Legislature(2019 - 2020)BELTZ 105 (TSBldg)
03/25/2019 01:30 PM Senate JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB33 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 33 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 33-ARREST;RELEASE;SENTENCING;PROBATION
1:31:41 PM
CHAIR HUGHES announced that the only order of business would be
SENATE BILL NO. 33, "An Act relating to pretrial release;
relating to sentencing; relating to treatment program credit
toward service of a sentence of imprisonment; relating to
electronic monitoring; amending Rules 38.2 and 45(d), Alaska
Rules of Criminal Procedure; and providing for an effective
date." [CSSB 33(STA) was before the committee.]
CHAIR HUGHES made preliminary remarks.
1:32:31 PM
JOHN SKIDMORE, Division Director, Criminal Division, Department
of Law, Anchorage, stated that the majority of SB 33 relates to
pretrial issues. The issues related to bail were a response to
the public outcry about bail being considered a "catch and
release" program, which was how a KTVA television station dubbed
it in an April 12, 2018 newscast. This bill would return the
vast majority of sentences to pre-Senate Bill 91 law. He said he
would highlight other changes to the law.
1:34:23 PM
MR. SKIDMORE reviewed Section 1.
Section 1: Legislative intent. Expressing intent that
the Alaska Court System use videoconferencing for
pretrial hearings.
This would encourage the court to move forward with
videoconferencing in pretrial hearings, he said.
1:35:06 PM
MR. SKIDMORE reviewed Section 2.
Section 2: Increases the amount of time available for
an arraignment to happen from 24 hours to 48 hours
from the time of arrest. Eliminates language related
to proceeding with an arraignment regardless of the
availability of a risk assessment conducted by a
pretrial services officer.
MR. SKIDMORE explained that Section 2 would revert to pre-Senate
Bill 91 law. He related that the 48-hour requirement from the
time of arrest to arraignment falls mid-range compared to other
states' requirements. In 2010, Alaska was one of only two states
that relied on a 24-hour requirement. Most states had moved to
48 hours and some to 72-hour provisions, he said.
He said the Department of Law envisions that reinstating the 48-
hour requirement would be helpful during weekends or holidays
during higher arrest periods. The compressed time period does
not allow the department time to review cases and file charges.
In response to Chair Hughes, he recalled that at least 95
percent of the cases were filed within the 24-hour limit, but it
could even be higher.
1:37:42 PM
SENATOR KIEHL asked whether any offenders were released because
their arraignments were not held timely.
MR. SKIDMORE responded that he was unsure. He said that in some
instances the charges had to be amended. He reiterated that the
department viewed this change as beneficial during weekends,
especially on Sundays. He recalled that the department
previously estimated it could save $50,000 by not holding
arraignments on holidays and weekends.
1:38:57 PM
MR. SKIDMORE directed attention to page 2. He reviewed Section
3.
Section 3: Eliminates language related to a risk
assessment conducted by a pretrial services officers.
MR. SKIDMORE characterized Section 3 as a conforming amendment
to remove reference to the risk assessment tool throughout the
bill since it would no longer be used.
1:39:40 PM
MR. SKIDMORE reviewed Section 4.
Section 4: Eliminates language requiring a judicial
officer to review any condition of release that has
prevented the defendant from being released. Also
eliminates language requiring a judicial officer to
find by clear and convincing evidence that a less
restrictive condition cannot reasonably ensure the
defendant's appearance or the safety of the victim.
MR. SKIDMORE referred to page 2, lines 26-28 of the bill, which
read, "THE JUDICIAL OFFICER SHALL REVISE ANY CONDITIONS OF
RELEASE THAT HAVE PREVENTED THE DEFENDANT FROM BEING RELEASED
" Removing this language means that the court would not be
required to revise conditions, he said. If this law were to
pass, the court could consider whether conditions should be
changed, but it would not require the court to change those
conditions.
1:40:44 PM
SENATOR KIEHL related his understanding that current law would
require the court to change the defendant's conditions of
release if less restrictive conditions would ensure public
safety and that the person would show up for a hearing. He asked
whether he had misunderstood the provision.
MR. SKIDMORE read a portion of the language being deleted from
current law:
[UPON REVIEW OF THE CONDITIONS, THE JUDICIAL OFFICER
SHALL REVISE ANY CONDITIONS OF RELEASE THAT HAVE
PREVENTED THE DEFENDANT FROM BEING RELEASED UNLESS THE
JUDICIAL OFFICER FINDS ON THE RECORD THAT THERE IS
CLEAR AND CONVINCING EVIDENCE THAT LESS RESTRICTIVE
RELEASE CONDITIONS CANNOT REASONABLY ENSURE THE ?.]
He said the department interpreted this to mean that the
judicial officer "shall" revise any conditions that prevented a
defendant from being released unless the officer found by clear
and convincing evidence that the person posed a danger. Under
pre-Senate Bill 91 law, the court could exercise its authority
to determine what conditions were appropriate based a
preponderance of the evidence. This change would place a greater
requirement on the court and restrict the court's discretion.
1:42:30 PM
MR. SKIDMORE directed attention to page 3 of SB 33, to Section
5.
Section 5: Eliminates inability to pay as a reason for
a judicial officer to conduct subsequent bail hearings
and a review of the person's conditions of release.
MR. SKIDMORE said Section 5 would require that new circumstances
must be presented in order to change any conditions of release.
Under current law, if a person was unable to post bail, the
person's inability to pay bail could be considered as a new
condition. This means that the person's ability to pay could be
considered twice, once when the bail was initially set and again
when bail was revised. Section 5 would revert to pre-Senate Bill
91 law, he said.
1:43:50 PM
SENATOR KIEHL asked why this change should be made given that
financial circumstances often change. For example, the person
might rely on an aunt or uncle to help post bail, but these
relatives might not be able to do so. He asked whether these
changes would no longer matter to the court.
MR. SKIDMORE responded that a family member's ability to post
bail is not considered when bail is set. He referred to page 4,
[lines 29-31 through page 6, line 13] of Section 7, which read:
(c) In determining the conditions of release under
this chapter, the court shall consider the following:
(1) the nature and circumstances of the offense
charged;
(2) the weight of the evidence against the
person;
(3) the nature and extent of the person's family
ties and relationships;
(4) the person's employment status and history;
(5) the length and character of the person's past
and present residence;
(6) the person's record of convictions;
(7) the person's record of appearance at court
proceedings;
(8) assets available to the person to meet
monetary conditions of release;
(9) the person's reputation, character, and
mental condition;
(10) the effect of the offense on the victim, any
threats made to the victim, and the danger that
the person poses to the victim; and
(11) any other facts that are relevant to the
person's appearance or the person's danger to the
victim, other persons, or the community.
He said subsection (c) would allow 11 items that can be
considered. He reviewed several. Paragraph (3) reads, "the
nature and extent of the person's family ties and
relationships," which does not refer to a family member's
ability to post bail, he said. Paragraph (4) reads, "the
person's employment status and history." This would give the
court some sense of the person's income, he said. If the person
were to lose his/her job in the interim, it would provide a new
piece of information. However, the bail hearing would be held
based only on the loss of a job and not an inability to pay.
MR. SKIDMORE directed attention to paragraph (8), which read,
"assets available to the person to meet monetary conditions of
release;". He said that the defendant's assets, but not the
defendant's family or friends is one of the factors the court
would consider when initially setting bail. If the defendant's
assets were to change it would be considered a new condition. An
inability to pay simply would mean how much money the person had
in his/her bank account. Other factors that might impact the
person's inability to pay should initially be considered, he
said.
1:47:06 PM
CHAIR HUGHES asked what timeframe was involved when setting the
initial bail. She referred to paragraph (3) on page 3 that
states "at least seven days have elapse." It would be unlikely
that significant changes in assets would occur during this short
timeframe.
MR. SKIDMORE answered that the defendant's bail would be set at
the initial arraignment. The court would evaluate and set bail
the first time the person appears in court. The statutes
indicate that if the person has not been released in the first
48 hours after bail has been set, the person can request a
subsequent bail hearing. The defendant could articulate any new
information or factors that the court did not have at the time
of the initial hearing. In his experience, those factors
typically include things such as that the defendant proposes
being released to a third-party custodian, or the defendant
requests electronic monitoring. He could not recall any instance
when the person requested the same bail amount. Instead, the
defendant always requested reducing bail combined with the new
proposal for conditions of release. He pointed out that the bail
hearing could happen within 48 hours and it can be repeated as
often as new information becomes available. This provision seeks
to eliminate multiple bail hearings on subsequent days in which
the same information was being presented.
1:49:24 PM
MR. SKIDMORE reviewed Section 6.
Section 6: Conforming amendment. Eliminates reference
to AS 33.07.
He said that this conforming amendment would pertain to the
responsibilities of pre-trial services officers.
1:49:41 PM
MR. SKIDMORE reviewed Section 7.
Section 7: Largely reenacts the bail statute as it was
prior to January 1, 2018. Eliminates the requirement
that the release decision be tied to a person's risk
assessment score. Eliminates the presumptions of
release and the requirement that a judicial officer
find by clear and convincing evidence that no less
restrictive condition can ensure the appearance of the
defendant or safety of the community or victim before
a judicial officer can impose monetary bail.
MR. SKIDMORE said Section 7 begins on page 3, line 30. This
provision was previously discussed in response to Senator
Kiehl's question. Section 7 would revert to pre-Senate Bill 91
law. He directed attention to subsection (a), AS 12.30.011,
which states that a judicial officer "shall order a person
charged with an offense to be released on the person's own
recognizance?." He said that this would provide a starting
point. It is required per the Constitution of the State of
Alaska, he said.
MR. SKIDMORE reviewed subsection (b):
(b) If a judicial officer determines that the release
under (a) of this section will not reasonably assure
the appearance of the person or will pose a danger to
the victim, other persons, or the community, the
officer shall impose the least restrictive condition
or conditions that will reasonably assure the person's
appearance and protect the victim, other persons, and
the community. In addition to conditions under (a) of
this section, the judicial officer may, singly or in
combination, ?
He explained that subsection (b) would set out 20 conditions
that could be imposed. This new subsection seeks to include as
many options as possible for the court to consider. Some options
include the appearance bond, bail bond, performance bond,
restriction on travel and association, restrictions on
possessing weapons, the requirement to maintain employment,
restrictions on contact with victims, and restrictions related
to alcohol use. All of these conditions were found in the pre-
Senate Bill 91 law, he said.
MR. SKIDMORE explained that the new language in paragraph (18)
would allow the court to order pretrial services officer
supervision. While Senate Bill 91 law implemented pretrial
services officers, SB 33 would modify the organization of the
supervision within the Department of Corrections.
MR. SKIDMORE reviewed subsection (c).
(c) In determining the conditions of release under
this chapter, the court shall consider the following:
(1) the nature and circumstances of the offense
charged;
(2) the weight of the evidence against the person;
(3) the nature and extent of the person's family
ties and relationships;
(4) the person's employment status and history;
(5) the length and character of the person's past
and present residence;
(6) the person's record of convictions;
(7) the person's record of appearance at court
proceedings;
(8) assets available to the person to meet monetary
conditions of release;
(9) the person's reputation, character, and mental
condition;
(10) the effect of the offense on the victim, any
threats made to the victim, and the danger that the
person poses to the victim; and
(11) any other facts that are relevant to the
person's appearance or the person's danger to the
victim, other persons, or the community.
MR. SKIDMORE reviewed Section 7, subsection (d), which began on
page 6. He explained that pre-Senate Bill 91 law created a
rebuttable presumption that no condition or combination of
conditions could ensure the safety of the community or that a
person would not be a flight risk. That provision was
subsequently found unconstitutional by the [Alaska Court of
Appeals] under Hamburg v. State.
He said that Section 7 of SB 33 would allow an individual under
certain circumstances to meet a rebuttable presumption that a
person would likely appear or would not pose a danger. This
significant change would allow the court to set some conditions
or combination of conditions for bail.
1:53:51 PM
CHAIR HUGHES directed attention to page 6, line 2, and asked for
clarification that this language was not in pre-Senate Bill 91
law or in Senate Bill 91.
MR. SKIDMORE answered by referring to page 6, line 18, AS
12.30.011(d)(2), which read:
(2) there is a rebuttable presumption that there is a
substantial risk that the person will not appear, and
the person poses a danger to the victim, other
persons, or the community, if the person is
He said that this language gave the impression that bail should
not be set because it was not possible to ensure the conditions
could be met. However, the Constitution of the State of Alaska
provides that a person is entitled to reasonable bail, so that
language was found unconstitutional.
CHAIR HUGHES asked whether the unconstitutional language just
described was in pre-Senate Bill 91 law or if it was in Senate
Bill 91.
MR. SKIDMORE reiterated that this language would revert to pre-
Senate Bill 91 law. However, the language was altered in SB 33
to ensure that it would be constitutional.
1:55:47 PM
SENATOR KIEHL related his understanding that there was an
unconstitutional presumption that bail would not work, and
Section 7 would provide replacement language that presumes that
bail would not work. He said he was unsure of the distinction.
MR. SKIDMORE explained that the specific language in pre-Senate
Bill 91 law meant that no condition or combination of conditions
could ensure the safety or appearance of an individual so the
courts denied bail because it could not impose any condition
that would ensure the person would not flee or commit a new
crime. That restriction meant the defendant could not post bail
and be released from jail during the pretrial phase [contrary to
their constitutional right].
He explained that SB 33 started with the premise that it was
appropriate for a defendant to be out on bail. However,
defendants charged with certain crimes, such as murder or sexual
felonies could be denied bail because being released on their
own recognizance would not be appropriate. The presumption is
that some other conditions would need to be set, he said.
SENATOR KIEHL pointed out that this subsection does not appear
to set the standards for the pretrial conditions for defendants
charged with more dangerous crimes.
MR. SKIDMORE referred to conditions of release in Section 7. The
presumption would be that conditions for bail must be imposed
rather than to allow the defendant to be released from jail on
his/her own recognizance, he said. He referred to page 4, line
14 through page 5, line 28, that outlined the types of
conditions that the court could select, including electronic
monitoring, assigning a third-party custodian, supervision by
pretrial services, or placing restrictions on contact with a
victim. This language removed the concern that none of the
conditions would ensure the safety of the community or the
defendant's appearance in court, he said.
2:00:25 PM
SENATOR MICCICHE observed that AS 12.30.011 currently includes
an unsecured performance bond and an appearance bond. He asked
what the difference was between those bonds. He further asked
why the performance bond was removed in SB 33.
MR. SKIDMORE explained that an appearance bond would be issued
to ensure someone appears in court whereas a performance bond
would be issued to ensure that someone complies with all the
other conditions of bail. The appearance bond would be forfeited
for not appearing in court. The performance bond would be
forfeited if the defendant violated any of the conditions for
release, such as consuming alcohol. In further response to
Senator Micciche, he directed attention to subsection (b)(3) on
page 4, lines 19-20, which requires the execution of a
performance bond in a specified amount of cash to be deposited
in the registry of the court.
2:02:31 PM
MR. SKIDMORE reviewed Section 8.
Section 8: Eliminates the requirement that a pretrial
services officer not be available in the area before a
third-party custodian can be appointed.
MR. SKIDMORE explained that pretrial services officers were a
new concept in Senate Bill 91 law, which required pretrial
services officers to be used whenever possible. However, that
law did not allow the use of third-party custodians. Section 8
would change that by allowing the court an option to assign a
pretrial services officer supervised by the Department of
Corrections, a third-party custodian, or the use of electronic
monitoring in every location. This would provide public safety
and ensure that defendants would appear in court. The advantage
of having options would mean the court would have greater
discretion to select the most appropriate condition in each
instance. Since the pretrial service officer responsibilities
were reorganized within the department, a pretrial services
officer would not be limited to a specific geographic area, he
said.
2:04:23 PM
SENATOR KIEHL said he had questions about the efficacy. He asked
which method of supervision would work better to ensure that
defendants appear at court dates and that defendants received
appropriate sanctions for any violations of pretrial conditions.
He remarked that he has anecdotally heard horror stories about
third-party custodians.
MR. SKIDMORE argued that it was not a question of whether third-
party custodians or pretrial services officers are better, but
to consider what worked best on a case-by-case basis.
During his 20 years of experience working in the communities of
Dillingham and Bethel he found it was not feasible for pretrial
officers to be located in every community, especially in small
villages, such as Togiak. He suggested that it might be more
effective to assign a third-party custodian. More often than
not, he has seen third-party custodians succeed. The court and
the prosecution must evaluate third-party custodians to ensure
that they are able to provide appropriate services, he said. He
offered his belief that having all three options would help
provide public safety. In further response to Senator Micciche,
he clarified that under current law, when pretrial services
officers are available a third-party custodian cannot be used.
SENATOR MICCICHE asked whether the DOL has considered imposing
sanctions or violations on third-party custodians who do not
fulfill their agreements.
MR. SKIDMORE answered that currently third-party custodians who
do not perform their responsibilities would be in violation of
AS 11.56.758.
CHAIR HUGHES asked for the current number of pretrial services
officers. She further asked how often the department would use
these officers rather than third-party custodians.
2:10:12 PM
JENNIFER WINKELMAN, Director, Division of Probation and
Parole/Pretrial, Department of Corrections, Juneau, reported
that the division has a total of 78 staff assigned to pretrial
services. The division has hub offices in Kenai, Juneau, Palmer,
Fairbanks, and Anchorage. Palmer and Fairbanks each have nine
officers and one supervisor, Anchorage has 20 officers and three
supervisors, Kenai and Juneau each have three officers, and
Ketchikan has one officer. They all operate out of the Division
of Probation and Parole offices, she said.
CHAIR HUGHES asked whether third-party custodians are necessary
to ensure adequate coverage, especially since the officers are
not in some villages.
MS. WINKELMAN answered that it is more likely that pretrial
services officers would not be available in villages,
particularly ones outside of Nome or Bethel. She said that using
third-party custodians could be more beneficial in smaller rural
communities. She said she was uncertain if using third-party
custodians would be a better option than using pretrial services
officers, but she agreed that having the option available would
be beneficial.
CHAIR HUGHES asked for further clarification on whether the
pretrial services officers typically travel to communities but
do not live in the community in which they work.
MS. WINKELMAN answered that the pretrial services officers
travel to rural areas based on the department's supervision
policy and they must provide supervision once every four or six
months. She said she would have to review the policy.
CHAIR HUGHES asked about accountability for third-party
custodians and whether any improvements were needed.
MS. WINKELMAN offered to research it and report back to the
committee. She said that third-party custodians were assigned by
the court, so she has not reviewed accountability issues.
2:13:33 PM
SENATOR MICCICHE said AS 11.56.758 seems to be directed at
immediate reporting. He read, "Violation of a custodian's duty
is a class A misdemeanor if the released person is charged with
a felony and a class B misdemeanor if the released party is
charged with a misdemeanor." He recalled in at least one
instance a third-party custodian supplied drugs to the defendant
released on charges of drug possession. He asked if third-party
custodians are ever charged under the penalty provision.
MR. SKIDMORE answered that while he did not have the statistics
on the frequency of charges made under AS 11.56.758 with him, he
recalled that prior to Senate Bill 91 law this provision was
used. He was unsure if any additional charges could be filed
when a third-party custodian supplied narcotics to the
defendant. However, if the narcotics were illegal, additional
criminal charges should have been filed. This statute currently
exists to provide enforcement of the responsibility for third-
party custodians, he said.
SENATOR MICCICHE said the committee should review this further
and institute some clear expectations and consequences for
third-party custodians.
CHAIR HUGHES agreed, especially since the vast number of
communities do not have pretrial services officers.
2:16:40 PM
SENATOR KIEHL asked what the existing standards are for third-
party custodians.
MS. WINKELMAN deferred the question to Mr. Skidmore.
MR. SKIDMORE said that the standards for third-party custodians
approved by the court are found in AS 12.30. He said that the
court would evaluate whether the person would be a good third-
party custodian, but he was not aware of any established
criteria. However, Section 9 does identify the criteria when a
third-party custodian cannot be appointed.
SENATOR KIEHL suggested that this was an opportunity to improve
third-party custodians. He said he fundamentally disagrees with
Mr. Skidmore that the state cannot determine whether third-party
custodians or correctional pretrial services officers work
better. While the department should develop standards for third-
party custodians, he strongly suspected that pretrial services
officers were providing better results. He expressed concern
about moving towards using third-party custodians without a
clear understanding of what would likely work.
2:19:07 PM
CHAIR HUGHES asked whether the department had any statistics on
violations that occur under third-party custodians as compared
to pretrial services officers.
MS. WINKELMAN answered that she was uncertain about the
incidence of problems with third-party custodians. However, the
department would have information on pretrial services officers
since they fall under the department's supervision. In further
response to Chair Hughes, she said that she was uncertain if the
district attorney or court system tracks third-party custodians.
2:19:58 PM
NANCY MEADE, General Counsel, Alaska Court System, Anchorage,
responded that the court system does not compile data on the
number of third-party custodians assigned. She offered to
research the number of times the statute previously referred to
was used and report back to the committee.
2:21:28 PM
MR. SKIDMORE reviewed Section 9. He directed attention to pages
7-8 of SB 33.
Section 9: Reenacts the prohibition on appointing
individuals who may be called as a witness in the case
from being appointed as third-party custodians.
MR. SKIDMORE said that Section 9 would revert to pre-Senate Bill
91 law in terms of restrictions for third-party custodians. He
referred to Section 9 on page 8, lines 4-5. Prior law restricted
appointing third-party custodians if they might be called as a
witness in a case. Senate Bill 91 law changed the language to "a
reasonable probability" that the person might be called as a
witness. He explained that the difficulty with the Senate Bill
91 law was timing. It might be difficult to evaluate early on in
cases which parties might be called as witnesses. Bail and
third-party custodians can generally be assessed within the
first week after an arrest. However, at that point the
prosecution would still be compiling information and nuances of
the case. Thus, a prosecutor might not be able to identify
potential witnesses. He said it would be a better practice to
use the guideline that "if a person may be called as a witness,
the person cannot be appointed." It would also help to ensure
criteria would apply to third-party custodians, he said.
2:23:02 PM
SENATOR KIEHL said that "reasonable probability" is a term he
was not familiar with, but it seemed like a lower standard than
probable cause. He asked whether this determination would be
made at the prosecutor's sole discretion.
MR. SKIDMORE answered the prosecutor would decide which
witnesses the state would call on a case. Senate Bill 91 law
established the "reasonable probability" standard that the state
would apply when determining the witnesses list. However, that
language would not preclude the defense from calling a person as
a witness, he said.
He explained that SB 33 would propose a prohibition on
appointing a third-party custodian who might be called as a
witness. The department interpreted that would apply to any
witnesses for the prosecution or the defense. Once a potential
third-party custodian was identified as a potential witness, the
judge would need to know why the person was called as a witness
and what evidence the person might offer, and the court would
evaluate it. However, it may be too early to know that
information. Of course, this could include potential witnesses
for the defense or any witnesses who have a connection to the
case. The court would ultimately evaluate it, he said.
2:25:35 PM
SENATOR KIEHL asked what standard the judge could apply if the
language reads "may."
MR. SKIDMORE answered that the "preponderance of the evidence"
standard was used for bail hearings. The state would indicate
that the person might be called, and the prosecutor's
explanation must withstand the scrutiny of the court. However,
"reasonable probability" was not the burden of proof typically
used in criminal law.
2:27:21 PM
SENATOR MICCICHE offered his belief that the standards for
third-party custodians set out in Section 9 seemed to be fairly
minimal. He asked whether AS 11.41 referred to crimes against a
person.
MR. SKIDMORE answered yes.
SENATOR MICCICHE related his understanding that third-party
custodians must not have been convicted in the previous three
years of a crime under AS 11.41, have criminal charges pending,
or be on probation in this state or in another jurisdiction. He
asked Mr. Skidmore if there were any other standards he might
suggest for third-party custodians. He was not aware of any
restriction for any recent drug convictions, but this would be
important to consider given the opioid crisis in the state.
MR. SKIDMORE answered that he had not considered potential
criteria, but he could do so. He clarified that he was speaking
on behalf of the department. Typically, the department would
seek consensus from prosecutors throughout Alaska. He said he
hesitated to offer any suggestions without going through the
departmental vetting process.
SENATOR MICCICHE said he may speak to other people with respect
to the criteria for third-party custodians. "Minimal
requirements is a generous term for the current list," he said.
CHAIR HUGHES remarked that she was surprised at the leniency,
that she expected potential third-party custodians would not
have any criminal history.
2:30:10 PM
MR. SKIDMORE reviewed Section 10.
Section 10: Prohibits the court from granting jail
credit for time spent on electronic monitoring before
trial.
MR. SKIDMORE related that the committee previously discussed
Section 10 as it related to SB 12. Briefly, the court would
decide who could be placed on electronic monitoring during the
pretrial period. The court would not make a determination on
whether electronic monitoring was the appropriate place or
circumstance for a person to serve his/her sentence. Instead,
post-conviction, the Department of Corrections would conduct a
risk assessment analysis and a classification analysis to
determine the appropriate place for the offender to serve
his/her sentence. Absent an assessment by the Department of
Corrections, the decision to use electronic monitoring would be
made at a bail hearing, even if it was not appropriate, such as
in the Justin Schneider case. Section 10 would address this by
prohibiting the court from granting pretrial electronic
monitoring from being used as credit towards the final sentence.
One problem with the current language was that it might
encourage pretrial delays. For example, offenders released on
pretrial electronic monitoring might seek delays prior to
sentencing in order to build up as much credit as possible
against their sentences in the pretrial phase to reduce any
potential time served.
2:32:40 PM
MR. SKIDMORE said that one of the great ills that Senate Bill 91
law sought to address was the rise in the pretrial prison
population. However, the pretrial prison population was not just
driven by the number of people sentenced, but by the length of
time between their arrests and when the case is resolved. That
period of time would be considered pretrial time, he said.
Section 10 would seek to ensure that pretrial delays do not
occur, especially since delays never benefit the victims.
2:33:22 PM
MR. SKIDMORE read Sections 11 and 12.
Section 11: Conforming amendment to the changes made
by section 10.
Section 12: Adds prosecuting authority to the list of
entities that can be notified if a person is
discharged from a treatment program for noncompliance.
2:34:11 PM
MR. SKIDMORE reviewed Section 13 on page 9.
Section 13: Limits the amount of jail credit that can
be granted for time spent in a treatment program to
180 days.
MR. SKIDMORE advised members that the department does not want
to discourage people from obtaining pretrial treatment. However,
pretrial treatment should be limited, or it could create delays.
Most programs last six months or less, which is the reason 180
days was selected. Longer treatment programs should be pursued
once the underlying criminal offense is resolved, he said.
2:35:16 PM
SENATOR MICCICHE noted that Section 12 is not specific about the
type of treatment or if the treatment could include sex offender
treatment programs.
MR. SKIDMORE answered that treatment could include any type of
treatment program, but sex offender treatment programs generally
last longer than six months and are not typically used by
defendants in pretrial. Since those programs encourage people to
talk about their inappropriate behavior, most defense attorneys
would advise their clients not to admit anything prior to the
trial because it could potentially be used against them.
2:36:34 PM
CHAIR HUGHES related her understanding that this section does
not require the treatment to be residential treatment.
MR. SKIDMORE offered to further review AS 12.55.027, but his
impression was that it would need to be a residential treatment
program. The law has generally provided credit against a
sentence that involves some restriction on the defendant's
movement or other liberties. He offered to report his findings
to the committee.
2:37:42 PM
SENATOR MICCICHE asked whether the victim should be added to the
list of those notified.
MR. SKIDMORE said that he had not considered the matter, but he
did not initially see any problem in doing so. He said he was
unsure why victims were omitted. He offered to research it and
report back to the committee.
2:38:50 PM
MR. SKIDMORE, in response to an earlier question, referred to AS
12.55.027(a). He read, "reformation and rehabilitation of the
defendant if the court finds that the program places a
substantial restriction on the defendant's freedom of movement
and behavior and is consistent with this section." This language
implies that it would need to be some sort of residential
program, he said.
2:39:26 PM
MR. SKIDMORE reviewed Sections 14 and 15.
Section 14: Conforming amendment. Conforms to the
change made in section 2.
Section 15: Adds authority for the commissioner of the
department of corrections to supervise pretrial
defendants.
MR. SKIDMORE said that Section 15 really gets to the "heart and
soul" of pretrial services officers. He said that the pretrial
service unit was previously created under AS 33.07. Section 15
would add the Pretrial Services Officer Program into the
Division of Probation and Parole. As Ms. Winkelman described,
pretrial services officers have been limited to communities on
the road system or the ferry system. The state seeks to expand
the program to communities in Western Alaska that currently have
probation and parole offices, he said. Adding this function to
the division would also limit overhead expenses for supervision
and management of the program. The powers of the commissioner
include "provide supervision of defendants released while
awaiting trial as ordered by the court." This language was added
in Section 15 to ensure that the Department of Corrections has
the appropriate authority to supervise individuals during the
pretrial period.
2:42:11 PM
MR. SKIDMORE read Section 16 on page 10.
Section 16: Requires the commissioner of the
department of corrections to make officers available
to the courts for pretrial supervision. Also allows
the commissioner to contract with private entities for
electronic monitoring services.
2:42:42 PM
MR. SKIDMORE reviewed Sections 17-19.
Section 17: Clarifies that probation officers may be
made available to district courts.
Section 18: Adds pretrial supervision to the list of
duties which a probation officer may perform and
clarifies that when performing those duties probation
officers are pretrial services officers.
Section 19: Lays out the duties of a probation officer
when acting as a pretrial services officer. These
duties include arresting defendants and filing
criminal complaints for violations of conditions of
release.
MR. SKIDMORE said these three sections pertain to the
responsibility for supervising pretrial services and ensure that
the department maintains the statutory authority to allow
probation and parole officers to serve as pretrial services
officers. He said that this also meant that probation officers
would be available to district courts to cover misdemeanors, not
just felonies.
2:44:43 PM
MR. SKIDMORE reviewed Sections 20 and 21 on page 12.
Section 20: Conforming amendment. Eliminates the
reference to AS 33.07, which is where the pretrial
services program is currently located. AS 33.07 is
repealed in the bill.
Section 21: Eliminates the requirement that the
Department of Corrections report to the Alaska
Criminal Justice Commission on pretrial defendant risk
levels and charges and pretrial recommendations made
by pretrial services officers.
MR. SKIDMORE explained that it did not make any sense to have
the department continue to report on risk assessment since it
would no longer be a requirement in statute.
2:46:24 PM
MR. SKIDMORE reviewed Section 22.
Section 22: Conforming amendment to the changes made
in section 23.
He said that this is a conforming amendment to court rules
related to using contemporaneous two-way videoconferencing. This
terminology also more accurately describes the technology than
"television."
2:47:29 PM
MR. SKIDMORE reviewed Section 23.
Section 23: Expands the types of pretrial hearings
available to the Alaska Court System to use
videoconferencing.
MR. SKIDMORE said the department has been working with the court
system on suggested changes to ensure that the rule is drafted
to address any issues related to videoconferencing.
2:48:06 PM
SENATOR KIEHL asked whether Ms. Meade could describe any issues
the court system has with videoconferencing.
MS. MEADE concurred with Mr. Skidmore that the court system has
been working with the Department of Law on language acceptable
to both entities related to videoconferences. These issues are
primarily found in Section 23 but also Section 1 of the bill.
She explained that the Alaska Supreme Court has been working on
rules related to videoconferencing for some time. The court had
some concerns about which hearings are appropriate to hold by
videoconferences. The current rule reflects what the Alaska
Supreme Court decided about a year ago, which is to allow
certain proceedings to be conducted by video when all of the
logistics are in place.
MS. MEADE explained that the Department of Law seeks to expand
some of these options in SB 33. Although she believed that she
and Mr. Skidmore have reached agreement on when videoconferences
would be acceptable, some concerns remain related to
constitutional rights. For example, when a defendant has
evidence being presented against him/her at a pretrial hearing,
the defendant has a constitutional right to have this evidence
presented in person. The court also faces logistical issues when
holding more hearings by videoconference.
She said that the court has spearheaded projects to ensure
acceptable equipment for facilities. The Alaska Court System
staff has the responsibility to assess any equipment needed at
prisons and orders, installs, and maintains the equipment. While
the Alaska Court System seeks to hold more hearings by
videoconference, defendants still have the option to appear at a
number of hearings by court rule. Currently, the court system
sends a judge to the Anchorage jail court twice a day, every
day, to provide in-person arraignments. The court system has the
infrastructure in place to conduct videoconferences and does so
in some regions. For example, in Kotzebue, the court conducts a
number of hearings by videoconference to the Anvil Mountain
Correctional Facility. The court system seeks to continue to
cooperate and promote videoconferences with other state
agencies, which is supported by this administration.
2:52:39 PM
MR. SKIDMORE reviewed Section 24 on page 15.
Section 24: Allows a defendant or the defendant's
counsel to consent to a continuance of trial.
MR. SKIDMORE explained that the defense counsel can make a
request for a continuance and in some circumstances can do so
without the defendant's approval. He said this is really about
efficiency, just as Ms. Meade indicated. Transporting
teleconferencing equipment that does not always work and can
delay cases. It is difficult to get defendants to court just to
allow them to state that they have agreed to a continuance.
Considerable case law discusses what types of decisions were
left to a defendant or to counsel. Continuances were generally
the type of decision that defense counsel would decide as
opposed to the defendants. This language would add consistency
that case law describes and seeks to eliminate some of the
associated pretrial delay.
2:53:54 PM
MR. SKIDMORE read Sections 25 and 26.
Section 25: Repealer section.
MR. SKIDMORE explained that Section 26, is the applicability
section.
MR. SKIDMORE read Section 27.
Section 27: Transition section. Ensures that the
Department of Corrections can still monitor any
defendant that is currently on pretrial release and
under the supervision of the Department of Corrections
despite the transfer of that authority from the
pretrial services program to probation.
MR. SKIDMORE said that Section 28 relates to the uncodified law
of Alaska.
MR. SKIDMORE read Section 29.
Section [29]: Effective Date. This Act takes effect on
July 1, 2019.
2:55:27 PM
CHAIR HUGHES asked for further explanation of the repealed
statutes listed in Section 25.
MR. SKIDMORE explained that AS 12.55.027(g) pertained to
pretrial credit against sentences that are openly imposed. It is
repealed because subsection (d) is being eliminated. The current
language states that a credit against a sentence of imprisonment
under (d) of this section may grant credit of not more than 360
days. He characterized it as a conforming change. The remaining
repealed statutes, including AS 33.07.010, 33.07.020, 33.07.030,
33.07.040, and 33.07.090, pertain to statutes that establish the
pretrial services unit within the Department of Corrections.
Since that unit was transferred to the Division of Probation and
Parole in SB 33, Sections 15-19 are obsolete, he said.
2:57:28 PM
SENATOR KIEHL commented that AS 33.07.030 sets out the duties of
the pretrial service officers, but some provisions, such as
recommendations to the court and how restrictive the defendant's
environment must be were no longer listed. He asked Mr. Skidmore
to discuss the shift in the approach being taken.
MR. SKIDMORE explained that maintaining pretrial supervision
throughout the state was deemed important, but it also meant
finding [budgetary] efficiencies. Changing AS 12.30.011
eliminated judges from being tied to the risk assessment tool.
Under current law, pretrial services officers use a risk
assessment tool to determine bail. Currently, officers spend an
inordinate amount of time on risk assessment to examine factors
that the court, the prosecution, and the defense already
evaluate. Instead, pretrial service officers will now focus
exclusively on supervision rather than to answer questions about
an offender's criminal history prior to an arraignment. People
could still use the tool, but they are not required to do so, he
said.
SENATOR KIEHL recalled that pretrial services officers were
recommending the least restrictive supervision that would keep
the public safe yet still ensure that the defendant appeared in
court. This language would allow the court to evaluate
supervision. He expressed concern that by deleting the language
at this juncture would also remove the presumption that the
department would not be recommending the least restrictive
environment. He asked whether that decision was covered
elsewhere.
MR. SKIDMORE answered yes. He directed attention to Section 7 on
page 4, lines 8-13 and read AS 12.30.011(b):
If a judicial officer determines that the release
under (a) of this section will not reasonably assure
the appearance of the person or will pose a danger to
the victim, other persons, or the community, the
officer shall impose the least restrictive condition
or conditions that will reasonably assure the person's
appearance and protect the victim, other persons, and
the community.
He agreed that Senator Kiehl identified the department's goal
and said that the pretrial services officers would not make
recommendations on how to achieve it. Section 7 would provide
guidance for any arguments by the prosecution or the defense.
This section would provide the statutory authority to control
the way the judge would make decisions and ultimately set
conditions of release.
SENATOR KIEHL said that he would hold additional questions on
the important risk assessment tool.
He referred to the court rule amendment for delays and
continuance in Section 24. He understood that a defendant and
his/her attorney must sign off on a continuance. He asked
whether the defendant might decide to go to trial as soon as
possible, even if it might pose risks for the case later. He
said this provision would allow an attorney to move forward with
a continuance against the client's wishes. He suggested that an
argument could be made for personal responsibility.
MR. SKIDMORE answered that this was a shift from the attorney to
the defendant controlling the tactical timing of an attorney's
readiness to go to trial. He recalled a Southeast Alaska case in
which a defendant was charged with murder but insisted on going
to trial. The defense counsel argued against it, stating that
the case had recently been assigned, so he/she needed more time
to prepare for trial. Due to the court rule, the judge moved
forward with the trial and the defendant was convicted. The
defendant subsequently filed for post-conviction relief arguing
that counsel was ineffective.
He said that this scenario highlighted the situation that this
change would seek to avoid. He explained that sometimes
defendants rush headlong into trial, often creating appellate or
post-conviction release issues. When the defense counsel
requests additional time and the court can verify the need, a
continuance should be granted to ensure the defendant receives a
fair trial. Keep in mind that the prosecution, the defense, and
the judge are all under ethical obligation to do everything
possible to ensure every defendant receives a fair trial, he
said. However, this does not mean that a defendant would forfeit
the right to a speedy trial, which is not covered under this
criminal rule, he said. In response to Senator Kiehl, he said he
did not recall whether the defendant won the post-conviction
relief.
SENATOR KIEHL offered his belief that any mentally competent
defendant has the right to screw up his/her own defense.
[SB 33 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB33(STA) Version M.PDF |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 Transmittal Letter.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 - Pretrial Sectional.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 - DOC-PopMgmt - FN.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 - DOA-PD-FN.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 - DOC-PopMgmt-Pretrial-FN.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 -Law-CrimDiv-FN.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33-DOA - OPA-FN.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33-DPS-AST-PrisTrans-FN.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 - PSEA Letter of Support.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| Support Crime Bills AACOP.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 |
| SB 33 DOL Exhibit -Pretrial Assessment.pdf |
SJUD 3/25/2019 1:30:00 PM |
SB 33 SB 34 |