Legislature(2019 - 2020)ADAMS ROOM 519
05/01/2019 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB49 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 49 | TELECONFERENCED | |
| += | HB 145 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 20 | TELECONFERENCED | |
HOUSE FINANCE COMMITTEE
May 1, 2019
1:34 p.m.
1:34:01 PM
CALL TO ORDER
Co-Chair Wilson called the House Finance Committee meeting
to order at 1:34 p.m.
MEMBERS PRESENT
Representative Neal Foster, Co-Chair
Representative Tammie Wilson, Co-Chair
Representative Jennifer Johnston, Vice-Chair
Representative Dan Ortiz, Vice-Chair
Representative Ben Carpenter
Representative Andy Josephson
Representative Gary Knopp
Representative Bart LeBon
Representative Kelly Merrick
Representative Colleen Sullivan-Leonard
Representative Cathy Tilton
MEMBERS ABSENT
None
ALSO PRESENT
John Skidmore, Director, Criminal Division, Department of
Law; Kelly Goode, Deputy Commissioner, Department of
Corrections; Kelly Howell, Director, Division of
Administrative Services, Department of Public Safety;
Representative Steve Thompson; Representative Matt Claman.
PRESENT VIA TELECONFERENCE
Katherine Monfreda, Director of Division of Statewide
Services, Department of Public Safety.
SUMMARY
HB 49 CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
HB 49 was HEARD and HELD in committee for further
consideration.
Co-Chair Wilson reviewed the agenda for the meeting.
HOUSE BILL NO. 49
"An Act relating to criminal law and procedure;
relating to controlled substances; relating to
probation; relating to sentencing; relating to reports
of involuntary commitment; amending Rule 6, Alaska
Rules of Criminal Procedure; and providing for an
effective date."
1:34:53 PM
AT EASE
1:35:57 PM
RECONVENED
Co-Chair Wilson relayed the committee would be hearing
public testimony for HB 49 at 5:00 p.m.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, would be providing a sectional analysis for the
committee substitute (CS) for HB 49 that came out of the
House Judiciary Committee. Co-Chair Wilson directed him to
distinguish what was in the original version of the bill
and the Judiciary version.
Mr. Skidmore began with Sections and Section 2 found on
pages 1 through 3 of the bill. The sections were conforming
laws for changes in the drug laws that came later in the
bill. They were conforming changes made to Alaska's murder
statutes that referred to drug crimes. It was slightly
different than what was in the original version of the bill
due to the differences in the drug laws. The changes made
in each of them were the statute numbers. The numbers
differed between the 2 bills because of the differences
made in the original HB 49 and the Judiciary version
currently before the committee.
Mr. Skidmore moved to Section 3 pertaining to the
elimination of the marriage defense. The marriage defense
was not found in HB 49 but was found in HB 52. The
provision in HB 49 was different than that of HB 52. He
explained that for certain sexual assaults, being married
in Alaska provided a complete defense to an act of sexual
assault. It occurred in various sections of sexual assault
that had to do with the mental functioning of the victim at
the time of an assault. Alaska had certain statutes that
talked about when a victim was mentally incapable,
incapacitated, or unaware that a sex act was occurring. It
was those type of provisions that made marriage a defense
in current Alaska law. He described the concept as
outdated. He argued that the issue needed updating. The
bill still allowed marriage as a defense in 4 areas and
eliminated it in 2 instances. The 2 instances that the
marriage defense was eliminated was if the victim was
incapacitated or if the victim was unaware a sex act was
occurring. Both terms were defined in statute. Marriage
defense was left intact when penetration or sexual contact
between 2 people and one of the individuals was mentally
incapable and in the care of the other.
Mr. Skidmore continued that in statute [AS 11.41.470(4)], a
person was mentally incapable when they were suffering from
a mental disease or defect that rendered them incapable of
understanding the nature or consequences of the persons
conduct including the potential for the harm to that
person. He clarified he was talking about Subsection 4
rather than 2 which he misstated. He used the example of a
person suffering from dementia or Alzheimer's that was
placed in the legal care of their spouse. A person
suffering from dementia or Alzheimer's, although they might
not understand the circumstances or nature of the conduct,
could be a victim because - the spouse caring for them
could still engage in sexual behavior with them even when
the person did not fully understand what was happening. He
used his grandmother's situation as an example. His
grandmother had Alzheimer's and did not know on a daily
basis who his grandfather was, who her children were, or
who her grandchildren were. At times, it would cause her to
be combative. The bill indicated that if it was their
spouse that was taking care of them, it was okay for the
person to satisfy their sexual desires or gratification
even though the person they were going to satisfy
themselves with did not recognize who they were or what was
going on. HB 49 would allow the behavior.
Mr. Skidmore continued that what was removed by the
provision had to do with the person that was incapacitated
or unaware. A person was incapacitated when they were
temporarily incapable of appraising the nature of one's own
conduct. An example would be when a person was intoxicated
and passed out. Marriage would no longer be a defense in
that circumstance. He thought the bill was a step in the
right direction. The policy decision that the legislature
would have to make would be whether the bill took the step
far enough. In the other bill he had refenced, the
provision was eliminated for all but sexual assault in the
fourth degree. Sexual Assault in the fourth degree was when
there was criminalized sexual behavior between a
corrections officer and somebody in custody, between a
Department of Juvenile Justice Officer with somebody in
custody, between a law enforcement Officer with somebody in
custody, between a probation officer and somebody in
probation, or between a juvenile probation officer with
somebody on probation. In those situations, if the 2 people
were married, then marriage could be used as a defense. One
person's employment would not criminalize sexual behavior
if they were married. Only the two circumstances he
mentioned remained in the bill.
Vice-Chair Johnston asked how the law would apply for
someone in a coma. Mr. Skidmore responded that a person in
a coma would be considered temporarily incapable of
appraising the nature of one's own conduct. Marriage would
not be a defense to someone in a comma under HB 49.
Currently, under law it was a defense, but the bill would
change it for a coma.
Vice-Chair Johnston clarified that a coma meant a temporary
condition or a vegetative state. Mr. Skidmore restated that
the definition of incapacitated was temporarily incapable
of appraising the nature of one's own conduct or physically
unable to express willingness to act. It was different from
suffering from a mental disease or defect. He did not
believe a coma would be characterized as a mental disease
or defect.
Representative Josephson did not believe the provision
solved the issue. He asked about a person with dementia who
might initially consent then not recall giving consent. He
asked Mr. Skidmore to comment.
Mr. Skidmore thought Representative Josephson was
describing someone who at one point had consented but could
not recall consenting later on. In such an instance, when
he thought of prosecution, he typically walked himself
through how the criminal justice system worked. He began
with the report to law enforcement. He looked at how an
incident was reported to law enforcement as a crime that
needed to be investigated. Once an incident was reported
and investigated, it would be referred to the prosecutor's
office. He would then look at how the prosecution would
demonstrate how a sexual act occurred if the person that
was the victim had mental issues and had difficulty
remembering that they provided consent. Assuming that
hurdle could be cleared, the prosecution would have to have
confidence that the person with the mental illness was
capable of providing consent. Another question would be, in
the scenario where a person had a mental illness, whether
they were capable of providing consent. The choice was
whether the state would have a law that would protect the
individual or whether the caretaker would be allowed to
have sex with their spouse. He returned to his personal
experience with his grandmother with Alzheimer's. He
understood the point Representative Josephson was making.
Representative Josephson indicated that it was not his
point, but one that had been raised. Mr. Skidmore corrected
himself, that it was a point that had been raised and a
policy call the legislature would have to make.
Representative Knopp referred to Section 3, line 21 and
line 27 of the bill where it mentioned separation and
divorce. He wondered about a couple that was separated and
whether marriage defense would apply. Mr. Skidmore referred
to Section 3(a)(1), lines 24-25, and pointed out that they
were the same laws that existed previously. He furthered
that what was being changed began in Section 2 where it
talked about being married to a person and neither party
having filed with the court for separation, divorce, or
dissolution of the marriage. He clarified that if there was
not paperwork filed in the courts indicating separation,
divorce, or dissolution, then marriage could be used as a
defense.
1:52:43 PM
Vice-Chair Ortiz understood how marriage defense went back
significantly in time. He pointed out that both the
governor's version of the bill and the version that emerged
from the House Judiciary Committee reduced the
circumstances in which the marriage defense would apply. He
wondered if it was fair to say that the Judiciary version
was less restrictive. Mr. Skidmore responded that Vice-
Chair Ortiz's statement was accurate.
Vice-Chair Ortiz asked what prompted the change. He
wondered if there had been a significant increase in the
number of cases. Mr. Skidmore responded that Vice-Chair
Ortiz was correct. In the previous 2 to 3 years, there had
been several cases reported to the department by victims
claiming to have been sexually assaulted by their spouses.
The Department of Law had to inform the victims that the
law stated that it was not a crime. Many things occurred
simultaneously bringing the issue to the forefront and
contributed to the department's decision to propose a
change in law.
1:54:47 PM
Representative Merrick noted that Mr. Skidmore had
mentioned occupational scenarios in which the marriage
defense was not a defense. Mr. Skidmore responded, "In
which marriage is a defense."
Representative Merrick clarified, "So, is that if they are
under the care of that person?" Mr. Skidmore responded in
the negative. He referred to the applicable statute, sexual
assault in the fourth degree (AS 11.41.427). He indicated
that Subsection (a)(1-5) created a series of crimes. Sexual
assault in the third degree (AS 11.41.425(a)(2-6)), had the
same relationships. The difference between the two was that
the higher level encompassed sexual penetration and the
lower level was limited to sexual contact. In both
scenarios, for example, it would be illegal for a
corrections officer to engage in sexual penetration or
sexual contact with someone in the care of the Department
of Corrections (DOC) because it was considered an imbalance
of power. Marriage would be a defense to those particular
crimes. Therefore, in the instance of a corrections officer
being married to a person in the custody of DOC, whether
imprisoned or on electronic monitoring, marriage would be
an acceptable defense. The elimination of the marriage
defense helped to define where it was not acceptable -
under circumstances where a person was incapable,
incapacitated, or unaware or under the care of a spouse. It
would be illegal for a spouse to engage in sex with their
spouse in the instance where only the spouse knew that a
person was incapacity and in their care for protection.
Representative Merrick asked how often there was a parole
officer married to a parolee. She thought it made more
sense that person would be under the direct care of DOC.
Mr. Skidmore responded that it would be a conflict of
interest to assign a parole officer to their spouse as a
parolee. He thought it was broad enough to say that it
could not be any parole officer for any parolee even if
they were not direct supervision.
1:58:20 PM
Mr. Skidmore moved to Section 4 - Section 6 which dealt
with online enticement. The sections were not found in the
original version of HB 49. However, they were found in
HB 52. Currently, if a person tried to entice a minor over
a computer online to engage in sexual activity it would be
criminalized. If the same person tried to engage with a
minor face-to-face it would not be criminalized. In the
committee substitute enticing a minor was not limited to
online activity, it applied to enticing a minor to engage
in sex.
Mr. Skidmore moved to Section 7 - Section 23 which talked
about the removal of adjusting for inflation. The removal
of adjusting the threshold between a misdemeanor and a
felony by inflation every 5 years was removed in the
current version the committee had in front of them in HB 49
and was removed in the original version of HB 49. There
were two differences found in Section 14 and Section 17.
Those versions were not found in the original version of
HB 49, and some additional language was added. Section 14
added an identification document - the term to the crime of
misuse or fraudulent use of an access devise or an
identification document. The language was not in the
original version. Section 17, pages 9-10, added a new crime
for possession of vehicle tools. Possession of vehicle
theft tools was similar to a statute that was possession of
burglary tools. Particular items frequently used by car
thieves were described and became criminalized. It was not
originally found in HB 49 but was in the Judiciary version.
2:01:02 PM
Representative Josephson welcomed Mr. Skidmore to
editorialize the section. Mr. Skidmore relayed that the
bill noted motor vehicle theft tools such as a slim Jim, a
master key, an altered or shaved key, a trial or jigger
key, a lock puller, or an electronic unlocking devise. He
thought the provisions would provide additional tools to
law enforcement and to the prosecution to try to combat the
rise in vehicle thefts that had occurred across the state.
Vice-Chair Ortiz asked Mr. Skidmore to comment on all of
the sections with changes including Section 14. Mr.
Skidmore replied that Section 14 was found on page 7 having
to do with fraudulent use of an access devise. The section
added an identification document that was used with the
intent to defraud. It was an excellent addition.
Co-Chair Wilson asked if finding a driver's license on
someone other than who it belonged to was okay if fraud
could not be proven. Mr. Skidmore responded that a person
possessing someone else's identification would have to have
the intent to commit a fraud. Simply having another
person's driver's license would not be a crime by itself.
He could have his wife's driver's license or his daughter's
license. He could find someone's driver's license on the
ground intending to return it. None of those examples were
crimes. He would have to possess an identification with the
intent to commit a fraud with it.
Co-Chair Wilson asked how intent would be proven. Mr.
Skidmore relayed that the person would have to use the
access devise or obtained property or services with the
knowledge that the access devise or identification document
was stolen or forged. The person would have to know the
access devise or document was expired, revoked, or
canceled, or any other reason that the person's use of the
access device or identification document was unauthorized.
It had to be that a person had to use the document to
commit a fraud.
Co-Chair Wilson relayed a personal experience. Mr. Skidmore
reiterated that a person would have to use a driver's
license with the intent to commit a crime or fraud.
2:04:26 PM
Mr. Skidmore moved to Section 24 on page 12 of the bill.
The section talked about aggregating the value of thefts
over a period of time to allow the aggregated value to be
used in a felony or higher-level charge. The section
specifically talked about the aggregation being for
property being taken from a commercial establishment over a
6-month period. The amount was between $750 and $25,000
(the threshold to put a crime into a felony level). There
was already a statute in place that allowed the state to
aggregate the value of property, but that particular
statute was not expressed in the way the one in section 24
was regarding it being over a 6-month period. It was
intended to help commercial establishments that were
repeatedly seeing someone take a little bit one day and
come back the next. The repeat thief's offenses could be
aggregated to the point of being a felony which had the
potential for more serious consequences. The statute seemed
to be a good idea. He was unclear how it would work in
practice.
Vice-Chair Ortiz asked if the provision was included in the
original bill. Mr. Skidmore responded that it was not.
2:06:14 PM
Mr. Skidmore continued to Section 25 on page 12 which dealt
with the generalized threat statute or terroristic
threatening as defined by law. The current law suggested
that if a person called in a bomb threat to a school or
other place and the person had no intention of carrying it
out, it was a false threat and the crime of terroristic
threatening. If a person called in a threat to shoot up a
movie theatre or the school with the intention of carrying
it out, it would not be a terroristic threat, nor would it
become a crime of attempted assault until the person had
taken a substantial step. The proposed threat, with no
intention of carrying it out, would result in a crime in
the proposed statute. The language was in the original
version of HB 49 as well as in the Judiciary version. He
indicated that the other body wanted to add some sideboards
to the bill. However, they were removed on the House side.
Co-Chair Wilson asked if he was talking about a companion
bill. Mr. Skidmore confirmed that he was referring to SB 32
which currently sat in the Senate Finance Committee.
Representative Sullivan-Leonard was looking at the removal
of subsection (d) and suggested that there was the presence
of biological warfare and terroristic acts that might take
the form of a chemical or radiological component. She
wondered why that language was removed.
Mr. Skidmore answered that the language in the proposed
bill included the threat of placing a substantial group of
the public in fear of serious injury. The language was not
limiting like the previous description; it was broader. A
threat of bacteriological, biological, chemical, or
radiological warfare were still covered, but the section
was broader because of some of the things that have
occurred in society more recently.
Co-Chair Wilson thanked Representative Claman and
Representative Thompson for joining the meeting.
Representative Josephson suggested that the references to
biological and chemical remained in the first degree. He
thought they had been untouched in any bill. He asked if
those items were higher offenses. Mr. Skidmore replied that
what Representative Josephson was referring to was
terroristic threatening in the second degree. There was a
terroristic threatening in the first degree and the
concepts might be found in the higher level. He had not
looked at the statutes, but it made sense.
2:10:22 PM
Representative Josephson asked if the other body wanted the
sideboards severe enough that first responders took some
step, in response to the threat. Mr. Skidmore explained
that it required some sort of emergency response. It did
not have to be first responders but some action, such as an
evacuation of a building, resulting from the step. He
mentioned it because of the discussions occurring.
Co-Chair Wilson appreciated the information.
Vice-Chair Ortiz asked if the Judiciary version of the bill
made it more of a crime if someone called in, even if they
had not taken any steps to carry out their threat. Mr.
Skidmore responded that he was correct. Part of the impetus
for a change in the law was some of the school threats that
occurred in Anchorage and in Ketchikan. The provision gave
law enforcement an additional tool in response to a threat.
Mr. Skidmore moved to Section 26 on pages 13-14 regarding
harassment to the second degree. The language that was
added (beginning on page 14, lines 1-4) addressed repeated
sending of images of genitalia to another person when they
did not want it. It was not something that was in the
original version of HB 49 but was found in HB 52.
Co-Chair Wilson clarified the section and pages being
discussed. Mr. Skidmore indicated he was referring to
Section 26, pages 13-14. She confirmed that the language
was not in the original version of HB 49, but it existed in
HB 52. Mr. Skidmore responded that she was correct. She
asked if the language was the same in HB 52. Mr. Skidmore
believed it was the same. He would have to compare the
bills side-by-side. However, in general, it was the same
concept.
2:14:00 PM
Mr. Skidmore moved to Sections 28-34 addressing drug
crimes. He would review each section individually. Section
27 created a new crime that did not currently exist in
statute called misconduct involving controlled substance in
the second degree. The section would create a Class A
felony for distribution. The distribution would be a Class
A felony if it was greater than 100 grams of schedule IA
substance (heroin, fentanyl, and other opioids) or over 200
grams of a schedule IIA substance (methamphetamine,
cocaine, or other similar drugs). Tablets were also
referred to - 200 tablets or 400 tablets. The idea was that
the current scheme the state had for drug trafficking was
being broken down by distribution of drugs by weight for
both schedule IA and IIA drugs. Previously the law was
written such that under a certain weight it was a C felony,
over a certain weight it was a B felony. However, once a
person reached the B felony level there was no
consideration of quantity. However, once a certain level
was reached, the charge would become a Class A felony. He
indicated that the language proposed was not in the
original version of HB 49.
Mr. Skidmore continued that another proposal had been to
remove the quantities and simply have a Class A felony and
a Class B felony without a weight attached. He recalled
having reviewed the Knight case that had taken into
consideration all of the differing factors. The language in
the Judiciary version did not fall in line with his
previous comments. The revised version tried to build on
what was currently in statute. He clarified that the policy
decision the legislature had to make was whether to build
on what was currently in law or shift back to what the
state had in statute previously.
2:16:40 PM
Representative Sullivan-Leonard asked about an
accountability measure for a person caught with 100 grams
of heroin or fentanyl. She asked if they would have their
hands slapped and assessed a fine.
Mr. Skidmore reported that under current law, a Class A
felony had a sentencing of 3 to 5 years for a first
offense. A sentence would be ratcheted up on a second or
third offense. He would not characterize the punishment as
a slap on the wrist. He would have to finish analyzing the
bill to make sure no other changes were made regarding
Class A felony sentencing. The next decision that would
need to be made would be whether the legislature thought 3
to 6 years was sufficient time.
Representative Josephson recalled Mr. Skidmore's reading of
the Knight decision and the key word he took from it was
nuance. He opined that the judge had been very thoughtful
and talked about weight not necessarily mattering. The
judge suggested looking at the size of a community and the
chemical make-up of a drug. He wondered how to codify the
judge's decision. He asked about the 100 grams for the
schedule IA drugs and the 200 grams for the schedule IIA
drugs and wondered whether all the boxes were filled.
Mr. Skidmore responded that whether the weight of the crime
was the correct mark was not his area of expertise. He
suggested Representative Josephson seek answers from the
Department of Public Safety (DPS) and Deputy Commissioner
Duxbury who had worked in narcotics. He believed the
quantities to be significant. His understanding of heroin
was that a single dose was a tenth of a gram. He relayed
that 100 grams equaled 1000 doses before it would be a
Class A felony. His opinion was that the number was too
high. He suggested returning to the old system. He argued
that as far as codifying the judge's decision went, it was
already codified. It was already built into the system for
aggravators and mitigators for the different levels. When
discussing amounts, the values were different depending on
location. He thought having something written into statute
in such a large state did not allow for nuances.
Co-Chair Wilson suggested that members would have the
opportunity to address questions to DPS.
Vice-Chair Ortiz asked if the departments had been afforded
the opportunity to weigh in on the issue. Mr. Skidmore did
not know.
2:22:35 PM
Representative Carpenter asked if the strength of a
prosecutor's case was based on quantitative evaluations. He
wondered if quantity was the best indicator of intent to
distribute or sell drugs to other people.
Mr. Skidmore replied that when prosecutors built cases for
drug distribution prior to the change in the law, the
quantity was one factor. However, other things were taken
into consideration such as packaging materials, large
amounts of money, and ledgers showing distributions being
made. He reflected on a case that dealt with the
distribution of marijuana before it had become legalized. A
large amount of product was not found on the premises, but
ledgers were found documenting hundreds of thousands of
dollars. It was not about the quantity of drugs that were
found, rather, it was about the quantity a business was
engaged in. He indicated that having the aggravators and
mitigators allowed prosecutors to more readily assess what
was going on in a particular case.
Mr. Skidmore reported that Section 28 and Section 29 were
conforming language for the changes made in Section 27.
Mr. Skidmore referred to Section 30 which created
conforming language. It also added the reference to
AS 17.38 which talked about Alaska's marijuana industry
currently. It included "Except as authorized" on page 16,
line 29. The state would not prosecute someone for
marijuana under the statute, it simply added clarification.
He referred to page 18, which added Subsection 12. It made
a change in the state's drug laws that was different than
what was proposed in HB 49. The change was that, similar to
a DUI, a person could commit a certain number of offenses,
the third of which would be a felony. He read a portion of
the subsection. The original HB 49 had a different approach
where it stipulated that all possession crimes would start
at the Class C felony level. The current version used a
graduation method like DUI's. It was an approach that had
significant merit and was one for the committee to
consider. He opined that the trick to the approach had to
do with the sentencing of the misdemeanor offenses. The
first 2 offenses did not have jail time, which he thought
should possibly be changed in order to incentivize
treatment.
2:27:30 PM
Vice-Chair Johnston asked if Section 30 was in HB 49
changing the statutes to conform to the marijuana laws. Mr.
Skidmore responded that HB 49 originally did not include
the protection provisions. The Senate version of the bill
sitting in Senate Finance contained similar language. He
thought that bill expanded it beyond AS 17.38. He thought
it also included industrial hemp. He confirmed that it
existed in the other body.
Representative Josephson thought one of the vital parts of
the bill had to do with serious drugs. He suggested that
prison was a way in which to withdraw from drug use.
However, there was a tendency for a person to return to the
use of the drug. He thought that if there was active jail
time under a Class A misdemeanor, a person might
effectively sober up. However, a sentence might be too
short and resources too limited for a person to receive
adequate help. He was trying to figure out what to do with
a recreational drug user who had no intention to
distribute. He needed clarification.
Mr. Skidmore relayed that the state's current response for
recreational drug users was no response. He thought there
needed to be an adjustment to create incentive. He listed a
number of potential approaches.
Co-Chair Wilson asked whether treatment was offered and
defined in statute. Mr. Skidmore clarified Representative
Wilson's question. He suggested she was asking if Alaska's
statutes and the sanctions in statute required treatment
currently or assumed that it happened. He indicated that
the statutes authorized treatment as something that could
be imposed as a condition. However, they did not stipulate
that treatment would be required in every case. He provided
an example. As a prosecutor, when he encountered a case
with someone in possession of drugs or alcohol with an
illegal component, he might view the person as having a
substance abuse problem. However, he was not a trained
expert. The criminal justice system might require a person
to be evaluated by a professional to determine whether they
had a substance abuse problem and, if so, to what degree.
The evaluator would suggest the appropriate course of
action including outpatient or residential treatment.
Co-Chair Wilson wondered who was actually at fault for a
person reoffending if they were assessed and referred to a
program but were unable to enter the program immediately
because of a backlog. She was concerned with people that
were making a good faith effort to comply but were unable
to. It was her understanding that there was a greater
demand for treatment than there was available resources.
She asked Mr. Skidmore to comment.
Mr. Skidmore thought the bill was a first step in
addressing the issue. Many steps would need to be taken
that were not addressed in the current bill.
Co-Chair Wilson asked what kind of flexibility was
available to those individuals trying to comply while
treatment beds were not available. She asked whether an
automatic lock-up would occur. She asked if there was any
discretion involved and about evidence.
Mr. Skidmore answered that there was discretion based on
how long someone was on probation or how long they had to
complete their conditions. There were things the court and
prosecutors would take into consideration. There were
certain things defense attorneys would be arguing as well.
Corrective action would be needed in a case of a willful
violation where a person had the opportunity for treatment
and did not take it.
2:35:15 PM
Mr. Skidmore thought it was unfortunate to have to exercise
discretion as much as the Court System had to presently.
Discretion was built-in and the courts did not punish
people when they made good faith efforts and had been
unsuccessful.
Co-Chair Wilson asked about a person who had served their
time (either in jail or on probation or parole) without
being able to get into treatment prior to their release
date. She noted that at the time of their release
corrections would no longer have control of the individual.
Mr. Skidmore replied that there were some programs
available inside the walls of jail. He agreed that if an
individual was unable to get into a program, they would not
be held in jail longer to complete treatment. A person
could be released on discretionary or mandatory parole with
a stipulation that they complete treatment. In such a
circumstance, they would likely have a longer period of
parole or probation. If a person made a good faith effort
to get into a treatment program to no avail, and their
sentence and parole and probation periods came to an end,
nothing could be done to ensure treatment for them. The
Department of Corrections would no longer have control over
them.
2:38:09 PM
Mr. Skidmore moved to Sections 31 through 34 which were
conforming amendments. Section 31 changed third to fourth.
Section 32 contained protections and clarifications for the
marijuana industry. Section 34, found at the bottom of page
18, was another conforming amendment.
Mr. Skidmore moved to Section 35 on page 20. The concept
contained in the section regarding AS 12.55.015 talked
about the types of probation conditions that a court could
impose in a sentence. The court was to presume that there
should be no contact between the offender and the victim if
the crime was a sex offense or domestic violence crime. The
presumption could be overcome if it was necessary for the
victim and the offender to have contact. The provision was
not originally in HB 49 and could not be found in any of
the proposals by the administration. It was a valuable
concept.
Mr. Skidmore continued to Section 36 on page 20. It talked
about credit for pretrial electronic monitoring. It was not
in the original version of HB 49 but was in HB 50. He
indicated that HB 50 would eliminate any pretrial credit
for electronic monitoring applied to a sentence. It was
based on the concept seen in the Justin Schneider Case
where someone had been on electronic monitoring pretrial,
and by the time they were sentenced the entire sentence was
satisfied by electronic monitoring. Section 36 took a
different approach than in HB 50. The section indicated
that the court might grant credit for time spent on
electronic monitoring pretrial as long as it met the
requirements of AS 12.55.005, the statute that set forth
the goal of sentencing. He mentioned some of the goals
otherwise known as the Chaney Criteria. The Chaney Case was
the case in which the courts first articulated the
sentencing goals found in the Alaska Constitution. The
section was outlining that the courts would decide whether
a person got credit, but the credits were dependent upon
meeting the Chaney criteria. It was a different approach
than taken in other bills - its success would depend on how
the courts interpreted the concept. He was skeptical about
whether it would result in a change over the current
statute.
Representative Knopp referred back to Section 32,
lines 26-27 on pages 18 and 19. He asked about the various
changes in penalties. Mr. Skidmore called the changes
conforming because they did not change the substance of law
in any way. The sections were renumbered. He provided
further explanation but reiterated that the changes did not
alter the classification, elements, or sentencing of the
offense. It was simply making the language follow
appropriately.
2:43:04 PM
Representative Carpenter asked about the language that the
courts "may" decide. He wondered if the judge or another
individual decided. Mr. Skidmore replied that when he
referred to the courts he was referring to a judge.
Vice-Chair Ortiz asked if the adoption of the section
raised the bar for someone to receive credit for electronic
monitoring. Mr. Skidmore responded that it was more of a
changed criterion versus raising the bar which implied
making it more difficult. He indicated that the Chaney
Criteria were very broad, and any of the 5 circumstances
could apply in almost any instance that someone was on
electronic monitoring. He believed that a defense attorney
could make the case to a judge. He did not believe the
provision made it more difficult to award a credit.
Vice-Chair Ortiz asked if he was skeptical about giving the
judge more discretion. Mr. Skidmore thought it was very
easy to craft an argument that stated that pretrial
electronic monitoring would meet one of the 5 Chaney
Criteria. It was possible that a court could reject the
argument. However, he was skeptical that it would have the
type of outcome the public was looking for.
Representative Josephson asked if the clause was
effectively stating not to forget the thing that was
supposed to be remembered.
Mr. Skidmore responded that currently the law set forth
criteria for a judge to evaluate whether they thought
electronic monitoring would qualify under the statute to be
given credit. The court was not currently required to
consider the Chaney Criteria in making an evaluation. The
provision added something for a judge to consider, but he
did not see it making it less likely that the court would
award it. Rather, he thought it was one more box for the
court to have to check.
Representative Josephson suggested that the reason the
Chaney Criteria did not apply was that it applied at first
sentencing, not in the context being discussed. Mr.
Skidmore responded, "Correct."
Representative Josephson thought it might have given Judge
Corey the ability to do something different but probably
not. Mr. Skidmore did not want to put words in Judge
Corey's mouth. He could not anticipate how any particular
judge would decide any one particular case. As he had
previously indicated, he thought it was possible for a
judge to claim that certain circumstances did not meet the
Chaney Criteria. He believed that on a broad spectrum
across the state for all cases, he did not think it would
be as effective as other options.
2:48:19 PM
Co-Chair Wilson indicated the administration was getting
rid of electronic monitoring credit. She asked how many
individuals were given credit in the previous year and for
how long. She wanted to have an idea of the potential
fiscal impact. Mr. Skidmore did not know the answer to the
representative's question.
Co-Chair Wilson thought it was important to hear from DOC.
She thought the deputy commissioner from the department was
available. She relayed her question again. She wondered if
the department kept track of individuals on electronic
monitoring that did not receive credit versus individuals
that did.
2:49:40 PM
KELLY GOODE, DEPUTY COMMISSIONER, DEPARTMENT OF
CORRECTIONS, responded that the department would be aware
of individuals that were out and being supervised under
pretrial. The department did not monitor the numbers for
individuals that returned to the courts.
Co-Chair Wilson asked Ms. Goode if she knew of anyone that
tracked the numbers. Ms. Goode did not know of anyone
monitoring the numbers.
Co-Chair Wilson relayed that Ms. Mead from the Court System
was in the audience shaking her head no. She was concerned
because everyone was under the impression that everyone
that was on electronic monitoring would receive credit. The
statement was inaccurate. There were other provisions that
had to be met as well. She thought such data was necessary
in crafting the associated fiscal notes.
Vice-Chair Ortiz asked Mr. Skidmore if he saw value in the
possibility of a person being able to receive credit for
electronic monitoring.
Mr. Skidmore responded affirmatively. He argued that if DOC
thought that electronic monitoring was not an appropriate
sentence for an offence, it would not make sense for the
offender to receive credit. Conversely, if DOC suggested
that an individual should be on electronic monitoring, and
they had already been on electronic monitoring for a time,
it would make sense for them to receive credit for time
served. Currently, there was a provision in statute that
allowed electronic monitoring pretrial credit but was
limited to 1 year for certain offenses. He suggested that
instead of limiting the period to 1 year, the legislature
could define which offences could be served via electronic
monitoring. The legislature could also carve out certain
offences that would not be served via electronic
monitoring. He reaffirmed that, for certain offenses, it
made sense to allow credit for electronic monitoring
pretrial.
Co-Chair Wilson asked about the level of supervision as it
applied to electronic monitoring. Mr. Skidmore answered
that the limitations currently in statute were appropriate
limitations based on crime type. Co-Chair Wilson asked Mr.
Skidmore to provide additional detail about the
limitations. Mr. Skidmore had to look at the statute book.
Co-Chair Wilson commented that there had been significant
discussion on the issue.
Mr. Skidmore turned to AS 12.55.027:
(d) A court may grant credit against a sentence of
imprisonment for time spent under electronic
monitoring if the person has not committed a criminal
offense while under electronic monitoring and the
court imposes restrictions on the person's freedom of
movement and behavior while under the electronic
monitoring program, including requiring the person to
be confined to a residence except for a
(1) court appearance;
(2) meeting with counsel; or
(3) period during which the person is at a location
ordered by the court for the purposes of employment,
attending educational or vocational training,
performing community volunteer work, or attending a
rehabilitative activity or medical appointment.
Co-Chair Wilson asked about an example provided on the
House Floor. Mr. Skidmore responded that the answer
depended upon why, in Representative Wilson's example, the
person was walking down the trail. If the person was going
for a hike that was not court ordered, then they would be
in violation. However, if the person was walking on the
trail to get to an appointment he had described, they would
receive credit. The answer depended on the circumstance.
Co-Chair Wilson appreciated the distinction.
Representative Carpenter understood what Mr. Skidmore had
read from statute. He had not heard anything in relation to
the victim. He thought the reason for sentencing had to do
with the Chaney Criteria. In the constitution the goals for
sentencing had to do with protection and some sort of
punishment. He was concerned that victims would see a
disparity for those allowed to serve time at home versus
serving time in jail. He wondered if the judge would
consider the victim's perspective in determining
sentencing.
Mr. Skidmore responded that the consideration of a victim's
perspective on sentencing was required by law. However,
when the court decided on sentencing, it was not up to the
court to determine whether the offender served in a
maximum, medium, or minimum-security facility or in a
halfway house. Rather, DOC made determinations based on the
classification of the crime and what they thought was
appropriate for a particular offender. He did not have all
of the department's criteria with him. He suggested posing
the questions to DOC. They would make the decision about
the appropriate placement of an individual to serve their
sentence. The court decided how long a person needed to be
in the custody of the department. He understood
Representative Carpenter's sentiment. He had heard similar
sentiments.
2:57:43 PM
Mr. Skidmore continued to Section 37 which dealt with
presumptive sentencing ranges for felonies. Under current
law, a Class B felony had a sentencing range for a first
offense of zero to 2 years. Section 37 altered the amount
to be 90 days to 2 years which was not in HB 49. House
Bill 49 altered presumptive sentencing for Class B felonies
for a first offense to be 1 to 3 years and subsequently
changed the ranges for a second and third offence. It
essentially returned it to what it was prior to SB 91. The
current version of HB 49 did not adjust presumptive
sentencing for Class C felonies or Class A felonies. The
presumptive sentencing for both were adjusted in the
original version of HB 49. The second change was a
sentencing range from 2 to 4 years for misconduct involving
a controlled substance when the person to whom the
substances were being distributed was either under the age
of 18 or the person assisting in the distribution was
causing the person under 18 to engage in such conduct. It
was different than what was found in the original version
of HB 49.
Representative Josephson asked if it could have been the
intent of the Judiciary Committee, because of an amendment
to amplify Class C felonies in SB 54, to leave the first
presumptives matched with Class B felonies. He suggested it
was an attempt to leave some separation, which he thought
was a good thing. He believed Mr. Skidmore's point was that
it still did not restore the period prior to SB 91.
Mr. Skidmore was not in a position to comment on the intent
of the Judiciary Committee. However, Class B felonies, in
addition to the discussion that Representative Josephson
mentioned during SB 54 in October 2017 about Class C and
Class B felonies, had the same sentence for a first-time
offence of zero to 2 years. He had heard from the public
that zero to 2 years was not a long enough sentencing for
strangulation. He could not speak to the intention. He
could only explain what the law did and what the other
proposed provisions would do.
3:01:27 PM
Vice-Chair Ortiz queried about another statute that
contained a limitation for time served with electronic
monitoring. Mr. Skidmore responded that there was a
limitation of 1 year for certain types of offences. He had
suggested that instead of limiting it to 1 year, the
legislature could specify whether it wanted electronic
monitoring available at all. He agreed there was another
statute that limited it to 1 year.
Mr. Skidmore continued to the conforming amendment in
Section 38 on page 21. The conforming portion of the
amendment could be found on page 22 which removed the term
"online" from the crime of enticement of a minor which he
had mentioned earlier in the presentation. There was no
other substantive changes. There was a similar change for
the subsection on page 23.
Mr. Skidmore continued to Section 39 on page 4 halfway
down. It changed the sentencing for a Class A misdemeanor.
Prior to SB 91 sentencing for a Class A misdemeanor was
zero to 365 days. In current law and in SB 91 certain
offenses were limited to zero to 30 days. The change
increased the range to zero to 90 days. Also, there were
categories of offenses that were excluded from the limit of
30 to 90 days and added to the category of all domestic
violence crimes. Currently, there were some crimes against
a person that were in the excluded category. However, not
all domestic violence crimes were included. It could
include things such as criminal mischief, damaging of
property, and other things that were domestic violence
crimes but not necessarily an assault.
3:04:01 PM
Representative Josephson referred to page 25 which was
added to the bill through the amendment process. He
wondered if all crimes of domestic violence would trump the
90-day limit. Mr. Skidmore responded that Section 39 carved
out all domestic violence crimes so that they were excluded
from the 90-day period.
Co-Chair Wilson asked if there was an unlimited time that
the judge would be able to sentence. Mr. Skidmore replied
that the judge would be looking at zero to 365 days which
was the limit for a misdemeanor. The technical definition
between a misdemeanor and a felony was serving more than a
year in jail.
Co-Chair Wilson asked if any of Section 39 was in the
current version of HB 49. Mr. Skidmore answered in the
negative. He indicated that in the original version of HB
49 the sentence for all Class A misdemeanors was zero to
365 days. In the newer version the cap was expanded, and a
certain type of crime was excluded. It was not as broad of
an expansion as in the original HB 49.
3:05:19 PM
Vice-Chair Ortiz asked whether Mr. Skidmore supported the
section. Mr. Skidmore responded that whether it went from
zero to 90 days depended on what was being done with other
provisions of law. He provided some examples. The bill did
not go as far as what the administration had proposed,
however, it was a step in the right direction.
Co-Chair Wilson asked which data the administration used to
determine what to change in the bill. Mr. Skidmore thought
the Co-Chair was asking an excellent question about where
the discretion was appropriately placed for judges. He
remarked that by including the zero to 90 days and adding
the exception of domestic violence cases the legislature
was providing more discretion to judges and eliminating
problems prosecutors had found. For instance, in some of
the Driving Under the Influence (DUI) cases the 30-day cap
limits the prosecutor's ability to negotiate some things.
The 90 days allows for more time for negotiations. It did
not completely resolve the scenario in which a Class A
misdemeanor might be deserving of more than a 90-day
sentence. However, it was a step in the right direction.
Mr. Skidmore continued that the data prosecutors considered
prior to SB 91 was flawed and called into question the
changes that were originally made. Also, in looking at the
data that indicated the system and the ability to
incarcerate people and the judge's discretion in making the
determination were things that worked for a long time.
However, there were currently diminishing returns in
increasing sentencing. Lastly, the data the prosecutor
looked at were the ways in which the new version had worked
under law. The data that he relied on was communications
with law enforcement and prosecutors over the previous few
years about the problems they had with the way the law
read. The courts needed the discretion of zero to 365 days
on a case-by-case basis.
Co-Chair Wilson asked if it was normal for a person to have
more than one charge. Mr. Skidmore did not have a
statistical report. In his long career as a prosecutor he
had seen both scenarios very frequently.
3:11:16 PM
Mr. Skidmore spoke to Section 40 which had to do with Class
B misdemeanors. Under current law the sentence for a Class
B misdemeanor was zero to 10 days. Prior to SB 91, it was
zero to 90 days. The original version of HB 49 returned it
to zero to 90 days. The version under review was zero to 30
days. It was an improvement from zero to 10 days. He
suggested zero to 30 days might be a good compromise.
Representative Josephson referred to Subsection(b)(3)
regarding violation of conditions of release. He relayed
that the issue was a large item in 2017. The state moved
from a violation to a short sentence of a Class B
misdemeanor. He wondered what the administration bill did
in the subsection.
Mr. Skidmore answered that one of the differences between
the original version of HB 49 and the version before the
committee was there were things not found in the newest CS.
One of the things missing was violations of conditions of
release. There were no changes or adjustments made in the
CS. The original version of HB 49 returned them to a Class
A misdemeanor for a violation on a felony and a Class B
misdemeanor for a violation on a misdemeanor combined with
the changes in the sentencing. Instead of serving 5 days
for a violation, a person would serve zero to 90 days or
zero to 365 days depending upon the underlying crime.
Co-Chair Wilson asked if Representative Josephson was
talking about the current section or another.
Representative Josephson was talking about the concept page
25, line 18. He explained that offenders frequently
violated their conditions of release and entered into a
spiral. He asked Mr. Skidmore to comment as to why the
provision in the bill was important.
Mr. Skidmore clarified that Section 40 was being discussed
regarding violations of conditions of release that were
pretrial conditions - different from probation or parole
where there were also conditions. He explained that when a
person had violated their conditions of release the concept
contained in SB 91 reduced it to a violation rather than a
new crime. The result was that people were not being held,
and bail was not being adjusted as predicted with the
change. It was changed back to a crime with a sentence of 5
days.
Mr. Skidmore explained that the sentence of 5 days was
imposed in an attempt to bridge the gap from when the
arrest was made until the bail hearing could occur. It was
an improvement and a step in the right direction. He still
heard from folks that 5 days resulted in some sanction, but
still did not take into consideration the scope of
sanctions that occurred, nor did it adequately allow for
adequate response to egregious violations.
Mr. Skidmore presented an example prior to the passage of
SB 91. There was an individual who had set his wife on
fire. He was released from jail and bail and was told not
to contact his wife. He ended up contacting his wife and
charged him with violation of conditions of release but was
released again. He contacted her again. He had committed 2
violations of conditions of release before the case ever
made it to trial. Immediately after the fire had been
extinguished and she was in the hospital, the wife provided
multiple statements to first responders, family members,
and other. However, once the husband was out of jail and
contacting her again, the court had to arrest the wife and
escort her to trial to ensure her appearance. The court did
not have sufficient evidence to allow the prosecutor to
charge anything like tampering with a witness. It was the
prosecution and conviction of a violation of conditions of
release that allowed the courts to hold the husband in
custody until the time of trial. He offered the example to
help members understand what could happen in the system and
why violation of conditions of release could be very
important. His example was a success story prior to the
implementation of SB 91. It was not an instance that could
be repeated with the current laws.
3:16:58 PM
Vice-Chair Johnston asked if the case Mr. Skidmore
presented was prior to SB 91. Mr. Skidmore replied, "Yes."
Vice-Chair Johnston thought that in Mr. Skidmore's example,
the husband had violated conditions of release twice. She
asked if she was accurate. Mr. Skidmore responded
affirmatively. Regarding his example, he clarified that
violation of conditions of release prior to SB 91 allowed
the prosecutor to prosecute the husband for violation of
conditions of release and to hold him in jail for a
substantial period of time until the prosecution could be
conducted. He reported that in current law, it could not be
handled in the same way.
Vice-Chair Johnston thought embedded in the example was the
fact that someone violated their conditions of release
twice. She wondered about how the state dealt with
violations of conditions of release to avoid what happened
in Mr. Skidmore's example. She continued that prior to the
passage of SB 91 the amount was 5 days and did not seem to
work.
Mr. Skidmore shared the representative's frustration that
it took 2 violations to occur before the person was able to
be held in jail. His example illustrated how frequently
people already got off jail pretrial and the problems
prosecutors encountered. He advocated the importance of
having tools to respond to a problematic circumstance.
Since the time the specific case occurred, bail statutes
were changed (prior to the bail statutes being altered
again in SB 91). Outside of the bill being considered, he
thought bail issues needed to be further addressed. In
answer to the representative's question, he did not believe
5 days was sufficient for a violation of conditions of
release. He believed a greater sanction was needed than
what was in current law.
Vice-Chair Johnston asked how the original version of HB 49
compared to what was being proposed in Section 40. Mr.
Skidmore explained that the original version of HB 49, the
governor's version, stated that violations of release would
be returned to what it was prior to SB 91 - a Class A
misdemeanor if the crime the person had been charged with
was a felony. In his previous example, the offender had
been charged with a felony. He was charged with a Class A
misdemeanor twice. The sentence for the Class A misdemeanor
was zero to 365 days. Therefore, by the time he committed
the violation twice, the prosecutor could ask a judge to
impose up to 2 years. Under current law, the prosecutor
could only ask for up to 10 days.
3:21:22 PM
Mr. Skidmore moved to Section 41, 42, and 43 which were
conforming amendments. Words were being changed that were
consistent with language that was changed earlier in the
bill. No substantive law was being altered.
Mr. Skidmore reported that Section 44 required DOC to
notify a victim of domestic violence or sexual assault of
the option to obtain a protective order and to advise them
of some of the victim resources available in the state.
Mr. Skidmore continued to Section 45, page 27 - another
conforming amendment. He indicated that sections 45-50
dealt with sex offender registration.
Vice-Chair Johnston asked if most of the language was also
in SB 52. Mr. Skidmore replied that the language found in
the specific sections was not found in SB 52. He would
describe them together, then attempt to describe the
differences.
Vice-Chair Johnston asked if HB 52 dealt with sex offender
crimes. Mr. Skidmore confirmed that HB 52 primarily dealt
with sex offences.
Mr. Skidmore explained that in HB 52 the bill proposed to
say that a person required to register as a sex offender in
another state would be required to register as a sex
offender in Alaska. The concept behind the language was
that Alaska did not want to encourage people from other
states to move to Alaska simply to avoid a registration
requirement. He continued that HB 49 utilized some of the
language from HB 52 that would require a person to register
in Alaska. However, Section 46 went on to create provisions
that would allow an individual to register and to petition
to be removed from the requirement of registry if the crime
they committed in another state would not have been a crime
in Alaska. Currently, if a person committed a crime in
another state that was not currently a crime in Alaska,
they might have to register but could petition to have the
requirement waived.
Co-Chair Wilson asked if there was a court process. She
wondered if a judge would be involved. Mr. Skidmore replied
that Section 46 discussed the petition. He clarified that
the petition was not petitioning the court but DPS. The
administrative decisions made by DPS could be appealed to a
court. In the previous year, several decisions had been
made by DPS that were appealed to the courts. The courts
decided the person did not have to register. He referenced
a case. He reiterated that the petition was initially
submitted to DPS, but a subsequent appeal could be made to
the courts.
Co-Chair Wilson requested that someone from DPS come to the
table. She wondered if the department had been consulted.
3:27:01 PM
KELLY HOWELL, DIRECTOR, DIVISION OF ADMINISTRATIVE
SERVICES, DEPARTMENT OF PUBLIC SAFETY, reported that
Kathrine Monfreda was online and could better answer the
question.
Co-Chair Wilson restated her question.
3:27:30 PM
KATHERINE MONFREDA, DIRECTOR OF DIVISION OF STATEWIDE
SERVICES, DEPARTMENT OF PUBLIC SAFETY (via teleconference),
explained that one of her responsibilities was the
management of the sex offender registry. She had been
consulted about the provision and stated that it was
something the department could work with. The department
would continue to evaluate sex offender registrants in the
same way they were currently being evaluated. A petition
would be similar to an appeal they presently received. The
wording of the bill would allow the department to look at
the facts of the case for an underlying conviction, which
the department currently could not do because of the
Supreme Court decision. It would allow the department to
look at the actions that were taken to determine whether a
particular person should continue to register in Alaska.
Representative Josephson asked if there were states that
considered public urination a sexual offense act. Mr.
Skidmore was not in attendance, nor did he observe any of
the House Judiciary hearings and could not comment on the
thinking of the committee. In answer to his question
regarding public urination in Alaska, it was not in and of
itself a sex offense. However, if someone exposed their
genitalia to others under age, it could be a sex offense
and cause for registration. He had heard concerns about
what other states criminalized that might require
registration. He would want to see specifics.
3:30:57 PM
Representative Sullivan-Leonard asked Ms. Monfreda about
provisions in statute that oversaw sex offenders and child
kidnappers when an offender moved from one state to Alaska.
She queried whether the department monitored such
individuals. She wondered if Section 46 was necessary.
Ms. Monfreda replied that the issue was that the state had
to compare the offenses committed in another state and the
elements of the offenses to determine if they were similar
to elements of a sexual offense in Alaska. In some cases,
it had been determined that even though a sex offense in
another state did not contain all of the elements, the
courts did not allow the underlying of the offense. The
department had been told they had to use the elements of
the offense. She reported there had been numerous
circumstances in which a person had to register in one
state but not in Alaska.
Representative Sullivan-Leonard asked if Section 46 would
assist the department. Ms. Monfreda responded
affirmatively. The underlying actions could be taken into
consideration.
3:33:49 PM
Mr. Skidmore turned attention to Sections 51-54.
Vice-Chair Ortiz asked if Mr. Skidmore supported the sex
offender registration sections. Mr. Skidmore supported the
idea of sex offenders being required to register in Alaska
when they were already registered in other states. He did
not think the administration would support a petition. The
petition would allow a person to avoid having to register
because Alaska had not criminalized certain conduct. The
administration wanted to discourage anyone from coming to
Alaska to avoid registration. He stressed that the petition
would also be additional work by DPS to carry out the
petition idea.
Vice-Chair Ortiz suggested there would be negative
consequences. Mr. Skidmore agreed there were negative
consequences associated with someone failing to register.
He reiterated the concept that the state did not want to
encourage people to come to Alaska to avoid registration.
Co-Chair Wilson asked about the administration's crime
bills and why they introduced four of them. She wondered if
the administration hoped to have separate discussions.
3:37:10 PM
Mr. Skidmore reported that the administration offered four
separate crime bills in order for them to be moved through
with more concise deliberation. Currently, the bill being
discussed included several topics making the conversation
more unwieldy.
Co-Chair Wilson asked if, by combining them, it made it
more difficult to deliberate based on the time left in the
session. Mr. Skidmore had expressed empathy for legislators
having to understand and digest the vast amount of subjects
contained in the legislation. He appreciated the effort of
the legislature in trying to assess the bill quickly.
Having a number of items in the bill work together was
extremely important. He was hopeful, in the time remaining
in the session, that he could sit down with legislators to
explain the concepts in the bill making it easier for
members to make informed decisions.
Co-Chair Wilson conveyed she voted in favor of SB 91. At
the time the bill was voted on, she believed she understood
it. Otherwise, she would not have voted for it. Looking
back, she realized she did not understand certain portions
of the bill. She would not move the current bill from
committee without thoroughly understanding it. She would
rather do nothing than something that would place people in
a bind similar to the previous few years. She did not care
how much time was left in the session, it was her intention
to understand what was in the bill that would be passed
from committee. The disagreement would be about policy. She
asked members to let her know if they were not informed
enough to pass the bill from committee. The subject could
not be rushed, and the committee needed to make an informed
decision on the bill. She mentioned that a special session
might be in order to get the legislation right.
3:39:00 PM
Representative Josephson thought it sounded like Mr.
Skidmore was relatively satisfied with the contents of the
bill other than the petition section. He asked Mr. Skidmore
to comment on the current bill versus the governor's
original version and juvenile registration requirements.
Co-Chair Wilson asked if the concept was in the bill before
the committee. If not, she thought Representative Josephson
wanted to know what bill it existed in. Representative
Josephson responded affirmatively. Mr. Skidmore drew the
committee's attention to page 29, Section 48, line 30 at
the bottom of the page. The language included a person
charged and convicted as an adult of an offense that
required registration as a sex offender or child kidnapper
in another state. The bill limited the requirement to
adults who were obligated to register in other states. He
continued that HB 52 did not limit the requirement to adult
convictions.
Representative Knopp commented that many of the decisions
were policy calls and that there was not perfect
legislation. He surmised that the legislature fixed things
when needed. There were no guarantees. Co-Chair Wilson
appreciated Representative Knopp's remarks. She commented
that it was important to be comfortable with one's own
decisions.
Mr. Skidmore addressed Sections 51-54. They did two things
for a felony DUI and a felony refusal. Sections 51 and 52
repeated in Sections 53 and 54 regarding a refusal. Section
51 talked about where a person was required to serve a
sentence for a first-time DUI. When he first began
practicing, the law stated that a person had to spend 72
consecutive hours in a jail facility if they committed a
first DUI. Since then, the law changed allowing a person to
serve 72 hours at a community residential center (CRC) or a
halfway house. He continued that when SB 91 was enacted,
the law changed allowing a person to be on electronic
monitoring or on home arrest for the 72 hours. The
provision in Section 51 returned it to a CRC. It was left
to the discretion of the commissioner of DOC to decide on
another appropriate place for a person to serve their 72
hours. Although not mandated, a person could be on
electronic monitoring at a private residence. He wanted to
provide historical information.
Co-Chair Wilson asked Mr. Skidmore to comment on the
administration's position.
3:44:43 PM
Mr. Skidmore replied that Section 51 was the same as what
was found in the original version of HB 49. He thought it
was something the administration supported. He referred to
Section 52 which addressed felony DUIs. However, the newest
version of the bill made it easier for a license to be
returned to an individual when it was revoked for a felony
DUI. It stated that a person could have their license
returned after 10 years if they had steered clear of a
subsequent criminal offense. He suggested that while it was
a provision that was not in the original HB 49, it was a
concept that provided a way back to having a license for
those convicted of a felony DUI. He had heard stories about
people who should not have had their license restored but
heard many more stories about people who benefited from
their license being restored. In many cases it played a
critical role in a person's ability to function in society
including being able to have a job or go to the grocery
store. He relayed a personal experience of hiring a painter
with a felony DUI who had difficulty conducting his
business. It was a provision that could be helpful.
Co-Chair Wilson countered that the people who had offended
twice would be subject to loosing their license upon a
third DUI. She wondered if it would diminish the severity
of getting 3 DUI convictions.
3:47:40 PM
Mr. Skidmore responded in the negative. He explained that
at the third DUI in 10 years a person received a felony and
would encounter significant additional consequences. He
explained that when he first started as a prosecutor,
revocation of a driver's license was about 10 years. Later
it was changed to a lifetime. The provision was trying to
strike a balance. The felony carried a much more
significant jail sentence, a greater fine, and other
provisions associated with a felony offence.
Representative Josephson saw the provision as a win-win
from both a prosecutor's and a defense attorney's
standpoint. He asked if he was accurate.
Mr. Skidmore highlighted lines 13-15 that limited who could
apply for their license to be returned. He referenced
Alaska Statute 11.41.100, a crime of murder; AS 11.41.210,
an assault crime; AS 11.41.280,[an assault on an unborn
child in the first degree]; and AS 11.41.282, [an assault
of an unborn child in the second degree]. The provision
outlined that a person committing certain types of crimes
would not be eligible to have their license reinstated. For
individuals that were eligible, the reinstatement of their
license would help to fulfill the goal of rehabilitation.
He reiterated that it was an appropriate compromise
striking a balance in the system.
3:50:24 PM
Mr. Skidmore reported that Section 53 did the same thing
for a felony refusal. He explained that if a person was
arrested for a DUI and refused to provide a breath sample,
it would be criminalized in the same way as a DUI. The same
restrictions on a driver's license would apply, and the
same proposal to allow a driver's license to be returned
would apply.
Mr. Skidmore addressed Section 55 on page 34, line 23. The
section created a statute that required a risk and needs
assessment for a person sentenced for more than 90 days in
jail. The assessment required the coordination with
community reentry and a subsequent report. The section was
partially in law but was amended. He referred to the
sections on page 35, line 29 in Subsection 7. He reported
that the risk assessment used to be required after 30 days
but was changed to 90 days staying consistent with the
change in Class A misdemeanors. There were similar changes
on page 36, lines 7-8 that took into account what was going
on after sentencing and discussed the rest of the program.
Mr. Skidmore continued to discuss Section 55 moving to page
37, lines 4-5 about the coordination of reentry programs, a
new addition to the bill. Lines 15-25 included the new
information requiring the report he had mentioned regarding
the risk assessment needs and the coordination of community
reentry.
3:52:57 PM
Mr. Skidmore moved to Section 56 on page 37 which was a
conforming amendment regarding drugs. It changed the
statutes related to changes made earlier in the bill. There
were no substantive rights that were changed, it only added
another statute number.
Mr. Skidmore continued to Section 57 which added law to the
departments that had to provide data to the Alaska Criminal
Justice Commission in other reports that were previously
mentioned in statute. He reported that Sections 58 and 59
on page 38 addressed a report that the Department of Law
had to provide in conjunction with DPS relating to sex
offenses. Certain information was requested to be provided
including the number of cases reported to law enforcement
that were not referred to prosecutors; the number of cases
that were referred by law enforcement to prosecutors that
were not prosecuted; the number of sex offense cases that
were prosecuted that were resolved as non-sex offenses; and
the number of victims that participated in court
proceedings. He relayed that Sections 7-59 were reporting
requirements not originally found in HB 49. Some of the
requirements were added to SB 35 [Short Title: CRIMES; SEX
CRIMES; SENTENCING; PAROLE], in the other body, that dealt
with sex offences.
Mr. Skidmore moved to Section 60 having to do with sex
assault kit examinations. It was not originally found in
HB 49. However, it was found in HB 20 [Short Title: SEXUAL
ASSAULT EXAMINATION KITS] that had been discussed in
another meeting. The bill was sponsored by Representative
Geran Tarr. Generally, what was found in Section 60 was
that sex assault kits were required to be sent to the lab
within 30 days. Once received by the lab, they were
required to be tested within one year. He continued that
within two weeks of the testing it was required that the
victim be notified that the testing was complete. There
were some exemptions found in Section 63. He would review
Section 61 first.
Mr. Skidmore explained that Section 61 required that all
kits be accounted for each year. Section 62 required a
report of the accounting of all kits found in Section 61.
Section 63 exempted kits from testing requirements for
three reasons: If they were scientifically unviable, if
they did not meet the requirements for entry into CODIS
(the program in which DNA was entered for other felonies or
sex offences for the purpose of solving unsolved crimes),
or if they were anonymous kits. He explained that in Alaska
and under federal law the state was required to report a
sexual assault to a medical provider and not to law
enforcement. A victim could have a medical provider collect
evidence in a sexual assault kit but could specify that
they did not want to pursue the prosecution of the sexual
assault. Therefore, the assault would not get reported to
law enforcement and the kit would be collected anonymously.
If a person wanted the evidence to be helpful, it had to be
collected quickly after the incident occurred. There were
times a victim might go through significant trauma and
might be trying to process and deal with what happened to
them. They might not be prepared to take on what was
involved in a criminal prosecution, but they might want to
later. If the evidence was collected and held anonymously,
it allowed a person to come to a decision later on.
Mr. Skidmore moved to Section 64 which contained conforming
language for the Department of Juvenile Justice in
disclosing certain information about crimes that they would
charge for juveniles. The section was conforming because it
conformed to the changes made earlier in the bill relating
to drug offenses.
3:59:01 PM
Mr. Skidmore moved to Section 65 which had to do with the
ability of a prosecutor to use an Alaska Public Safety
Information Network (APSIN) report. He explained that APSIN
was the place to look for criminal history in Alaska for
other offenders. At the grand jury level one of the
elements that had to be established was that the person had
a certain type of conviction in their history. Prosecutors
were allowed to use APSIN to establish history at a grand
jury but not at trial for a felony DUI or for a felony
refusal. Prosecutors were not allowed to use APSIN if the
case had to do with a felon in possession. He provided an
example. He indicated that the rationale in the section was
that if it was good enough for a felony DUI, it should be
good enough for other offenses. It did not change any
substantive right. It was an efficiency concept for grand
jury.
Mr. Skidmore indicated Section 66 contained repealers, of
which there were only three. Section 67 contained
applicability. Section 68 talked about a report to the
legislature. Section 69 addressed an uncodified law for the
conditional effect because some rules were being changed
that required a two-thirds majority vote, and section 70
contained the effective date.
Representative Josephson asked if the last repealer in
Section 66 was the section in which the Judiciary Committee
stripped out petty theft penalties. He wondered if the
effect of the repealer was to revert to the 90-day cap or
the 30-day cap under a Class B misdemeanor. He asked if he
was accurate.
Mr. Skidmore clarified that Representative Josephson was
referring to AS 12.55.137 (l). The subsection set caps for
low-level theft crimes. In SB 91 it had them at no jail
time. In SB 54 in October 2017 the no jail sentences were
expanded to be 5, 10, and 15 days for subsequent offenses.
The current bill removed the caps in the low-level jail and
authorized the sentence range to be determined by the
legislature for Class B misdemeanors. Currently, the
sentence range was zero to 10 days. The version of HB 49
before the committee changed it to zero to 30 days. The
original version of HB 49 had a range of zero to 90 days.
Depending on the provision of sentencing the legislature
decided on for a Class B misdemeanor would depend on what
range was decided on for the low-level thefts. The effect
of the repealer removed the caps and made the range
selected for Class B misdemeanors the effective range for a
particular crime.
4:03:06 PM
Representative Josephson noted that Mr. Skidmore had talked
about the absence of a restoration of the presumptive in
the As and Cs in the bill. He asked if there was anything
else not in the bill. He was not asking about probation,
parole, or pretrial.
Mr. Skidmore clarified that he was talking about the bill
that was referred to as sentencing and classification which
was the original version of HB 49. He would not be
referring to the other bills that were introduced that
dealt with pretrial, probation, parole, and sex offences.
He provided a list of things no longer in the current
version of HB 49. Escape was not found in the current
version of the bill. Escape in the third degree was altered
in the original HB 49 so someone that had an electronic
monitoring device on them pretrial would commit a Class C
felony with the removal of it. If someone had an ankle
monitor on for a misdemeanor, it was a lower-level escape
crime, and the original HB 49 elevated it to a Class C
felony offense.
Mr. Skidmore brought up the second change, a change in the
sentence for disorderly conduct of 24 hours to zero to 10
days in the original version. The change was not in the
newer version. Another change was made to probation
periods. The original HB 49 returned the maximum period of
probation that could be imposed to what it was prior to
SB 91. For sex offenses it was 5 years. Under current law
it was under 15 years. For non-sex offenses prior to SB 91
it was a 10-year maximum. Under currently law there was a
cascading approach to the maximum period of probation which
he could not recall. There were various levels.
Mr. Skidmore noted he had already discussed the felony
presumptive ranges, the differences in Class A misdemeanors
and Class B misdemeanors and DUIs. He thought he had
covered all of the differences between the original version
of HB 49 and the current one before the committee. Co-Chair
Wilson requested the section numbers in the original bill.
Mr. Skidmore relayed the different section numbers to the
committee. He would be happy to find the other section
number and provide it to the representative.
Vice-Chair Ortiz asked about the maximum period of
probation and about an impact on deterrence. Mr. Skidmore
relayed that the maximum period of probation was a concept
that could impact multiple issues. There had been a
question earlier about treatment not being able to be
completed in the set time period. The period of probation
was the timeframe to be able to complete conditions
including treatment. If the probation period was
insufficient, time would run out before a person could
complete treatment. A longer period of probation provided a
greater period of time for a person to comply with
conditions. In terms of sex offenses, the containment model
existed which monitored people on probation very closely
and carefully. The containment model has been very
effective. The period of probation being reduced from 25
years to 15 years meant that 10 years of containing a sex
offender for treatment would potentially be lost.
Mr. Skidmore recalled another item that was not found in
the current version of HB 49 that was contained in the
original bill. It dealt with involuntary commitments. He
explained that there was a provision that required data to
be transferred from the Court System to DPS which was when
someone was involuntarily committed. The mental commitments
disqualified an individual from obtaining a firearm unless
courts had decided the person was currently acceptable to
have a firearm. A second hearing would have to take place
revoking the mental illness designation of an individual.
He noted a number of shootings that had taken place
recently in the country. The concept, although it did not
solve all problems, was important enough to be endorsed by
the National Rifle Association. He noted that the provision
did not change a person's substantive rights, it was a data
transfer. The court had been particularly concerned about
the provision because they had to go back to records from
1981 when the State of Alaska began mental commitments. It
would take effort. There had been discussions between the
Court System and DPS about whether there were available
grant funds. The importance of a mental commitment was to
ensure that Alaska was able to actively participate and
comply with federal law for ensuring mental commitment
information was supplied to the Department of Law for
ensuring mental commitment and information supplied to DPS
that they can help gun dealers to comply with federal law.
4:11:01 PM
Vice-Chair Johnston asked if Mr. Skidmore would provide an
email to members with the sections that were no longer
included in the newest version of the bill. Mr. Skidmore
relayed that he was happy to provide an email and happy to
follow up with individuals. Vice-Chair Johnston was really
interested in the things that reflected changes in the
administration's version of HB 49.
Representative Josephson relayed that the concept of
involuntary commitment passed in 2014 and was introduced in
2014.
Vice-Chair Ortiz mentioned areas of the current version of
the bill that were positive that the original version did
not do. He wondered if Mr. Skidmore could comment about
acting on the bill in its current form. Co-Chair Wilson did
not believe the question should be asked of Mr. Skidmore
presently. She was grateful to him for coming to the
committee on short notice to present the bill's sectional
analysis. She would like to hear his answer to the question
after he had the opportunity to further study the bill.
4:15:14 PM
Representative Knopp imagined Mr. Skidmore's department
crafted the original version of HB 49. Mr. Skidmore
responded that he was involved in the bill drafting.
Representative Knopp asked if there was a side-by-side
comparison between current law and the original HB 49. Mr.
Skidmore replied that the department attempted to produce a
matrix showing law prior to SB 91, the changes made in SB
91, the changes in SB 54 or HB 312, and HB 49. The matrix
had been updated as it progressed in the other body. He
would check if he had the information.
Representative Knopp was not interested in anything prior
to SB 91. He was only interested in SB 91 and forward.
Co-Chair Wilson had a copy and would supply it to members.
Co-Chair Wilson provided the call-in numbers for public
testimony at 5:00 P.M. She hoped to hear from several
members of the public.
HB 49 was HEARD and HELD in committee for further
consideration.
ADJOURNMENT
4:18:40 PM
The meeting was adjourned at 4:18 p.m.
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