Judiciary Committee- House

Who is our helper or other assistant I mentioned to you the other day that her father had had a serious health issue he has passed away so I want to let you know that so when you see Ashley when she gets back in you'll have an opportunity to express your condolences to her and if you will remember her in your thoughts and prayers this weekend I'm sure the family will appreciate it. And we will on behalf of our committee send something to the family on behalf of our committee so just let you know that all right we're now ready to take up house bill fourteen eighty seven representative Gonzalez you're recognized to present your bill. The merger a committee this is just another one of those bills or doing to codify that the governor's executive. Orders this is kind of a companion bill of the healthcare bill that we ran in the house last week I believe just. Give some of liability protection for businesses. Members do we have any questions of representative Gonzalez. Collins you're recognized for a question. Thank you manager so representative Johnson dance you know this bill looks like it it doesn't have any recourse for someone who's injured as a result of negligence or gross negligence if it's a covered situation and instead of business so my question to you is what is someone supposed to do if they are injured and they do suffer damages costs that they're paying out of their own pocket they normally could seek redress in court if they can prove a claim that's just kinda how the justice system works here were saying they can't so what are they supposed to do to get to get made whole we'll so on page two starting a line twenty two under the exceptions that does not apply if there's willful reckless and intentional harm. Our. You're recognized for a follow up I understand that I guess what I'm asking about is if negligence is done or gross negligence those are. Levels of culpability that are less than willfulness reckons Mr intentional misconduct but they are typically levels of culpability they can give rise to a claim in tort law so in any other situation if someone's in this building when it is a bad example because of some of the government but they're in the business okay if it's not covered this doesn't pass and there's an injury and it's because the business was negligent if someone has hospital bills and they need to be made whole they can sue and then they can get made whole here in this bill that's taking that right away so what is that person supposed to do they can't sit. Amala Mr Alamance whip you. Mister Allen I feel identify yourself anybody answer thank you madam chair just amount of attorney here in Little Rock and been assisting the business community with this issue. What I would say representative Collins that certainly if there's a situation where the business is in compliance with the measures identified I'll talk a little bit about those in the bill it's certainly it's possible that someone who believes that they did contract COVID at that business would not be able to recover and that's kind of the give and take that we have here with the pandemic and also note this bill will expire in two years and so in less the next General Assembly decides to extended it will come off the books and that's to allow you on opportunity to see what's going on with COVID does this need to be extended does it need to be modified now I would submit although the language. It back up Pontius. speaks in terms of willful reckless or intentional. There's the presumption part of it in the presumption part is you're not acting the business is not acting willful or recklessly if it is complying with other making a good faith attempt to comply with what now we're directed I'm sorry what now or guidelines we all know that the governor's announcmenet that all the eighty H. got directives to businesses are now guidelines so if a business is such as a restaurant or a bar is not complying with those guidelines there to look not requiring people to wear a mask they're not having a staff wash their hands and they're not imposing social distancing they're not going to be a judge is not going to afford them in my opinion the liability protection in this bill. Follow up one more you're welcome recognized I'm sorry for follow up thank you and I just wanna to drill down and help help me understand because it looks similar to presumption is a safe harbor if a business does act in full compliance then there immune if a business does not act in full compliance I mean they could still be in they could be negligent they could not be following the the guidelines and they could not be sued is that right I would I think it would take issue with that a little bit if they're not following the guidance they're not entitled to this protection. Can you show me where that is in here. Sixteen one twenty eleven oh six it now as we speak in terms of the presumption when they're not behaving will cause willfully recklessly or intentionally but if they're not substantially complying with that what now again our guidelines and not directives in their not going to be entitled to this protection. I don't think that says that but thank you. Representative Gazaway you're recognized for a question thank you madam chair. I heard you say that this statute if we passed it would end in two years but what if we terminate the emergency declaration and all of the guidance goes away does it not and then. well if certainly will meet committed this whether president Gazaway one of the reasons this is being codified as because we are anticipating emergency declaration to go away so obviously the executive order that contains this language will expire if the governor terminates the emergency at the end of the month which we all understand to be a possibility And I'm drawing a blank on the second part of your question represent about college us. There. Thank you I guess the really the question is if the emergency declaration has been terminated because the General Assembly finds for instance that there's no longer an emergency we don't need masks anymore the guidance really is not effective because we're no longer in a state of emergency the vaccinations of worked the infection rates are low eccentric if this bill is in place there we were still going to have live liability protections in an instance where there there's not really a concern so it if the if the reason that we're putting in place is because there's a concern and we get to the point where we're no longer concerned than what is the justification for keeping this keeping this in place for two years Southwell the main reason for that is because that's when you know we'll meet again obviously in a regular session will have your next opportunity to address it I certainly is possible that the guidance could go away I don't think guidance on COVID nineteen is going away anytime soon again it's not a directive but it is guidance and then the other thing I would say representative is if everything's trending in the right direction which we hope that it is as a practical matter this may be a non issue. I think it's when you're recognized for follow up one more follow up then would it be just as easy to write in a language to state that upon the termination of the Emergency declaration it and the finding that were no longer in a state of emergency in the State of Arkansas that this bill would terminate that that is an option but obviously the decision driving the termination of an emergency can be based on. Considerations other than what the medicine in the science says and and many people out there I have concerns about the end of the the termination of the emergency in losing of the directives because we don't know if this disease what's going to come with it what what the what you know how long it's going to be around it is the unpredictability of code that really led to that. Members any other questions. Seeing no questions we have no one who signed up to speak for against the bill representative Gonzalez you're recognized close for your bill. Closes as promotion do pass. Members represented Gonzalez's close for his bill what is the will of the committee. Representative rich when you're recognized. Members we have a motion to do pass on the floor is there any discussion on the motion. Representative Collins. You're recognized. Thank you thank you madam chair I just you know want to drive home that. There are a few things about this that it that have been you talked about I I don't think within one tenth but maybe a little bit of a clarity. With the presumption here says is that it's presumed that if a person complies with the directives that are in place they can't be sued it said additional protection for the business. If a person or business does not substantially comply it doesn't change anything it doesn't work both ways so it's a one way presumption of the safe harbor for the business. So it leaves open the situation where business is not comply with the directives is negligent someone gets hurt they can't sue they have no recourse I understand we know we want to help businesses out there is a lot of ways to do that this is one that leaves the individual who is her holding the bag we have a tort system that allows people to recover when they're hurt and generally that's the it's it's an important public policy consideration to give people a recourse otherwise it's a real injustice being done to them that they have no way to be made whole on I'd also add it didn't come up in this conversation but I think it's important in our there has not been arrested litigation October nineteen it just has not materialized we put this in place in the summer because there's a fear that that would happen it hasn't happened it hasn't happened here it doesn't happen in places that do not have the immunity it's very hard to prove causation in cover nineteen it's just it's just not happening so this is completely unnecessary in my opinion in the case where someone is really hurt we need to give them recourse so I'm a I'm a NDA thank you. Representive Underwood you're recognized. I just want to make a motion earlier thank you to. I see no other discussion we have a motion on the floor to pass all in favor of the motion say aye. All opposed say no. Call the roll. Representive Shepherd. Representative Shepherd. Representative Ferguson. Representative Ferguson votes No representative flowers. Representative flowers votes No representative Nicks. Representative Nicks. Representative Richmond. Representative Richmond votes yes representative Gazaway. Representative Gazaway votes yes representative Cavenaugh. Representative Cavenaugh votes yes representative bearing. Representative Barry votes yes representive Crawford. Representative Crawford votes yes representative Scott. Representative Scott Baltz yes representative Slape. Representive Slape vote CS representative Clowney. Representative Clowney votes yes representative Cooper. Representative Cooper votes yes. Representative Richard send. Representive Richardson. Representative Collins. Representative Collins votes No representative McCollum. Representive McCollum votes No representative Hudson. Representative Hudson votes yes representative under would. Representive Underwood votes yes representatives met representive Smith. Motion carries with eleven yes congratulations you've passed your bill. Members let's turn to House Bill fifteen eleven representive Wardlaw you're recognized come to the table. Present your bill. Members it's house bill fifteen eleven. Thank you madam chair. I have a gun used to coming here from a. My beatings on my fee increases I guess. So of this bill came to me from Kurt laying who is our drugs are for state Arkansas and he came to me with an issue an issue was a this victim impact panel had been previously ran by mothers against drunk driving. They were charging people sixty five dollars for each class when that was confronted to them and told him that the statute was ten dollars they open left the state so instead of coming to the legislature and asking for more money because that's what it would take to run a program they left us with the bag. The bags a roughly over five hundred people that have to take this class by a court order and we cannot put the class on for ten dollars so when we look at the other states around us and we didn't analysis they were charging forty Bucks lose in Oklahoma Missouri and Mississippi all charge forty Bucks Mississippi's actually fifty. When Kurt looked at everything and he's trying to get some instructors he can make it work at forty dollars there there's absolutely no profit in this there be no extra money but that does pay for it and allow the program to be administered to the people that are convicted of drunk driving. So with that madam chair I'd be happy to take any questions. Members are there any questions. Seeing no questions we have no one who has signed up to speak for against looks represent a slight you're recognized for a question. Represent Wardlaw is this fee ever been raised before sis the national fate I think ten dollars was the initial fee and so it had never been raised to even match nowhere near inflation okay thank you Sir. Members any other questions. Seeing none we have someone who is signed up to speak for against the bill representive Wardlaw you're recognized close for your bill thank you for the most part closed I would say that the ten dollars had never been charged is ten dollars either is what we found of representative Slape so it actually never was increased but it never was charged at only ten dollars with that I'd appreciate a do pass and all a good vote thank you madam madam chair. Represent for laws close first bill represented Ferguson is. It has a motion to do pass we have a motion to do pass on the floor is there any discussion on the motion all in favor please say aye. Deposed motion motion carries congratulations you've passed your bill thank you madam chair. Represented Lundstrum in the room. Representative Scott you're recognized to present your bill. Members let's turn to House Bill fourteen seventy House Bill fourteen seventy. Madam chair is it okay if I call it the department of corrections or do I need to wait no that's fine if you'd like to call them yes. Sullivan and director pain join me please. Thank you madam chair. Colleagues. Representative Bill Clinton and I have been working on house bill fourteen seventy since December. House Bill fourteen seventy I missed the law to prohibit solitary confinement in Julie and juvenile detention facilities and restrictive housing in our correctional and detention facilities for individuals who are pregnant are breast feeding or have given birth within the past thirty days. Are suffering from post partum depression or caring for a child. Currently the law restricts solitary confinement for juveniles with the exception of circumstances in which an individual poses a direct threat to the safety of a person a clear threat to the safe and secure operation of the facility or risky scraping or temps abyss of a skate to a facility House Bill fourteen seventy we consider these factors as well as the health and safety of a child born or unborn in determining whether mothers are subject to solitary confinement or restrictive housing. Evidence shows that pregnant prisoners in solitary confinement have less access to prenatal health health services including some cases aren't unable to request emergency medical care this is this is especially the case in Arkansas where the lack of access to the services have cost us to be to be rated fourth highest maternal mortality rate in the third highest infant mortality rate in the nation. Studies also show the solitary confinement during the critical early stages of an if this life can have lasting effect on the child mother relationship. House Bill fourteen seventy is agreed upon language between the department of corrections DYS we also work with the governor's office and we have a broad coalition of the cost of rate in Americans for prosperity supporting this bill. At this time I will turn it over to secretary grace and direct texture paint to add anything else if that's appropriate okay identify yourself if you'd like to add something to the testimony please do other revenue math madam chair members of the committee I just want to take this moment to thank representative Scott and representative bill contend for working with the department on this legislation it is reflective of our current policies and practices of regarding the use of which what what we what we call restrictive housing and is reflective of our shared goal to reduce the use of restrictive housing within our system of as the president Scott said we have no objects tions to this language as president. Members are there any questions. Represent a slight you're recognized for a question yes representative Scott could you tell me the position of shares run juvenile detention facilities such as your county what their position is DYS sent this bill to the sheriff's association and we receive no opposition Alex thank you ma'am thank you madam chair. Represented representative flowers you're recognized for a question. Even though she considered herself motion at the proper time. Members are there any other questions. Represent Scott you're recognized close for your bill. Callings. I'm asking you to join representative Pilkington Gazaway Senator Clark and I today and supporting this bill. There is no known opposition. And this bill in my opinion requires the essential protection to ensure the lasting health and well built and well being of children who are born and I correction facilities. what's what should I do next I'm sorry ask for do charity SO okay I don't go ahead you you're on the Committee go ahead and you can ask Is Your representing flowers will I'm so confused I ask for it to motion motion to pass members we have a motion to do pass on the floor is there any discussion. Seeing no discussion all in favor please say aye. In a post a note ayes have it congratulations Mr. Thank you representative Gazaway. Members let's turn to House Bill fourteen ninety seven there is an amendment on that feels we need to get that amendment helps the members real quick. Sign in to. Some of the. Sure. Thank you. Members. Per se guess what you're recognized presenter amendment. Thank you madam chair before we get started up for this particular bill I have a prosecuting attorney Carol Cruz from Faulkner County who I'd ask and permission of the chair that she be allowed to come and help present this bill certainly this creation you're recognized come forward. And also before we begin we have a large number of elected prosecuting attorneys you're here with us today hi madam chair would mind that I'd like to recognize them for being attendance with us will be happy to recognize him as long as they don't sign up to speak since we have a large number of. Please stand to be recognized we're always glad to have people here in our a committee room and we're glad to have elected prosecutors from across the state. Reversing is where you're recognized to present your committee. Thank you madam chair members this amendment add to Senate sponsor and Really is most of the bulk of the bill that you see Primarily what we do I'll let miss Cruz gonna get in the specifics of it but we expand the definition of or what we allow an assistance dog to be used for and in the court room these dogs are already in use for child victims who are the victims of sexual abuse to help them be able to testify these these dogs are you used in certain areas of the state but I don't think it's gone statewide yet I believe they are using amendments cruises jurisdiction and she can tell you more about that how that works but the biggest part of the bill as it expands the definition for when these dogs are able to be used from just child witnesses who are involved in a sexual abuse case to a vulnerable witness which includes individuals with intellectual and developmental disabilities and with that I think Mrs Cruz can adult some detail that and also explain to the committee how these dogs are being used in her jurisdiction why to what first represent guess what what we have a motion to adopt the amendment so I make a motion to adopt the representative Gazaway has moved to adopt the amendment all in favor say aye. Any opposed say no. Your amendment has been adopted miscreants you're recognized. Thank you madam chairwoman members of the committee I represent Faulkner County them you're in Searcy counties as the prosecuting attorney. The initial our courthouse dogs legislation was passed in two thousand thirteen we were the first state in the union to have that legislation and my judicial district is was the first to have that the court house dogs. Mr Etheridge's here today in his district also now has a courthouse dog as well but there are dog and barb is renamed she has participated in numerous cases in numerous trials what we've seen is when we when the legislation was passed in two thousand thirteen we didn't have the dog yet and we didn't know all the ins and outs of how that would work but now that we've had the opportunity to have bars assistance. With so many of these cases we've seen another type of victim another classification of a person in the judicial system that we believe would be of benefit in using the facility dog. In that definition is here in the in the bill today and that is a definition that we already see in the both of the criminal code and then and public health chapter in so. That's the the basis for the bill she's been such a support to so many a child victims and certainly are excited the opportunity for her to assist victims who are have met that threshold of eighteen at the time of his or her testimony but suffer from a disability that we see all too well make a victim one that predator goes after in is You know subject of of that type of abuse because certainly of a disability that he or she has and so I got so we're excited about this this building if you guys considering this bill today. Members are there any questions. Represent college you're recognized for a question. Thank you and thank you for this this great bill could you tell us about the difference between the amendment and what we may have all read because it's all kind of looking brand new to me and I just wanna make sure we understand. Thank you for the question and there are several changes that I didn't explain well or cover and Manisha statement so let me say. We of course one of the major. Changes that this bill makes and that you see in the amendment is the definition of intellectual disability that was in the previous bill but is further defined in this bill is more well defined in the amendment. And second said bill but I mean amendments more further defined and clarified in the amendment for intellectual and developmental disability and what we term as a vulnerable witness one of the other things as in the previous bill the dog is referred to as a court house dogs and so what you'll see in the amendment is we refer to it as a certified facility dog because in addition to expanding the group of witnesses that this dog is able to be used to help we also export expand the places where this dog can be used and so when we talk about the certified facility dog we talk about any location where there's a certified facility dog team or any location related to a law enforcement investigation for law enforcement request their presence and specifically places like child advocacy centers schools day care facilities law enforcement agencies prosecuting attorney's offices so again there's a pretty extensive definition to expand where these dogs can be used one of the interesting things that I'll tell ya the Bill also kind of covers this and it's also mentioned in the amendment the way these dogs are used in a trial is that they are kept out of the side of the jury and so the jury doesn't even know that the dog is there but the child knows in the child or the vulnerable witness in this case if we pass this bill is able to be comforted by that dog and give their testimony and the jury doesn't know that the dog is present the other thing is there is discretion still out for the judge judge on how these dogs are used in the court room we don't we're not dictating how they're used but and I know there's been some judicial opinions about that one in particular here in Little Rock but that was not binding on the whole state and so these dogs if we approve this bill will I think be used and not several other jurisdictions throughout the state. Members any other questions. We have no further questions and no one else is signed up to speak for against the bill representative guess what you're recognized close for your bill. The manager I think this is a wonderful bill that will help victims particularly the most vulnerable victims that we see in the judicial system our children who are who have suffered sexual abuse which is our current law and expanding that to vulnerable witnesses which includes those individuals with intellectual and developmental disabilities would greatly benefit from the passing of this bill in expanding the areas in locations where these dogs can be used again will help protect the most vulnerable among us I think this is a wonderful bill and I would make a motion to pass. Motion to do pass as amended as amended thank you we have a motion to do pass as amended his or any discussion. All in favor please say aye. It It oppose ayes have it congratulations you've passed your bill. Thank you manager thank you Committee. Members let's turn to House Bill fifteen eighty six. House Bill fifteen eighty six representing gas when you're recognized to present your bill. Thank you madam chair for this particular bill we have the prosecuting attorney from Fayetteville I believe who is here with us today who is jurisdiction this bill comes from because of a particular case that happened I in his jurisdiction so I'd ask permission he be allowed to join me at the table. Yes. Mondale. The Committee I kind of jumped the gun they're gonna score was technically invited my name's matter if I'm the prosecutor any for the fourth judicial district which includes Washington Madison counties and the bill wasn't it technically in my jurisdiction was in the fourteenth but I'm familiar with with the case and so I do he just got that information from us so soon as we get that information systems. Never the less I think you can probably get a better explanation I can but college what I would say about the bill it's very simple bill we already have on the books the crime of video voyeurism and so you'll see that definition in the in the existing language and so what this bill does. Is it adds the words in subsection three has not consented to the existing law yes observation so we expanded to has not consented to the observing viewing photographing filming or videotaping and from what I understand and I'll let prosecutor during explained as he probably knows more about the details. But. It arises because there is a particular incident where someone who was it consented to being viewed. By another person but they did not consent to being videotaped and photographed and unbeknownst to the victim in that case not only were they viewed in a particular state but they were also photographed or videoed and then of course that creates some real issues so I think that's where the bill comes from and and prosecutor can elaborate on that. Yes there's not a whole lot of elaboration to it represent Gazaway did a pretty good job of explaining it but it's just it's a situation where you had a victim who consented to be viewed by another individual she did not realize that he was recording her and photographing her so the individual and disseminated that video to to members of the people and I think this is I would consider more clean up than a cleanup bill anything else because I think it's in line with what I would believe the legislative intent was behind the bill in the first place because what it does is it has shows that a an individual has to consents to the number of things that can be done it was just the observation but there's also viewing photographing filming and video taping and I think it is more in line of what we believe Legislative intent was to include the rest of those means of of recording an individual. Represent clinic you're recognized for a question thank you madam chair you Mr get to see it here you take and quick question just because I'm not familiar enough with this part of the code are there is there separate statute that deals with dissemination of this material as opposed to the actual recording of it was there anything that you could put that I don't know if. David after just the one who had it was there anything that was done with the dissemination returning. Yeah so so this is it yes thank you. Representative Ferguson you're recognized for a question. You manager one quick question want to take a medical for a representative Clowney squished and so if the person consent to being view observe photographs feminine videotape. Then the individual who's doing the observing can disseminate that information this bill doesn't prevent that person from doing that. Go ahead my understanding of it is. For the purpose of the offense of video voyeurism which has to do with watching and then that we're what we're doing is we're adding these other actions viewing photographing filming or videotaping if you've not consented to that that's video voyeurism I think to disseminate that is already another crime there some type of Disclosing you know private or intimate images if I recall correctly that is a is a separate crime apart from this video voyeurism I'm I'm trying to find a statue of trying to get that the code number on it was is covered in the statute. I believe so okay thank you madam chair that answers my question. Committee I see no other questions we have no one else who signed up to speak for against the bill representative guess what you're recognized close for you bill thank you madam chair again colleagues very simple bill improves the statue that we have and I make a motion to pass. Members represent Gazaway his close for his bill is made a motion to do pass is there any discussion. All of favour the motion say aye. Any post a note motion carries congratulations you've passed bill. Thank you members let's turn to House Bill fifteen eighty seven. House bill fifty ninety seven representative guess what you're recognized to present your bill. The manager for this particular bill I would ask that actually bow and be allowed to join me at the table yes miss billing commended. Thank you madam chair. You need to centers my name is Ashley Bowen and I am a staff attorney at the prosecutor coroner's office and thank you for welcoming need. Colleagues this bill makes some very minor changes. What you'll see is that it is really for purposes of clarification we add that for a vigil offenders shall be sentenced which I think was implicit in the other law is the intent of the law as it existed prior to what this bill would do that those offenders who had work official offenders shall be sentenced to and then there are a number of options there and it also clarifies I think due to one particular case where. There wasn't there was a question about if you were a provisional offender if you could receive a fine only and when we passed the habit you'll offender law the purpose was we wanted to ensure that if you were have a habitual offender who had multiple felony convictions and you were found and determined to be a habitual offender that that would be present time and I think there was a case that happened where there was an individual because there was some there's a lack of clarity in the statute who only received a fine and no prison time again when the legislative intent was clearly that if you're a vigil offender and you meet the the requirements are the definitions of the statute that you should be doing prison time and so this just clarifies that and expresses the original Legislative intent and I think miss Boeing can add to the specifics about the case. This bill when you're recognized thank you. And representive Gazaway explained it very well in that particular case the issue was you had a habitual offender and there was a jury instruction under that jury instruction the defendant argued that there is no option for finally and so the court looked at some old language from the general sentencing statute not the habitual offender statute and determined that the fine was an option the reason for this bill is The Hobbit to offender statute requires a depending on the level of severity of the crime it recognizes a longer period of incarceration dependent upon what that crime is so this statute this bill would simply eliminate the fine only the jury or the judge would still be able to give a fine in addition but it wouldn't have the option of giving a fine only which is really within the lines of the original intent of the vigil of inner statute and also with the idea that under the law as it is now official offender cannot receive probation or suspended sentence so why would they be able to receive a fine only if they can receive those other alternatives. Members are there any questions. Represent college you're recognized for a question. Thank you so um you're changing the permissive language to mandatory language on the extended term of imprisonment and you are both referenced Legislative intent what is the legislative intent information that you all have that suggests that the legislature intended mandatory language when they put permissible language. Well first of what occurred first of all what I would say is that. Under existing law for the my understanding under the official offender statute if you are determined to be a habitual offender and convicted and your to be sentenced probation. Or a suspended sentence is not an option for you. And so if the legislature passed a law that said if you're determined to be habitual offender and probation is not an option for you and suspended sentence is not an option for you it doesn't seem logical doesn't follow that they would say but you could receive a fine only. I think that just doesn't follow and it makes pretty clear what the legislative intent was for the original vigil offender law which was if you're determined to be individual offender and convicted as official offender you're gonna have to do some prison time and so again that would seek to clarify this. And I would just add that the case law is very clear that the term may in the had the to offender statute is really mandatory within the lines of what that offenses so you have a range of punishment for incarceration but the may just means that you can do it within that range the judge or the jury whatever sentencing. Well you're recognized for follow up. And I don't doubt that that the intent is to make sure that there is imprisonment but that's not I mean what this is talking about is the extended term president set forth in section subsection eight to so under current law couldn't a judge just have the option to not go for the extended term of imprisonment and do a prison sentence within the normal range for the felling that was committed last felony committed or not. So the way that the statues right now and this is actually been addressed before previously by the legislature the bottom range for that the two offenders starts at the same range that it would be for regular incarceration it just gives in and an extended period of time so instead of for instance A. B. felony originally would be five to twenty years of incarceration it could be five to thirty or five to forty depending on if they're large visual offender or small officials and. I'm not sure if that answers your question but I'd be happy to elaborate if you need to. I thank you bye thanks. Representative Clowney you're recognized for a question. Thank you madam chair representative Collins just ask my question but I I will ask one other. Do we have a sense of how many folks have been sentenced to fines only how many of these visual offender saying the last year have been sentenced finds only. I don't know the answer that I do not know the specifics the specifics of that I know what has happened it happened when I was a deputy prosecutor but I couldn't give you a ballpark range I'm sure I could ask some of the prosecutors are here today to see if that something that happens frequently and how frequently. Follow up. You're recognized for follow up I guess my question is really more do you think that this is an option the judges want to preserve. I think the better question would be not whether it's an option the judges want but is an option that the public wants by what the legislative intent was when the original statute was passed which is if you're a vigil offender you need to go to prison and I think that's very clear of what the legislative intent was and that's what we're trying to clarify here today. Seeing no other questions we do have a couple of individuals who have signed that Mr this work you're recognized to speak against the bill. Jefferson's one Arkansas so station criminal defense lawyers in their several problems with this bill one is the case that they're trying to legislatively overrule was cited of I think around two thousand one two thousand two Jones Jones case anyway this is been the law or the practice or whatever you wanna call for trying to open a rule has been practiced for a long time second of the problem stems from the nature of the of a **** will offender statute itself in Arkansas which is once you have a prior that prior sticks with you for ever no matter how long ago you did in the federal system and in many other states they can't count if you've been clean for a certain number of years of this section is is it doesn't matter how trivial the of your prior convictions work I've had two cases in my career where juries being assessed fines of two four reporter to **** will offenders one was a case where the perfect okay person wrote a hot check some thirty years after his last. His last of brush with the law and the other one was he had two prior from out of state that were felonies and that other state which which would have been misdemeanors in Arkansas and of those with the types of cases and I think this is the I think the law does not need to be changed because we're talking about a juror could you give the jury the flexibility. The flexibility in the appropriate case to assess a fine hello. And I'm happy to answer any questions. I see no questions thank you for your test. The person you're recognized for a question. Sir thank you manager. Are you saying that under this bill. Any individual who may have committed a crime ten fifteen years ago and then commits. Three more crimes this year or last year can fall under this particular piece of legislation you have to you have to have committed there's the so called small the **** who won the big official small visual is have committed to prior Phillips doesn't matter how far American the mists of time they were the the big visual is four or more you have to you have to have had those those convictions of now the Arkansas current Arkansas law allows the new cases to be tried out of order which I think at some. Serious exposed factor wishes which I haven't been able to convince a court on yet of but you have to. And to be it when you're Teague up the current trial the person has to have two prior convictions on the books. One quick follow up and madam chair you're recognized for your followers of an individual had a prior. Conviction. Thirty years ago yes Sir. The eighty has one more he has to have two more he he has to have a total of at least two. it doesn't matter how long ago they were but he has to have at least two before you're teeing up to trial that they're wanting to DO so we the it has to thirty years ago yes and enhance two and twenty nineteen what right now he let's say let's say that I committed an offense and to offenses in nineteen eighty okay and then I get arrested and charged with something committed today. Forty years later. That still counts as prior convictions and I'm alleged to be individual thing okay thank you manager. My representative called you're recognized for a question. If if I may respond. To a. I represent a person's question. And address some of the points made you know it's. Not often I think the prosecutors make the decision to charge someone as a visual offender if the. Offenses occurred thirty years ago all rights within the prosecutor's discretion as to whether or not to even charge a person as a habitual offender. and there's a process that has to be has to go through in order to do that I think you have to plead and in the information that the person is a habitual offender you have to have proof of the previous convictions. And course then you have to get a conviction on the new offense before the judge or jury starts to even consider that what we're what we're talking about here today about the punishments and so. You know it's not I understand that there may be an out liar here there Mr Rosenzweig mentions but it would be a very rare case in my experience that that that would ever happen and I think was going to probably address that also. Yes. Turn your microphone. Thank. Thank you and I would just echo what representative Gazaway said it the prosecutor does have discretion so if someone has and a very old felony history to have committed any new crimes the prosecutor can choose not to charge them as individuals entering plea that in the felony information and as a deputy a former deputy prosecutor myself they're oftentimes that individual fender and is negotiated away in a plea deal or there is a resolution for cases where it is appropriate for the person to receive probation we we have the prosecutors have that discretion and and that often is what Mr Rosenzweig was speaking of sure there's probably an outlier here there but that is certainly not be the norm that is not the standard. Representative flowers you're recognized for a question. Thank you madam chair your reserve Gazaway your recovery sponsor representative first and made me wonder. How frequent is it or infrequent is it even. That prosecutor chooses to charge someone as an individual offender. And you know these circumstances are playing and then a judge or jury sentences. To a fine versus jail time. So I can only give you my experience. And I very rarely in nine years of near almost nine years very rarely use the habitual offender statute even when it was available to me as a prosecutor I only used it when it was someone who was a clearer problem and it was clear that that person Penitentiary was basically the only option for them was it would be the only time that I I used it I mean I can think in one particular case where I use it I tried to a jury charge to charge individuals additional offender he had I couldn't even tell you the number of deaths and burglary type offenses it was just one of those things where you know when you have ten they have some burglaries and criminal history and so many within a short period of time you know I used in that instance I recall it we tried that case to a jury and the jury gave prison time they did not give a fine only even if that were an argument that that could have been made and maybe been made I can't call but they certainly didn't use in that instance most of the cases where someone is a habitual offender and the prosecutor chooses to pursue that is going to be somebody who I think the vast majority of people in this room would say probably need to present time. Per se Collins your question for Mr Rosenzweig. I thank you might be able to be helpful in this yes okay you're recognized for a question are we wish you come in contact which I've come into contact with the prosecutors resembles Mister Gazaway but in the forty four years that I've been doing this not just nine most of the time the. The prosecutors if if they just look on the ace of the NC I see the AC I see the buying two prior convictions and they charge at all you need is a is a typewriter and a piece of paper to charge and all you need to prove it is appropriate docket sheets certified hearing may be a what is called the Pam pack which is the fingerprints or or whatever and so it's it's a lot easier to charge of a lot easier to prove and my experience is is almost always chart yes it is an out wire cage when it is an out wire case when a jury chooses to send to not send someone to prison even if that person has two prior convictions and the examples I gave in there I'm sure there's some others out there. Is because occasionally you have the outlier situation where they decide it would be an injustice of because of the length of time because of the nature of the prior convictions or orders or some other or some other effect you nine times out of ten ninety nine times out of a hundred there jury will in fact send someone to prison for that back I don't see any reason to take okay as long as we're having jury sentencing I don't see any reason to take away that flexibility in as much as as a prior is a prior flew all the way back to. When you're eligible have. Ballinger my respond quickly. Very quickly I think one thing that speaks volumes as in Mr Rosenzweig sporty for your career he said he's only seen twice despite the number of times the CD's claims that it's alleged and so you know again if this were something that I was going to be something that juries really wanted to consider again this is not in the vast majority of cases ninety nine point nine percent of cases is not going to be what you see here and I want to bring the focus back to what the bill is really about witches Legislative intent and the question is when the legislature passed the visual offender statutes they specifically said a jury and a judge cannot award for cannot sentenced to probation or suspended sentence and it would be an absurdity to say that you can't sentenced to probation you can't sentenced to suspended sentence but you can give them a fine. That's really the crux of what this is about is to fix the legislative intent and again I can understand what Mr Rosenzweig saying but again I think it's an absurdity and I think that is not consistent with what would be the clear legislative intent. Represent Collins are you still in the queue for you yes I am thanks I'm glad thank you represent Gazaway for veering back there because it actually comes to my question and and either Mr resins wire representative guys working answer when was the statute passed and I ask for two reasons there's a lot of references in here to the nineties ninety three to ninety seven we're talking about trying to replicate in a legislative intent are we trying to replicate Legislative intent from the tough on crime three strikes you're out mandatory minimums nineties and secondly the second reason I ask is if it's been thirty years why has there been no need to fix this and thirty years wired if it you know has been so wrong and interpreted in violation of Legislative intent why only now are we coming to do this. My responsibility because it's not really been that big of a problem but to the extent that it has been in the two instances that Mr Rosenzweig is mentioned and others we need to make sure that we close that we pull. represent you're recognized for a question. represent Gazaway if. Two to the question we just heard and I thought about this earlier if it has been thirty years and we've had. You know legislators and prosecutors and public defenders and judges who have been operating under the law and that time and who were in process the same way we were in front we are in process at the time of the law was passed. Could it be that the legislative intent was for the law to be as it is now And. I guess moving money leave the questionnaire opener. I again I I I don't know what the debate was when the statue was originally passed I don't have that knowledge I just think that looking from the face of the statute itself that it is an apparent contradiction an absurdity if you will to say that you can sentence you cannot send someone to probation you cannot send someone to suspended sentence but you can give them a five. Again to me the does not. It just doesn't compute that that would be the legislative intent but. Thank you Mr president for your testimony. We have Nathan Smith the signed up to speak for the bill. My name is Nathan Smith on the processing interning been County I won't belabor it I think representative Gazaway misspelling done a good job talking about the details of it one thing I would point out just from a policy perspective I know there's been some talk about what is this intent for from the nineties a tough on crime as I would say one thing I think that as I see what what certainly we have an Arkansan and every other you know part of United States is we have when you look at overcrowding OR whatever we have a repeat offender problem and it is it is vitally important for for our society to be tough on repeat offenders on people who continually violate the law who commit felony after felony and I think what what this law will do is in those instances as representative Gazaway has pointed out where a prosecutor chooses to allege a habitual offender violation takes that all the way to trial because typically sees pointed out that's plea bargained away before trial that we as a society say a bit you will offenders it is on just for them to only receive a fine and I think to me that makes common sense so that's mine thirty thousand foot view of why I think it's a good piece of legislation solemn belabored any longer than that. Members are there any questions of this witness. Seeing no questions we have someone else who signed up to speak for against the bill representative guess what you're recognized to close for your bill thank you madam chair I'm not going to belabor it much more again I just think I have echo what the prosecutor Smith just said that. I think it's common sense that the you know this would be the legislative intent that one would expect here this this is a good bill and would make a motion to pass. Members we have a motion to do pass on the floor is there any discussion on the motion. All in favor of the motion say aye. All opposed say no. The eyes have it the motion has passed congratulations you've passed your bill thank you senator thank you committee at this time I would ask of last year Smith if he would come and take the chair and we will turn to House Bill sixteen forty five House Bill sixteen forty five. All right. German W. are you ready to presents house bill sixteen forty five I am thank you first year Smith members of the committee this really is of an easy bill to explain I think when that you can certainly. Pick up very quickly on what this is is a uniform civil remedies bill for the an authorized disclosure intimate images act. In what this is is it's very simple someone sends an intimate image to someone else and they publish it without permission or the gather get money for publishing it those types of things this is going to allow for a Civil remitted we're not talking about the criminal side this is a civil remedy and so often what happens is images or disclose for recreational profit without the purpose up with out any purpose to harm the depicted images but sometimes it happens that these images are disclosed as a part of an effort to control punish exhort or otherwise inflict harm and with this bill doesn't have several sections and for those of you who may not have been on this committee there are a series of uniform laws throughout the United States to be made the commercial code for example would be a uniform law states are now passing this to give Civil remedies and this is a a law that's passed among states it is a certainty in the law basically what this will do will create a cause of action for the unauthorized disclosure of imminent in intimate images if the intention of detention excuse me the intentional disclosure threat to disclose it was private and intimate image it wasn't a gentle fiable indivisible without their consent and by a person has the requisite awareness that that depicted individual did not consent to the disclosure the intimate image was private and the defective differential was identified in it harms that person so that's what it's doing is providing for civil penalties there are exceptions in there for Thank you with the exceptions or in the event that it was used in a legal proceeding medical treatment or investigation of misconduct there's also exceptions of for parents you know you have the cute little baby on the road and they may not have everything on that would not fall within here that there could be a civil penalty that all this bill does and I'll be happy to answer any questions. All right committee are there any questions for representative Dalby. I don't see any. Well with that member sign closed for my bill. And there and skews me but there is no public comments or people to speak for against the bill as well you ready I am I am close for a bill and I would motion to do pass on. We have a do pass motion requested by representative Dalby all those in favor say aye. Any opposed. There is none congratulations you passed your bill thank you members thank you chairman. These. Members that concludes our business we did have one other up bill but I do not see representive Lundstrum and she's not contact me so that bill house bill fifteen twenty five will move back to the referred list we may take it up another time I don't know I'll catch up with her we will have to study will be another pack your lunch time today so be prepared over the weekend I will send out the bills that we will have for