Legislature(2009 - 2010)CAPITOL 120

03/22/2010 01:00 PM House JUDICIARY

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01:15:47 PM Start
01:15:58 PM HB324
02:57:32 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
         HB 324 - FAILURE TO APPEAR; RELEASE PROCEDURES                                                                     
1:15:58 PM                                                                                                                    
CHAIR RAMRAS announced  that the only order of  business would be                                                               
HOUSE BILL NO.  324, "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."                                                                                
1:16:10 PM                                                                                                                    
SUSAN   McLEAN,  Division   Director,  Legal   Services  Section,                                                               
Criminal  Division,  Department  of  Law  (DOL),  explained  that                                                               
Section  8 of  HB 324  rewrites the  provision addressing  appeal                                                               
from the conditions of release, and  she noted that there was not                                                               
any dispute about this section.                                                                                                 
1:17:56 PM                                                                                                                    
MS.  McLEAN summarized  Section 9  which addresses  the temporary                                                               
release  for emergency,  such as  the death  of a  family member.                                                               
She explained  that this  allowed certain  people to  be released                                                               
prior to bail for certain  reasons, but requires information from                                                               
the Department of  Corrections prior to release.   She noted that                                                               
this would require the individual to  appear back in court at the                                                               
end of  the release,  and she  confirmed that  there was  not any                                                               
dispute from DOL.                                                                                                               
REPRESENTATIVE  HERRON asked  why this  section of  the bill  was                                                               
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]                                                                        
MS. McLEAN explained  that Section 9 clarifies  who could qualify                                                               
for temporary release.                                                                                                          
1:20:48 PM                                                                                                                    
MS. McLEAN reported that Section  10 addresses release of persons                                                               
found guilty  but not yet sentenced  or pursuing an appeal.   She                                                               
pointed out  that it  requires clear  and convincing  evidence to                                                               
assure both  the safety  of the community  and the  appearance by                                                               
the person.   She  explained the similarity  to current  law, but                                                               
that HB  324 attempts to correct  a provision of existing  law by                                                               
now prohibiting  release of a  person found guilty of  all sexual                                                               
REPRESENTATIVE GATTO asked  if sexual felonies could  be Class A,                                                               
B, or C.                                                                                                                        
MS. McLEAN, in response, agreed.   She relayed that she was aware                                                               
that some defense attorneys have  objected to this provision, but                                                               
that the  basis of  objection was that  release should  always be                                                               
available pending appeal.                                                                                                       
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
MS.  McLEAN directed  attention  to Section  11, which  clarifies                                                               
changes for the retention or  release of material witnesses.  She                                                               
explained that  a material witness  could be detained  for enough                                                               
time to take  a deposition, and added that the  court retains the                                                               
authority,  in the  interest  of justice,  to  detain a  material                                                               
witness for longer.                                                                                                             
1:24:33 PM                                                                                                                    
MS. McLEAN  pointed out that  Section 12 specifies that  a person                                                               
who  is  in custody  in  connection  with  a petition  to  revoke                                                               
probation does not have a right  to release under AS 12.30, which                                                               
is the  same as  current law,  but may  request release  under AS                                                               
12.30,  with the  assurances of  appearance and  safety discussed                                                               
1:25:10 PM                                                                                                                    
MS. McLEAN,  in response  to Representative  Gruenberg, explained                                                               
that  proposed AS  12.30.011 detailed  all of  the conditions  of                                                               
REPRESENTATIVE GRUENBERG,  referring to Section 11,  asked for an                                                               
explanation to the changes from the current statute.                                                                            
MS.  McLEAN replied  that it  specifically says  that a  judicial                                                               
officer may order the arrest of a person.                                                                                       
REPRESENTATIVE  GRUENBERG  asked  if  an  arrest  as  a  material                                                               
witness would be on an individual's record.                                                                                     
MS. McLEAN replied  that this would not be on  a criminal record,                                                               
but would be on a police record.                                                                                                
REPRESENTATIVE  GRUENBERG expressed  concern  that an  individual                                                               
would  have a  police  record  solely for  arrest  as a  material                                                               
MS. McLEAN  clarified that the police  have to make a  record for                                                               
anyone  taken into  custody, but  that  this record  is not  made                                                               
REPRESENTATIVE GRUENBERG asked  if a person would  have to reveal                                                               
their arrest as a material witness.                                                                                             
MS. McLEAN surmised that this would depend on the employer.                                                                     
1:28:05 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG  surmised  that  under  current  law  a                                                               
person  was taken  into custody  as a  material witness,  and not                                                               
MS. McLEAN clarified  that being taken into custody  was the same                                                               
as being  arrested, as an arrest  warrant has been issued  by the                                                               
court.   In  response to  a question,  she said  that Section  11                                                               
ensures that a recalcitrant witness is available for testimony.                                                                 
CHAIR  RAMRAS asked  that  Ms. McLean  identify  any sections  in                                                               
proposed  HB 324  which related  to sexual  assault and  domestic                                                               
1:29:56 PM                                                                                                                    
REPRESENTATIVE  DAHLSTROM asked  whether,  if she  is a  material                                                               
witness, she would be  aware that she is one.   She also asked if                                                               
it  was necessary  to  arrest her  in  order for  her  to give  a                                                               
MS.  McLEAN replied  that this  section addressed  those who  had                                                               
refused to come testify.                                                                                                        
MS. McLEAN,  in response  to Representative  Gruenberg, suggested                                                               
that  it might  be  necessary  to reveal  this  police record  of                                                               
arrest  during  the  application  for  a job  with  a  very  high                                                               
security clearance.                                                                                                             
REPRESENTATIVE GRUENBERG opined that  many job applications asked                                                               
if the  applicant had been  arrested.  He suggested  an amendment                                                               
to address this.                                                                                                                
1:32:38 PM                                                                                                                    
REPRESENTATIVE   HERRON  asked   whether  there   were  different                                                               
categories of material witnesses.                                                                                               
MS. McLEAN  explained that a  material witness was  an individual                                                               
with information about  a case, and an arrest  warrant would only                                                               
be issued  if a  material witness indicated  that they  would not                                                               
appear to testify.   She pointed out that most  employers are not                                                               
asking  about arrests  but  are asking  about  convictions for  a                                                               
1:34:06 PM                                                                                                                    
REPRESENTATIVE  GATTO  asked if  there  is  a connection  between                                                               
being placed in protective custody and being arrested.                                                                          
MS. McLEAN  explained that protective custody  pertains to mental                                                               
illness,  or  debilitation,   as  defined  in  AS   47,  and  was                                                               
confidential.   She specified that  this was an example  of being                                                               
on the  police record.  In  response to a question,  she said she                                                               
can't envision a  situation for the arrest of  a material witness                                                               
during  an  investigation,  but  can envision  the  arrest  of  a                                                               
material witness during a trial for refusal to appear.                                                                          
1:36:06 PM                                                                                                                    
REPRESENTATIVE GRUENBERG, referring to HB  324, page 14, line 19,                                                               
"that  it may  be impracticable  to  secure the  presence of  the                                                               
person  by   subpoena"  stated  that  this   was  a  considerably                                                               
different standard than Ms. McLean had referenced earlier.                                                                      
1:37:08 PM                                                                                                                    
MS. McLEAN,  in response, said  that this did track  the language                                                               
of the current statute.                                                                                                         
REPRESENTATIVE GRUENBERG  opined that the language  needed "to be                                                               
MS.  McLEAN pointed  out that  this has  been the  language since                                                               
1966.  She  noted that material witness warrants  for arrest were                                                               
very rare.                                                                                                                      
REPRESENTATIVE  GRUENBERG  allowed  that the  practice  could  be                                                               
different than the technical language in the bill.                                                                              
1:38:34 PM                                                                                                                    
MS. McLEAN  moved on to  address Section 13, which  she explained                                                               
is  a conforming  amendment  to  current law.    She stated  that                                                               
Section 14  provides that, for  purposes of the bail  statutes, a                                                               
conviction occurs  at the time  a person is found  guilty, either                                                               
by  verdict or  by  plea.   She explained  that  Section 15  adds                                                               
definitions  into   the  bill,   and  that  Sections   16-18  are                                                               
conforming amendments.                                                                                                          
REPRESENTATIVE GRUENBERG, referring to  Section 14, asked if this                                                               
was now defining when someone was technically guilty.                                                                           
MS. McLEAN clarified that this was now defining conviction.                                                                     
REPRESENTATIVE  GRUENBERG  reflected  that,   in  a  civil  case,                                                               
liability was not established until  a judge signed the judgment.                                                               
He noted  that this  was also the  case in a  criminal case.   He                                                               
asked  if this  was  moving  the conviction  forward,  as a  jury                                                               
verdict or  a plea would be  prior to sentencing.   He questioned                                                               
if this is a change from current law.                                                                                           
MS. McLEAN  agreed that the  definition of conviction  varied and                                                               
said that Section 14 explains  conviction for the purposes of the                                                               
bail bill.                                                                                                                      
REPRESENTATIVE  GRUENBERG asked  what  changes  Section 14  would                                                               
make to current law.                                                                                                            
1:42:09 PM                                                                                                                    
MS.  McLEAN  replied  that  current law  made  no  provision  for                                                               
conviction for purposes for bail statutes.                                                                                      
REPRESENTATIVE GRUENBERG  asked to clarify  that if a  person was                                                               
found guilty  of a charge  yesterday, and today pleads  guilty to                                                               
another charge,  would this  be considered  a second  offense, as                                                               
the judge has not yet signed the judgment of conviction.                                                                        
MS.  McLEAN replied  that  this  was one  of  the most  litigated                                                               
issues.  She  asked to research other examples,  and, in response                                                               
to Representative Gruenberg, offered to answer in writing.                                                                      
1:44:55 PM                                                                                                                    
MS. McLEAN discussed Section 19,  which "provides that service of                                                               
domestic violence  protective orders  on respondents need  not be                                                               
made by  law enforcement officers  if the respondent  has already                                                               
been served  with the protective  order on the record  in court."                                                               
She said that the current  statutes require that the defendant be                                                               
served  by a  law  enforcement  officer, but  if  a defendant  is                                                               
already in court for a crime, it  is not necessary for them to be                                                               
served again.                                                                                                                   
REPRESENTATIVE GRUENBERG  directed attention to proposed  HB 324,                                                               
page  16, line  15,  and  asked whether  there  is any  technical                                                               
difference between the  terms "process" and "court's  order."  He                                                               
explained  that civil  law  defined "process"  as  served with  a                                                               
packet  of  documents,  including complaint,  summons,  pre-trial                                                               
order,  and  assignment  order.    He  allowed  that  a  judicial                                                               
domestic  violence order  that  wouldn't  necessarily be  totally                                                               
served "within the meaning of (Alaska)  Civil Rule 4."  He opined                                                               
that this point  should be clarified, adding that  he supports it                                                               
"if all the  documents under process are served on  the person in                                                               
MS.  McLEAN replied  that  she would  investigate  this, but  she                                                               
explained  that the  documents in  a domestic  violence case  are                                                               
often just an injunction.                                                                                                       
REPRESENTATIVE  GRUENBERG  pointed  out   that  Section  19  just                                                               
required  a copy  of  the court  order,  and not  a  copy of  the                                                               
domestic violence  petition.  He  asked that the  phrase "court's                                                               
order" be completely  inclusive, so that a person  in court would                                                               
receive  the same  documents as  when a  policeman came  to their                                                               
1:48:00 PM                                                                                                                    
MS. McLEAN asked to further research  the issue.  She opined that                                                               
this  was  for expediency,  but  she  agreed with  Representative                                                               
Gruenberg that it was also necessary to maintain due process.                                                                   
1:48:25 PM                                                                                                                    
MS. McLEAN  examined Sections 20-21,  which amend Rule  5, Alaska                                                               
Rules of  Criminal Procedure.   She  elaborated that  current law                                                               
requires a  person who has been  arrested to be brought  before a                                                               
judicial officer within 24 hours  of being arrested, but the bill                                                               
would change  this to 48  hours, in order  to allow more  time to                                                               
gather information,  and more  time to inform  the victim  of the                                                               
right to be present at release procedures.                                                                                      
REPRESENTATIVE  GATTO, referring  to page  17, line  4, asked  if                                                               
this  should  instead  say  "exceeding  forty-eight  hours  after                                                               
MS. McLEAN replied that this would be the same.                                                                                 
1:50:18 PM                                                                                                                    
REPRESENTATIVE   GRUENBERG   said    that   he   could   envision                                                               
circumstances to support  the change, but he is  "loath to change                                                               
existing law generally,  in something like this."   He noted that                                                               
extraordinary circumstances  could necessitate more time,  but he                                                               
would prefer to  keep it at 24 hours unless  the judicial officer                                                               
makes a finding that 48 hours was necessary.                                                                                    
MS.  McLEAN,  in response  to  Representative  Gatto, offered  to                                                               
amend  the earlier  referenced wording  on  page 17,  line 5,  to                                                               
"necessary delay does not exceed forty-eight hours."                                                                            
REPRESENTATIVE GATTO asked if an amendment was necessary.                                                                       
REPRESENTATIVE  GRUENBERG   agreed  that  the  new   wording  was                                                               
1:51:51 PM                                                                                                                    
MS.  McLEAN continued,  and  said  that Sections  22  and 23  are                                                               
conforming  amendments.   She explained  that  Section 24  amends                                                               
Rule  41(c), Alaska  Rules of  Criminal  Procedure, by  providing                                                               
that a court may not change  or add to a bond requirement without                                                               
the  agreement  of  the  surety.     She  said  this  arose  from                                                               
complaints from sureties.   She went on to state  that Section 25                                                               
was also  a conforming amendment.   She declared that  Section 26                                                               
amends  Rule  603(b), Alaska  Rules  of  Appellate Procedure,  to                                                               
clarify  that  release of  a  person  whose conviction  is  being                                                               
appealed  may be  allowed as  provided  by the  provisions of  AS                                                               
12.30.   She affirmed that  Sections 27-29 include  the repealers                                                               
of the  laws in the  interest of streamlining,  the applicability                                                               
sections, and the effective date of the law.                                                                                    
MS. McLEAN, in response to an  earlier request by Chair Ramras to                                                               
point  out  the provisions  which  effect  domestic violence  and                                                               
sexual  assault, said  that Section  1  does to  some degree,  as                                                               
failure  of the  offender to  appear  does not  allow for  prompt                                                               
disposition, and may present a threat to the victim.                                                                            
1:55:40 PM                                                                                                                    
MS. McLEAN  shared that Section  2 is a conforming  amendment and                                                               
that Section 3 is very  directly related to domestic violence and                                                               
sexual assault.   She said that  it requires that the  court must                                                               
consider  the comments  of the  victim regarding  release of  the                                                               
1:57:51 PM                                                                                                                    
REPRESENTATIVE GRUENBERG asked if there  was a statute giving the                                                               
court  the  ability to  appoint  a  guardian  for  a minor  in  a                                                               
criminal case.                                                                                                                  
MS. McLEAN  offered her recollection  that the court had  quite a                                                               
bit of  discretion, but she was  not aware of a  specific statute                                                               
that allowed it in a criminal case.                                                                                             
REPRESENTATIVE  GRUENBERG pointed  to the  Alaska Rules  of Civil                                                               
Procedure, 90.7,  which discussed  the appointment of  a guardian                                                               
in  child custody  proceedings.    He did  not  recall any  rules                                                               
governing the appointment  of a guardian in a criminal  case.  He                                                               
offered  several examples  of necessary  circumstances, including                                                               
the child as  a victim and the  child as a material  witness.  He                                                               
asked Ms. McLean  to research the extent of the  authority of the                                                               
court to make this appointment.                                                                                                 
2:00:37 PM                                                                                                                    
MS.  McLEAN  moved  on  to summarize  that  many  subsections  of                                                               
Section 4  have a  direct impact on  sexual assault  and domestic                                                               
violence,  as  proposed AS  12.30.011  would  synthesize all  the                                                               
current conditions of release into  one statute.  She stated that                                                               
many  of the  Section  4 provisions  pertain  either directly  or                                                               
indirectly  to conditions  of release  to protect  a victim  from                                                               
further violence.                                                                                                               
CHAIR RAMRAS, noting  that the ACLU has objections  to Section 4,                                                               
asked  Ms.  McLean  to  compare "safety  for  the  public  versus                                                               
liberty for the accused."                                                                                                       
2:01:59 PM                                                                                                                    
[Chair Ramras passed the gavel to Vice Chair Dahlstrom.]                                                                        
MS.  McLEAN replied  that almost  all  of the  conditions in  the                                                               
statute already exist.   She pointed out that  the ACLU objection                                                               
was  to   a  "suspicion-less  search."     She  noted   that  the                                                               
differences  were  that the  court  could  now order  someone  to                                                               
continue to take medication and to maintain or seek employment.                                                                 
REPRESENTATIVE  GRUENBERG, referring  to an  earlier question  by                                                               
Representative Gatto,  surmised that another need  for protective                                                               
custody was  to ensure the  individual's safety.  He  pointed out                                                               
that Section 11  seems to be limited to the  circumstance that an                                                               
individual would  not respond to a  subpoena.  He opined  for the                                                               
need of a provision that allows this.                                                                                           
REPRESENTATIVE  GATTO  concurred  of  the  need  to  protect  the                                                               
victim, without arresting them.                                                                                                 
2:06:16 PM                                                                                                                    
MS. McLEAN offered  her belief that no current  statute in Alaska                                                               
allows the court to order that  the victim of an offense be taken                                                               
into  any custody  to  protect  the victim.    She described  the                                                               
system  of  support  for  shelters, but  allowed  that  this  was                                                               
completely voluntary.                                                                                                           
REPRESENTATIVE GRUENBERG  expressed the necessity for  a means to                                                               
protect the witness.                                                                                                            
2:06:59 PM                                                                                                                    
[Vice Chair Dahlstrom returned the gavel to Chair Ramras.]                                                                      
REPRESENTATIVE GRUENBERG,  in response  to a  question, expressed                                                               
necessity for protecting an individual,  not just placing them in                                                               
a shelter.                                                                                                                      
MS. McLEAN replied that there was  not a source for funding.  She                                                               
expressed  hesitation  for  taking   a  victim  into  involuntary                                                               
REPRESENTATIVE  GRUENBERG stated  a need  for authorization,  and                                                               
this would allow for funding.                                                                                                   
REPRESENTATIVE DAHLSTROM relayed  the need for a  fiscal note for                                                               
HB 324.                                                                                                                         
MS.  McLEAN continued  her discussion  of  domestic violence  and                                                               
sexual assault issues within Section  5, which provides standards                                                               
for  the appointment  of  a third-party  custodian  for a  person                                                               
released before  trial and specifies  that an offender  will only                                                               
be released  into a situation  in which  they are kept  away from                                                               
the victim.                                                                                                                     
2:10:24 PM                                                                                                                    
REPRESENTATIVE HERRON asked whether the  law was being written as                                                               
a "one size fits all."                                                                                                          
MS.  McLEAN explained  that in  the vast  majority of  cases, the                                                               
prosecution agrees to  a release on own  recognizance with simple                                                               
conditions, and  that won't be changed  by the bill.   She stated                                                               
that  it is  seeking to  protect  against the  situation where  a                                                               
third party  custodian is not  capable of protecting  the victim.                                                               
She emphasized  that the  state was  most concerned  with release                                                               
during domestic  assault and sexual  violence cases, in  order to                                                               
keep the offender away from the victim.                                                                                         
2:12:52 PM                                                                                                                    
MS.  McLEAN stated  that  Section 6  conforms  the language  that                                                               
pertains to domestic violence.                                                                                                  
REPRESENTATIVE GATTO  asked how  the provision would  be enforced                                                               
without stipulating an exact numerical distance.                                                                                
MS. McLEAN  replied that this  was often a condition  of release.                                                               
She offered  her belief that  there could  not be a  guarantee of                                                               
"no danger."   She reflected  that often a third  party custodian                                                               
will add to the security of the victim.                                                                                         
2:15:35 PM                                                                                                                    
REPRESENTATIVE  GRUENBERG asked  if a  third party  custodian has                                                               
ever been put in danger as a result of accepting the duty.                                                                      
MS.  McLEAN  offered  one  example, and  explained  that  it  was                                                               
important  for   the  qualifications  of  the   custodian  to  be                                                               
2:17:14 PM                                                                                                                    
MS.  McLEAN  continued and  stated  that  Section 7  is  directly                                                               
related to domestic violence release  and aimed at ensuring there                                                               
is a cooling off period.                                                                                                        
MS.  McLEAN  explained  that Section  8  declared  that  everyone                                                               
should have the  right to appeal the conditions of  release.  She                                                               
stated  that  Section  9  is not  directly  related  to  domestic                                                               
violence  and sexual  assault, but  tangentially, as  a temporary                                                               
release  can allow  contact  between offender  and  victim.   She                                                               
pointed out that Section 10  protects the victim from retribution                                                               
by the convicted offender.                                                                                                      
2:18:36 PM                                                                                                                    
REPRESENTATIVE GRUENBERG  directed attention  to Section  8, page                                                               
13, line  4, which  stated that "the  appeal shall  be determined                                                               
promptly"  and  asked  whether  the  Alaska  Rules  of  Appellate                                                               
Procedure would need to be amended.                                                                                             
2:20:28 PM                                                                                                                    
MS. McLEAN said that Section 11  deals with witnesses who did not                                                               
want  to appear,  and that  Section 12  pertains to  petitions to                                                               
revoke probation.   She opined  that sexual assault  and domestic                                                               
violence crimes  would often lead  to arguments  about conditions                                                               
of release for people in violation.                                                                                             
MS. McLEAN discussed Section 13,  noting that it was a conforming                                                               
amendment to current law.  She  said that Section 14 only related                                                               
to sexual assault and domestic  violence to the extent that these                                                               
crimes were included,  that Section 15 defined  sexual felony and                                                               
stalking,  and that  Sections 16-18  were conforming  amendments.                                                               
She  reported  that  Section  19   is  directly  related  to  the                                                               
interplay of service of a domestic violence protective order.                                                                   
MS.  McLEAN reviewed  Sections 20  and  21, which  amend Rule  5,                                                               
Alaska Rules of Criminal Procedure  to allow prosecutors 48 hours                                                               
to bring someone before a judicial officer.                                                                                     
2:23:49 PM                                                                                                                    
MS.  McLEAN  pointed  out  that Section  22  dealt  with  release                                                               
pending appeal,  and gave the  courts criteria to consider.   She                                                               
explained  that  the  remaining   sections  were  all  conforming                                                               
CHAIR RAMRAS  asked if  this revision  of bail  restriction would                                                               
result in more jail time.                                                                                                       
MS. McLEAN replied, yes.                                                                                                        
CHAIR  RAMRAS said  he  would be  questioning  the Department  of                                                               
Corrections (DOC) about its submitted zero fiscal note.                                                                         
2:26:00 PM                                                                                                                    
REPRESENTATIVE HOLMES added  that the Alaska Court  System is the                                                               
only department  that has submitted  something other than  a zero                                                               
fiscal note.                                                                                                                    
MS. McLEAN  said that anyone who  is in jail has  a bail hearing,                                                               
and  that the  Alaska Court  System is  projecting that  the bail                                                               
hearings would  be longer, but that  the DOL did not  agree.  She                                                               
opined that the  increase of criteria would  allow prosecutors to                                                               
move more  swiftly, and she  expressed her disagreement  with the                                                               
time estimates presented in the fiscal note.                                                                                    
2:29:58 PM                                                                                                                    
DOUG  WOOLIVER, Administrative  Attorney, Central  Office, Office                                                               
of  the Administrative  Director, Alaska  Court System,  declared                                                               
that his department has worked  closely with other departments to                                                               
create the  fiscal note.   He expressed  the Alaska  Court System                                                               
concerns with  the bill, which  include the requirement  of court                                                               
clerks to submit  a criminal history report to  the judges, which                                                               
was redundant  to the prosecutorial presentation,  as outlined on                                                               
page  4,  lines  14-16.    He  pointed out  that  it  was  not  a                                                               
responsibility of the court to  do independent fact research, and                                                               
the department would ask for that to be removed from the bill.                                                                  
2:33:28 PM                                                                                                                    
MR.  WOOLIVER  expressed concern  with  page  11, lines  [21-23],                                                               
discussing  the third  party custodian,  and he  pointed out  the                                                               
extreme  difficulty of  finding  third-party  custodians using  a                                                               
blanket rule.                                                                                                                   
2:35:19 PM                                                                                                                    
MR. WOOLIVER  asked for clarification regarding  Section 24, page                                                               
18 lines  25-27, which stated that  "the court may not  change or                                                               
add  to  a  bond  requirement  that was  ordered  in  a  previous                                                               
proceeding unless the  surety agrees to the  change or addition."                                                               
He expressed an  understanding with the DOL's  concern of current                                                               
practices,  but  he pointed  out  that  any  change to  the  bond                                                               
requirement could be  stopped, simply because the  surety did not                                                               
respond.  He agreed that  the concern with concurrent bail should                                                               
be clarified.                                                                                                                   
REPRESENTATIVE GATTO offered to  change the wording from "agrees"                                                               
to "has been notified of the change."                                                                                           
MR. WOOLIVER opined  that this would not be  sufficient to remedy                                                               
the concern of the DOL.                                                                                                         
2:37:43 PM                                                                                                                    
REPRESENTATIVE GRUENBERG directed attention  to page 4, lines 26-                                                               
29, and  asked whether the court  now had the ability  in statute                                                               
to appoint a guardian in a criminal case.                                                                                       
MR.  WOOLIVER said  that  when  he read  that  provision, he  was                                                               
assuming that the  victim already has a guardian,  but offered to                                                               
research that and the prompt  appeal question in Section 8, which                                                               
Representative Gruenberg had questioned earlier.                                                                                
2:40:13 PM                                                                                                                    
DWAYNE PEEPLES, Deputy Commissioner,  Office of the Commissioner,                                                               
Department  of  Corrections  (DOC),  replied that  DOC  has  been                                                               
unable to accurately  determine the fiscal impact of HB  324.  He                                                               
determined that HB  324 would be dependent upon the  delays for a                                                               
person being released from jail, and  that the impact would be on                                                               
the jails.                                                                                                                      
CHAIR RAMRAS offered his belief  that more man-days in jail would                                                               
generate a fiscal note.                                                                                                         
2:44:20 PM                                                                                                                    
MR. PEEPLES, in response to  Chair Ramras, deferred to Ms. McLean                                                               
regarding HB 324 causing an increase of man-days in jail.                                                                       
MS. McLEAN replied  that the purpose of HB 324  is to protect the                                                               
public, and  the victim,  while the  offender is  awaiting trial.                                                               
She acknowledged that she could not  know if this would result in                                                               
longer  sentences.   She  noted  that  there were  parameters  of                                                               
sentencing that would not change.                                                                                               
2:46:01 PM                                                                                                                    
REPRESENTATIVE HERRON asked  whether HB 324 would  make it easier                                                               
for DOC to request more funding.                                                                                                
MR. PEEPLES replied that it would.                                                                                              
CHAIR RAMRAS suggested that the DOC's fiscal note be revisited.                                                                 
MR.  PEEPLES  ascertained  that  it would  be  difficult  for  an                                                               
accurate estimate.  He suggested  that the committee view the DOC                                                               
fiscal  note  as  indeterminate,  as  the  point  of  impact  was                                                               
difficult to forecast.                                                                                                          
CHAIR RAMRAS asked for more thorough fiscal projections.                                                                        
2:50:01 PM                                                                                                                    
[Chair Ramras passed the gavel to Representative Herron.]                                                                       
JEFFREY  MITTMAN, Executive  Director,  American Civil  Liberties                                                               
Union of  Alaska (ACLU),  explained that  the ACLU  was concerned                                                               
with the constitutionality  of some parts of HB 324.   He pointed                                                               
to page 2,  lines 4-6, and explained that an  individual could be                                                               
convicted of a  felony without a specific  culpable mental state.                                                               
He  offered his  belief  that the  court would  find  this to  be                                                               
MR. MITTMAN directed  attention to page 3, lines  24-26, and said                                                               
that  "when  a  person  is   charged,  there  is,  of  course,  a                                                               
presumption of innocence."  He  offered his belief that holding a                                                               
person for 48 hours could be unconstitutional.                                                                                  
2:52:16 PM                                                                                                                    
MR. MITTMAN  referred to page  6, lines  2-4, and stated  that it                                                               
would  not  be constitutional  for  the  court  to "meddle  in  a                                                               
person's personal  affairs."  He  explained that bail  is focused                                                               
on  the  issues  of  flight   risk  and  potential  harm  to  the                                                               
community.  He  offered his belief that should  employment not be                                                               
found to  bear on  either of  these factors,  then this  would be                                                               
"constitutionally suspect."                                                                                                     
MR. MITTMAN  moved on to  discuss page  6, lines 22-26,  and said                                                               
that  requiring  the continued  use  of  medication would  be  an                                                               
invasion  of an  individual's medical  privacy.   He offered  his                                                               
belief  that  this  could  only   be  required  to  ensure  their                                                               
appearance in court or to lessen their threat to public safety.                                                                 
MR. MITTMAN pointed  to page 7, lines 19-22, and  stated that the                                                               
language   to   seek   rebuttable  presumption   was   "extremely                                                               
constitutionally problematic"  as it would  seek to  overturn the                                                               
Alaska State Constitution.                                                                                                      
2:55:04 PM                                                                                                                    
[Representative Herron returned the gavel to Chair Ramras.]                                                                     
MR. MITTMAN moved on to discuss  page 8, lines 18-22, and page 9,                                                               
lines 7-12.   He described this as the  "warrantless search," and                                                               
explained that  the right of  presumable innocence  can't require                                                               
that  a person  submit to  a search  without a  warrant, as  that                                                               
would force them to agree to give up a constitutional right.                                                                    
MR. MITTMAN  referred to page  10, line  28, and shared  that the                                                               
imposition  of third-party  custodians was  to ensure  appearance                                                               
and avoid the  threats to public safety.  He  offered that third-                                                               
party custodians  were an alternative  for individuals  who could                                                               
not  afford  bail,  and  not  as an  additional  condition.    He                                                               
summarized that  these changes  needed to  be addressed  to avoid                                                               
any constitutional challenges.                                                                                                  
[HB 324 was held over.]                                                                                                         

Document Name Date/Time Subjects
01 HB324 HJUD Hearing Request.pdf HJUD 3/19/2010 1:00:00 PM
HJUD 3/22/2010 1:00:00 PM
HB 324
02 HB324 Bill v. A.pdf HJUD 3/19/2010 1:00:00 PM
HJUD 3/22/2010 1:00:00 PM
HB 324
03 HB324 Sectional v. A.pdf HJUD 3/19/2010 1:00:00 PM
HJUD 3/22/2010 1:00:00 PM
HB 324
05 HB324 Court Records.pdf HJUD 3/22/2010 1:00:00 PM
HB 324
04 Svobodney letter 3.10.10.pdf HJUD 3/22/2010 1:00:00 PM
06 HB324 ACLU Position paper 2010 03 22.pdf HJUD 3/22/2010 1:00:00 PM
HB 324
07 HB324 FN- CTS.pdf HJUD 3/22/2010 1:00:00 PM
HB 324