Legislature(2003 - 2004)

01/26/2004 02:05 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 348 - NOTICE RE OFFICE OF VICTIMS RIGHTS                                                                                   
[Contains brief testimony in support of HB 357.]                                                                                
Number 0128                                                                                                                     
CHAIR McGUIRE  announced that the  first order of  business would                                                               
be HOUSE BILL NO. 348, "An  Act relating to the rights of certain                                                               
victims  of crime  to  receive information  about  the office  of                                                               
victims'  rights."   House  Bill  348  has four  prime  sponsors:                                                               
Representatives Stoltze, Dahlstrom, Samuels, and McGuire.                                                                       
Number 0190                                                                                                                     
REPRESENTATIVE  BILL STOLTZE,  Alaska State  Legislature, one  of                                                               
the prime  sponsors of HB 348,  offered that this bill  is one of                                                               
the  simpler   parts  of  a   "victims'  rights   package"  being                                                               
introduced by  members of the House.   The bill will  require law                                                               
enforcement  officers and  prosecutors,  at the  time of  initial                                                               
contact,  to notify  victims,  via a  printed  brochure or  other                                                               
written  material,  that  the Office  of  Victims'  Rights  (OVR)                                                               
exists and is available as a resource.   The OVR, he noted, is an                                                               
agency  that   is  located  within  the   legislative  branch  of                                                               
government,  was  modeled  statutorily   on  the  Office  of  the                                                               
Ombudsman, and  was created to  ensure that  the constitutionally                                                               
guaranteed  rights  of crime  victims  are  upheld.   Article  I,                                                               
Section 24, of  the Alaska State Constitution  details the rights                                                               
of   crime  victims;   this  provision   of   the  Alaska   State                                                               
Constitution  was  adopted  in  1994.   He  noted  that  the  OVR                                                               
currently prints a brochure detailing its services.                                                                             
REPRESENTATIVE GRUENBERG opined that HB  348 is a very fine bill.                                                               
He  raised the  concern, however,  that initial  contact may  not                                                               
always be  the best time to  give information to the  victim of a                                                               
crime; he  offered instances of  when the victim  is unconscious,                                                               
in  shock, inebriated,  or  underage as  examples.   He  pondered                                                               
whether it  might be better to  alter the bill so  that it leaves                                                               
the  time of  notification up  to  the discretion  of the  person                                                               
giving it.                                                                                                                      
REPRESENTATIVE STOLTZE  posited that  "victim" is  broadly enough                                                               
defined in  statute to  allow for instances  in which  the actual                                                               
victim  is  underage  or  deceased   -  in  those  instances  the                                                               
notification would be given to family members.                                                                                  
CHAIR McGUIRE suggested clarifying  that issue through additional                                                               
REPRESENTATIVE GARA  noted that HB  348 adds a  fifteenth [right]                                                               
under  AS  12.61.010(a), and  remarked  that  this [right]  seems                                                               
reasonable to  him.  He  added, however,  that he wanted  to make                                                               
sure that HB  348 is actually needed.  He  asked whether there is                                                               
evidence that  law enforcement or  prosecutors are  currently not                                                               
notifying victims of the existence of the OVR.                                                                                  
REPRESENTATIVE   STOLTZE  said   that  despite   everyone's  best                                                               
intentions,  there  are instances  where  victims  are not  being                                                               
notified until far too late in  the process.  He remarked that HB
348  is  part  of  a   broader  education  process,  adding  that                                                               
sometimes a  statute is the  best way  to go about  ensuring that                                                               
certain actions are taken.   He mentioned that someone relayed to                                                               
him  an instance  of being  told  something along  the lines  of,                                                               
"We're not required  to tell you about it,"  with the implication                                                               
being that  victims are supposed to  find out on their  own about                                                               
the OVR.                                                                                                                        
Number 0550                                                                                                                     
CHAIR McGUIRE,  one of the prime  sponsors of HB 348,  noted that                                                               
the OVR has relayed that  while most law enforcement officers and                                                               
prosecutors do  notify victims  about the  existence of  the OVR,                                                               
there are  some cases where  notification has not  occurred; some                                                               
victims do not get  in touch with the OVR until  too late for the                                                               
OVR to assist  them.  She mentioned that in  the case of victims'                                                               
rights,  it is  not  always  clear how  those  rights  are to  be                                                               
upheld; thus the  goal of HB 348 is to  ensure, via statute, that                                                               
victims are notified about the existence  of the OVR.  Things get                                                               
very harried when a crime  has been committed, she remarked, with                                                               
a lot  of activity taking  place, and  that's one of  the reasons                                                               
that Miranda  rights violations take  place, for example;  HB 348                                                               
is intended  to clarify that  notification of  the OVR is  one of                                                               
the steps that must be taken upon initial contact.                                                                              
REPRESENTATIVE  GARA asked  why victims  of class  B and  class C                                                               
misdemeanors are not  listed among those that are  to be notified                                                               
of the existence of the OVR.                                                                                                    
REPRESENTATIVE  SAMUELS, one  of the  prime sponsors  of HB  348,                                                               
offered his understanding that the OVR covers felonies.                                                                         
REPRESENTATIVE STOLTZE  added that the OVR  has jurisdiction only                                                               
over certain  types and classes  of crimes; for example,  the OVR                                                               
would not have jurisdiction over [misdemeanor] property crimes.                                                                 
REPRESENTATIVE SAMUELS  suggested that  victims of  felonies need                                                               
to  know  what  their  rights  are in  much  the  same  way  that                                                               
defendants  need to  be notified  of their  rights; the  sponsors                                                               
have simply  chosen the OVR,  via HB  348, as the  vehicle though                                                               
which  to tell  victims about  their constitutional  rights.   He                                                               
referred  to the  OVR as  a victim's  ombudsman, opined  that the                                                               
bill does not impose a big  burden on law enforcement officers or                                                               
prosecutors, and noted  that it does not have much  in the way of                                                               
penalties for  noncompliance.  He  suggested that if it  is later                                                               
found  that the  OVR's jurisdiction  needs to  be expanded,  then                                                               
that can be done through a different bill.                                                                                      
REPRESENTATIVE  GARA   asked  whether  the  OVR   is  statutorily                                                               
precluded  from  helping  victims  of  crimes  other  than  those                                                               
currently listed in HB 348.                                                                                                     
Number 0864                                                                                                                     
STEPHEN BRANCHFLOWER, Director, Office  of Victims' Rights (OVR),                                                               
Alaska  State Legislature,  explained that  the OVR  has been  in                                                               
existence  for  approximately  18  months, during  which  it  has                                                               
handled several  hundred cases.  One  of the things that  the OVR                                                               
discovered,  he relayed,  is  that most  of  its clients  learned                                                               
about the OVR either at the last  minute or just at the very time                                                               
when they had  to make critical decisions and  was oftentimes too                                                               
late.   The  problem,  he  outlined, is  that  many rights  which                                                               
victims  have  are  tied  into various  stages  of  the  criminal                                                               
process and are  thus time sensitive.  For  example, victims have                                                               
specific rights  during the investigative stage,  the arraignment                                                               
stage, the  bail-hearing stage,  the trial  stage, and  so forth.                                                               
Therefore,  if victims  are not  aware by  a particular  point in                                                               
time that they  have certain rights specific to a  given stage in                                                               
the criminal justice process, then  those stages go by without an                                                               
invocation of the rights associated with them.                                                                                  
MR.  BRANCHFLOWER surmised  that the  number one  reason for  the                                                               
commonly heard refrain of, "Boy, if  I'd just known about you ...                                                               
six months ago ..."  or, "... a year ago ..."  seems to be simply                                                               
a lack of  awareness that the OVR exists as  a resource for crime                                                               
victims.  To remedy this, he  explained, the OVR has undertaken a                                                               
very aggressive program to educate  those in the criminal justice                                                               
system:  police agencies,  victim support organizations, district                                                               
attorney offices, judges,  and so forth.  The OVR  has given more                                                               
than 40 presentations in the last  eight months, but this is only                                                               
just scratching the surface; what is  needed, he opined, is a law                                                               
like HB  348, which  would require  law enforcement  officers and                                                               
prosecutors  to  notify victims  that  the  OVR is  available  to                                                               
assist them.                                                                                                                    
MR. BRANCHFLOWER, turning to  the jurisdictional issue, explained                                                               
that by statute,  the OVR has jurisdiction over  all felonies and                                                               
class  A  misdemeanors  involving  domestic  violence  or  crimes                                                               
against a  person under  AS 11.41.   Thus the  OVR does  not have                                                               
jurisdiction  to  provide services  to  victims  of class  B,  or                                                               
lower, misdemeanors.   House Bill 348 would  place an affirmative                                                               
obligation  on  the  part  of  prosecutors  and  law  enforcement                                                               
officers  to notify  crime  victims -  those  in the  appropriate                                                               
categories -  upon first  contact with  them and  without request                                                               
from them, that the OVR  exists.  This includes providing victims                                                               
with  the  OVR's address,  telephone  number,  and other  contact                                                               
information.    The  requirement  imposed  by  HB  348  would  be                                                               
satisfied if  officers and prosecutors  give victims  a brochure,                                                               
which  would   be  provided  to  law   enforcement  officers  and                                                               
prosecutors by the OVR.                                                                                                         
Number 1113                                                                                                                     
MR.  BRANCHFLOWER  relayed that  upon  taking  a poll  of  police                                                               
officers, they encouraged  him to make the  requirement as simple                                                               
and  clear  as  possible;  thus  HB  348  is  simply  a  "notice"                                                               
requirement  rather than  an "explanation"  requirement.   One of                                                               
the reasons for  this, he added, is,  as Representative Gruenberg                                                               
pointed out, many times victims  are intoxicated, in shock, don't                                                               
speak English,  or for some other  reason not of a  mind to start                                                               
learning what  their rights are.   The  benefit of being  given a                                                               
brochure is that victims can take  it home, read it, perhaps even                                                               
read it over with family, and  then decide whether to contact the                                                               
OVR.  He  noted that the definition of  victim [AS 12.55.185(17)]                                                               
is extremely broad and includes  immediate family such as parents                                                               
and siblings.  Therefore, if  law enforcement or prosecutors have                                                               
any contact with  those folks, a brochure could be  given to them                                                               
[as well].                                                                                                                      
MR.  BRANCHFLOWER  relayed  that  the  OVR's  brochure  has  been                                                               
distributed  pretty  widely  -  about  16,000  copies  have  been                                                               
circulated around  the state  - and that  it is  an informational                                                               
brochure which  provides contact information.   In conclusion, he                                                               
said  that "this"  is one  way of  getting word  out to  victims,                                                               
especially in  the Bush, who  would benefit from  being notified,                                                               
early on,  of what  their rights  are.   He suggested  that there                                                               
might be others available to  speak about the hardships resulting                                                               
from not knowing about the existence of the OVR.                                                                                
REPRESENTATIVE  GARA  raised  the issue  of  whether  information                                                               
about the  Violent Crimes Compensation  Board (VCCB) ought  to be                                                               
incorporated into the OVR's brochure.                                                                                           
MR. BRANCHFLOWER  indicated that VCCB information  could be added                                                               
to the  OVR's brochure;  he noted  that law  enforcement agencies                                                               
are currently  required to notify victims  about the availability                                                               
of the VCCB.                                                                                                                    
REPRESENTATIVE  GARA  expressed  a  desire  to  see  a  paragraph                                                               
regarding the VCCB added to  the OVR's brochure, which could then                                                               
be handed  out to all victims  of violent crimes.   "Should we or                                                               
should we not consider doing that?" he asked.                                                                                   
MR. BRANCHFLOWER  mentioned that  he is  not conversant  with the                                                               
VCCB's   jurisdiction   or    whether   that   organization   has                                                               
jurisdictional  restraints similar  to the  OVR in  terms of  the                                                               
class  of   crime  for  which   someone  would  be   entitled  to                                                               
REPRESENTATIVE SAMUELS  raised the  concern that altering  HB 348                                                               
to  require  the  restructuring   and  reprinting  of  the  OVR's                                                               
brochure to include VCCB information  might create a fiscal note.                                                               
He suggested  that perhaps a  written request from  the committee                                                               
that the OVR's brochure be altered  when it is next scheduled for                                                               
printing  would  be sufficient.    "Rather  than  put it  in  the                                                               
statute, as long as we get  to the same place, that seems cleaner                                                               
to  me than  having [the  OVR]  print up  a whole  new batch  and                                                               
throwing the [current] ones ... in the trash.                                                                                   
Number 1295                                                                                                                     
REPRESENTATIVE  GARA  said  he  is  worried  that  a  future  OVR                                                               
director might not  remember to restructure the  brochure if such                                                               
were not specifically required via statute.                                                                                     
CHAIR McGUIRE suggested  that adding intent language  to the bill                                                               
would  be sufficient  to ensure  that new  OVR brochures  include                                                               
information regarding the VCCB.                                                                                                 
REPRESENTATIVE GARA agreed,  indicating that he did  not want the                                                               
OVR to incur additional costs.                                                                                                  
MR.  BRANCHFLOWER relayed  that he  is intending  to reprint  the                                                               
OVR's brochures in  the spring, and that he believes  he can find                                                               
room on it for information regarding the VCCB.                                                                                  
REPRESENTATIVE GARA mentioned that  he would probably be offering                                                               
a conceptual  amendment to add  [intent language].  On  the issue                                                               
of the OVR's jurisdictional  restraint, Representative Gara asked                                                               
Mr. Branchflower  whether he  sees any  benefit to  expanding the                                                               
OVR's jurisdiction to include class B misdemeanors.                                                                             
MR. BRANCHFLOWER  said no,  adding that  cases involving  class B                                                               
misdemeanors are  generally resolved  too quickly  for assistance                                                               
from the OVR to be necessary.                                                                                                   
Number 1516                                                                                                                     
JUDITH McARTHER (ph)  stated that the OVR's brochure  needs to be                                                               
handed out  as soon  as possible,  and relayed  that she  did not                                                               
find out  about the OVR  until approximately 18 months  after the                                                               
incident with which she was involved took place.                                                                                
Number 1563                                                                                                                     
LINDA  WILSON, Deputy  Director,  Public  Defender Agency  (PDA),                                                               
Department of  Administration (DOA), relayed simply  that the PDA                                                               
has no problem with HB 348.                                                                                                     
Number 1583                                                                                                                     
PAGE LINDER (ph)  relayed that she was involved  in an automobile                                                               
accident in June of  2003; she was hit head on  by a drunk driver                                                               
without insurance.   The driver left  the scene of the  crime, so                                                               
it was also  considered a hit and  run incident.  At  the time of                                                               
the accident, she  was put in contact with a  police officer, was                                                               
taken  to the  hospital,  and  was given  paperwork  to fill  out                                                               
regarding   proof  of   insurance   and   the  police   officer's                                                               
information.  She said that she'd  tried to keep up with process,                                                               
but  it wasn't  until  she was  given a  subpoena  for court  and                                                               
showed up  there that  she discovered that  the drunk  driver was                                                               
only being  charged with  driving without  insurance; he  was not                                                               
charged   with   reckless   driving,  or   with   driving   while                                                               
intoxicated, or with  leaving the scene of the  accident, or with                                                               
hitting another vehicle.                                                                                                        
MS. LINDER  mentioned that  the drunk  driver, after  hitting her                                                               
vehicle head on, had also attempted  to run her over when she got                                                               
out of her car; in the process  of attempting to run her over, he                                                               
struck  her car  again,  leaving behind  his  bumper and  license                                                               
plate, which  was later  used to  identify him  as the  person to                                                               
take  into custody.   She  explained  that she'd  only found  out                                                               
about  the  OVR  in  late  August  through  a  friend;  when  she                                                               
contacted  the OVR,  she relayed  that she'd  wished she'd  known                                                               
about  the OVR  and its  services at  the time  of the  accident,                                                               
because,  by the  time she  did become  aware of  the OVR,  she'd                                                               
almost lost her window of opportunity  to receive its help.  With                                                               
the OVR's  help, the drunk  driver was additionally  charged with                                                               
several  felonies as  well as  with misdemeanor  reckless driving                                                               
and  driving without  insurance.   She  concluded  by saying  she                                                               
feels that HB 348 would be a very beneficial bill.                                                                              
Number 1706                                                                                                                     
REBECCA ROBERTS (ph) offered her support  of HB 348.  She relayed                                                               
that in June of  2003, her son was the victim  of a violent crime                                                               
- first degree felony assault.  She added:                                                                                      
     Had we known  about the [OVR] at the  time the incident                                                                    
     occurred, we might  have been able to  be afforded true                                                                    
     justice,   meaningful  assistance,   and  compassionate                                                                    
     treatment  before the  law.   Victims  are unlikely  to                                                                    
     attempt to  assert rights they  do not know  they have.                                                                    
     Victims' rights  can be ensured  only if  resources are                                                                    
     sufficient,  legally mandated,  and enforced.   I  urge                                                                    
     you to  pass this legislation.   I  did want to  make a                                                                    
     comment on the [VCCB].   I fully support their efforts.                                                                    
     I believe their brochure was  offered to me on at least                                                                    
     five  occasions, three  of which  physicians called  me                                                                    
     personally to let me know  that our son was a candidate                                                                    
     for [the  VCCB's] services and  assistance.  But  at no                                                                    
     time was I ever informed about the [OVR].                                                                                  
MS.  ROBERTS said  that  she was  also calling  in  to offer  her                                                               
support of HB 357.                                                                                                              
CHAIR  McGUIRE,  upon determining  that  no  one else  wished  to                                                               
testify, closed public testimony on HB 348.                                                                                     
Number 1791                                                                                                                     
REPRESENTATIVE  GARA  made  a  motion to  adopt  Amendment  1,  a                                                               
handwritten   amendment   which    read   [original   punctuation                                                               
     Insert at p. 3 line  17 after "purpose." "To the extent                                                                    
     feasible, new  versions of this pamphlet  printed after                                                                    
     the  effective  date of  this  act  shall also  include                                                                    
     information about compensation  from the Violent Crimes                                                                    
     Compensation Board."                                                                                                       
Number 1796                                                                                                                     
REPRESENTATIVE ANDERSON  objected and [asked] whether  the bill's                                                               
sponsors concur with Amendment 1; he  added that he did not think                                                               
it was necessary.                                                                                                               
REPRESENTATIVE  SAMUELS   said  he   understood  the   intent  of                                                               
Amendment 1  and agreed with  it, but indicated a  preference for                                                               
addressing it  after it  has been  reviewed by  Legislative Legal                                                               
and Research Services  to ensure that the wording  will not cause                                                               
REPRESENTATIVE  STOLTZ  said  he  concurred  with  Representative                                                               
Samuels's comments.                                                                                                             
Number 1853                                                                                                                     
REPRESENTATIVE GARA withdrew Amendment 1.                                                                                       
REPRESENTATIVE OGG  pointed out  that generally, when  rights are                                                               
created,  remedies  follow along;  HB  348,  however, appears  to                                                               
create  a  right without  providing  a  corresponding remedy  for                                                               
REPRESENTATIVE   STOLTZE  suggested   that  there   are  remedies                                                               
available through existing statutes.                                                                                            
MR. BRANCHFLOWER referred to AS 12.61.010(b), which says:                                                                       
          (b)   Law   enforcement   agencies,   prosecutors,                                                                    
     corrections  agencies,  social services  agencies,  and                                                                    
     the  courts  shall  make  every  reasonable  effort  to                                                                    
     ensure that victims  of crimes have the  rights set out                                                                    
     in (a) of  this section.  However, a  failure to ensure                                                                    
     these rights does not give  rise to a separate cause of                                                                    
         action against law enforcement agencies, other                                                                         
      agencies of the state, or a political subdivision of                                                                      
     the state.                                                                                                                 
MR.  BRANCHFLOWER  characterized the  above  language  as a  hold                                                               
harmless provision,  with the  OVR primarily  providing education                                                               
to law enforcement agencies.   However, in extreme cases, the OVR                                                               
can  undertake other  remedies  available  under its  authorizing                                                               
statutes; these remedies essentially  amount to providing reports                                                               
to the public.   He added that such has been done  in the past in                                                               
exceptional cases.                                                                                                              
REPRESENTATIVE OGG  said he just wanted  it to be clear  that [HB
348] creates  a right  that has no  corresponding remedy  if that                                                               
right is violated.                                                                                                              
REPRESENTATIVE GRUENBERG  turned attention  to page 3,  lines 11-                                                               
12.  He asked whether  class A misdemeanors involving theft would                                                               
fall under the OVR's jurisdiction.                                                                                              
MR.  BRANCHFLOWER said  no,  reiterating that  the  only class  A                                                               
misdemeanors  that  fall  under the  OVR's  jurisdiction  involve                                                               
domestic violence or crimes against a person under AS 11.41.                                                                    
CHAIR McGUIRE, upon learning that  someone else wished to testify                                                               
on HB 348, reopened public testimony.                                                                                           
Number 2051                                                                                                                     
ANNA  FAIRCLOUGH, Executive  Director, Standing  Together Against                                                               
Rape   (STAR);  Member,   Anchorage  Assembly,   Municipality  of                                                               
Anchorage  (MOA), remarked  that  [as the  Executive Director  of                                                               
STAR], she'd  attended a meeting  with Victims For  Justice, Inc.                                                               
(VFJ),  the Alaska  Women's Resource  Center  (AWRC), and  Abused                                                               
Women's Aid in Crisis (AWAIC)  - the domestic violence shelter in                                                               
Anchorage  - during  which the  concern  was raised  that HB  348                                                               
might engender a  fiscal note should law  enforcement officers in                                                               
Anchorage notify every crime victim  of the OVR.  She elaborated:                                                               
"Our  concern   is  that  somehow   the  [OVR]  would   become  a                                                               
clearinghouse  or  the  referral  base  for  victim  services  in                                                               
MS.  FAIRCLOUGH, as  an Anchorage  Assembly member,  relayed that                                                               
the assembly  had had a  less than desirable experience  with the                                                               
OVR in relation  to the Godfrey case.  She  expressed a desire to                                                               
discuss in  detail with committee  members, at another  time, how                                                               
the OVR  presented information  to the  public, the  service that                                                               
this provided, what Anchorage was  already involved in doing, and                                                               
how [the  OVR's involvement] did  not expedite the process.   She                                                               
acknowledged that the  OVR's intent was noble, but  said that her                                                               
concern and dissatisfaction stemmed  from the fact that Anchorage                                                               
had  already been  doing all  the  things that  the OVR  publicly                                                               
suggested.   "When it became  a public ping-pong paddle  with who                                                               
... had jurisdiction,  it was a very uncomfortable  feeling as an                                                               
Anchorage Assembly member - to sit on that."                                                                                    
MS. FAIRCLOUGH [on  behalf of STAR] pondered  whether, should the                                                               
OVR become a referral office, more  people will be hired in order                                                               
to deal with possible workload increases.                                                                                       
CHAIR McGUIRE read brief portions of the OVR's brochure.                                                                        
REPRESENTATIVE    SAMUELS    surmised   that    social    service                                                               
organizations would  only be helped by  ensuring that information                                                               
about the  OVR gets distributed.   "The [OVR] is basically  a law                                                               
firm ...; they're  just the ombudsman," he  remarked, adding that                                                               
the OVR  will be able  to let those  that call their  office know                                                               
about other available resources.                                                                                                
Number 2219                                                                                                                     
MS. FAIRCLOUGH  argued, however, that  from the point of  view of                                                               
sexual assault  victims, another  layer of  bureaucracy is  not a                                                               
good thing  - it  will not  make them  come forward;  instead, it                                                               
will stop them from seeking help.                                                                                               
CHAIR McGUIRE pointed  out, however, that HB  348 merely requires                                                               
that  information  about  the  OVR   gets  distributed  to  crime                                                               
victims; it  doesn't mandate that  victims go through the  OVR in                                                               
order to  receive any other  organization's services.   "In point                                                               
of fact,  this is  in addition, perhaps,  to any  other resources                                                               
that are  available to a  woman in that [situation],"  she added.                                                               
She said  she sees no harm  in requiring distribution of  the OVR                                                               
MS. FAIRCLOUGH remarked that at  the aforementioned meeting, none                                                               
of the  groups present took  a position on  HB 348.   She offered                                                               
her belief  that the Anchorage  Police Department (APD)  does not                                                               
want to  become a  referral service  and is,  in fact,  trying to                                                               
consolidate  all   of  the  pieces   of  literature  it   is  now                                                               
distributing regarding the social  service organizations that are                                                               
available in Anchorage.                                                                                                         
CHAIR McGUIRE  explained, however, that an  important distinction                                                               
is  that the  OVR  was  statutorily created  for  the purpose  of                                                               
enforcing  victims'  constitutional  legal  rights,  whereas  the                                                               
opportunity to  access STAR  and similar  organizations is  not a                                                               
legal right - it is simply an opportunity.                                                                                      
REPRESENTATIVE  GARA asked  whether the  concern about  excessive                                                               
literature is something the legislature ought to consider.                                                                      
CHAIR  McGUIRE reiterated  the distinction  between  the OVR  and                                                               
social  services  organizations.     The  OVR  enforces  victims'                                                               
constitutional  rights,  rights  much   like  those  afforded  to                                                               
defendants as a  result of case law.  With  regard to whether law                                                               
enforcement should  be required  to distribute  information about                                                               
the  OVR, she  said,  "I think  it is  critical  because I  think                                                               
[that] when a  crime occurs, there ought to be  as much attention                                                               
paid  to  the victims  as  there  [is]  to the  defendants;  it's                                                               
critical for me to know that  ... an officer ... responding to an                                                               
incident is paying ... attention  to both sides of the equation."                                                               
The  more attention  that can  be given  to victims'  rights, the                                                               
better,  she  indicated, adding  that  it  is also  important  to                                                               
continue other forms of outreach to victims.                                                                                    
TAPE 04-3, SIDE B                                                                                                             
Number 2393                                                                                                                     
MS.  FAIRCLOUGH, in  response to  Representative  Gara, said  she                                                               
believes  the police  in  Anchorage  are doing  all  they can  to                                                               
reduce  excessive literature.    Furthermore,  the police  aren't                                                               
mandated  to carry  those  other vehicles  of  information.   Ms.                                                               
Fairclough relayed  that she wasn't  opposed to  the distribution                                                               
of the  material; however, if there  is a way to  consolidate it,                                                               
then there would  be one piece rather than multiple  pieces.  She                                                               
noted that carrying  a particular amount of any  kind of brochure                                                               
will be an  issue, she said.  Ms. Fairclough  clarified that "we"                                                               
do want victims  to be supported whenever  possible, although she                                                               
didn't want [the  OVR] to become a referral  service for victims.                                                               
The police  were trying to  avoid the aforementioned  by creating                                                               
one  pamphlet that  would detail  all the  services available  to                                                               
victims.  Although there have  been assurances that the OVR won't                                                               
become  a referral  service, she  expressed concern  that victims                                                               
with the OVR's brochure will start calling its number.                                                                          
CHAIR McGUIRE said  she would continue to make sure  that the OVR                                                               
wouldn't  become a  bureaucratic barrier  to obtaining  the other                                                               
services that are available.   Furthermore, there is no intention                                                               
for the OVR to become a clearinghouse.                                                                                          
MS.  FAIRCLOUGH noted  that there  are hundreds  of thousands  of                                                               
other victims  that are  unrepresented.   She relayed  her belief                                                               
that  police officers  will continue  to  hand out  the names  of                                                               
organizations such as AWAIC, AWRC, and  STAR.  She noted that she                                                               
is the new  legislative chair for the Alaska  Network on Domestic                                                               
Violence   &  Sexual   Assault   (ANDVSA),   and  expressed   her                                                               
appreciation for various pieces  of legislation dealing with [the                                                               
issues with which she is involved].                                                                                             
REPRESENTATIVE GARA noted  that his staff would be  working on an                                                               
amendment   regarding  information   about  the   Violent  Crimes                                                               
Compensation Board.                                                                                                             
CHAIR McGUIRE  mentioned that Anchorage Assemblymen  Tremaine and                                                               
Traini were  in attendance.   Upon determining that there  was no                                                               
further committee discussion, Chair McGuire set HB 348 aside.                                                                   
HB 357 - RESTITUTION                                                                                                          
Number 2177                                                                                                                     
CHAIR McGUIRE announced that the  next order of business would be                                                               
HOUSE  BILL  NO.  357,  "An  Act  relating  to  restitution;  and                                                               
providing for an effective date."   House Bill 357 has four prime                                                               
sponsors:    Representatives  Stoltze,  Dahlstrom,  Samuels,  and                                                               
Number 2165                                                                                                                     
REPRESENTATIVE  SAMUELS moved  to adopt  the proposed  CS for  HB
357, 23-LS1384\D, Luckhaupt, 1/20/04, as the work draft.                                                                        
REPRESENTATIVE  SAMUELS, one  of the  prime sponsors  of HB  357,                                                               
stated that  the changes embodied  in Version  D can be  found on                                                               
page 2,  line 26,  where a  new Section  5 was  added.   This new                                                               
Section  5 clarifies  that the  court  retains jurisdiction  into                                                               
Number 2141                                                                                                                     
CHAIR  McGUIRE  remarked  that  there was  no  objection  to  the                                                               
motion.  Therefore, Version D was before the committee.                                                                         
REPRESENTATIVE  SAMUELS pointed  out  that  the committee  packet                                                               
should contain a  sponsor statement and a letter  of support from                                                               
the  Anchorage  School District.    He  highlighted the  language                                                               
change from "may"  to "shall" on page  1, line 4.   The result of                                                           
this change  will be  that if an  individual causes  someone else                                                               
financial hardship, then  that individual will pay  at least part                                                               
of the  price.  With  regard to new Section  5, he opined  that a                                                               
[juvenile] shouldn't  be let  off the  hook [just  because he/she                                                               
turns 18].                                                                                                                      
REPRESENTATIVE GRUENBERG  provided the  committee with a  copy of                                                               
the  current AS  12.55.045.   He relayed  his understanding  that                                                               
even with respect  to a large amount of  restitution, [the repeal                                                               
of AS  12.55.045(f)] is  taking away  the court's  flexibility to                                                               
consider the defendant's ability to  pay restitution.  This could                                                               
lead to  a very unfair  result.  He posed  an example in  which a                                                               
young  person,  with dependants  to  support,  does damage  to  a                                                               
school  building.    If  the   court  can't  even  consider  [the                                                               
defendant's ability  to pay],  it may  lead to  innocent children                                                               
being left with no support.   Therefore, he opined, the court, in                                                               
some cases, should  be able to consider such things.   He said he                                                               
hesitates  to  completely  repeal   AS  12.55.045(f),  which,  he                                                               
recalled,  requires the  defendant to  show clear  and convincing                                                               
evidence  of his/her  inability to  pay.   He  announced that  he                                                               
supports the  legislation itself, but reiterated  his belief that                                                               
the  court   should  have  some   flexibility  to   consider  the                                                               
[defendant's ability to pay].                                                                                                   
REPRESENTATIVE SAMUELS  noted that  AS 12.55.045(f)  includes the                                                               
following language:  "the defendant's  sentence includes a period                                                               
of  unsuspended incarceration  exceeding 90  days".   He remarked                                                               
that of  course the individual has  no ability to pay  during the                                                               
90 days  when he/she is  incarcerated and not working.   However,                                                               
the individual shouldn't be let  off the hook when the individual                                                               
is  no longer  incarcerated.   He  remarked  that the  individual                                                               
should  be reminded  of  what  he/she did  even  if it's  through                                                               
payment  of only  $10  per  week.   He  offered  his belief  that                                                               
providing  latitude  to the  courts  means  that there  could  be                                                               
unfair situations from judge to judge.                                                                                          
REPRESENTATIVE   GRUENBERG  suggested   that   perhaps  this   is                                                               
something that needs  to be discussed between now  and the bill's                                                               
next hearing.                                                                                                                   
Number 1762                                                                                                                     
TAMARA de  LUCIA, Associate Victims'  Rights Advocate,  Office of                                                               
Victims' Rights  (OVR), Alaska State  Legislature, noted  that AS                                                               
34.50.020  currently caps  damages for  vandalism against  public                                                               
buildings,  including school  vandalism, committed  by minors  at                                                               
$10,000.  House  Bill 357 will bring AS 12.55.045  into line with                                                               
the  [current]  stated legislative  purpose:    "a public  policy                                                               
favors  requiring   criminals  to  compensate  for   damages  and                                                               
injuries to  their victims".   She highlighted that victims  of a                                                               
terrible crime  can never be  made whole.   Although much  of the                                                               
suffering  that  victims  go  through  can't  be  compensated,  a                                                               
restitution award  is a way in  which a defendant can  attempt to                                                               
right the wrong.                                                                                                                
MS. de  LUCIA characterized the  provision repealing  the court's                                                               
ability  to  take  into  account an  offender's  ability  to  pay                                                               
restitution as  important.   She explained  that often  the court                                                               
reduces  the   restitution  award  when  an   offender  has  been                                                               
sentenced  to jail  time because  the defendant's  earnings while                                                               
incarcerated  will  be  nominal   or  nonexistent.    However,  a                                                               
reduction  in  the  restitution   award  doesn't  account  for  a                                                               
potential windfall that that offender  may receive during his/her                                                               
lifetime  nor  does  it  account for  the  possibility  that  the                                                               
offender may  obtain a good  job and  then be able  to compensate                                                               
the victim.   Offenders are  often young  and have a  lifetime of                                                               
earnings ahead  of them.   She  opined that  allowing restitution                                                               
judgments  to be  reduced  from the  actual  damages suffered  is                                                               
unfair to the victim and  does not hold offenders accountable for                                                               
their crime.                                                                                                                    
Number 1680                                                                                                                     
CHAIR McGUIRE, one of the prime  sponsors of HB 357, turned to AS                                                               
34.45.020 and noted that it only refers to minors.                                                                              
REPRESENTATIVE GARA said he supported  obtaining every last penny                                                               
of restitution possible from someone  who commits a crime against                                                               
someone else,  and therefore he  agrees with the concept  and the                                                               
approach.  However, he expressed  concern with regard to deleting                                                               
any reference  to the  criminal's ability  to pay.   He  posed an                                                               
example in which  a criminal disfigures someone  and this results                                                               
in  $500,000  worth of  medical  bills.    The  judge in  such  a                                                               
situation  has the  ability to  place  the offender  in jail  and                                                               
retain jurisdiction over the offender  for 10 years from the date                                                               
of  the crime.   Under  HB  357, the  judge wouldn't  be able  to                                                               
consider  the defendant's  ability  to pay  and,  thus, over  the                                                               
course of the next 10 years  this defendant would have to come up                                                               
with $500,000  while the court  has jurisdiction.   Therefore, he                                                               
expressed  concern that  HB 357  may result  in the  court saying                                                               
that  the defendant  must pay  more money  than he/she  will ever                                                               
have.   He  questioned  whether the  aforementioned  may cross  a                                                               
constitutional  line  and thus  he  asked  if any  constitutional                                                               
research had been done on this matter.                                                                                          
MS. de LUCIA responded that  Article 1, Section 24, gives victims                                                               
a constitutional right to restitution  from their offenders.  She                                                               
said that  she doesn't have  any information that  indicates this                                                               
provision  would   go  against   the  constitutional   rights  of                                                               
defendants.   However, she noted  that she isn't an  authority on                                                               
the latter.   In further response to Representative  Gara, Ms. de                                                               
Lucia specified that she had  done no research [regarding whether                                                               
HB 357 may cross a constitutional line].                                                                                        
Number 1449                                                                                                                     
JUDITH  McARTHUR (ph)  informed the  committee of  her daughter's                                                               
car accident, which  resulted in $420,000 worth  of medical bills                                                               
to date for her  and her friend.  She pointed  out that there was                                                               
a  separate hearing  for restitution  during which  the defendant                                                               
denied having any property, although  some research revealed that                                                               
the  defendant did  own  property.   The  defendant claimed  that                                                               
because  the  state  had  taken his  driver's  license,  he  [was                                                               
earning]  insufficient money  to pay  restitution.   Ms. McArthur                                                               
noted  that her  daughter had  to replace  her car,  which wasn't                                                               
considered in restitution.   Furthermore, because of neurological                                                               
deficits [due  to this incident]  it's taking six years  [for her                                                               
daughter]  to complete  college.   She echoed  earlier sentiments                                                               
that  restitution can  never  make her  daughter  and her  friend                                                               
whole.  "Restitution does need to  be ordered; it does need to be                                                               
made," she said.                                                                                                                
Number 1312                                                                                                                     
LINDA  WILSON, Deputy  Director, Alaska  Public Defender  Agency,                                                               
Department  of   Administration  (DOA),  began  by   saying  that                                                               
although   the   [PDA]   certainly   supports   restitution   and                                                               
restorative  justice, it  does have  concerns with  HB 357.   The                                                               
language  change from  "may" to  "shall"  is problematic  because                                                               
nowhere  in the  legislation  is there  language specifying  that                                                               
there be  a request  from the victim  for reimbursement  of loss.                                                               
She asked  if [this language  change] would require the  court to                                                               
go through  a process to determine  the amount of any  loss.  She                                                               
noted that many times victims don't request restitution.                                                                        
MS. WILSON turned to the  fiscal note and the provision repealing                                                               
AS 12.55.045(e) and (f).   As mentioned earlier, she remarked, if                                                               
a large amount  of restitution is owed, there  is the presumption                                                               
that the defendant  has the ability to pay, and  so the defendant                                                               
would have  to overcome  that presumption.   Without  taking into                                                               
consideration the defendant's  ability to pay, she  said she felt                                                               
that  the legislation  binds the  ability of  the courts  and the                                                               
judges to be fair in determining restitution.                                                                                   
MS. WILSON  posed a situation in  which a defendant is  unable to                                                               
pay, yet that is part of  the conditions for release.  Currently,                                                               
in such  a situation, if  the defendant petitions  for revocation                                                               
of the  defendant's probation, it  must be  proven that it  was a                                                               
willful violation.   Therefore,  there is a  process by  which to                                                               
determine whether  the defendant can  pay or not and  whether the                                                               
nonpayment is willful.                                                                                                          
REPRESENTATIVE GARA said he is  trying to determine whether there                                                               
might be a  constitutional problem with [the  bill], for example,                                                               
in a situation in which an  individual pays as much as he/she can                                                               
in restitution but [still] doesn't have enough to pay it all.                                                                   
MS.  WILSON  answered   that  it  would  be   cruel  and  unusual                                                               
punishment to incarcerate an individual  for his/her inability to                                                               
pay [restitution].                                                                                                              
Number 0941                                                                                                                     
REBECCA  ROBERTS (ph)  informed  the committee  that  she is  the                                                               
parent of  a child who  was permanently disfigured as  the result                                                               
of a violent  crime.  She indicated she supported  HB 357 because                                                               
it would  require judges  to order restitution  in every  case in                                                               
which victims  have suffered financial  loss.   In the case  of a                                                               
juvenile, she  opined that a juvenile's  restitution order should                                                               
survive  past the  legal  age of  19.   Ms.  Roberts relayed  her                                                               
belief that young  offenders should be held accountable.   By not                                                               
ordering  restitution  the  juvenile justice  system  is  leading                                                               
youth into  thinking that  there are  no serious  consequences to                                                               
crime.  Many  studies confirm that repeat  offenders commit much,                                                               
if not  most, of the  predator violent crime.   Furthermore, many                                                               
juvenile offenders  are becoming  violent at  earlier ages.   Ms.                                                               
Roberts concluded by urging the committee to pass HB 357.                                                                       
CHAIR  McGUIRE,  upon determining  that  no  one else  wished  to                                                               
testify, closed public testimony.                                                                                               
REPRESENTATIVE SAMUELS  turned to  the constitutional  issues and                                                               
highlighted  that   victims  have   a  constitutional   right  to                                                               
restitution "right off  the bat."  Therefore,  he opined, forcing                                                               
the court to make the judgment is  not going to be a problem.  He                                                               
reiterated his  earlier sentiments  regarding the need  for those                                                               
[juveniles] who commit  crimes to pay into  their adulthood [when                                                               
able  to  do so].    He  said he  would  obtain  an opinion  from                                                               
Legislative   Legal   and   Research   Services   regarding   the                                                               
constitutionality   of  such.     He   also  offered   to  review                                                               
[subsection]  (f) of  the current  statute in  order to  see that                                                               
everyone's concerns are addressed.                                                                                              
CHAIR  McGUIRE  suggested  that Legislative  Legal  and  Research                                                               
Services  should  also  be  asked  to  review  mandatory  minimum                                                               
sentences  because  she  believes  that  issue  will  engender  a                                                               
similar line  of questions.   By not removing subsection  (i), by                                                               
taking away  the courts'  discretion, and  by requiring  that the                                                               
defendant  pay  restitution in  some  way,  [it will  result]  in                                                               
"beefing up"  a part of  the sentence.   It will  be interesting,                                                               
she  remarked,  to  see  what   Legislative  Legal  and  Research                                                               
Services returns on  the aforementioned issue as well  as the one                                                               
regarding  how the  [defendant's] constitutional  right bumps  up                                                               
against the victim's constitutional right to restitution.                                                                       
REPRESENTATIVE  GARA clarified  that he  wasn't saying  that [the                                                               
legislation] is unconstitutional; rather, that  he didn't want to                                                               
pass  legislation  that  would  jeopardize  an  existing  statute                                                               
merely because there was a desire to have a better one.                                                                         
Number 0591                                                                                                                     
CHAIR McGUIRE  announced that CSHB  357 [Version D] would  be set                                                               

Document Name Date/Time Subjects