SENATE JUDICIARY COMMITTEE April 29, 2000 11:09 a.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Dave Donley Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT Senator Rick Halford, Vice-Chairman COMMITTEE CALENDAR CS FOR HOUSE BILL NO. 368(JUD) am "An Act relating to release of persons before trial and before sentencing or service of sentence; relating to when service of sentence shall begin; relating to custodians of persons released, to security posted on behalf of persons released, and to the offense of violation of conditions of release; and amending Rule 41(f), Alaska Rules of Criminal Procedure." -MOVED SCS CSHB 368(JUD) OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION HB 368 - No previous Senate action. WITNESS REGISTER Ms. Anne Carpeneti Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Supports HB 368 and Amendments 1 and 2 Mr. William P. Bryson, Attorney 1015 W 7th Ave. Anchorage, AK POSITION STATEMENT: Opposed to HB 368 Mr. Blair McCune Public Defender Agency Department of Administration 900 West 5th Avenue, #200 Anchorage, Alaska 99501 POSITION STATEMENT: Testified on HB 368 ACTION NARRATIVE    TAPE 00-26, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting to order at 11:09 a.m. Present were Senators Torgerson, Donley, Ellis and Chairman Taylor. The first order of business to come before the committee was HB 368. SENATOR ELLIS asked that the participants at the Legislative Information Offices be provided with copies of the proposed amendments. CHAIRMAN TAYLOR noted he would check to verify that those amendments were transmitted via fax. HB 368-CRIM.DEFENDANT:RELEASE/CUSTODIAN'S DUTY: MS. ANNE CARPENETI, Assistant Attorney General, gave the following testimony. HB 368 was introduced to give the Alaska Court System more tools to use to enforce conditions of release that are imposed on defendants released pending trial, appeal, or sentencing. It establishes a new offense of violating conditions of release. HB 368 is similar to an ordinance used by the Municipality of Anchorage (MOA) and the City and Borough of Juneau (CBJ). Prosecutors consider it to be an excellent tool for enforcing conditions of release. If a person, charged or convicted of a felony, is released on bail and violates a condition other than failure to appear, the person would be charged with a class A misdemeanor. If the person is released in connection with a misdemeanor, he or she would be charged with a class B misdemeanor for violating conditions of release. Failure to appear was not included because it is already a crime. A person is charged with a felony for failure to appear in connection with a felony and with a misdemeanor for failure to appear in connection with a misdemeanor. MS. CARPENETI explained that HB 368 also provides consequences for third party custodians for persons who are released on bail. Third party custodians must promise the court that they will immediately report any violations of the conditions of release. HB 368 makes it clear that if a custodian does not report a violation immediately, the custodian may be held in contempt. It also allows the court to issue performance bonds. A recent Court of Appeals' decision makes it unclear whether the court still has the authority to issue performance bonds. HB 368 places that authority in statute. HB 368 also provides for forfeiture of securities posted. Forfeiture is mandatory if a person contacts a victim in violation of a condition of release. Permissive or discretionary forfeiture is provided if a person violates any other condition of release. MS. CARPENETI noted HB 368 provides the court with statutory authority to require a person to report for or to carry out a sentence at a later date. This practice has been occurring either because of prison overcrowding or because the defendant requested a later date. Number 576 CHAIRMAN TAYLOR informed committee members that the Department of Law has proposed two amendments. Amendment 1 deletes several provisions of the bill. Chairman Taylor pointed out that several people have expressed concern that parents, who post their home as collateral for a bond to release a child, could lose their home if that child violates conditions of release. He asked Ms. Carpeneti what Amendment 1 would accomplish. MS. CARPENETI explained that no forfeitures would be mandatory unless a defendant contacted a victim in violation of conditions of release. Amendment 1 strips the bill of the forfeiture provisions and retains current law. If a person violated an appearance bond, the court would have the discretion to forfeit all or part of that bond. CHAIRMAN TAYLOR interjected and verified that the participants at the Legislative Information Offices received copies of the proposed amendments. CHAIRMAN TAYLOR moved to adopt Amendment 1 which reads as follows. A M E N D M E N T 1 OFFERED IN THE SENATE TO: CSHB 368(JUD)am Page 1, lines 4-5: Delete: "and amending Rule 41(f), Alaska Rules of Criminal   Procedure." Page 4, line 23: Delete: ", as provided in AS 12.30.065," Page 5, lines 5-20: Delete all material and renumber remaining bill sections accordingly. Page 6, lines 3-31 and page 7, lines 1-18: Delete all material and renumber remaining bill sections accordingly. Page 7, lines 19-23: Delete all material and renumber remaining bill sections accordingly. Page 7, line 26: Delete: "Sections 1-3, 5 and 6" Insert: "Sections 1-3 and 5" Page 8, lines 3-6: Delete all material and renumber remaining bill sections accordingly. CHAIRMAN TAYLOR objected to his motion for the purpose of hearing a line-by-line explanation of Amendment 1 from Ms. Carpeneti. MS. CARPENETI explained that the change on page 1, lines 4-5, is a technical change that removes from the title of the bill the reference to Rule 41(f). The change on page 4, line 23, removes the provision in statute that cross referenced the forfeiture for a performance bond. By removing that cross reference, penalties for failure to appear will be addressed by AS 12.30.060. On page 5, lines 5-20, the material that was deleted adopted a new statute addressing forfeiture of security both for appearance and performance bonds. That deletion will leave forfeiture of performance bonds up to the discretion of the court. Amendment 1 also deletes the court rule change on pages 6 and 7. The remaining provisions of Amendment 1 change the uncodified law: the conditional effect, the applicability sections, the court rule changes and the effective dates that have to do with the provisions that were already removed. MS. CARPENETI stated that Amendment 2 clarifies that if the court chooses to impose a performance bond, it would be separately enforced from an appearance bond. If a person does not appear in court, a bail bondsman would not lose the performance bond. Amendment 2 reads as follows. A M E N D M E N T 2 OFFERED IN THE SENATE TO: CSHB 368(JUD)AM Page 4, line 14: After "security;" Insert: the performance bond must be imposed and  enforced separately from any appearance bond ordered; and" Number 576 CHAIRMAN TAYLOR clarified that the purpose of Amendment 2 is to make certain that there is no confusion between the appearance bond posted by a bond bailsman and the performance bond to assure the defendant's compliance while on release. MS. CARPENETI thought that provision should be clear to the courts because bail bondsmen are not in a position to guarantee a defendant will abide by conditions of release. Number 799 CHAIRMAN TAYLOR took teleconference testimony. MR. BILL BRYSON, an Anchorage attorney, said while the proposed amendments allay some of his concerns, they do not alleviate his concerns about the effect of this bill. He is in private practice in Anchorage but has practiced in other judicial districts in Alaska. He became aware of HB 368 only after the bill came out of the House Judiciary Committee. He has several concerns with HB 368. First, he routinely bails people out with bail bonds that usually range from $20,000 to $50,000. He relies on a bondsman who can get collateral, write the bond and assure appearance. A bondsman will not write performance bonds because of his inability to enforce the conditions. Second, the fiscal note has some problems in terms of the number of bail hearings that will be held and the number of people who will remain incarcerated because a performance bond is applied instead of an appearance bond. In addition, the state courts use a very cumbersome process for posting property bonds. MR. BRYSON described a situation he was involved in to illustrate the problems. He was the initial attorney in a murder case in Anchorage. A young woman who was a witness to the murder was charged as an accomplice or principal in the case. Judge Andrews issued a performance bond for her release. The woman's parents own a house worth $500,000 free and clear. The woman was put under house arrest and the parents had to sign over a deed of trust to their home as part of the performance bond. One condition was that this woman was to have no phone contact with her friends. The parents have been vigilant and no violations have occurred, but had she broken any conditions, Judge Andrews made it very clear that the home would be forfeited. Yesterday, one year later, a Superior Court judge dismissed the case against the woman so, for one year, the parents' home was at stake. He stated that judges differ so he is not as comfortable as Ms. Carpeneti is with leaving these decisions to the discretion of judges. Third party custodians who are responsible for a defendant with a performance bond will be less likely to report a violation because of the risk of losing what they have posted. He cautioned that by writing performance bonds into law, well meaning, law abiding custodians will be punished and fewer people will be willing to post bonds. In addition, this scenario will aggravate the prison overcrowding problem. Number 1169 SENATOR ELLIS stated that Fred Adkerson from Fred's Bail Bonding referenced, in his written testimony, a Court of Appeals' decision made on February 18, 2000. He asked Mr. Bryson to explain that decision. MR. BRYSON stated the Court of Appeals reversed Judge Zervos's decision to forfeit a $5,000 performance bond. The case was appealed by the Department of Law and the Court of Appeals said that no statutory authority existed to forfeit a bond for a violation of performance conditions. The only statutory authority for forfeiture exists if a person fails to appear. Number 1261 MR. BLAIR MCCUNE, Deputy Director of the Public Defender Agency, informed committee members that he submitted written comments on the bill. Regarding the amendments, he noted that if lines 13-15 on page 4 (subsection 6) remain in the bill, the courts will still be able to issue performance bonds. He asked for clarification of subsection 6. CHAIRMAN TAYLOR said he believes subsection 6 allows courts to set performance bonds if they wish to. He asked Mr. McCune and Mr. Bryson how the MOA's municipal ordinance has worked regarding the sanctions it imposes for violations of conditions of release. MR. BRYSON said he has not had any experience with that ordinance. He noted the normal remedy on a violation of conditions is that the person is remanded to custody. He believes that ordinance has been applied in domestic violence cases where people frequently do not abide by conditions. He thought the result would depend on the individual case. CHAIRMAN TAYLOR asked Mr. McCune to recount his experience with the ordinance. He pointed out that a major shift has occurred in the court system. Courts used to frequently issue conditions of release whenever they put someone back out on bail. The courts tried to roll that into the appearance bond. The Court of Appeals found no statutory authority for the imposition of those conditions. He asked if the court would now be limited to appearance bonds only without passage of HB 368. MR. MCCUNE said the key phrase here is that there are no additional consequences. There are certainly consequences if one violates conditions of release. The first is prison time but, if a person violates conditions of release, the person will have to go before the judge for trial or sentencing or both and the judge will not be willing to consider probation. He believes that particular provision, coupled with the threat of prison time, is enough to provide a disincentive to violate conditions of release. Regarding MOA cases, he spoke with Horton and Associates (ph) which handle most of those cases. They believe it has been used as a plea bargaining tool in misdemeanor cases in which the defendant plans to go to trial. If the prosecution can find any condition of release violation, they can bring an additional charge which tends to discourage people from going to trial. Number 1565 MS. CARPENETI pointed out that the bill provides options that the courts have been using for many decades. The Department of Law has not observed any dire consequences that may be out there. These provisions have been very successful in cases; often these cases are minor and the bond may be $250. She added that an appearance bond cannot be forfeited for violation of conditions of release. She clarified that Amendment 2 adds a sentence to subsection 6 on lines 13 through 15 on page 4 to make it absolutely clear that performance bonds are imposed and enforced separately from appearance bonds. She thinks it is clear that bail bondsmen will not lose money if they make sure the defendant shows up because that is all they can guarantee. MS. CARPENETI noted that Mr. Bryson's comments on the effect that HB 368 will have on the corrections system is a two-way street. The purpose of HB 368 is to allow courts to have the discretion to use other tools so that people can get back on the street. Some judges will not be comfortable allowing a defendant to be released unless he or she is convinced the defendant will take the conditions of release seriously. Right now, a person who violates conditions of release can be put back in jail but the person will get credit for time served on the original charge and there will be no additional consequences. CHAIRMAN TAYLOR asked if there was objection to adopting Amendment 1. He noted Amendment 1 deleted the material that provided for forfeiture of performance bonds. SENATOR DONLEY asked, "What the bill does is it gives the judge the option to do this - judges don't have to do it, right? This will take away the option to apply forfeiture for non- performance." CHAIRMAN TAYLOR replied, "No, only on an appearance bond, only if they attempted to mix the two. The option of forfeiture would still be available on a performance bond." MS. CARPENETI explained that Amendment 1 takes us back to where we are now. CHAIRMAN TAYLOR said he is particularly concerned with the contact of victims provision because in smaller communities where mail is not delivered, everyone in town picks up the mail at one place. It would be difficult to not have contact in a situation like that. CHAIRMAN TAYLOR announced that with no objection, Amendment 1 was adopted. CHAIRMAN TAYLOR moved to adopt Amendment 2 and repeated that Amendment 2 clarifies that there is no confusion between those conditions posted on a performance bond and those posted on an appearance bond, which is solely based on the appearance of the individual. There being no objection to Amendment 2, it was adopted. SENATOR DONLEY moved SCS CSHB 368(JUD) from committee with individual recommendations. There being no objection, the motion carried. There being no further business to come before the committee, CHAIRMAN TAYLOR adjourned the meeting at 11:40 a.m.