Legislature(2017 - 2018)HOUSE FINANCE 519
11/01/2017 01:00 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| SB54 | |
| Presentation: Ak Criminal Justice Commission Report Appendix F | |
| Fiscal Notes | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 54 | TELECONFERENCED | |
| + | TELECONFERENCED |
CS FOR SENATE BILL NO. 54(FIN)
"An Act relating to crime and criminal law; relating
to violation of condition of release; relating to sex
trafficking; relating to sentencing; relating to
imprisonment; relating to parole; relating to
probation; relating to driving without a license;
relating to the pretrial services program; and
providing for an effective date."
1:18:22 PM
^PRESENTATION: AK CRIMINAL JUSTICE COMMISSION REPORT
APPENDIX F
1:18:25 PM
Co-Chair Foster reminded members that amendments were due
at 5:00 p.m. in the current day. He invited Suzanne Di
Pietro to the table to begin her presentation. He noted
that Representative Andy Josephson had joined the audience.
SUZANNE DI PIETRO, EXECUTIVE DIRECTOR, ALASKA JUDICIAL
COUNCIL, introduced herself and relayed that she worked as
staff to the Criminal Justice Commission. She indicated
that the project attorney for the Criminal Justice
Commission, Barbara Dunham, was on the phone. She would be
taking the committee through the recommendations of the
commission that resulted from two meetings that it had on
January 19, 2017 and January 27, 2017. She explained that
the reason Appendix F was listed at the top was because it
was Appendix F of the commission's annual report to the
legislature. She would be guiding members through the
document and was happy to answer any questions during her
presentation.
Ms. Di Pietro shared that when the commission first
convened itself the commissioners discussed how they wanted
to do their work. Senate Bill 64, legislation that created
the commission, had a lengthy list of duties and
methodologies that the commission had to adhere to. The
commissioners took that into consideration and also decided
as a group to do two things. First, they would act in
response to empirical data, to be data driven in their
study and recommendations. Second, the commission would
always try to act by consensus even though it would not
always be possible. She reported that almost every one of
the commission's recommendations that came to the
legislature in December of 2015 for criminal justice reform
were consensus recommendations.
Ms. Di Pietro continued that after criminal justice reform
went into effect, the commission began to receive comments
from a variety of people in the community including law
enforcement, citizens, and prosecutors expressing concerns
about criminal justice reform. The commission had two
meetings where it discussed issues brought to it by members
of the community. Out of the two meetings the commission
made recommendations to the legislature that were the
subject of Appendix F.
1:22:02 PM
Ms. Di Pietro mentioned a slightly different methodology.
She elaborated that although the original criminal justice
reform recommendations were based on meta-analyses of what
worked and what did not work to reduce recidivism and a
very detailed assessment of how Alaska's Criminal justice
system was operating. The recommendations to the
legislature were derived from a different kind of
knowledge; hearing anecdotal stories from the public. The
commission, when making the current recommendations,
specifically focused on four criteria listed in Appendix F:
The need to rehabilitate the offender; the sufficiency of
state resources to administer the criminal justice system;
the effect of state laws and practices on the rate of
recidivism; and peer-reviewed and data-driven research. The
commission also, according to SB 64, had other things to
consider: The need to confine offenders to prevent harm to
the public; the effect of sentencing in deterring
offenders; and the need to express community condemnation
of crime. She wanted to convey to the committee that the
recommendations in Appendix F relied more on the last three
factors than the other factors the commission had used.
Ms. Di Pietro reviewed the first recommendation, which was
to return the crime of Violation of Conditions of Release
(VCOR) to misdemeanor status.
Co-Chair Foster recognized Representative Geran Tarr and
Representative Zack Fansler in the audience. Representative
Gara had stepped in the meeting a few moments prior. He
indicated that questions would be held to the end of the
presentation.
1:24:25 PM
Ms. Di Pietro continued with her presentation. She
explained that violating conditions of release occurred
when a person had been arrested but not yet convicted of a
crime, charged, and released on bail while waiting for
their case to be resolved. A judge would impose some court
ordered stipulations which might include not drinking
alcohol or not contacting the victim. Doing those things,
when a judge ordered a person not to, could lead to a
misdemeanor. The commission in criminal justice reform
recommended that it be turned into a non-criminal offense -
a violation - but people could still be arrested, put in
confinement, and brought before a judge. The judge might
keep them confined, set new conditions, or whatever they
thought was appropriate. That was the way it was supposed
to work.
Ms. Di Pietro reported that there had been confusion about
how it was supposed to work, confusion about
implementation. It had been brought to the commission that
a good way to clear up the confusion would be to make it a
crime again. The Court System and the Department of
Corrections (DOC) had worked together to implement the
process of bringing the defendant back and putting them
before the judge. Changes to forms and procedures had been
made. Some members of the commission felt that the remedies
were working or should be given time to work. Other members
thought it was too confusing and that VCOR should become a
crime again. The commission recommended that VCOR become a
Class B misdemeanor punishable up to five days in jail. She
referenced Section 18 of the bill where it addressed VCOR
and the corresponding penalty of five days in jail,
consistent with the commission's recommendation.
Co-Chair Foster noted that Representative Pruitt had joined
the meeting.
Ms. Di Pietro mentioned that the recommendation was not
unanimous. She noted that one concern that had been brought
up by the victims' representative on the commission. She
was concerned that by making VCOR a crime again during the
plea negotiation process it might be tempting to convict
the person of the VCOR and dismiss the underlying charge.
The commission stated that it did not condone that and
would revisit the issue if it were to happen.
1:27:30 PM
Representative Guttenberg was concerned that a condition of
release might not ordinarily be a misdemeanor.
Ms. Di Pietro replied that it was currently a violation.
Representative Guttenberg provided a scenario where someone
was arrested and given conditions of release. He asked if a
person could be charged with a misdemeanor that was not
normally a misdemeanor if the person had never done
anything.
Ms. Di Pietro thought Representative Guttenberg was
characterizing the underlying conduct. A violation of
condition of release would be conduct that would not
normally be a crime. However, if the legislature decided to
return it to a crime, it would be a crime because the
person would have done something the judge had ordered them
not to do. For example, if a person was intoxicated and it
was a condition of bail, they could be arrested if they
were caught drinking. Drinking was not against the law, but
a person could be arrested under current law. If the law
was changed to a misdemeanor as was recommended by the
commission, then the person could also be charged with a
misdemeanor.
Representative Guttenberg was concerned about a person
stacking up misdemeanors by violating conditions of
release. He thought it would have a compounding effect on
other crimes. He asked if it would become an issue down the
road. He thought the misdemeanors resulting from a VCOR
would build a bigger case against someone.
1:30:24 PM
Ms. Di Pietro answered that the commission discussed the
issue. It was one of the reasons why some of the
commissioners did not want to reinstate it to a crime.
Representative Guttenberg asked what would happen down the
road if misdemeanors started stacking up. He asked where it
was relevant.
Ms. Di Pietro stated that if a VCOR charge was not
dismissed, a person might be convicted of the charge and
would have the misdemeanor on their record in addition to
their underlying charge.
Ms. Di Pietro moved to the next recommendation which was to
increase penalties for repeat theft for offenders. She
relayed that several people testified to the commission
that there were problems with repeat shoplifters. Theft 4
was stealing something or concealing merchandise that was
less than $250 in value. The original penalty under
criminal justice reform was that a first time or second
time offender would not face active jail time, although
they would be subject to paying victim restitution and
fines. The third time they would receive a suspended
sentence and the fourth time they could receive active jail
time. The commission had deemed that a third time Theft 4
should be punishable up to 10 days in jail. She pointed to
Section 19 of the current version of SB 54 where the
penalties exceeded the penalties recommended by the
commission. Under SB 54, a first-time offense would result
in a five-day suspended sentence. No active jail time would
be required unless a person violated conditions of their
suspension, which, then, could become active jail time. For
the second offense they would serve up to five days, and
for anything more than that they would serve up to ten. It
would still be a B Misdemeanor and the limit for a B
Misdemeanor was ten days.
1:33:42 PM
Ms. Di Pietro relayed there had been substantial discussion
around the topic. The decision was not unanimous. A couple
of [Alaska Criminal Justice Commission] commissioners who
did not support this particular recommendation thought that
a third-time offense should be elevated to a Class A
misdemeanor. She thought a bump to the Class A misdemeanor
for the recidivist was contained in SB 54. She noted there
was a drafting ambiguity that needed tightening.
Commissioner [Chris] Sell spoke about petty theft offenders
he had known who were so accustomed to going to jail for
theft that they had started using it as a housing option.
Commissioner Stanfill in Fairbanks had spoken of the issue
several times. Jail was a warm place for people to live.
The commission had been unanimous that low level
misdemeanants had a very high recidivism rate. The root of
their problems needed to be addressed. She commended the
municipality of Juneau for reaching out to the commission
about what to do about chronic recidivist shoplifters. The
commission partnered with the City and Borough Juneau's
attorney and came up with the Juneau Avert Chronic
Shoplifting Project. The commissioner worked to secure
funding for the program through the Bureau of Justice
Assistance. The Judicial Council would evaluate the project
after about one year to determine its effectiveness. The
point of the project was to try to work with recidivist
shoplifters to get to the root of their problem.
1:36:33 PM
Ms. Di Pietro addressed the next recommendation,
Recommendation 3-2017, was to allow municipalities to set
different non-incarceration punishments for non-criminal
offenses that have state equivalents. The issue was taken
care of in SB 55 {omnibus crime legislation passed in
2017]. She moved to Recommendation 4-2017 which was to
revise the sex trafficking statute. She clarified that the
provisions of SB 91 [criminal justice reform legislation
passed in 2016] with respect to sex trafficking were not
recommendations of the commission. The legislative history
suggested that the provisions were intended to ensure that
sex workers simply working together but not exploiting one
another should be able to be prosecuted for sex trafficking
each other or themselves. The commission made
recommendations about how to clarify the language so that
sex workers working together to protect each other would
not be subject to prosecution. She relayed that the
provisions in SB 91 needed clarification which the
commission recommended. She added that SB 54 had provisions
related to sex trafficking in Section 5 and 6; however, the
version before the committee contained amendments that
essentially restored the language that was in SB 91. She
believed the sex trafficking issue needed more work.
Co-Chair Foster asked Ms. Di Pietro to delve more deeply
into the subject.
1:39:12 PM
Representative Pruitt wanted to ensure he understood the
bill.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, relayed that there were amendments in the House
Judiciary Committee that would have eliminated the changes.
However, those amendments did not pass in the House
Judiciary Committee. In fact, the amendment was withdrawn.
He relayed that what was currently in SB 54 fixed the
loophole that was found and was the recommendation of the
commission.
Ms. Di Pietro stood corrected.
Representative Wilson asked for an explanation of the
loophole.
Mr. Skidmore answered that when criminal justice reform had
passed, there had been concerns about how sex trafficking
laws were being used. The concept was that the legislature
did not want the sex trafficking laws used to punish two
sex workers that might live together or were trying to
provide services in a way that was not trafficking. He
noted in particular where the focus was in sex trafficking
in the third degree, which talked about operating a place
of prostitution. He explained that what happened was
criminal justice reform amended the laws to try to provide
appropriate protections. In the process of doing so, there
was a loophole that was inadvertently included. The
loophole was that for an individual who operated a place of
prostitution, if they, themselves, offered themselves up
for a sex act in exchange for money, they would have
engaged in some from of prosecution and could not be
prosecuted for sex trafficking for owning the entire
operation. They could only be prosecuted for the same crime
that any other sex worker would - the crime of prosecution.
The idea was that the person who owned the place of
prostitution was at a higher level than a mere sex worker.
The language in the current bill was language worked on by
the Department of Law (DOL) and the Public Defender agency
worked on collaboratively to attempt to close the loophole
making sure to treat those who operated a place of
prosecution differently than a prostitute. He believed the
language closed the loophole.
1:42:29 PM
Vice-Chair Gara noted that prostitution was currently a
misdemeanor and sex trafficking was a felony because it was
a much more serious time. He spoke to a loophole in the law
that could have allowed a misdemeanor prostitute as a sex
trafficker. He asked for verification the office had not
been doing that.
Mr. Skidmore agreed that DOL had not been prosecuting
individuals engaging in prostitution as sex traffickers. He
was not certain the law had allowed for that previously,
but he knew concerns had been expressed about the issue. He
cited a case in Fairbanks where a law enforcement officer
originally filed sex trafficking charges against someone
who had only been engaged in prostitution; the charges were
ultimately reduced by the DOL prosecutor's office. The laws
had been changed to clarify the intent; in the process of
the changes there had been a small oversight, which would
be fixed by SB 54.
Vice-Chair Gara thanked the department for offering the
commitment the issue.
1:44:41 PM
Ms. Di Pietro moved to recommendation 5-2017 to enact a
zero to 90-day presumptive sentencing range for first-time
Class C felonies. She detailed that the commission had a
number of goals in mind when it made the recommendation for
first-time Class C felons to have a suspended time of 0 to
18 months. First, being on felony probation meant being
held accountable in the community. The commission viewed
being on felony probation as a way to hold offenders
accountable and to encourage the offender to engage in
rehabilitative activities including treatment, paying
victim restitution, and getting a job - whatever the
probation officer thought the person should be doing and
what the judge may have ordered as a probation condition.
Another justification for the recommendation was that
putting offenders just getting familiar with the criminal
justice system in prison with other offenders convicted of
more serious crimes was detrimental to low-risk
individuals. When the individuals were released they were
more likely to commit a new offence (criminogenic) than if
they had not gone to prison and had been supervised in the
community.
Ms. Di Pietro continued that after the recommendation had
gone into effect, the commission had heard from numerous
people, including prosecutors, that some violent Class C
felonies warranted jailtime even for a first offense. There
were also concerned there was not enough incentive with no
active jailtime to get offenders into treatment. The
commission had substantial debate on considering the right
incentives to get a person into treatment. Under the
commission's recommendation of 0 to 18 months suspended
there was the possibility of the suspended time hanging
over a person's head, but people thought that some jailtime
would be appropriate to express community condemnation in
certain instances or the appropriate level of coercion to
get them to engage in treatment or other rehabilitative
activities that would prevent recidivism. The commission
ultimately recommended (the decision was not unanimous)
that first-time Class C felonies carry a presumptive term
of 0 to 90 days and to retain the up to 18 months of
suspended time.
1:48:51 PM
Ms. Di Pietro detailed that Section 15 of SB 54 included
penalties for first-time Class C felonies of 0 days to 1
year in prison, which had been the position of DOL.
Vice-Chair Gara stated that under SB 91 first-time C felons
could receive jailtime if the crime included an aggravator
(e.g. physical injury or use of a weapon).
Ms. Di Pietro agreed that the penalty for a crime with the
addition of an aggravator would be different. The
presumptive term was for the typical offender committing a
typical offense. An aggravated offense would be subject to
harsher penalties.
Ms. Di Pietro relayed that the commission acknowledged it
had no research to suggest the magic [jail time] number was
0 to 90. The recommendation was a channeling of the idea of
community condemnation. The next item had been to enact an
aggravator for Class A misdemeanors for defendants with
prior a conviction of similar conduct. She shared that
under criminal justice reform there was a presumptive range
of 0 to 30 days for a Class A misdemeanor. Importantly, the
provision excluded many kinds of crimes. She elaborated
that for certain violent offenses and sex offenses or for
cases where the conduct was among the most serious included
in the definition of the offense, the 0 to 30-day
presumptive range did not apply. The commission heard
prosecutors and others saying that the provision should
allow for a longer sentence for defendants with past
convictions for similar conduct; the provision had existed,
but it applied to individuals with two or more offenses.
The commission recommended enacting an additional
aggravator for Class A misdemeanors for defendants with one
prior conviction for similar conduct, which would enable a
judge to impose a sentence up to 60 days (located in
Sections 17 to 22 of the bill).
Co-Chair Foster recognized Representative Gabrielle LeDoux
in the audience.
1:52:21 PM
Ms. Di Pietro moved to recommendation 7-2017: clarify that
ASAP is available for Minor Consuming Alcohol [page 6 of
Appendix F]. She believed the committee had heard
significant testimony on the Alcohol Safety Action Program
(ASAP) the previous day. The commission had recommended
that minor consuming be included in the types of cases that
could be referred to ASAP. She noted statute allowed people
charged with the offense to receive credit if they went to
and complied with the program. The commission viewed it as
a way to align the two parts of the law. Under the current
version of SB 54, she did not believe a person charged with
the offense could be referred to ASAP. She looked at
Section 47 of the bill that referred to people charged or
convicted of a misdemeanor; however, Minor Consuming
Alcohol was now a violation. Although the other language
referred to "alcohol related" it specified "referred by a
court in connection with a charge or conviction of a
misdemeanor involving the use of alcohol or a controlled
substance."
Representative Wilson asked if Ms. Di Pietro had specified
Section 47. Ms. Di Pietro replied in the affirmative -
page 31, line 30.
Representative Wilson asked if Ms. Di Pietro had stated
that the bill did not add anyone to the program because "it
was not a misdemeanor, it's a citation."
Ms. Di Pietro corrected "violation."
Representative Wilson stated adding additional people [to
eligible ASAP participants] was an amendment passed by the
House Judiciary Committee. She thought Ms. Di Pietro was
testifying that the bill did not add anyone else to the
program.
Ms. Di Pietro replied in the negative. She clarified that
she had been referring to the commission's recommendation
regarding people charged with the violation of Minor
Consuming Alcohol. She observed that as the bill was
currently written, it did not appear those individuals
could be referred by a court to ASAP. She had not been
speaking about how the amendment may have expanded or not
expanded the types of cases going to ASAP. She added that
the amendment did pertain to a person charged with or
convicted of a misdemeanor involving alcohol or controlled
substances.
Representative Wilson understood Ms. Di Pietro was talking
about recommendations from the commission, which was
separate from the amendment. She stated her understanding
that the amendment had not been discussed by the commission
and that Ms. Di Pietro was not speaking to the amendment,
but was explaining why the individuals had not been
included in SB 91.
Ms. Di Pietro replied in the affirmative.
1:56:19 PM
Ms. Di Pietro moved to Recommendation 8-2017: Enact a
provision requiring mandatory probation for sex offenders.
The recommendation was a technical fix to ensure mandatory
probation of 15 years for sex offenders (Section 16 of the
bill). She reviewed Recommendation 9-2017 that clarified
the length of probation allowed for Theft 4. Some ambiguity
may have existed in statute about whether a probationary
term could be imposed for a first and second time Theft 4
offenses. Section 19 of the bill addressed the concern.
Ms. Di Pietro highlighted Recommendation 10-2017 regarding
victim notification, which had been addressed in SB 55
[omnibus crime legislation passed in 2017]. Recommendation
11-2017: felony DUI sentencing provisions should be in one
statute. The commission had noticed that sentencing ranges
for felony DUI and refusal were found in Title 28 and under
regular sentencing statute in Title 12, meaning there were
two punishment provisions for the same offenses, which
could create confusion. The commission had recommended that
the legislature put the penalty provision for felony DUI
and refusal in one place or the other. She believed the
recommendation was addressed in Section 48 of SB 54, which
included repealers.
Ms. Di Pietro addressed Recommendation 12-2017: clarify who
will be assessed by pretrial services. The recommendation
was addressed in Section 26. She explained that when SB 91
was drafted it had included language that Pretrial Services
would do a pretrial risk assessment on all people charged
with a crime. She believed it had been overlooked that many
people charged with a crime may not come to a DOC facility
and be detained. Some people may be issued a summons to
appear in court by an officer instead of being arrested,
and some people may be released on a misdemeanor bail
schedule. She elaborated that DOC had expressed concern
that it would be spending its resources assessing people
who were not in pretrial detention. The commission had
recommended clarifying the language to direct DOC to
conduct its risk assessments on people in detention and
anyone else requested by the prosecutor. She characterized
it as a common-sense provision and a way to ensure Pretrial
Services was spending its resources on the people who
mattered most.
1:59:55 PM
Ms. Di Pietro stated that the rest of the recommendations
were technical. She was available for any questions.
Representative Grenn spoke about a potential recommendation
(not included in the January recommendation) regarding
barriers to reentry. He referenced the CourtView
recommendation on page 9 of the Alaska Criminal Justice
Commission Annual Report dated October 22, 2017 (copy on
file). He wondered if the agency hoped the recommendation
would make it into SB 54 as an amendment or if it could
wait to for future revisions.
Ms. Di Pietro was certain the commission would be thrilled
the committee had noticed the recommendation. The
commission had worked hard on the topic; it had been
brought to the commission and sent back to the work group
numerous times. She did not know if the commissioners had a
preference on timing, but she guessed it would be sooner
rather than later.
Representative Grenn referred to Recommendation 3-2017 that
would allow municipalities to set different non-
incarceration punishments. He relayed that Anchorage had a
problem with [the drug] spice several summers back. He
wondered why municipalities should not be able to handle
their own local issues in a different manner than what may
be the standard for the rest of the state.
Ms. Di Pietro addressed the commission's CourtView
recommendation. The commission had debated whether to make
the recommendation to the legislature or the court system
and had decided to make the recommendation to the court
system. She returned to Representative Grenn's question
pertaining to municipalities and relayed the commission's
thought behind the binding provision - that a municipality
should not be able to enact ordinances that would involve
larger jail penalties than the state - was to preserve
prison beds for more serious offenders (municipalities
typically handled misdemeanors). She believed it was an
oversight - she did not believe the commission ever
believed the municipalities should not have the ability to
enact larger fines or other types of sanctions. The
commission's focus had been on jailtime, which was the
reason it had recommended the clarification.
2:04:06 PM
Representative Grenn referred to recommendation 2
[Recommendation 1-2017] regarding VCOR. He observed that
the recommendation was punishable up to five days in jail.
He asked what the penalty had been pre-SB 91.
Ms. Di Pietro did not recall.
Representative Grenn asked about the aggravators in
recommendation 6. He noted that the recommendation included
jailtime up to 60 days. He asked what the penalty had been
prior to the passage of SB 91.
Ms. Di Pietro replied that most Class A misdemeanors (some
had mandatory minimums) the statutory jailtime was 0 to 365
days. There was also a presumptive range.
2:05:30 PM
Representative Kawasaki discussed that the last legislature
had directed the commission to look at what it would look
like if there were 15 percent fewer individuals in prison
and a couple of other scenarios. He mentioned
Recommendation 1-2017 related to VCOR, Recommendation 2-
2017 on repeat Theft 4 offenses, Recommendation 5-2017
pertaining to Class C felonies, and Recommendation 9-2017
related to probation times. He asked if Ms. Di Pietro
anticipated a large fiscal impact or an increased number of
individuals in jail under probation or pretrial status.
Ms. Di Pietro thought almost anyone would agree that the
provisions would increase the state's use of jail beds. She
stated that trying to quantify the increase would be up to
the departments; the commission was also looking into it.
She relayed that Class C felons represented a large
percentage of convicted felons. First-time Class C felons
made up the majority of convicted C felons. She addressed
repeat Theft 4 and reported that in 2014 (pre-reform) there
were 324 people admitted to prison for the offense. The
commission had conducted a mini-study do determine what the
individuals were stealing. Even though the range was $0.00
to $250 for the offense, most people were stealing items
significantly under $250. Items were typically around $50
and include things like toiletries, food, and alcohol.
Individuals convicted of the crime served an average of 24
days. She emphasized that 24 days was an average; some
individuals in on their first offense only served 1 day,
whereas individuals in for a 10th or 15th theft served
significantly more time. She stressed it was a significant
use of jail resources for people stealing very small
quantities. The commission also knew that misdemeanant
property offenders recidivate at high rates. She believed
the state could anticipate there would be a number of
people convicted of the offense and that they would use
more jail beds. She clarified most would not be using jail
beds for 20 days because the penalties were less than they
had been pre-reform.
2:09:30 PM
Representative Kawasaki remarked on Ms. Di Pietro's
testimony that in Juneau people found it fairly easy to use
Theft 4 as a way to get housing. He believed it was
terrible. He noted Ms. Di Pietro had specified the
commission may be looking at recommendations in the future
that would prevent the issue from happening. He opined that
jails were not the appropriate place for homeless
individuals looking for shelter. He asked what other
recommendations may be forthcoming from the commission.
Ms. Di Pietro clarified the narrative of people using a
conviction of a small crime to get a warm home during the
winter was anecdotal from a couple of commissioners who had
experience with the individuals. She looked forward to the
evaluation of the Juneau Avert Chronic Shoplifting Project
that used incentives instead of sanctions. Prosecutors
already knew who the 30 to 40 chronic shoplifters were in
Juneau. The program was designed to metaphorically meet
them where they are and determine if they could be pointed
towards resources, ideas, or encouragement to address their
root problem. She relayed the project would be evaluated
and she believed it was something to watch. She shared that
when the commission had worked with the City and Borough of
Juneau attorney they had done significant research on what
had worked in other places for petty theft and shoplifters.
There was not a substantial amount out there, which was the
reason the Juneau city attorney had decided to try
something. The project was innovative and was based on
research on what works, which is incentives (often more
than sanctions). The goal was to get at the root of the
problem. She believed the program had a good design and its
success was yet to be determined.
2:11:55 PM
Representative Kawasaki referred to Recommendation 1-2017
related to VCOR. When the legislature had worked on SB 91
there had been much discussion about the number of
incarcerated individuals in pretrial status or who had
returned to jail for breaking conditions of release. One of
the examples the committee had heard about repeatedly was
not drinking alcohol or going near a bar even though the
underlying crime was not related to alcohol. He asked if
there was a way to quantify the number of individuals who
were essentially receiving an extra charge while awaiting
trial.
Ms. Di Pietro answered that she had done some research on
the topic when the commission had been debating the issue.
She detailed that VCOR charges were very common - in the
thousands, but research she had done showed about 68
percent were dismissed. She did not believe there was a
good way to quantify how much jailtime a VCOR charge may
involve. She believed it would be some in some cases and
dismissed in other cases; it was a difficult thing to
research.
Representative Kawasaki referred to the fiscal notes and
discussed that part of SB 91 had dealt with rehabilitation
and reformation - things that were needed within the
criminal justice system. Some of the recommendations that
the commission had made and some that had come from the
last committee of referral appeared to cost the state more
money, which would leave less money for reform and
rehabilitation. He asked how it would challenge the
criminal justice recommendations pertaining to reform and
rehabilitation.
Ms. Di Pietro thought the commission would like her to
communicate that it was recommending frontloading the
rehabilitative piece of reform. She believed the use of
prisons had decreased in the first year of criminal justice
reform and had decreased more than predicted. Whether all
of the decrease was due to SB 91 was difficult to say, but
much of it was. She believed the legislature could be
reasonably confident the reductions in the use of prison
beds would continue as predicted. She referenced a slide
from Commissioner Razo [Commissioner Greg Razo, Alaska
Criminal Justice Commission (ACJC)] presented to the
committee showing that the state's current trend was a bit
better than predicted. She believed the state would reach
its goal of a 13 percent reduction. The commission's
recommendations pertaining to SB 91 was a 13 percent
predicted reduction in prison. She believed the commission
was looking for a decision to frontload the resources
(instead of waiting). She believed it was possible to be
fairly certain that the savings would come. She noted that
prison bed savings could slow a bit if some of the
recommendations were enacted, but the current status was
good and the commission would prefer frontloading the
resources.
2:16:24 PM
Vice-Chair Gara addressed the probation violation of
committing a crime. He asked for verification that a person
could be charged and sentenced for the crime, which was
also a probation violation.
Ms. Di Pietro replied in the affirmative.
Vice-Chair Gara stated that there were probation violations
that did not involve a crime. He used an example where a
person convicted of stalking a person was not allowed to go
near the person's house or call them. There had been some
testimony and his experience in the past that even if a
crime had nothing to do with alcohol and the person had no
alcohol problem, the judge often imposed the condition of
no consumption of alcohol. The condition meant if a person
was caught drinking alcohol it was a probation violation.
He discussed that the bill would return jailtime for
probation violation, which he understood the argument for.
He asked if the commission had discussed conditions that
were overused.
Ms. Di Pietro asked if Vice-Chair Gara was referring to
violation of conditions of probation or violation of
conditions of release.
Vice-Chair Gara clarified he was interested in the
violation of conditions of release (pre-sentencing and pre-
conviction), which often had the no alcohol condition. He
asked if there had been any discussion about the overuse of
the no consumption of alcohol provision for people with no
alcohol problem and a crime not related to alcohol. There
were a number of circumstances where some people believed
the law went too far the other way.
Ms. Di Pietro answered that the commission had not heard
complaints about judges imposing conditions of release not
to consume alcohol in situations where the crime had no
connection to alcohol. She deferred to the practitioners
about the frequency of the scenario. The conditions of
release were designed to ensure the individual attended
their court hearings and to ensure the individual did not
do anything to get rearrested. She continued that to the
extent there were restrictive conditions related to
alcohol, the thinking would be that somehow it would be
related to the possibility that the person would get into
trouble because of alcohol use. She could not say how close
the connection was in practice.
Vice-Chair Gara would ask Ms. Di Pietro to confer with
Quinlan Steiner, Director, Public Defender Agency,
Department of Administration, at a later time.
Ms. Di Pietro agreed.
2:20:23 PM
Representative Ortiz referred to the current version of the
bill that included the House Judiciary Committee
amendments. He asked if the current bill met the needs of
the commission recommendations.
Ms. Di Pietro answered that it was difficult to answer. She
had conferred with [ACJC] Chair Razo on the question
because it had come up in the past. The commission had not
had time to meet or discuss its position, concerns, or
support of SB 54. Chair Razo had suggested a better
approach given time constraints would be for individual
[ACJC] commissioners to provide the committee with their
views on how SB 54 addressed the commission
recommendations.
Representative Ortiz looked at the recommendations the
commission had received the legislature in 2015, which had
primarily pertained to the goal of reducing the use of
prison beds. He believed Ms. Di Pietro's response to an
earlier question by Representative Kawasaki was that the
goal was being met. He asked if the goals specified by the
legislature (third paragraph on page 1 of Appendix F) would
be met.
Ms. Di Pietro responded that the commission's
recommendations enacted in SB 91 did not meet the goals
exactly. She detailed that as enacted, SB 91 was projected
to decrease the prison population by 13 percent. She noted
the guideline had not been included in the bullet points
provided by the legislature, but it was part of the
legislative process. The commission was interested not in a
dollar for dollar reinvestment rule, but that reinvestment
be frontloaded in a reasonable expectation. She relayed
that even with changes made [in SB 54] it appeared likely
the state would continue to save on prison beds.
Representative Grenn referred to Recommendation 5-2017
pertaining to first-time C Class felonies. He believed the
public outcry was strongest pertaining to the issue. He
noted that the list of felonies was lengthy and broad and
included a range of crimes such as tampering with evidence,
vehicle theft, cruelty to animals, and other. He remarked
that from the attorney general there was a willing from a
compromise for violent offenders and nonviolent offenders,
but it was not the recommendation from the commission.
Ms. Di Pietro agreed. The discussion had occurred at the
commission level. At the time it had been determined that
separating violent from nonviolent would be complex. She
did not recall an objection to the approach, but that it
was more of a logistical challenge. She agreed that the
list of Class C felonies was lengthy.
Representative Grenn wondered if the idea of separating
violent and nonviolent criminals could be looked at in
future recommendations. He reiterated the wide range of
crimes that constituted a Class C felony (e.g. tampering of
evidence, cruelty to animals, and stalking). He encouraged
a future recommendation from the commission.
Ms. Di Pietro replied that several people had asked her
whether the commission had ever considered whether all of
those behaviors should be classified as a Class C felony.
She remarked that some other places had more than three
levels of felonies; some places had four, five, and
possibly six levels. She added that Alaska's system had the
advantage of not being as complex as other locations with
more levels. She would bring the feedback to the commission
for consideration.
2:26:06 PM
Representative Wilson asked if the commission would analyze
whether changes had the intended effect (if SB 54 passed).
Ms. Di Pietro replied in the affirmative.
Representative Wilson asked if the commission looked at the
composition of the prisons and the utilization of halfway
houses and electronic monitoring. She understood the
numbers were dropping in all three areas, but she believed
the numbers should be dropping more substantially in
prisons. She hoped the other two areas were being utilized
as "step downs" towards transitioning individuals back into
society. She wondered if the commission ever analyzed
whether individuals in jail were not being stepped down and
what the reason was (e.g. no family, housing, skills to get
a job, or that prison was a better place to sleep than the
street).
Ms. Di Pietro responded that the commission had looked at
the issue for its annual report and had provided some
initial assessments. The commission looked at how many
people in prison were in pretrial status, how many had been
sentenced and were serving their sentences, and how many
were in jail for a supervision violation. The commission
had also looked at the CRC [community residential center]
usage and had received information from DOC. She believed
Commissioner Williams had told the committee that CRCs were
not being utilized as much. She reiterated that details
were included in the commission's report.
2:28:01 PM
Representative Pruitt referenced the commission's
recommendation to change the penalty for driving without a
license to a refraction, which was incorporated in SB 54.
He wondered why people would continue to be required to
have a license to begin with if it was not that big of a
deal for people to have a license. He provided an example
of a person who had not had a license for 15 years and had
provided his expired license to authorities. The date had
on the expired license had not been noticed and the
individual ended up endangering numerous young peers while
driving a passenger van on the ice. He surmised that if the
punishment was merely an infraction, it meant a person
could take their chances with the knowledge that if they
got caught the penalty was merely a ticket. He added that a
person did not even have to give their real name or pay for
the ticket. He wondered about the necessity of a license if
the police could not potentially utilize it to help them
seek additional opportunities if they pull someone over -
in terms of someone who may not be driving for other
reasons.
Ms. Di Pietro believed Representative Pruitt was referring
to the second bullet point under Recommendation 14-2017.
She believed the question went to the larger issue about
why driving with a license suspended had been changed from
a crime to a violation under criminal justice reform. She
clarified that the change did not apply to situations
involving a DUI. The reasoning was that when the offense
was a crime, people stacked up violations and were having
trouble getting relicensed. Some individuals did not get
relicensed. She continued that individuals were getting
pulled over and convicted of crimes. The commission had
made an entire study of the issue at the legislature's
direction (the Title 28 report was posted on the
commission's website). The idea was using jail beds to
correct behavior for those types of offenses were not a
particularly good use of jail time and that the person
could be encouraged to correct behavior through other means
such as fines. There was also the crime of driving without
a valid license, which was different and had not been
changed in SB 91; the offense was still a crime. The
offense of driving without a valid license was punishable
at a higher level than driving with a revoked license. She
stated that it had not seemed fair, which was the reason
for the recommendation.
2:32:37 PM
Representative Pruitt surmised that instead of going back
and reanalyzing how the state was dealing with suspended
licenses it had been decided to lower the penalty for
driving without a valid license. He had concerns with how
law enforcement could utilize driving with a license
suspended. He believed officers would say they had concerns
with the issue. He thought lowering the penalty for another
offense would expand the area of the officers' concern. He
explained that if an officer pulled someone over and had
reasonable suspicion they may need to further investigate,
the ability to only write a ticket limited what they could
do. He did not know whether the concerns of the officers
had been listened to related to driving with a suspended
license, otherwise he thought the legislature would be
asking questions about why they would lower another offense
to the same level. He thought the conversations should
perhaps be held outside the committee setting because there
were officers who did not want to come on the record out of
fear of punitive action being taken against them. He
thought the provision would create additional challenges
for officers and that the provision had gone the wrong way.
^FISCAL NOTES
2:35:15 PM
Co-Chair Foster moved to a discussion of fiscal notes.
2:36:27 PM
AT EASE
2:43:54 PM
RECONVENED
Co-Chair Foster provided the order the committee would
address the fiscal notes.
APRIL WILKERSON, DIRECTOR, DIVISION OF ADMINISTRATIVE
SERVICES, DEPARTMENT OF CORRECTIONS, addressed the
indeterminate fiscal note, OMB Component Number 1381, from
DOC for the Institution Director's Office based on version
T of SB 54. The bill made several changes that were passed
under SB 91, which would impact the length of imprisonment
of individuals under the department's custody. The
department was unable to determine the total potential
impact. She provided an estimated range based on calendar
year 2015 offender data and the future sentencing
assumptions from DOL. The department anticipated the
changes could increase the prison system's daily population
by anywhere from 108 to 285 people per day. The department
did not have sufficient data to determine of the other
elements of SB 91 that would stay in place such as pretrial
diversion, the department could not quantify how many of
the individuals would come under its custody. However, if
it was that number of individuals it would cost anywhere
from $1.6 million up to $4.3 million based on the marginal
daily rate from the DOC cost of care.
Ms. Wilkerson detailed that the department had a daily
average cost per inmate of approximately $149.62, which was
all inclusive (fixed cost and operating cost). The
department had worked with the Pew Foundation under SB 91
to come up with a marginal rate, which excluded and removed
all of the fixed costs and equaled $41.49 per day (based on
FY 15 actuals and offender population). There was a slight
increase to the marginal rate of approximately $0.20. For
consistency DOC believed it would be more appropriate to
stay with the marginal rate moving forward.
2:48:04 PM
Representative Kawasaki referred to the costs associated
with slight changes to Felony C and Theft 4 crimes, which
would perhaps require more incarceration. He believed there
would be a cost. He did not like indeterminate fiscal
notes. He remarked that the fiscal note that came out of
the Senate Judiciary Committee had a cost of approximately
$4.3 million. The Senate Finance Committee had reduced the
cost estimates and made the note indeterminate. He wondered
why.
Ms. Wilkerson deferred to the DOC commissioner.
DEAN WILLIAMS, COMMISSIONER, DEPARTMENT OF CORRECTIONS (via
teleconference), shared that there had been struggle with
the fiscal note for multiple days during the development
process. He explained that prior to SB 91 it had been
possible to look at the numbers and estimate anticipated
costs regarding prison population numbers and trends. When
SB 91 had passed it had been possible to project
anticipated savings. When SB 54 first came into play, it
did not dial all the way back to where they had been with
SB 91, but they were creating a third version of what the
department anticipated the numbers would be. The department
had used multiple assumptions to get to the anticipated
amount. He had not done many fiscal notes and it was not an
area he had full comfort with. He felt that the numbers had
become very speculative and broad at between $1.5 [million]
and $4.3 [million]. The department did not have enough data
even with the current changes to determine what the cost
may be. He understood the frustration with an indeterminate
note, but he could not in good conscious provide a number
(only an extremely broad range). The version before the
committee was another iteration of the bill and each of the
changes either increased or decreased cost and there was
very little history to go on. After much consultation and
discussion, he believed an indeterminate note was the best
answer. He added that he could also provide the broad cost
range.
2:52:54 PM
Representative Kawasaki observed there was a difference in
the indeterminate fiscal note from the Senate compared to
the current indeterminate note. He remarked that Ms. Di
Pietro had testified that Class C felonies and Theft 4
would probably increase the prison population. He noted
that Ms. Di Pietro had testified that felony C and Theft 4
offenders and people violating conditions of release would
have significant day rates - increasing the number of
people in jail. He pointed to the analysis on page 2 of the
fiscal note that had come from Senate that included a low
estimate of 108 people per day and an upper limit of 285
people. He inferred that based on changes made in the House
Judiciary Committee a larger influx of inmates was
anticipated at the lower level.
Commissioner Williams replied that the narrative recognized
that the changes could increase the influx of inmates to a
particular number. He stated that the revisions made by the
House Judiciary Committee would mean numbers would rise,
not decrease. He agreed with the premise of Representative
Kawasaki's question - recent revisions to the bill would
drive numbers up somewhat. He referenced a Class A felony
amendment from the House Judiciary Committee - the number
of people in prison for Class A felonies was small. He
explained DOC had not made a revision for the change
because they did not know if there was even one person in
jail for that offense classification, they believed there
was, but they were not sure whether a law change would
impact a sentence. Those issues were more difficult to
articulate, but he recognized it was likely to drive some
of the population up over what had originally been
determined the past March.
Representative Kawasaki noted that he and Representative
Wilson served on the DOC budget subcommittee and they
wanted to make sure the numbers were as tight as possible
in order to know what was anticipated in the coming and
future years. He did not like indefinite fiscal notes and
appreciated the range.
Co-Chair Foster recognized Representative Zach Fansler in
the audience.
2:56:36 PM
Representative Wilson expressed concern about the numbers.
She noted the average daily cost of care in the institution
was $142.66 in FY 14, $141.17 in FY 15, and $149.62 in FY
16. She continued that suddenly they were going to a
marginal rate of $41.49. She asked if it was accurate to
indicate that every inmate would only cost $41.49.
Ms. Wilkerson replied that the marginal rate had been
developed because it became the whole number of $149.66
when looking at the overall institution. She detailed that
for any individual coming in the department was not going
to hire another superintendent or correctional officer. The
marginal rate was to identify that every incoming person
would get an assessment, food, and clothing; however, the
department's utilities and staffing structure would not
change. The number did include some of the overtime that
may be incurred because the population staffing needs could
not be met based on routine staffing.
Commissioner Williams provided an example of a facility
that housed a group of 500 people. Expenses included
housing, guarding, feeding, and providing medical care for
the inmates. He explained that adding or subtracting 50
people from the group would not change the overall
fundamental base rate; all of the services and employees
would still be required. However, it would mean more food
would need to be purchased staffing would incur more
overtime in certain occasions. The marginal rate measured
having the smaller groups of people. The daily rate for the
overall $149 was the divided cost per person for the entire
facility. A few more people in or out would not change the
overall bottom line cost. The explanation highlighted the
difference between the $149 rate and the $42 rate.
2:59:38 PM
Representative Wilson asked where healthcare fell into the
analysis. She believed inmates received free healthcare.
Commissioner Williams answered that part of the marginal
rate assumed the individuals would cost more because they
were under the system's care; however, it did not change
the number of nurses or doctors needed. The department was
still paying for their salary and all of the other things
needed to run a facility. He agreed that every person
coming into the prison added to the healthcare cost. The
calculation was not scientific, but the marginal rate was
supposed to measure what it would cost on an average basis
to feed and provide medical care for inmates.
Representative Wilson asked if the location of an
individual's incarceration mattered when considering the
cost. She asked for verification the average $41.49 per day
applied statewide.
Ms. Wilkerson agreed and relayed that the number was the
average incorporating all facilities.
Representative Wilson wanted to see potential savings from
SB 91. It had been her understanding they were using
something higher [a higher daily rate]. She spoke to the
safety of Alaskans for a $41 savings for some of the people
who may be put back on the street made her want to rethink.
3:01:35 PM
Co-Chair Seaton looked at the third paragraph on page 3 of
the fiscal note pertaining to felony C convictions. He
pointed to DOC's estimate of an increase in the prison
population from approximately 108 per day up to 163 per
day. He observed that the department had been able to
refine the figures somewhat for specific provisions of the
bill. However, in the second paragraph on page 2 he pointed
to the range of 108 per day up to 285 per day. He believed
the third page of the fiscal note indicated the range was
no longer valid because the 108 number would change to 163.
He was trying to determine the differential estimate
between what had been done previously and the version of SB
54 as it came to the committee. He was concerned the fiscal
note did not narrow the range if there was less ability to
save a portion of the population.
Ms. Wilkerson replied that based on SB 54 as passed by the
Senate, the department had a range of 108 to 163; the same
range had carried over. The department still had the
inability to determine of the 108 that could potentially
come into DOC's custody along with sentencing assumptions -
the changes to the C felony gave the courts and DOL
discretion and DOC did not know of those individuals who
would divert to pretrial or a diversion program. The
department's understood that the provision would allow the
court an opportunity to request a sentence or impose a
sentence of a given duration, not that they would impose a
sentence. Without knowing what would happen with the
courts, diversion programs, or other provisions under SB
91, the information used was the department's best guess.
Co-Chair Seaton asked for confirmation that the fiscal note
did not reflect changes in the House Judiciary Committee,
which would increase sentencing and decrease the amount of
anticipated savings.
Ms. Wilkerson answered that the items passed by the House
Judiciary Committee did not change the sentencing
guidelines under the C felonies; therefore, the department
believed the prior analysis for that section was
appropriate to carry over.
Co-Chair Seaton asked how the department would have the
figure refined by December 15 for a FY 19 budget. He stated
that DOC would need a budget to provide to the governor. He
wondered how the process would work.
3:06:35 PM
Ms. Wilkerson answered that the department was working on
the budget; it had needed a $10 million supplemental the
previous year. She explained that the department was
beginning to see an increase in the prison population -
prisons were back at 91 percent capacity at present. She
deferred to Commissioner Williams for further detail.
Commissioner Williams communicated he was not happy about
providing a fiscal note without much more specific detail.
He reiterated his earlier testimony that the bill was up to
three or four iterations of where they expected things
would be. In March he had believed the numbers were a fair
guesstimate about where things would go. There were some
updates made to the fiscal note after changes made by the
House Judiciary Committee. He believed there would be some
additional prison bed costs. Without solid data to look at
the past year, even the March estimate was even very shaky
because the only way to get some sense of what the future
would hold for cost was knowing what the past had been. The
past had changed dramatically due to reform efforts. Some
of the prison population had decreased, but DOC had also
needed a $10 million supplemental. Every time people were
put in it cost money. For example, DOC had one dialysis
patient it was saving $35,000 per month on because they
sent the person out-of-state. He had been looking
aggressively at those savings. The corrections business was
very difficult because medical costs of inmates could be
very expensive. He would circle back to determine if the
analysis could be articulated more clearly.
Co-Chair Seaton appreciated it. He explained that the
committee was making decisions on the bill, which was
difficult with very broad fiscal notes.
3:10:15 PM
Vice-Chair Gara understood that Commissioner Williams had
not been in the job for 20 years. However, he surmised that
if Representative Wilson offered a bill with ankle
monitoring the bill would get a fiscal note. He stated that
someone had to estimate the cost; they did not know for
certain because they would not know how many people would
use ankle monitors. He was carrying a bill that had a
fiscal note around $1.7 million that could probably give or
take $500,000. He emphasized that SB 54 would cost a few
million dollars. He reasoned that public safety cost money.
He mentioned the need to hire more prosecutors, public
defenders, and people at the Office of Public Advocacy. The
bill meant the state would need to hire people because more
people would be in prison. He did not understand passing a
fiscal note that did not include an estimate. As a person
who believed in raising revenue to fill the budget gap, it
was necessary to know what government was costing. He
believed they should know how much the additional cost
would be. He stated that indeterminate fiscal notes were
typically left for things that have minimal to no cost.
Commissioner Williams replied that the point was not lost
on him. The fiscal note had been a highly debated issue
with his team. He stated that perhaps it was his mistake as
a new commissioner and he was willing to reflect on that.
The department was not trying to hide anything from the
committee. He explained that the variations of the bill
were widely divergent possibilities and the information in
the note reflected what he believed the middle ground to
be. He was not happy to ask for supplemental budget
requests. The department had tried to be transparent about
the range of costs. He would continue to contemplate the
information.
Representative Wilson was concerned that the committee had
heard the prison system was at 91 percent capacity. She
noted that as of FY 18 the prison system had increased by
114 individuals. She asked if the system had the capacity
for another 285 people per day.
Commissioner Williams answered that 500 beds had been taken
out of the system when he had closed the Palmer
Correctional Center. He noted that the facility was still
there. He believed the system would be close to capacity if
285 individuals were put back in per day. He spoke to his
dissatisfaction about the housing of 50 men in a gymnasium
that was supposed to be used for a gymnasium in Fairbanks.
He believed it was a problem; it had been done in the past
prior to his time with the department. He believed it was a
false reflection of the system capacity. It was a difficult
question to answer. On the one hand he could say they had
capacity for most of the 285 [per day], but it impacted the
system. He explained there was vacancy in some locations
and maximum capacity had been reached in other locations
such as Fairbanks and Anchorage. The best thing he could do
in terms of population was to continue with pretrial
efforts to bring down pretrial population numbers, which
would provide some breathing room. He concluded that the
system could probably take the additional 285 people per
day, but it would not be good.
Representative Wilson had heard that the estimate of 285
people was too low due to changes made in the House
Judiciary Committee. She asked if Commissioner Williams was
considering reopening the Palmer Correctional Center.
Commissioner Williams replied in the negative. He clarified
that if the system exceeded capacity the Palmer facility
was still there. He explained that in every consideration
about the system capacity he had to recognize where the
trend line was going. He had made the decision on Palmer
because it was clearly the assumption the trend line would
continue to decline; the system had some space [in
facilities] to make the decision at the time. He assumed
the space would still be available but depending on whether
the daily influx of inmates went from 108 to 280 people
meant different operation decisions about where the
individuals would go. He would need to contemplate whether
the state should retain the Palmer facility for the next
five years. He believed the system could take some
individuals back in without adding additional beds in terms
of reopening the Palmer facility; however, much more than
that would require reopening the facility. The other part
of the issue was the massive cuts the department had taken
in anticipation of the reducing numbers. Depending on
whether the numbers went back up, a given number of staff
on shift to run the facility were still needed. He would
know more when he got a sense of where the final bill would
land. He stated it was a difficult area to make the
determinations. The best estimate the department could
produce was included in the fiscal note before the
committee. He would review the revisions made in the House
Judiciary Committee to determine if the fiscal note
information could be further articulated.
3:18:03 PM
Representative Wilson stated that finding out what the
provision would do after the bill passed was too late. She
stressed the legislature needed to know what the options
were when considering adding various provisions. She did
not want to necessarily reopen another prison. She remarked
on Commissioner Williams's testimony that he needed to
determine where the trend line was going; however, she
noted he had told the committee earlier that the department
did not have the data, which was the reason he could not
look at the bill to come up with a fiscal note. She
understood another option was sending prisoners out of
state versus opening up another prison. She believed the
issue would be discussed in the DOC budget subcommittee.
Her biggest concern was being faced with voting on the bill
without an accurate number.
Representative Wilson stressed that the committee was the
finance committee and was responsible for looking at the
numbers and determining how to come up with the money and
where it would come from. She believed it was unacceptable
to not have any idea of the potential cost. She was
concerned to hear the system was at 91 percent capacity
because it was up 141 inmates since the beginning of the
fiscal year. She emphasized that the prison population was
increasing. She stated that the population could increase
up to 285 people [per day] without factoring in amendments
made in the House Judiciary Committee, which could increase
the number. She was uncomfortable voting on the bill
without more accurate information. She added that it was
the only fiscal impact note - the others were all zero
notes. She did not support giving a blank check to the
department.
3:20:18 PM
Co-Chair Foster moved to the Department of Health and
Social Services fiscal note OMB Component Number 305.
RANDALL BURNS, DIRECTOR, DIVISION OF BEHAVIORAL HEALTH,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES, reported that the
fiscal note had been revised to reflect zero cost for FY 18
and indeterminate cost for FY 19 and beyond. He understood
there was some concern from the committee about the impact
changes in SB 54 would have on the Alcohol Safety Action
Program (ASAP). He detailed that if the provisions passed,
given the time lag from the court system, there would be a
minimal impact on the program through FY 18. For FY 19 and
beyond, the program was moving forward on development of
regulations that it believed could have mitigating effects
on the numbers (particularly on carryover numbers each
year, which added substantially to the caseload).
Additionally, the program was looking more closely at
setting standards for monitoring. The fiscal note was
indeterminate because it was possible the program could
continue serving participants with the current staff even
with an increase of 2,000 individuals. However, if the
program's belief about the ability to regulate some of its
work through new standards failed, ASAP may need up to 2
additional probation officers. The department was
submitting the indefinite note while it made an effort to
really define the program.
3:23:51 PM
Representative Guttenberg discussed that concerns had come
up the previous day. He requested that Mr. Burns consider
building in a stronger way to measure the program's
effectiveness and results. He was interested in knowing
which referrals for treatment were more effective, better
administered, and had better outcomes. The issues were
difficult to evaluate. He referenced public testimony where
individuals had testified about the number of times they
had done treatment until it worked. He understood it was
difficult to evaluate treatment programs and the multitude
of program types such as faith-based, and boot camp-type
treatment. The program that would work was hard to
determine.
Mr. Burns replied that the department had been talking
about the idea and it would endeavor to follow
Representative Guttenberg's suggestions as it drafted and
implemented policies for ASAP.
Co-Chair Foster recognized Representative Ivy Spohnholz in
the audience.
3:26:22 PM
Representative Wilson recalled that the previous day Mr.
Burns had testified that ASAP did not do any monitoring of
the treatment programs. She asked why it was incorporated
into the fiscal note.
Mr. Burns responded that statute asked the department to
implement standards for ASAP, which it had not formally
done. The department would be adopting regulations that
would put the standards in place, which would give it the
basis to begin looking at the type of questions raised by
Representative Guttenberg.
Representative Wilson highlighted that in the previous
meeting the discussion had been about whether ASAP followed
whether participants completed the program successfully.
She noted that Mr. Burns had told the committee he was
looking for the information but did not necessarily have
it. She pointed out that part of the fiscal note addressed
intensive monitoring requirements. She did not know whether
it meant ASAP would do the monitoring or the treatment
programs would monitor participants. She referenced the
$180,000 included in the note and asked if Mr. Burns had a
projection for the number of additional individuals that
would come to the program.
Mr. Burns responded that ASAP also included therapeutic
courts and the programs attached to therapeutic courts.
Those programs were highly monitored, their success rates
were known, and ASAP followed up. He detailed that those
program numbers were much smaller. He volunteered to have a
discussion with the committee in conjunction with the
therapeutic courts coordinator regarding the success rates
and progress for those individuals. He noted that the ASAP
program served thousands of people, unlike the therapeutic
courts. In misdemeanor cases where the judge believed
alcohol or drugs were a factor and where the person could
benefit from treatment or education on the impacts of their
behaviors, they were referred to ASAP. The program screened
and monitored the individuals and referred them to
treatment. The way the program knew whether a person was
successful was their completion of the program and when the
judge agreed and released them. The program required
individuals to assume some responsibility. They were in the
program because of their actions that brought them before
the court. The program was tracking participants ability
and ASAP support for the individuals as they got through
the court system, were released, and received their car and
driver's license back.
3:30:42 PM
Representative Wilson clarified she wanted to know how many
more people the department anticipated would participate in
ASAP to account for the $180,000 in the fiscal note.
Mr. Burns answered the $180,000 reflected the cost of
hiring two additional staff.
Representative Wilson reiterated her previous question. Mr.
Burns answered that the department was uncertain what the
numbers would be, which was the reason for the
indeterminate fiscal note. The department was hoping to
have a much better picture at the end of FY 19 after a
year's worth of time regarding how the changes impacted
ASAP. Eventually one or two additional probation officers
may be required (there were currently four serving over
3,500 people).
Representative Wilson referred to Mr. Burns' testimony from
the previous day that individuals paid to participate in
the program. She wondered what percentage of the cost was
paid by participants.
Mr. Burns answered that the individuals paid the entire
cost for treatment.
Representative Wilson asked for verification that the only
thing the participants did not pay was Mr. Burns' salary or
whoever was conducting the intake.
Mr. Burns replied that ASAP funding went to paying for ASAP
staff and rural ASAP offices in other communities.
Representative Wilson wondered if there was a possibility
to look at increasing the fees to cover the entire program
expense. She thought it meant the committee would not have
to worry about indeterminate fiscal notes, meaning the
committee could zero the current note out.
Co-Chair Foster recognized Representative Harriett Drummond
in the audience.
3:33:52 PM
Representative Kawasaki stated that the Alaska Criminal
Justice Commission had recommended referrals be limited
unless more funding was allocated. He noted the
recommendation was included on slide 18 of a presentation
provided by ACJC about one week earlier ["Alaska Criminal
Justice Commission: House Finance Committee" dated October
26, 2017 (copy on file)]. He remarked that SB 91 had
limited referrals to the most high-risk offenders, but it
also increased workload for ASAP. He understood the
amendments taken up by the House Judiciary Committee would
expand the referrals again. He asked if that was Mr. Burns'
understanding.
Mr. Burns answered in the affirmative.
Representative Kawasaki stated the presentation delivered
the previous day by Mr. Piper [Manager, Alcohol Safety
Action Program, Department of Health and Social Services]
indicated that in FY 15 there were about 8,900 new and
remaining cases under ASAP's purview prior to SB 91 and
approximately 8,047 in FY 16. Post-SB 91 (in FY 17) there
were only 5,271 cases. He referenced slide 13 of the same
presentation pertaining to ASAP FY 16 actuals. The slide
showed ASAP had 13 permanent full-time positions in FY 16
and FY 17. He surmised the total number of referrals had
dropped under SB 91. He thought it may be a good thing
because ASAP had been underfunded and its high workload
meant it may not have been as effective as it could be. He
believed under SB 54 it appeared that ASAP would have an
increased number of referrals and workload. He asked for
verification that ASAP had done that in the past with only
13 staff.
Mr. Burns agreed, but the workload had been different in
the sense that the screening (use of the LSI-R [Level of
Service Inventory-Revised]) and the monitoring requirements
were different. He explained it was one of the issues ASAP
wanted to address more fully through a review of the
program and the adoption of standards - whether it could
control and mitigate some of that through the adoption of
standards. He referenced the slide's information about the
number of cases held over each year, which jumped from
1,600 to 2,200 and back down to 1,700. He believed it was
important to determine the reason in order to have some
impact on that caseload as well.
3:37:37 PM
Co-Chair Seaton stated that the legislature had been told
that ASAP was less effective when caseloads were high
(around 9,000). He elaborated that SB 91 had reduced the
classifications referrals to 6,000, which had increased
probation officer follow up. The legislature had been told
the changes made the program more effective. He found it
problematic to go back to 8,000 or 9,000 participants. He
continued that an effective program would require case
management and probation officers. He pointed to the second
to the last paragraph on page 2 of the fiscal note and read
"...based on a determination of the risks and needs
present, the amount of intensive monitoring needed, and
other factors." He thought it meant the program may decide
to provide the same level of service that had been
ineffective in the past. He was unsure what the program was
saying to the legislature. He asked if it could handle more
referrals but not the workload. He asked about looking at
implementing a delayed effective date for expanding the
program to additional people. The delayed effective date
would allow the state to know whether the program would
have monitoring and case management.
Mr. Burns addressed monitoring. He stressed the importance
of knowing what the monitoring entailed. For some
individuals it was relatively modest if almost nonexistent.
He explained that if a person was very committed, ASAP sent
them to education for 12 hours, they went back to court,
and got their license back. He relayed that it did not
require a significant amount of monitoring for people low
on the scale of recidivism. There were also people on the
higher end. The program did not know how to estimate what
the numbers would be over time. Prior to SB 91, many of the
individuals assigned to ASAP had domestic violence
misdemeanor charges; some of those individuals did not need
significant screening and others did. The department needed
the opportunity to track and determine what a particular
score on the LSI-R meant in terms of ASAP's commitment to
monitoring; it would also share the information with the
other offices and would determine the impact. He did not
want to hire people merely to fill slots until they had a
much better idea of what they would be asked to do and what
was required based on the scores and screenings.
Mr. Burns addressed the idea of a delayed effective date to
the beginning of the next fiscal year. He did not believe
there would be numerous referrals between the immediate
effective date under the current version of SB 54 and a
delayed date of July 1 [2018]. Delaying the effective date
for a year would allow the program to create the standards
it wanted by looking at the population it continued to
serve, which may better prepare the program for any
changes.
3:43:59 PM
Co-Chair Seaton noted they were talking about over half of
the fiscal year. He continued that if the referrals were
the same as in the past the program would see at least half
of the number in the coming fiscal year (without any
additional funding). He remarked that the department had
testified in the House Judiciary Committee that it was
maxed out on funding resources. He was confused about how
the department anticipated it would be possible to add
another 1,500 or 2,000 referrals to the ASAP system before
July 1, 2018 and provide the same level of service.
Mr. Burns answered that it would take a while for the
individuals and the court system to be apprised of the
change. Additionally, it would take time before referrals
began occurring at the level they had in the past. The
department believed it would not be seeing double [the
referrals] in the next six months - it would take time for
the transition to occur. He reasoned that the number of
referrals would grow during that timeframe, but not as
astronomically as it could, or most likely did in prior
years.
3:46:50 PM
Representative Tilton pointed to language on page 2 of the
fiscal note specifying that the increased referrals to the
program would offset the receipts. She asked if people
referred to the program paid a fee. She wondered who was
responsible for paying for the program. She asked if costs
to participate in the program were higher in ASAP satellite
offices where ASAP administered the treatment programs. She
queried the payment structure. She reiterated that the
fiscal note specified ASAP would not need to offset
receipts, which she assumed showed up under designated
general funds on the budget.
3:48:32 PM
Mr. Burns deferred to a colleague.
TONY PIPER, MANAGER, ALCOHOL SAFETY ACTION PROGRAM,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES (via
teleconference), replied that there was a statutory
requirement for a $200 case management fee to help offset
some of the ASAP costs. The fee went to the Anchorage
office and for outlying grantee offices it helped the
grantee offset some of the case management costs. The fee
was paid directly by the individual.
Representative Tilton asked if program participants were
required to pay the $200 fee and the additional cost of an
outside treatment program.
Mr. Piper replied that the treatment or education was
always outside of the ASAP office. He detailed it could be
in the same agency in outlying areas, but the additional
fee for treatment or education would be paid by the
individual, their insurance, Medicare, or whatever they had
to cover it. In some cases, there were programs that
assisted with the funding (e.g. the Veterans Administration
or Alaska Native hospitals). He added there were some
programs with no fee, but typically the fee was paid by the
individual.
Representative Tilton thought the program may want to
consider an increase in the fee if it was not currently
covering the program costs.
Representative Grenn asked what happened if someone was
referred to the program but could not pay.
Mr. Piper answered that for the most part, the individuals
would be seen by ASAP regardless. He continued the
individuals could have a payment plan and do whatever
necessary to pay off the case management fee. Treatment
agencies tried to have a sliding scale fee. Additionally,
there were some grant programs. He elaborated that ASAP
tried to find a way to assist individuals when they had a
need. The individual would be seen by ASAP regardless of
ability to pay.
Representative Grenn was trying to determine if there was a
trigger point when the program would feel the need to bring
on more probation officers.
3:52:16 PM
Mr. Piper answered that it was a goal, but the program had
not identified a specific number of cases assigned to a
particular individual and had not determined the tipping
point. The number of caseloads was one of the things the
program wanted to standardize. Additionally, the goal was
to solidify the requirements necessary for each probation
officer to manage the program appropriately under standards
that would be implemented.
Vice-Chair Gara believed there was an overutilization and
underutilization of ASAP. He remarked that ASAP was needed
for people needing alcohol treatment. He stated that
frequently cases where there was no evidence of the need
for alcohol treatment were also referred to the program. He
spoke to a change by the House Judiciary Committee that
would add cost. He wondered how effective the change would
be and whether it was needed.
Mr. Piper asked Vice-Chair Gara to clarify.
Vice-Chair Gara rephrased his question.
Mr. Burns answered that the ASAP program had been operating
for some time. He had heard only good things about the
program. He recently read a report published by the
University related to a cost/benefit ratio. The report
indicated that for every state dollar invested, the state
was receiving $1.50 in return; the return was not as high
as some of the other programs but was certainly providing
service. He continued that because standards had not been
set, it was difficult to gage ASAP success. He did not yet
have the answer, but the program was working on it.
Vice-Chair Gara clarified he was asking whether the changes
in the House Judiciary Committee were positive and cost-
effective given the added cost.
Mr. Burns replied that he understood the goal of the change
was to provide courts with the option to allow more people
to be served (than under changes made by SB 91). He
understood there was value and it was nice to know people
believed the ASAP program could help misdemeanants with
alcohol and drug involvement. He appreciated the goal, but
he did not know what the changes would cost long-term. He
assured the committee that the department would run ASAP to
the best of its ability; if additional funds were needed
they would ask. He believed that in one year they would be
on a better footing to know what the program would need
(after some history and the implementation of standards)
and how new requirements for screening and monitoring would
impact the office.
3:57:48 PM
Vice-Chair Gara was asking if the changes made in the House
Judiciary Committee were a good idea and would be cost-
effective. Mr. Burns answered in the affirmative.
Co-Chair Seaton shared that DOL had just confirmed that the
referral system to ASAP could apply to a sentence for
conduct that occurred prior to the bill's effective date;
the program could start getting referrals from the court
system immediately due to the immediate effective date.
DAN SPENCER, DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES,
DEPARTMENT OF LAW (via teleconference), relayed that DOL
had one zero fiscal note. He deferred to Mr. Skidmore for
questions.
Mr. Skidmore provided detail on the zero fiscal note. He
highlighted that SB 54 would adjust sentences and the way
the department may handle work it was already provided. The
vast majority of the amendments in the bill would not add
work for DOL. The only thing that would potentially add to
the department's cost was the addition of Pink and Tramadol
to the scheduled drug list; however, he did not know the
number of cases that would come to DOL and the department
assumed it would be able to absorb the cases into its
current workload. He did not mean to imply that DOL was
flush financially, but prosecutors had discretion on which
cases to bring; therefore, DOL had the ability to regulate
how much work the bill would create.
4:01:29 PM
Representative Kawasaki spoke to the addition of
presumptive sentencing, amendments to the offense of
violating conditions of release, and a couple of other
items that favored prosecution. He surmised it did not
necessarily mean the department would prosecute more
frequently. He asked for verification it meant DOL may
prosecute different crimes and that it had discretion about
cases it chose.
Mr. Skidmore used the violation of conditions [of release]
as an example. Currently, if an individual charged with a
crime and released pretrial violated the conditions of
release it would most likely result in a bail hearing. The
department's prosecutors would have work to do to address
the violation. The difference the bill made was the type of
work DOL may do or how it would address the work. He
believed the addition of violation of conditions of release
would increase efficiency for the department because when
someone was arrested and a charge was filed, the bail
hearing was more likely to automatically come about. The
change was smoother than the current process where the
department had to find out what was going on, had to try to
get the person into court, and had to file other sorts of
paperwork. He explained that it would not alter the fact
that a person had violated their conditions or that a
response to the violation had to take place. The change
would provide DOL with more tools to respond with.
Mr. Skidmore highlighted Class C felonies as another
example. The bill would change the penalty from 0 to 18
months of probation time to 0 up to 1 year of jail time.
The bill changed what the sentencing may be, but not
whether the crime was prosecuted. He explained that DOL may
alter the sentencing memorandum filed for a case, but they
would still be required to file the memorandum.
Additionally, the department would still have to negotiate
the case. There would be different tools, but the work
would not change - with the exception of Pink and Tramadol;
there may be additional cases for possession of the drugs,
but he did not know how many cases there would be - the
cases would have to be factored into the workload. Nothing
else in the bill increased workload but provided different
tools to address existing work.
4:04:22 PM
KELLY HOWELL, DIRECTOR, DIVISION OF ADMINISTRATIVE
SERVICES, DEPARTMENT OF PUBLIC SAFETY (via teleconference),
spoke to the department's zero fiscal note [OMB Component
Number 2325]. The department did not anticipate proposed
changes in SB 54 would have a significant impact on the
enforcement efforts of the Alaska State Troopers (AST). She
noted that AST Captain Dan Lowden was available for
questions.
4:05:36 PM
Co-Chair Foster moved to Judiciary fiscal note, OMB
Component Number 768. He relayed that Alaska Courts and
Juvenile Justice fiscal notes remained unchanged from
previous versions of the bill. He asked members to provide
questions to his office.
MATT DAVIDSON, PROGRAM OFFICER, DIVISION OF JUVENILE
JUSTICE, DEPARTMENT OF HEALTH AND SOCIAL SERVICES,
addressed the zero fiscal note OMB Component Number 2134.
He detailed that the division had submitted a zero fiscal
note on the initial version of the bill. The department
handled juveniles referred to the division for criminal
offenses based on their risks and needs, so changes to
sentences and adult probation did not generally impact the
division. The addition of the drugs Pink and Tramadol may
bring in some additional referrals, but the division
believed it would handle them internally. The division had
not updated the fiscal note based on the latest version of
the bill. He was happy to update the note if the committee
desired; the fiscal note would continue to be zero.
4:07:25 PM
Representative Wilson asked to hear from DOC Commissioner
Williams [Commissioner Williams was no longer available
during the meeting]. She asked for a breakdown of the
marginal daily rate of $41.49. She wanted to know how the
rate was determined.
Co-Chair Foster would follow up on the issue.
Representative Wilson requested the formula for the
marginal rate prior to amendments the following morning via
email. Ms. Wilkerson agreed.
Co-Chair Foster asked members if they had questions.
Representative Wilson hoped Commissioner Williams would be
online for the meeting the following day. She emphasized
the importance of real numbers.
4:10:31 PM
Co-Chair Foster relayed that Nancy Meade, General Counsel,
Alaska Court System was available for any questions.
CSSB 54(FIN) was HEARD and HELD in committee for further
consideration.
Co-Chair Foster addressed the schedule for the following
day.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 54 HCS JUD Fiscal Notes Pkt..pdf |
HFIN 11/1/2017 1:00:00 PM |
SB 54 |
| SB 54 ACJC Report Appendix F HFIN Discussion.pdf |
HFIN 11/1/2017 1:00:00 PM |
SB 54 |