Legislature(2009 - 2010)

2010-02-03 House Journal

Full Journal pdf

2010-02-03                     House Journal                      Page 1401
HB 324                                                                                                                        
HOUSE BILL NO. 324 by the House Rules Committee by request of                                                                   
the Governor, entitled:                                                                                                         
     "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."                                                                 
was read the first time and referred to the Judiciary and Finance                                                               
The following fiscal note(s) apply:                                                                                             
1.  Zero, Dept. of Administration                                                                                               
2.  Zero, Dept. of Administration                                                                                               
3.  Zero, Dept. of Corrections                                                                                                  
4.  Zero, Dept. of Law                                                                                                          
The Governor's transmittal letter dated February 1, 2010, follows:                                                             
"Dear Speaker Chenault:                                                                                                         
Under the authority of Art. III, Sec. 18, of the Alaska Constitution, I                                                         
am transmitting a bill that revises State bail statutes and provides                                                            
better direction to judicial officers in making decisions about the                                                             
release of a person charged with a crime.                                                                                       

2010-02-03                     House Journal                      Page 1402
A judicial officer's decision to release or detain a person who has been                                                        
charged with a crime is critical to the justice system and the safety of                                                        
the community. The guidance currently provided in the State's bail                                                              
statutes was in effect before statehood, and is in many respects                                                                
outdated. The bill includes a general revision of the procedures and                                                            
standards in AS 12.30.                                                                                                          
Although the bill retains many of the general guidelines in current law                                                         
for release of persons charged with crimes, there are important                                                                 
differences that would greatly improve the safety of Alaskans. For                                                              
example, in cases where a person is charged with a serious crime such                                                           
as sexual assault, the bill would adopt a rebuttable presumption that no                                                        
release condition or combination of release conditions would assure                                                             
the appearance of the defendant or the safety of others. This would                                                             
result in a more serious inquiry into the release conditions that would                                                         
reasonably assure that the person charged would appear in court and                                                             
would not pose a danger to the victim or the public.                                                                            
The bill would impose standards on persons who may serve as a third-                                                            
party custodian for a defendant. Appointment of a third-party                                                                   
custodian is useful in certain cases, but only if the custodian takes their                                                     
duties seriously. The bill requires a person to appear in court and                                                             
acknowledge the responsibilities of a custodian, and be notified that                                                           
failure to undertake these responsibilities can result in the custodian                                                         
being charged with a crime or being held in contempt. It also prohibits                                                         
a person from serving as a custodian if the person is a witness in the                                                          
defendant's case, has recent criminal convictions, or is on probation.                                                          
Under current law, a person found guilty of an unclassified or class A                                                          
felony may not be released before sentencing or during an appeal. The                                                           
bill extends this prohibition to include persons convicted of a sexual                                                          
felony, or of a class B or C felony if the person has a previous felony                                                         
conviction within the past 10 years. There are several reasons for these                                                        
changes. First, a person convicted of a sexual felony is subject to a                                                           
potential maximum term of imprisonment of 99 years, and for that                                                                
reason poses a higher flight risk. Second, the high recidivism rate for                                                         
sex offenders raises the danger to the public if the person is released.                                                        

2010-02-03                     House Journal                      Page 1403
Further, the provision addressing persons convicted of a class B or C                                                           
felony with a prior conviction responds to a decision by the Alaska                                                             
Court of Appeals, Bourdon v. State, 28 P.3d 319 (Alaska App. 2001).                                                             
Bourdon found the current law on release of persons with prior                                                                  
convictions to violate the equal protection clause of the Alaska                                                                
Constitution. The bill corrects the concerns noted by the court in                                                              
The bill also would clarify how to deal with material witnesses that are                                                        
unlikely to appear for trial even if served with a subpoena. Under                                                              
current law a material witness may be arrested.  Currently, there are no                                                        
standards allowing for release from confinement. This bill would                                                                
allow the witness to be released after providing deposition.                                                                    
Current law requires a person who is arrested for a crime to be brought                                                         
before a judicial officer within 24 hours of arrest. Many states and the                                                        
federal law require the first appearance within 48 hours, and this                                                              
deadline is proposed in the bill. There are good reasons for the change.                                                        
Forty-eight hours would allow the prosecutor adequate time to see the                                                           
police report, make informed charging decisions, and to make more                                                               
rational bail arguments to the judicial officer. It would also allow time                                                       
to contact a victim for input about whether the defendant would                                                                 
present a danger if released without particular conditions. A victim has                                                        
a right to be heard at a bail hearing; 48 hours gives the prosecution                                                           
time to make this right meaningful.                                                                                             
The bill addresses the safety of a victim of domestic violence by                                                               
adopting tough standards for when a domestic violence offender may                                                              
return to the victim's residence. The current statute forbids an offender                                                       
from returning to the victim's residence. However, this prohibition was                                                         
overturned by the court in Williams v. State, 151 P.3d 460 (Alaska                                                              
App. 2006). The court found that the absolute prohibition violated the                                                          
constitutional guarantee of equal protection of the law. In response to                                                         
Williams, the bill adopts standards for the court to apply in deciding                                                          
whether it is safe and appropriate to allow the person to return to the                                                         
home of the victim. These standards emphasize the safety of the                                                                 

2010-02-03                     House Journal                      Page 1404
Passage of this bill would protect all Alaskans, and particularly many                                                          
of our most vulnerable friends and neighbors. I urge your prompt and                                                            
favorable consideration of this bill.                                                                                           
Sean Parnell