HOUSE BILL NO. 324 "An Act relating to the crime of failure to appear; relating to arrest for violating certain conditions of release; relating to release before trial, before sentence, and pending appeal; relating to material witnesses; relating to temporary release; relating to release on a petition to revoke probation; relating to the first appearance before a judicial officer after arrest; relating to service of process for domestic violence protective orders; making conforming amendments; amending Rules 5 and 41, Alaska Rules of Criminal Procedure, and Rules 206 and 603, Alaska Rules of Appellate Procedure; and providing for an effective date." 3:13:38 PM Co-Chair Hawker moved to adopt work draft 26-GH2910\S Luckhaupt 4/11/10. Co-Chair Stoltze OBJECTED. Mr. Svobodny stated that Section 1 of the bill moves the offense of failure to appear in court from Title 12 to Title 11. The current bail bill was passed in 1966 and has not been updated or moved when the criminal code was revised in 1978 by the legislature. The section moves the location of the crime from the criminal section of the law to the criminal law. The state must prove that a person knew that they must appear in court. This bill clarifies that we are not able to prove the negative. The section does not refer to strict liability which means that despite a person's excuse, if a law is broken, they are prosecuted. The law here provides an affirmative defense. Mr. Svobodny continued with Section 2. He pointed out that the section allows for police arrest without a warrant for violating a condition of release. Section 3 establishes the procedures for obtaining bail in any particular case. The section aligns with present bail conditions and adds conditions deemed appropriate by the court system. 3:19:41 PM Mr. Svobodny stated that the section requires a person released from court to be released on bail or their own recognizance. The signed conditions of release can cost the court system time in the state's view. For important events the state requires a signature for the conditions of release. A provision where a judge can change bail at any time he or she deems appropriate is dropped. 3:22:56 PM Mr. Svobodny noted that the process describes the various circumstances regarding appropriate conditions of release. He pointed out Section 4 and the burden of persuasion or proceedings which establishes that the state has the burden of proving the person is a threat to society. A defendant must go forward to show that they are not a danger to the community. When the charge before the court is an unclassified felony, the defendant must show the court why they are likely to appear or why they do not present a danger to the community. The next situation includes a previous felony offense which is included in the CS. A person seeking bail while engrossed in another case on bail must come forward to prove that they can follow the conditions release. 3:27:44 PM Mr. Svobodny noted that Section 4 addresses situations of extradition. He commented on the debate about bail in a case of extradition. Alaskan courts have held that following a governor's warrant there is not bail following a case of extradition. A person who fled another jurisdiction may flee the current one or may prove a danger to the community. Evidence can be presented on the normal conditions of release if a court can be convinced. Mr. Svobodny discussed special conditions that apply in special cases. He noted specific provisions for specific crimes. For alcohol related crimes, the court can impose certain conditions. He pointed out special provisions for crimes that involve drug offenses. 3:32:15 PM Mr. Svobodny continued with Section 5 and the protection of the public. A third party custodian might be issued. Standards for the appointment of third party custodians do not yet exist. He provided an example. The bill does contain exclusions for people who are seeking third party custodians. Representative Gara suggested that the sectional analysis be reserved for questions. 3:35:00 PM Mr. Svobodny stated that the Court of Appeals overturned a decision made by the legislature about a prohibition for people charged with committing a crime of domestic violence that resolves the dispute. The law requires a twenty day cooling off period. The defendant must show that they will not present a danger to the person. Currently the law states that a person must be brought before a court within twenty four hours to set bail, but this bill changes the time to forty eight hours. 3:37:40 PM AT EASE 3:39:33 PM RECONVENED QUINLAN STEINER, PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION, commented page seven, line eight, which could impact the agency in terms of the conduction of bail hearings. If judges interpret the section in a highly technical manner, the change would require the defense council to use evidence related to the defense to rebut that presumption. The section could be interpreted differently, but if elected, defense attorneys are required to make a decision. He commented on Page 12, Line 13 in which defense is required to use evidence about the event itself to meet the burden that might commit them to a defense of the disclosure of defense theories and evidence. Vice-Chair Thomas asked if Mr. Steiner had spoken with the sponsors of the bill about his concerns. Mr. Steiner responded yes. Mr. Svobodny responded that a person must illustrate whether they are a danger to various entities. He continued with Page 12, Line 13 the addresses domestic violence situations and cooling off period. The section allows for a finding that the court must make in the circumstances with a domestic case. 3:46:33 PM JEFFREY MITTMAN, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION (ACLU) OF ALASKA (via teleconference), expressed ACLU's concerns with respect to the constitutionality of the bill. He noted that prior correspondence with the Judiciary Committee has been placed on the BASIS system in the documents section. He pointed out Page 3, Lines 23 which encompasses the change to a forty eight hour period for an initial hearing. He stated that ACLU believes that the standard of 24 hours in Alaska is effective and it may be unreasonable to statutorily or legislatively change from a 24 hour to a 48 hour period. Page 5, Line 23-24 along with Page 6, Lines 12-15 allow for conditions that enable the court to mandate that a person maintain employment or that they follow a medical provider's treatment. These requirements apply to a person that has been charged but not yet convicted making their rights those of an innocent person. He believed the requirement unconstitutional as a judicial mandate on an individual who is not yet under court supervision. He continued with Page 7, lines 8 and 9, which is the area of greatest concern for the ACLU. The Alaska constitution sets forth that a person has a right to bail. To reverse the statute by legislative action is constitutionally inappropriate. He commented that the exception for the presumption of bail was with capital offense where the evidence is great. That high standard governs and to create a rebuttable presumption would prove improper. He continued with Page 8, Lines 8-28 which include the mandate that an individual would be required to submit to a search without a warrant. He continued with Page 10, Line 15-19 and the imposition of third party custodian status. The presumption for bail is that a person is entitled to bail and the court imposition of conditions should be less restrictive. He recommended additional language stating that a court finding of an imposition of a third party custodian is the least restrictive means to assure that a person appears for the safety of the victim. 3:52:50 PM Representative Doogan asked about the unconstitutional nature of the bill. Mr. Svobodny addressed the concerns presented by Mr. Mittman. He addressed the initial concern about the change from 24 to 48 hours. He noted that Alaska is one of three states with a 24 hour requirement. He pointed out that the Supreme Court agreed to 72 hour limits. Mr. Svobodny addressed Mr. Mittman's complaints regarding conditions of bail including use of medication are conditions commonly set by the court. Often, people are incarcerated that have mental illness or diabetes. Conditions of release are typically set by the court at a hearing where there has been a finding of probable cause that a person has committed the crime. The court then has a responsibility about the least restrictive alternative for the person. The law presumes that the person will be released on their own recognizance unless they present a danger to flee or a danger to the victim or the community. The judge must then establish conditions of release to protect the interests of the people. Mr. Svobodny continued with Page 7, Lines 8 and 9. A presumption includes the person who proves the proposition that a person is a flight risk or a danger to the community. The presumption is found in the federal law and many other states. 3:59:40 PM General Sullivan stated that HB 324 is the most important legislation this session since bail legislation has not been reformed since the 1950s. He acknowledged the value of victims' safety. He commented that if a community has the guts to put a person in jail and he is eligible for bail that places innocent people at risk. He outlined the broad approach to the issue of bail. He believed that the provisions were important as they promote safety. He believed that the presumption issue suggested that the state must keep up with the federal rules. He emphasized that the approaches in the bill were important to keeping Alaskan communities and victims safer. 4:05:13 PM Representative Doogan requested clarification on the issue. Mr. Svobodny responded that every person has a right to bail. If the state notes that a person is dangerous then the right to bail is limited. The presumption shifts when a defendant can prove that they are not flight risks. He referred to Page 8, Line 28 and the reference to searches. He clarified that the police cannot search a person indiscriminately. The law states "to submit to a search of the defendant's personal property, residence, vehicle, or any vehicle over which the defendant has control for the possession of alcoholic beverage or illegal drugs and drug paraphernalia by a peace officer has a reasonable suspicion that the defendant is violating the terms of the defendant's bail release." If there is a nexus between the condition and the crime, conditions of bail release can be imposed including searches based upon reasonable suspicion. Mr. Svobodny addressed the question regarding the third party custodian. He noted that a third party custodian is a tool the judge uses to retain the defendant. Third party custodians exist following a court finding of probable cause that the person has committed the crime. 4:09:47 PM Co-Chair Stoltze removed his objection. There being NO OBJECTION, it was so ordered and Version S was ADOPTED. Representative Kelly asked about Page 7 and the rebuttable presumption. He asked about other state's policies regarding rebuttable presumption. Ms. McLean answered that eleven states have expressly rebuttable presumption. 4:12:29 PM AT EASE 4:13:32 PM RECONVENE Co-Chair Stoltze noted all zero fiscal notes except one for $50 thousand for the draft CS recently adopted. Representative Gara explained that with rebuttable presumption additional time is not necessary. He MOVED to Zero out the fiscal note dated 4/12/10. The $50 thousand was reduced to zero. 4:16:09 PM Vice-Chair Thomas MOVED to report CSHB 324 (FIN) out of Committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 324 was REPORTED out of Committee with a "do pass" recommendation and with attached new zero note by the Department of Administration, attached new zero note by the House Finance Committee for the Alaska Courts System, and previously published fiscal notes: FN1 (ADM), FN3 (COR), FN4 (LAW), and FN5 (DPS). 4:18:07 PM