CSHB 69(JUD)-NOTIFY CRIME VICTIM OF EXECUTIVE CLEMENCY  CHAIR FRENCH announced the consideration of HB 69. He asked for a motion to adopt the \M committee substitute (CS). SENATOR HUGGINS made a motion to adopt Version \M, labeled 25- LS0317\M, as the working document. There was no objection. 3:34:49 PM REPRESENTATIVE RALPH SAMUELS, Sponsor of HB 69, said the bill is a choice between several constitutional issues. He read Article III, Section 21, of the Alaska State Constitution which states in part: Subject to procedure prescribed by law, the governor may grant pardons, commutations, and reprieves, and may suspend and remit fines and forfeitures. This power shall not extend to impeachment. REPRESENTATIVE SAMUELS said the conflict is with Article I, Section 24 of the Alaska State Constitution. It states in part: Crime victims, as defined by law, shall have the following rights as provided by law: ... the right to be heard, upon request, at sentencing, before or after conviction or juvenile adjudication, and at any proceeding where the accused's release from custody is considered; ... REPRESENTATIVE SAMUELS said HB 69 simply establishes a procedure that the governor must follow in cases of executive clemency. This is good public policy, he said, and the fundamental crux is that the victim must be notified. A governor may choose to pardon someone, but he or she must pass the "red face test" and call the victim. He stated. REPRESENTATIVE SAMUELS noted that the bill has changed since it passed the House. Originally the victim was notified as part of the application procedure, but that was changed to accommodate a situation where the governor grants a pardon without an application having been made. The House version also said that a victim would be notified regardless of whether a request was made. That language was cleaned up, he said. Although the 180 days might be questioned, that is the time that the Alaska Board of Parole said it needed for its review process. He noted that the Department of Law might give its perspective on that point. 3:39:54 PM SENATOR HUGGINS asked where victim notification is located in the bill. REPRESENTATIVE SAMUELS said page 2, line 9 says: The board shall provide notice of any action taken by the governor to the Department of Law, the office of victims' rights, and the victim. The original legislation said, "If requested by the victim..." but a pardon could take place 20 years after a crime and someone may not have asked to be notified at the time. The idea is to make a best effort to notify, he said. 3:40:57 PM Senator Therriault arrived. CHAIR FRENCH commented that it's fair to say that the bill errs on the side of notification rather than waiting for someone to ask to be notified. REPRESENTATIVE SAMUELS agreed. 3:41:36 PM SENATOR THERRIAULT asked if the language about applying for notification had been removed because it was problematic. REPRESENTATIVE SAMUELS replied that language became irrelevant because victims will be notified under any circumstances. 3:42:20 PM CHAIR FRENCH opened public testimony. 3:42:48 PM LAWRENCE JONES, Executive Director, Alaska Board of Parole, Department of Corrections (DOC), said he made lengthy testimony at the first [House] judiciary hearing; he was quite comfortable with the bill then and is more so now. He supports the proposed change in verbiage from "application" to "consideration" and as a matter of logistics, 180 days is quite adequate. From the Alaska Board of Parole perspective, the bill will be quite workable, he stated. SENATOR WIELECHOWSKI asked if there is a definition for "victim" that would be used and if there would be a requirement that all family members be notified. MR. JONES replied there is a statutory definition for victim that is relatively broad. It extends through to the family if the victim is deceased and to the parents in the case of a minor. Anecdotally the board will make every effort to determine a reasonable cutoff for victim notification, he said. 3:46:06 PM SUSAN SULLIVAN, Executive Director, Victims for Justice (VFJ), stated strong support for the bill particularly with the recent changes. She suggested that on page 2, line 7 it might be more consistent to use the term "consideration" instead of "application". CHAIR FRENCH asked the sponsor to comment. SENATOR THERRIAULT said the change in terminology might be a good idea because under the existing system the governor could take action without an application having been filed. REPRESENTATIVE SAMUELS said he tends to agree, but he would defer to the Department of Law. CHAIR FRENCH asked Mr. Svobodny if, on page 2, line 7, it would be more desirable to say: "The victim may comment in writing to the board on the consideration for executive clemency." 3:49:12 PM RICHARD SVOBODNY, Chief Assistant Attorney General, Criminal Division, Department of Law (DOL), said he would agree and it is in conformity with the sponsor's intent. 3:49:34 PM SENATOR THERRIAULT said the governor has to provide notice to the parole board for an investigation. If an application isn't part of that process then it should be broadened, he stated. CHAIR FRENCH asked, for the sake of clarity, if everyone was strictly considering the case where the governor has sua sponte, on his or her own, considered granting clemency outside the normal application process. SENATOR THERRIAULT asked if the governor would have the power to grant clemency without interaction with the board. MR. SVOBODNY said it's certainly not unheard of for the executive to grant clemency or commute sentences without a particular application having been made. REPRESENTATIVE SAMUELS said Section 1 states that the governor may not grant clemency without having provided notice of consideration to the board of parole. Further in the process, he said, the board must notify the victim. CHAIR FRENCH asked if it is fair to say that a governor who believes that this is a restriction on his or her constitutional power to grant clemency would have to challenge the constitutionality of the statute. REPRESENTATIVE SAMUELS said HB 69 doesn't remove the governor's right to grant clemency; it simply sets up procedures. 3:52:58 PM SENATOR WIELECHOWSKI said page 1, lines 6, 9 and 15 talk about notice of consideration, so it would seem that it would be consistent to change "application" to "consideration" on page 2, line 7. He is comfortable that the bill is constitutional for a number of reasons. The legislature has the authority to set procedures and also there is a constitutional provision that discusses victims' rights. He asked the sponsor to touch on that. REPRESENTATIVE SAMUELS said Article 1, Section 24 lists a myriad of rights that victims have including: right to be reasonably protected from the accused; the right to bail; the right to be treated with dignity, respect and fairness; the right to a timely disposition of a case; and the right of the accused to be present at a criminal or juvenile proceeding. A governor wouldn't be required to follow the procedure, he said, but more than likely all would choose to do so. 3:56:35 PM SENATOR McGUIRE said the argument is practical and compelling, but the phrase "may not grant" on page 1, line 4 raises a separation of powers issue. That changes the generous grant authority and requires a governor to take another step before executing that power. With that in mind, she suggested placing the burden on the board and saying, "The board of parole shall send a notice to the victim irrespective of whether or not the application has been forwarded to the board." It's okay for the legislature to make a direct requirement on the parole board, but requiring the governor to make the extra step is shaky constitutional ground, she stated. 3:59:01 PM REPRESENTATIVE SAMUELS said if the parameters and procedures aren't established, then midnight pardons won't stop. He noted that the number of days is a concern to some, but the parole board said six months is a good timeframe to review the case, process the application, and contact the victim. If that presents a constitutional problem then it can be revisited, he stated. SENATOR McGUIRE said the goal is to keep the law from getting thrown out so she prefers to take the most conservative route. She suggested that keeping the discretionary word "may" in the bill instead of " shall". "You still put the political heat on, you still wage the public relations campaign, and you still have the requirements on the book and you don't get it thrown out by a court." The legislature simply doesn't have the ability to strap the governor's hands, she said. SENATOR WIELECHOWSKI asked the DOL opinion on the constitutionality of the bill. MR. SVOBODNY responded, there is an issue of how much time it takes. 180 days represents the first half year in office and the last half year in office so that cuts the governor's ability to grant pardons by 25 percent. "I don't think that's correct," he said. Nothing says an application made during the last two weeks of one governor's term would not carry over to the next governor. The legislature has the authority to establish procedures for granting pardons and that takes time. However, it is better to pick a number that everyone is used to so that it is viewed as procedural rather than cutting into the governor's authority. "I don't know where that line is - whether it's at 120 days or 60. I certainly feel more comfortable in saying it's a procedural issue if it's 30 days, 45 days, 60 days. CHAIR FRENCH said his view is that this is a way to harmonize the victims' right amendment and governor's power to grant clemency. SENATOR WIELECHOWSKI asked if the power to pardon runs with the governor as a person or with the governor's office. There is an argument that it runs with the office and if it does, this isn't an infringement at all, he said. "A governor in their last two weeks could offer up this pardon and then ... that person is no longer in office, but you still have a governor who still has that ability to pardon." MR. SVOBODNY opined that the authority is while in office. 4:05:44 PM CHAIR FRENCH closed public testimony and asked if the committee had discussion or amendments to offer. 4:05:56 PM SENATOR WIELECHOWSKI made a motion to delete "application" and insert "consideration" on page 2, line 7. CHAIR FRENCH found no objection and announced that Amendment 1 carries. SENATOR McGUIRE asked the sponsor to restate how he decided upon 180 days. REPRESENTATIVE SAMUELS replied that Mr. Jones from the board of parole said it would take about that much time to go through the normal application process and contact the victim. SENATOR McGUIRE asked Mr. Jones if 120 days would be unfeasible. MR. JONES said he had reconsidered his original answer and was ready to go on record stating that 120 days would be adequate. 4:07:47 PM SENATOR McGUIRE made a motion to delete "180" and insert "120" from page 1, lines 7 and 8 and any conforming amendments. She explained the reason is to reflect customary deadlines that are recognized in the law. CHAIR FRENCH said his review of the bill indicates that "180" appears just twice - on line 7 and line 8 of page 1. CHAIR FRENCH found no objection and announced that Amendment 2 carries. 4:09:01 PM SENATOR McGUIRE made a motion to report SCS CSHB 69, as amended, from committee with individual recommendations and attached fiscal note(s). CHAIR FRENCH announced that without objection SCS CSHB 69(JUD) moved from committee.