SB 252-FAILURE TO APPEAR; RELEASE PROCEDURES  1:46:15 PM CHAIR FRENCH announced the consideration of SB 252. SUSAN MCLEAN, Director, Criminal Division, Department of Law (DOL), said that SB 252 revises the bail statute. Over the past 40 some years it has been added to and has become somewhat unwieldy and difficult to reference quickly during court arraignments. The intent is to revise the statutes and enhance public safety in Alaska and to give voice to the constitutional amendment giving rights to crime victims. SB 252 incorporates concepts from federal bail law and adapts them to Alaska conditions. The bill generally would do the following: · Require the person charged with a serious sex offense to prove that the release conditions before trial will protect the victim and the public. · Adopt standards for persons who may be appointed as third- party custodians for persons who are released on bail. · Prohibit a person who is found guilty of a serious sex offense from being released before sentencing or during an appeal of a conviction. · Protect victims of domestic violence by setting standards that the court must find before allowing a perpetrator of domestic violence to return to the victim's residence. · Change the time for arraignment from 24 hours to 48 hours. MS. MCLEAN asked if the committee would like her to do a sectional analysis. 1:50:01 PM CHAIR FRENCH replied it would be helpful. MS. MCLEAN said Section 1 addresses two issues with failure to appear. First, it moves the crime of failure to appear from Title 12 to Title 11. It also addresses the problem that was raised when a second culpable mental state was added to the crime of failure to appear. This would provide an affirmative defense that the defendant, due to unforeseeable circumstances outside his or her control, was prevented from appearing at the hearing, and that the defendant notified the court orally and in writing that he or she was unable to appear. The penalties would be the same as under the current law, except that the bill adds a violation for failure to appear if the crime charged was a violation. Section 2 includes a conforming amendment to AS 12.25.030(b), which changes the standard for a law enforcement officer to make an arrest without a warrant in certain cases from "reasonable cause" to "probable cause" to clarify that the standard in all cases is probable cause. It also allows an officer to arrest a person for violations of conditions of release if they have probable cause to believe that the person has violated conditions of release. This allows the officer to arrest a person without a warrant if the violation of conditions of release is occurring in the officer's presence. 1:52:12 PM Section 3 adopts a new section, AS 12.20.006, that describes release procedures for a person charged with a crime. The procedures are similar to sections of existing law, but the bill also includes the following: · Before a third or subsequent bail hearing, the bill requires 48 hours notice to any surety involved so that the surety has an opportunity to attend the hearing. 1:53:01 PM CHAIR FRENCH reviewed page 4, lines 14-16, and asked what the provision is getting after. MS. MCLEAN replied it gets at persons who ask for repeated subsequent bail interview hearings. It requires the person to articulate what conditions have changed, other than the inability to make bail, since his or her last bail interview hearing. This puts a written record before the court of the person's prior record and what should be considered before the court determines whether or not a bail hearing should be set. CHAIR FRENCH noted that the next provision requires at least seven days notice for a new request and asked if there's a provision in current law that keeps a person from coming back to court every day asking for a new bail review. MS. MCLEAN replied there's very little, but current law does require the person to state what has changed in their situation such that their bail should be changed. What typically happens is that on a daily basis a person says they have a different third-party custodian. This makes the prosecutors scramble to find the victim who has a right to be informed of every bail hearing. Likewise, the court has to schedule a bail hearing on short notice when it probably already has all the information it needs to set bail. It's not unreasonable to ask that a person give seven days notice, she said. 1:56:19 PM CHAIR FRENCH said the committee will at some point ask Mr. Wooliver how demanding bail requests are on the court's time. MS. MCLEAN continued to explain the changes to existing law in Section 3. · The bill requires a person being released to sign a release agreement that describes the terms that the court has set. · The bill eliminates a current provision that allows a judicial officer to change, add to, or eliminate conditions of release at any time. The law already provides the bail review hearing for making such changes and the provision sort of leaves the victim in the dark. They might not be notified and wouldn't have an opportunity to be heard on the topic. Section 4 adds new sections that address release before trial for persons charged with a crime. The proposed AS 12.30.011 adopts standards and conditions for release in general - including a requirement to obey all laws, appear in court when ordered, and keep in contact with their attorney. The proposed AS 12.30.016 adopts standards and conditions for release for specific crimes. The section is designed to streamline the procedures for release, and many of the provisions are found in current law. 1:58:58 PM CHAIR FRENCH said he's surprised that the drafter didn't choose to repeal and reenact the provisions rather than adding new sections. MS. MCLEAN directed attention to Section 27, which` proposes to repeal all the discrete conditions of release for different crimes. MS. MCCLEAN continued the analysis of Section 4 pointing out that AS 12.30.011 subsection (d) provides evidentiary burdens that a court must apply in making a decision about whether to release a person on bail. The bill proposes a rebuttable presumption, which may be overcome by a preponderance of evidence, that no condition or combination of conditions will assure the defendant's appearance or the safety of the victim if: · The person is charged with an unclassified felony, a class A felony, or a sexual felony; · The person is charged with a felony and has a previous conviction for a felony that is less than five years old; · The offense was committed while the defendant was on release for another offense; or · The charge is for a crime involving domestic violence, and the defendant has been convicted of a crime of domestic violence within the past five years. AS 12.30.016 adopts the additional conditions that may be imposed in particular cases, most of which are found in current law. · Subsection (b) provides special conditions for persons charged with Title 4 violations such as selling alcohol or bootlegging and charged with drunk driving and refusing to submit to a breath test. A judicial officer may, for example, order a person to submit to a breath test when requested to do so by a law enforcement officer. · Subsection (c) provides special conditions that may be imposed on a person charged with a violation of the drug laws. For example, a person may be prohibited from entering or remaining in a place where a controlled substance is being used, manufactured, grown, or distributed. · Subsection (d) adopts a mandatory requirement of $250,000 cash bond for a person charged with manufacturing methamphetamine, unless the defendant proves to the court that his or her role was only as an aider or abettor and that they did not stand to gain financially. This is a provision in current law. · Subsection (e) adopts specific conditions for a person charged with stalking when it is not involving domestic violence. This provision is similar to current law. · Subsection (f) adopts specific conditions for a person who is released after having been charged with a sexual offense. The court may order the defendant to have no contact with someone under age 18, except that made during the normal course of business in a public place. The court is required to notify the victim of the hearing, or make reasonable efforts to do so, and to consider the victim's comments when making a release decision. This is in current law. 2:03:33 PM Section 5 adopts new standards for the appointment of a third- party custodian for a person released before trial. The court is required to ensure that a proposed custodian is physically able to perform the duties of a custodian, and requires them to report immediately if the defendant has violated conditions. It also prohibits a person from acting as a third-party custodian under certain circumstances, such as being a witness in the case, having a recent conviction, or having been recently charged with a crime. Section 6 attempts to address the issue in the Williams v. State case relating to general release conditions of a person charged with a crime involving domestic violence. It contains language that conforms to the new sections of the bill. Section 7 is in response to Williams, which held that the statute prohibiting a person from returning to the home of a victim was overly broad. That case said that the court could enter such a prohibition but it must consider specific conditions. In cases of domestic violence the defendant could not return to the home of the victim for at least 20 days; the victim would need to consent to the return; the defendant could not have a prior conviction for domestic violence; and the defendant would need to establish by clear and convincing evidence that his or her return to the residence would not pose a danger to the victim. 2:05:54 PM Section 8 rewrites the provision for appeal from conditions of release, but it does not reenact the current provision that allows the court to amend the release order at any time. Rather, it requires the person to follow the procedures adopted for asking the court to amend conditions of release. The appeal procedure of the trial court's bail decision is similar to current law. Section 9 adds a new section to address the temporary release of a person for an emergency such as the death of a family member. This is similar to the current law under AS 12.30.010(a). Section 10 addresses the release of a person who has been found guilty but not yet sentenced or whose conviction is being appealed. It allows the release under the general provisions of AS 12.30, but the person seeking release is required to establish by clear and convincing evidence that the release would reasonably assure the person's appearance and would reasonably assure the safety of the victim and the community. The bill would prohibit the release of a person found guilty of all sexual felonies, and a person found guilty of a class B felony or class C felony who has been convicted of a felony in the prior 10 years. This avoids the equal protection of law problems in Bourdon v. State. 2:08:29 PM Section 11 makes clarifying changes to the law pertaining to the release of a material witness who is not responding to a subpoena to appear; he or she may be arrested. After the witness has been deposed, he or she may be released under the bail law unless his or her presence is required at trial. Section 12 specifies that a person who is in custody with a petition to revoke probation does not have an automatic right to be released under AS 12.30, but he or she may seek release. The bill provides that the probationer must establish by clear and convincing evidence that conditions on his or her release will reasonably assure the appearance of the probationer and the safety of the victims, other persons, and the community. [Section 13 is a conforming amendment to current law.] Section 14 clarifies that for purposes of the bail statute, a conviction occurs at the time a person is found guilty, either by verdict or by plea. Sections 15-29 are either definitions or conforming amendments with the exception of Section 26 that amends Rule 603(b), Alaska Rules of Appellate Procedure, to clarify that the release of a person whose conviction is being appealed may be allowed under the provisions of AS 12.30. 2:10:33 PM CHAIR FRENCH focused on the new subsection (d) on page 7 that addresses a person who has been charged with a crime and is seeking release from jail ahead of trial. He observed that to some extent the bill tracks the federal bail statutes, but the U.S. Constitution and the Alaska Constitution articulate the right to bail differently. Under the Eighth Amendment the right to bail is a right to be free of excessive bail, whereas the Alaska Constitution is much more emphatic. It says that a person has a positive right to be released on bail ahead of trial. MS. MCLEAN said that's correct provided the victim and the community will be protected and that the person will appear at trial. 2:13:49 PM CHAIR FRENCH asked if she's had occasion to ask for a memo on this because he foresees potential problems. MS. MCLEAN offered to provide a memo at the next hearing based on research that Ms. Carpeneti has done. 2:15:05 PM CHAIR FRENCH found no further questions and announced he would hold SB 252 in committee.