delete all material Insert the following: ",meetings with counsel, and work required by the treatment program and approved in advance by the court;" Co-Chair Meyer OBJECTED. Ms. Carpeneti explained that Amendment #1 repairs an amendment made in House Judiciary regarding the Nygren credit, which would allow mandatory work done in treatment programs to qualify for good time credit. The Department of Law was not in favor of that amendment. Amendment #1 clarifies how the credit is given for work programs. Co-Chair Meyer WITHDREW his OBJECTION. There being NO OBJECTION, it was so ordered. Representative Gara WITHDREW Amendments #2 and #3. 2:18:41 PM Representative Gara MOVED to ADOPT Amendment #4: Page 3, lines 28-30: Delete "(A) the inability to post the required bail; (B) information that the defendant knew about but did not present at a previous bail review hearing" Insert "the inability to post the required bail" Page 4, line 2: Delete "seven days [48 HOURS]" Insert "48 hours" Co-Chair Meyer OBJECTED. Representative Gara explained that Amendment #4 has to do with whether or not a person can get a subsequent bail hearing and how. Representative Gara WITHDREW Amendment #4. 2:19:34 PM Representative Gara MOVED to ADOPT Amendment #5: Page 3, lines 29-30: Delete "knew about but did not present" Insert "without good cause did not disclose" Co-Chair Meyer OBJECTED. Representative Gara explained that the way the bill is written, another bail hearing is not allowed if the defendant had information but it was not presented at the prior bail hearing. The reality is that the client does not normally talk to the court. Sometimes there is an endless replacement of public defenders doing bail hearings, and sometimes all points are not raised. The amendment disqualifies a person from the extra bail hearing if there was information that, without good cause, was not disclosed. 2:21:28 PM Vice Chair Stoltze asked if "defendant" was synonymous with "lawyer". Representative Gara replied that the amendment was referring to what the defendant and their lawyer knew. Vice Chair Stoltze requested further clarification. Ms. Carpeneti said the purpose of the bill seems to be to avoid serial bail hearings. Ms. Hansen clarified that current law reads that the defendant who wants a repeat bail hearing has to file a written certification as to why they want a new bail hearing and what new information the court is going to consider. The court currently is open to this. She related a personal experience about a request for separate bail hearings, without notice, for a third-party custodian appointment and electric monitoring. She maintained that there needs to be advance notice for bail hearings. She explained the trauma experienced by victims each time there is a bail hearing. Representative Gara sympathized with the victim. He related that the purpose of bail is for people who are not guilty. The more bail is limited, the less fair it is to the person who is not guilty. He wanted to prevent punishing the defendant due to an incompetent public defender. 2:27:11 PM QUINLAN STEINER, DIRECTOR, PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION, pointed out that the previous situation could cause litigation, if there is a disagreement between attorney and client as to what was communicated. Right to a bail hearing could be lost. Representative Gara inquired about the new bail hearing provisions. One, on line 28, is that a client can't get the subsequent bail hearing based on the grounds that bail could not be posted under the prior bail hearing. Mr. Steiner replied that that provision is not much different from what is in place now. Representative Gara gave an example of a client who gets $100,000 bail and can't post that much. Mr. Steiner agreed that it was a real world example. The question is whether one judge would address the bail order of another judge. Representative Gara asked how different the provision that says a bail hearing will not be allowed if the defendant knew information that wasn't shared at a prior hearing is from existing law. Mr. Steiner addressed what was new about the proposal. Representative Gara wanted to see fair bail provisions under Section 5. He asked Mr. Steiner for his opinion. Mr. Steiner thought it would lead to litigation and denial of a third hearing. Representative Gara wanted a balance, but did not know how to fix Section 5. 2:32:42 PM Representative Joule related that in rural areas there is a lack of investigation. He wondered if that impacts the bail hearing. Mr. Steiner said it does. One of the bail considerations is the strength of the case. A time-lag is a detriment and could affect release. Representative Samuels said there was a previous bill that said unless you have new information you can't have a new bail hearing. The point was to try to have all the information brought out at the first bail hearing so that the victim does not get called in several times. He said he understands Representative Gara's point. He thought Amendment #5 did not help clarify the issue. 2:37:19 PM Ms. Carpeneti pointed out that the bill addresses a person's third bail hearing. She opined that there is an out in current law and the bill is fair the way it is drafted. Representative Gara argued that granting of a bail reduction by the prosecutor does not happen very often. He gave an example of an attorney misrepresenting a client. Ms. Carpeneti thought the attorney should be presenting the best case at the first bail hearing. Representative Gara WITHDREW Amendment #5. 2:40:25 PM Representative Gara addressed Section 10 and maintained that a prisoner should get a good time deduction if treatment meets the criteria on page 4, beginning with line 28. Ms. Carpeneti thought it would be easier to include this in definitions. Representative Gara thought the court order would have to be deleted because it does not order good time. Ms. Carpeneti proposed wording, "a treatment program for this section means a program that a person completes and that is equivalent to incarceration." Representative Gara added, "a program that the person completes and that meets the standards stated in .027(c)." Representative Gara MOVED to ADOPT Conceptual Amendment #6: Page 6, lines 21-23 Insert language to read "good time may be granted if the treatment program is: (1) Completed; (2) and meets the standards in AS 12.55.027(c) Representative Hawker OBJECTED. Representative Samuels asked what happens when there are thirty days left in a sentence of a sixty-day sentence and the last thirty days are spent in a treatment program, which isn't completed. He wondered if the Department of Corrections would have to re-calculate the sentence. Ms. Carpeneti said treatment is at the end of the sentence and time-keeping by the Department of Corrections is a complicated matter. In order to give good time for a treatment program, the program should be completed. Representative Joule wondered how much time the sentence would be and how effective treatment would be if it comes at the end of the sentence. Representative Samuels noted it would be a 90-day sentence with 30 days of treatment. Good time would have to be predicted by the Department of Corrections. 2:48:15 PM Representative Gara related a scenario about treatment plan possibilities. Representative Hawker spoke against Section 10 and putting the Department of Corrections in the position of over-riding a court sentence. Representative Gara argued that the amendment does not violate a court order. He thought treatment was important. Ms. Griffin said those that need extensive treatment are sent to residential treatment programs. Anyone who has a court order for treatment has a probation officer to oversee it. She did not see that there would be any good time to give or take away. A roll call vote was taken on the motion. IN FAVOR: Crawford, Gara OPPOSED: Foster, Hawker, Joule, Stoltze, Thomas, Meyer Representatives Kelly, Nelson, and Chenault were absent for the vote. The amendment failed (2-6). Co-Chair Meyer noted a new indeterminate fiscal note from the Department of Commerce. He listed the other fiscal notes. 2:56:44 PM Representative Joule wondered about fiscal notes #5 and #6. He wondered when those indeterminate costs would be real costs. Ms. Griffin explained the possible costs for the Department of Corrections by section. She related that in Section 6, one of the uncertainties is the effect of less pre-trial electronic monitoring. Section 7, the extended probation, will not have an impact on the Department. The Department's concern regarding Section 10 is about not allowing good time for electronic monitoring and the resulting financial costs. It is not know how many offenders will refuse electronic monitoring. Co-Chair Meyer asked if fiscal notes #5 and #6 are among the current fiscal notes. Ms. Griffin noted that they were replaced by a new indeterminate note. Vice Chair Stoltze MOVED to REPORT CSHB 90 (FIN) out of Committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 90 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with zero fiscal note #2 by the Department of Law, indeterminate fiscal note #3 by the Department of Administration, indeterminate fiscal note #4 by the Department of Administration, and with a new indeterminate fiscal note by the Department of Corrections. 3:03:01 PM