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ALASKA ADMINISTRATIVE CODE TITLE 3.,
PART 2, CHAPTER 23, ARTICLE 5, SECTIONS 23.745 - 23.859.
ALASKA COURT RULES GOVERNING THE
ADMINISTRATION OF ALL COURTS, RULE 43, SECTIONS 1 – 7, (for bail
forfeiture schedules).
ALASKA COURT RULES OF CRIMINAL
PROCEDURE, PART IX, RULE 41
Licensing Requirements for
Agents.
Alaska provides very minimal and simple
qualifications for securing a "bail bond limited producer license", as
set forth in 21.27.150. This license allows one to act on behalf of a
surety insurer.
the
individual’s business must be located within the state
the sole
purpose of the business must be: 1) to be appointed by, or 2) to act on
behalf of a surety insurer pertaining to bail bonds.
The regulatory body is the Insurance
Department.
Notice of Forfeiture
ALASKA COURT
RULES
RULES OF
CRIMINAL PROCEDURE
PART IX.
GENERAL PROVISIONS
RULE 41. BAIL
(f)
Forfeiture.
(2) Notice of
Forfeiture. The clerk shall send notice of the judgment of forfeiture to
the defendant, defendant's attorney and the person pledging the security
at their last known addresses. The notice must state that a hearing will
be held on the forfeiture if timely requested pursuant to subparagraph
(d)(3).
45.75.133
establishes that upon citation of a violation for which a bail forfeiture
amount has been set, the amount may be paid within 15 days (presumably
from the receipt of the citation).
Failure to pay
within 15 days, by mail or personal delivery to the clerk of the court,
constitutes a class B misdemeanor.
Allotted Time Between Forfeiture
Declaration and Payment Due Date.
Alaska has provisions for bail forfeiture
schedules, too detailed to list briefly, found in the RULES GOVERNING THE
ADMINISTRATION OF ALL COURTS, RULE 43, SECTIONS 1 – 7. This rule provides
a forfeiture schedule that is dependent upon the connected crime. Rule 43
also provides that each agency is responsible for its own forfeiture
schedule, and that any agency or average citizen may request an amendment
to a forfeiture schedule by proposing the amendment in writing to the
chief justice or administrative director.
Forfeiture Defenses.
Alaska Court Rules of Criminal
Procedure, Part IX, Rule 41 establishes that:
When the condition of the bond has been
satisfied or the forfeiture thereof has been remitted, the court shall
exonerate the obligors and release any bail.
A surety may be exonerated by a deposit
of cash in the amount of the bond or by a timely surrender of the
defendant into custody.
12.60.150 provides that sureties may be
exonerated from bail liabilities in the manner prescribed by law (which
is 9.40.210 - .200).
A limited number of defenses appear to
be available in 9.40.210, dealing with "Exoneration of Bail."
Death of the
defendant
Imprisonment
in a penitentiary, or
Legal
discharge from the obligation to be amenable to the process, exonerates
the responsibility of bail.
9.40.200 provides that if the arrest,
delivery, or surrender occurs before judgement, bail is exonerated if
the defendant:
is arrested by a peace officer
is delivered
to a peace officer
or
surrenders to a peace officer.
Remission.
Alaska Court Rules of Criminal Procedure,
Part IX, Rule 41 sets forth the following provisions for remission.
Within one year after entry of judgment
of forfeiture, a person who has given or pledged security may apply to
the court for a remission, either in whole or in part, based on the
return of the defendant with the assistance of the person who gave or
pledged security or upon such other extraordinary circumstances as
justice requires. The conditions of remission may include payment of
expenses incurred for enforcement of the forfeiture and for securing the
return of the defendant to custody.
Bail Agent’s Arrest Authority.
9.40.200 sets forth that agents may, at
any time or place before the defendant is finally charged,
personally arrest the defendant, or
by written authority endorsed on a
certified copy of the undertaking, empower a peace officer to arrest the
defendant,
Other Noteworthy Provisions
21.18.075
provides that the Department of Insurance "may require a surety or
limited surety insurer to set up and maintain a reserve on all bail
bonds or other single premium bonds without a definite expiration date,"
. . . "equal to 25 percent of the total consideration charged for the
bonds that are outstanding as of the date of a current financial
statement of the insurer."
ALASKA COURT
RULES OF CIVIL PROCEDURE, PART XI, RULE 80, (Deals with the
qualifications for sureties).
Noteworthy State Appellate Decisions.
A. Dealing with Bail forfeiture.
Michael F.
LONIS, v. STATE of Alaska
Supreme
Court of Alaska.
Feb. 18,
2000.
The state argued that courts should be
allowed to grant bail forfeiture for reasons other than a defendant’s
failure to appear, and that such was contemplated by the statute.
The state
argued that when the legislature gave courts the power to impose
non-monetary conditions of release, the legislature intended for courts
to employ bail forfeiture as a means of enforcing these non-monetary
conditions. The court held that there is no legislative history to
support this state's assertion. In addition, even though the legislature
amended AS 12.30.020 over thirty years ago to allow a court to impose
non-monetary conditions of release, the legislature has never amended AS
12.30.060 to authorize bail forfeiture as a penalty for violating these
non-monetary conditions.
The court
notes that the drafters of the federal bail statute, §18 U.S.C. 3142,
specifically intended that monetary bail be imposed only to assure a
defendant's appearance. The court also points out that, were adopting
the state's position, would have a major impact on the issuance of bail
bonds.
Specifically, the court recognizes that commercial sureties, as well as
family and friends, would suddenly face significant additional risks to
the money and property they pledged to secure a defendant's release. The
money and property would be subject to forfeiture under many additional
circumstances, and it is unclear what the person would have to do to
seek a remission of the forfeiture.
Holds that
the legislature has given courts broad power to set conditions of
release, and it has equipped courts with various methods of enforcing
those conditions of release. But, with respect to bail forfeiture, AS
12.30.060 and Criminal Rule 41 speak of imposing this penalty for only
one type of violation--a defendant's failure to appear. The court
therefore rejects the state's argument that the statute and the rule
should be interpreted as implicitly granting courts the authority to
forfeit bail in other circumstances.
The court
also rejects the state's argument that despite the statute’s silence on
the issue of non-monetary conditions of release, courts still possess a
common law power to seize a defendant's bail when the defendant violates
one or more non-monetary conditions. The supreme court recognizes that
if courts were allowed to seize a defendant's bail for violation of non-
monetary conditions of release, this would work a major change in the
law of bail, and it would likely affect the readiness of sureties (both
commercial and informal) to pledge their money and property to secure a
defendant's release.
In short,
the court holds that the judge erred when he ordered forfeiture of the
defendant’s bail money for reasons other than non-appearance.
Dealing with Remission. Holds that a
superior court has discretion to award remission.
Fred P.
ADKERSON, d/b/a Fred's Bail Bonding v. STATE of Alaska
Supreme Court
of Alaska.
Feb. 6, 1987.
Fred P. Adkerson d/b/a Fred's Bail Bonding
(Adkerson) posted a $50,000 bail bond for Mohammed Nissani, then under
indictment for theft and forgery. Nissani fled the state before trial. The
bond was ordered forfeited in November 1983. Nissani was eventually
arrested by federal authorities and returned to Alaska. After Nissani's
return, Adkerson moved to reinstate and exonerate the bond. Superior Court
Judge Paul B. Jones denied the motion, concluding that the superior court
has no power to remit forfeited bail bonds.
The state
argued that, because Criminal Rule 41(d)(2) provides that a surety may
appeal from a judgment of forfeiture, the surety may not seek remission.
The court
concludes, however, that this argument does not apply because there is
no rule authorizing remission in specific circumstances. Therefore,
there is no basis to imply excluding forfeiture in these circumstances.
The court also concludes that a superior court has discretion to order
remission of a forfeited bond.
Although
Supreme Court Order No. 157 removed the specific authority in the rules
to remit a bond, it does not indicate an intent to disallow the
remission. Therefore, remission is not prescribed by the rules and the
superior court may act within its discretion in any lawful manner.
In
exercising its discretion, authorizes courts to consider all relevant
factors, including: (1) cost, inconvenience, or prejudice to the
government in regaining custody, (2) delay resulting from the
nonappearance, (3) willfulness of the failure to appear, (4) public
interest in ensuring the appearance.
Also, that
it is within the court’s discretion to set aside bail forfeitures.
Bounty Hunter Provisions.
Alaska does
not appear to currently have any specific bounty hunter or bail/fugitive
recovery agent provisions. The only provisions, which would come close
to bounty hunter regulation, are the licensing requirements given above.
HOUSE BILL
NO. 33, introduced on January 19, 1999, by Rep. Dyson, proposed specific
regulations for bounty hunters, which have not as yet been adopted.
