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.