Legislature(2013 - 2014)CAPITOL 120

03/24/2014 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 64 OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL TELECONFERENCED
Heard & Held
+ HB 250 MEDICAL MALPRACTICE ACTIONS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 127 OMBUDSMAN TELECONFERENCED
Moved CSHB 127(JUD) Out of Committee
        SB  64-OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL                                                                    
                                                                                                                                
1:56:20 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER announced that the  final order of business would be                                                               
SB  64, "An  Act establishing  the Alaska  Sentencing Commission;                                                               
relating  to  jail-time  credit for  offenders  in  court-ordered                                                               
treatment  programs;  allowing  a   reduction  of  penalties  for                                                               
offenders   successfully   completing   court-ordered   treatment                                                               
programs  for  persons  convicted  of  driving  while  under  the                                                               
influence or refusing  to submit to a chemical  test; relating to                                                               
court  termination  of  a  revocation   of  a  person's  driver's                                                               
license; relating  to limitation  of drivers'  licenses; relating                                                               
to  conditions of  probation  and parole;  and  providing for  an                                                               
effective date."  [Before the  committee was committee substitute                                                               
(CS) for SB 64(FIN).]                                                                                                           
                                                                                                                                
1:57:32 PM                                                                                                                    
                                                                                                                                
JORDAN  SHILLING,  Staff,  Senator  John  Coghill,  Alaska  State                                                               
Legislature, stated  that SB 64  was introduced last  session and                                                               
was heard  in the  Senate State  Affairs, Judiciary,  and Finance                                                               
Standing Committees and also during  the interim.  The Department                                                               
of Law  (DOL), Public Defender Agency,  Department of Corrections                                                               
(DOC), Department  of Public  Safety (DPS)  and the  Alaska Court                                                               
System  have  worked  consistently   throughout  the  process  to                                                               
produce CSSB 64.                                                                                                                
                                                                                                                                
1:58:45 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LANCE PRUITT  moved to adopt CSSB  64, labeled 28-                                                               
LS0116\L  as  the  working  document.    Hearing  no  objections,                                                               
Version L was adopted.                                                                                                          
                                                                                                                                
1:59:09 PM                                                                                                                    
                                                                                                                                
MR. SHILLING continued with a  slide presentation, and [page 2 of                                                               
the  slide show]  showed  the  state-of-the-art, medium  security                                                               
facility, Goose  Creek Correctional Center, which  opened in 2011                                                               
for $250 million  to build and $50 million to  operate.  The cost                                                               
to house an  inmate is approximately $160 per day  and $5,400 per                                                               
year,  which is  roughly twice  as much  as it  costs to  house a                                                               
prisoner  in  the  lower 48.    He  noted  that  Alaska is  at  a                                                               
crossroads in that if the  prison population continues to grow at                                                               
its current rate (an average of  3 percent a year with the budget                                                               
growing approximately  7 percent  per year), the  state's prisons                                                               
will  be full  again in  two years.   [Page  4] depicts  Alaska's                                                               
Institutional Inmate  Population from  fiscal years (FY)  2003 to                                                               
2020.  He related that the state  must either plan to build a new                                                               
prison  now,  send the  state's  prisoners  outside, or  look  at                                                               
programs that have  proven to work.  He noted  there are programs                                                               
other states  have implemented to  reduce recidivism,  reduce the                                                               
budget, and  put off the  huge capital and operating  expenses of                                                               
building another  prison.   He stated  that approximately  2/3 of                                                               
the   state's   prisoners   have  returned   to   prison   within                                                               
approximately  three years  of release,  and most  return in  the                                                               
first  six months.   Alaska  has  one of  the highest  recidivism                                                               
rates in the country.  With  state revenues falling, "is this how                                                               
Alaska wants to spend its money?" he asked.                                                                                     
                                                                                                                                
MR. SHILLING said  many states have been in the  same position of                                                               
needing new prisons, so they  identified issues that were driving                                                               
their prison  growth and passed laws  to fix the problems.   Over                                                               
the  past couple  of  years,  15 states  that  worked on  justice                                                               
reform  have  actually closed  prisons.    Texas was  faced  with                                                               
building  four   new  prisons  and   instead  the   state  funded                                                               
evidenced-based  programs and  actually  closed a  few prisons  a                                                               
couple  of   years  later.     Kentucky  is  projected   to  save                                                               
approximately  $400 million  over the  next decade,  and Arkansas                                                               
expects to  save about  a billion dollars.   "Alaska  hasn't done                                                               
much in the way of corrections  reform," he noted.  A majority of                                                               
Alaska's  criminal statutes  were  rewritten in  1982, and  since                                                               
that time,  effective ways to  address prison problems  have been                                                               
found.  He explained that the three  goals of SB 64 is to improve                                                               
public safety, reduce  recidivism, and reduce cost.   The DOC has                                                               
similar   goals;   its    mission   statement   includes   secure                                                               
confinement, reformative programs,  and community re-integration.                                                               
Those goals  are pulled  from the  Alaska Constitution,  so "it's                                                               
not  that their  goals or  missions are  wrong, it's  how they're                                                               
allocating their resources to reach  those goals," he opined.  He                                                               
presented a  graph of  DOC resource  allocation, and  the highest                                                               
allocation for full-time positions  is in secure confinement, and                                                               
only about 4  percent of its staff work  on reformative programs.                                                               
Additionally, only  6 percent  of money  spent is  on reformative                                                               
programs,  and  "it's actually  those  very  areas where  we  can                                                               
affect   recidivism-it's  the   reformative   programs  and   the                                                               
supervised release,"  he explained.   If  Alaska keeps  doing the                                                               
same things, it will keep getting the same results.                                                                             
                                                                                                                                
MR.   SHILLING   said  [page   9]   depicts   Alaska's  drop   of                                                               
approximately 1.5  percent in recidivism  over four years;  it is                                                               
not happening quickly  enough.  He reiterated that  at that rate,                                                               
Alaska's prison system will be full  by 2016.  Senate Bill 64 has                                                               
eight  main   pieces  will  help   the  recidivism   problem.  It                                                               
establishes a  24/7 [24 hours a  day and 7 days  a week] sobriety                                                               
program,  which includes  twice-a-day alcohol  testing and  swift                                                               
punishment for violations.  The  bill creates the Alaska Criminal                                                               
Justice  Commission   to  evaluate   Alaska's  system   and  make                                                               
recommendations, including sentencing  recommendations.  The bill                                                               
expands a  program called  Probation Accountability  with Certain                                                               
Enforcement (P.A.C.E.),  which is an intensive  type of probation                                                               
that decreases drug use and  new crimes, and ultimately decreases                                                               
days spent  in jail.   Senate  Bill 64 also  requires the  DOC to                                                               
conduct more assessments  of its prisoners, and  it establishes a                                                               
recidivism   reduction   fund   intended  to   grant   money   to                                                               
transitional or re-entry  programs.  The bill  increases the 1970                                                               
felony  theft  threshold from  $500  to  $1,200, it  incentivizes                                                               
residential  treatment, and  it  expands the  ability to  receive                                                               
credit for time in treatment.                                                                                                   
                                                                                                                                
2:05:54 PM                                                                                                                    
                                                                                                                                
MR.  SHILLING responded  to  Chair Keller  that  the first  three                                                               
sections of SB  64 deal with custodial interference.   He advised                                                               
that  these sections  were  the  result of  an  amendment in  the                                                               
Senate Judiciary  Standing Committee  and, he opined,  it doesn't                                                               
necessarily  fit the  overall  theme of  the bill,  but  it is  a                                                               
worthy effort.   The sections  close a potential loophole  in the                                                               
Alaska Statutes.   He explained that  if an abductor goes  into a                                                               
school  or  day care,  essentially  impersonating  a parent,  and                                                               
attempts to take  that child, he or she can  only be charged with                                                               
criminal  mischief  in  the  fourth degree,  even  though  it  is                                                               
clearly an  attempted abduction.   Section 2,  page 2,  creates a                                                               
crime  of  custodial interference  in  the  second degree  if  an                                                               
individual attempts to abduct a child in that manner, he stated.                                                                
                                                                                                                                
2:07:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG  related   that  there   is  custodial                                                               
interference  in  the first  and  second  degree.   First  degree                                                               
custodial interference involves  taking a child out  of the state                                                               
and is  a felony, and  second degree custodial interference  is a                                                               
misdemeanor as the child is not  removed from the state.  He said                                                               
there is a  U.S. Supreme Court decision  wherein "that difference                                                               
is constitutional" and there may  be an Alaska Supreme Court case                                                               
on the issue also. He then posed a question that he withdrew.                                                                   
                                                                                                                                
2:08:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX asked,  if the child's [abductor]  is not a                                                               
relative, why is it custodial interference and not kidnapping?                                                                  
                                                                                                                                
2:08:40 PM                                                                                                                    
                                                                                                                                
MR. SHILLING deferred to the Department of Law.                                                                                 
                                                                                                                                
2:08:53 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  advised  there is  a  general  attempt                                                               
statute  that applies  to anything;  "if you  attempt murder  you                                                               
marry  the statutes  up,"  he said.   It  could  be considered  a                                                               
conspiracy, as well, or attempted kidnapping.                                                                                   
                                                                                                                                
2:09:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked why  it  is  not kidnapping  for  a                                                               
stranger to  walk into  a day  care and claim  to be  the parent-                                                               
whether  the  stranger is  caught  there  or actually  takes  the                                                               
child.   She again  questioned why  the discussion  was custodial                                                               
interference, why the  sections are needed, and why  it would not                                                               
be covered by the kidnapping statute.                                                                                           
                                                                                                                                
2:09:58 PM                                                                                                                    
                                                                                                                                
MR. SHILLING  responded that  the current  custodial interference                                                               
statutes  only apply  to relatives,  so the  attempt is  to bring                                                               
non-relatives  under that  umbrella.   He agreed  that it  may be                                                               
appropriate and said he will research the issue.                                                                                
                                                                                                                                
2:10:13 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG,  in reference  to page 2,  lines 19-20,                                                               
said it must be shown that  the defendant is not a relative, does                                                               
not have the right to keep the child,  and is aware he or she has                                                               
no right to keep the child.   He noted that, should an individual                                                               
make a  statement that he  or she has a  legal right to  take the                                                               
child, that statement would not  be considered an attempt [as the                                                               
individual has  not gone far  enough into  the crime].   It would                                                               
not be a conspiracy because [the  action] does not require two or                                                               
more  individuals;  a conspiracy  is  a  criminal contract.    He                                                               
described this scenario as probably  falling within a loophole as                                                               
the  crime is  not completed,  and  there is  no kidnapping,  but                                                               
simply a representation.                                                                                                        
                                                                                                                                
2:11:41 PM                                                                                                                    
                                                                                                                                
MR. SHILLING continued  that Sections 4-19 of SB  64 [pages 13-23                                                               
of the  slide show] addresses  the felony theft threshold  put in                                                               
place  by  the  1978  legislature, in  which  the  dividing  line                                                               
between a  misdemeanor theft  and a  felony theft  is $500.   The                                                               
threshold does  not take inflation  into account wherein  $500 is                                                               
equal  to  approximately  $1,800   today,  and,  he  noted,  what                                                               
amounted  to  a misdemeanor  twenty  years  ago, now  effectively                                                               
constitutes  a  felony.   He  stated  that  SB  64 goes  into  15                                                               
different  statutes  where  this   monetary  threshold  has  been                                                               
placed, and  it includes theft  and property crimes.   "We raised                                                               
the level  between a class  C felony  and a class  A misdemeanor,                                                               
and, similarly,  we moved the  class B level  up a little  bit as                                                               
well," he stated [page 22 of the slide show].                                                                                   
                                                                                                                                
2:13:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX asked  if  the felony  had mandatory  jail                                                               
time.                                                                                                                           
                                                                                                                                
MR.  SHILLING responded  that  he  was not  sure  if  there is  a                                                               
mandatory minimum on  any of these property claims,  and many are                                                               
pled down.  He imagined there  are some people who have committed                                                               
thefts who do not serve jail time-but some certainly do.                                                                        
                                                                                                                                
REPRESENTATIVE   LEDOUX  asked   if   they  are   pled  down   to                                                               
misdemeanors.                                                                                                                   
                                                                                                                                
2:13:33 PM                                                                                                                    
                                                                                                                                
MR. SHILLING  responded that in  some areas of Alaska  the answer                                                               
is  yes.   He said  he has  heard that  in the  Matanuska-Susitna                                                               
Valley, for example,  "they treat any theft, even if  it is $501,                                                               
they don't  plead down,  they just  go for  the felony,  but I've                                                               
heard in  other areas in  Alaska they do plead  deals regularly."                                                               
One of the  aspects of raising the felony theft  threshold is the                                                               
cost  it incurs  on  the  state.   The  public defender's  agency                                                               
demonstrates that  defending a  misdemeanor is  approximately 1/3                                                               
of the cost  of defending a class  B or C felony [page  15 of the                                                               
slide show].   He added that  most of these crimes  are committed                                                               
by young  people; those  ages 18-30 commit  the bulk  of property                                                               
crimes.   A felony conviction carries  life-long consequences and                                                               
greatly diminishes an individual's ability  to be productive.  He                                                               
related  that this  problem  disproportionally  affects those  in                                                               
rural Alaska and  used the example that if a  window is broken in                                                               
Juneau or  Anchorage it could  be under  the $500 level,  and yet                                                               
that same  window could  easily invoke a  felony in  rural Alaska                                                               
where everything is  30-40 percent more expensive.   As inflation                                                               
continues, the problem continues, he  stated, and year after year                                                               
it will  become easier to  be convicted of  a felony and  it will                                                               
cost the state more and more money.                                                                                             
                                                                                                                                
2:15:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PRUITT  offered  a suggestion  of  language  that                                                               
allows  for the  30-40  increase of  costs in  rural  areas.   As                                                               
Alaska will  always have  a disparity in  the price  scenario, he                                                               
suggested   coming   up   with   a   mechanism   allowing   local                                                               
municipalities the  ability to determine  the level.  He  said he                                                               
struggles with  increasing [the threshold]  on the basis  that it                                                               
is more expensive  in rural areas and prefers  giving rural areas                                                               
the option to make that determination.                                                                                          
                                                                                                                                
2:16:21 PM                                                                                                                    
                                                                                                                                
MR. SHILLING responded that ultimately  what the legislature does                                                               
with the sections will be a  policy call with the House Judiciary                                                               
Standing   Committee,  and   he  found   Representative  Pruitt's                                                               
suggestion  interesting as  he had  not heard  it before.   There                                                               
will always be a price  disparity between rural and urban Alaska,                                                               
and he deferred  to DOL as to  how it could be  implemented in SB
64.   He noted there  have been  suggestions to actually  peg the                                                               
felony  theft  threshold  to inflation  which  would  negate  the                                                               
necessity to continually pass bills to track inflation.                                                                         
                                                                                                                                
2:17:48 PM                                                                                                                    
                                                                                                                                
MR. SHILLING continued  that Alaska is one of the  last states to                                                               
adjust  for inflation  and  noted the  average  threshold for  34                                                               
states  is  approximately  $1,230.   A  concern  from  the  small                                                               
business  community is  if the  change will  lead to  more theft,                                                               
and, intuitively, it  seems it might.   However, Arkansas doubled                                                               
its  threshold and  has  seen  a steady  rate  of  theft with  no                                                               
increase; Ohio  did the same and  has a decrease in  theft; South                                                               
Carolina is  steady on  theft; Maryland  raised its  threshold to                                                               
$1,000 and it  slightly lowered the rate of  thefts; and Delaware                                                               
and Utah have stayed steady.                                                                                                    
                                                                                                                                
MR. SHILLING noted  that Alaska has been  struggling with alcohol                                                               
for  decades [pages  24-30 of  the slide  show] and  the societal                                                               
cost is  huge. He  mentioned its role  in Fetal  Alcohol Spectrum                                                               
Disorders   (FASD),  suicide,   domestic  violence,   and  sexual                                                               
assault.   He related that  alcohol is  a factor in  most crimes.                                                               
It is involved  in 75 percent of domestic  violence offenses, and                                                               
public defenders will  say that for 99 percent  of their clients,                                                               
alcohol is a  factor in their crimes.  He  stated that addressing                                                               
the issue of  alcohol abuse will cause a  reduction of recidivism                                                               
in  Alaska.    Mr.  Shilling  pointed  out  that  Sections  20-22                                                               
establish the 24/7 Sobriety Program  in the pre-trial phase.  The                                                               
program  was developed  in South  Dakota  in 2005,  and it  curbs                                                               
alcohol  use, makes  the public  safer,  reduces recidivism,  and                                                               
costs  the state  "next  to  nothing."   The  24/7  program is  a                                                               
growing trend in  the United States; South  Dakota, North Dakota,                                                               
and  Montana  have  implemented  the  program.    Eleven  states,                                                               
including Alaska, have pending legislation,  and five more states                                                               
are operating  pilot programs.   The program simply  requires the                                                               
participant to refrain from using alcohol  for 24 hours a day and                                                               
7 days a  week, and it requires the participant  to show up twice                                                               
a day for a  breath alcohol test.  In the  event someone lives in                                                               
an area where it is not convenient  to go to a testing site twice                                                               
a day,  which is  much of  Alaska, the court  can order  that the                                                               
person use electronic monitoring, he explained.                                                                                 
                                                                                                                                
2:20:45 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER  asked, "How does  the swift response-that  makes it                                                               
so effective-work when it's an electronic monitor?"                                                                             
                                                                                                                                
2:20:52 PM                                                                                                                    
                                                                                                                                
MR. SHILLING responded that the  swiftness is much more important                                                               
than the  severity of the sentence,  which is a huge  part of the                                                               
program.  It  is more difficult to implement  with ankle monitors                                                               
and  the  response  is  slower; however,  it  does  still  reduce                                                               
recidivism.    South  Dakota  has roughly  15  percent  of  their                                                               
participants on  electronic monitoring  because they live  so far                                                               
away from the  testing sites, and Mr.  Shilling has effectiveness                                                               
data for the  committee.  This program is a  new tool for Alaska,                                                               
and  it helps  to keep  the public  safe.   The program  is court                                                               
ordered and  can be done as  a condition of probation  or parole,                                                               
or during pre-trial.   If an offender commits a  crime that falls                                                               
under unclassified  felonies, class A felonies,  sexual felonies,                                                               
misdemeanor  or   felony  domestic  violence,  DUI   refusal,  or                                                               
misconduct  involving a  controlled substance,  and alcohol  is a                                                               
factor, the  court can order that  person on 24/7 sobriety.   The                                                               
program is  particularly effective  for repeat DUI  offenders and                                                               
is self-funded by the $4.00-$5.00  per day testing fees, which is                                                               
paid for by the offender.                                                                                                       
                                                                                                                                
MR. SHILLING  said that  the program can  work anywhere  that has                                                               
landlines and  local law enforcement, which  excludes communities                                                               
that  do not  have a  Village Public  Safety Officer  (VPSO), for                                                               
example.   An  individual can  test in  person or  with an  ankle                                                               
bracelet, home-based  device, or  portable breathalyzer  [page 27                                                               
of the  slide show].   While in the program,  participants remain                                                               
in  society, conduct  their daily  lives, go  to work,  pay their                                                               
fees, and fulfill  their responsibilities as long  as they remain                                                               
sober.  Persons can  be on the program anywhere from  a week to a                                                               
couple of years,  he said.  [Page  28 of the slide  show] shows a                                                               
graph depicting  an average participation of  approximately three                                                               
months; the  far right graph  depicts individuals in  the program                                                               
for about two  years.  He noted the program  is based on personal                                                               
responsibility and  is backed by  swift and certain  sanctions in                                                               
that if the  offender "blows hot" he/she  is arrested immediately                                                               
and receives a  quick hearing and a short  jail sentence, usually                                                               
one to three days.  He  said that judges in South Dakota schedule                                                               
these  jail  sentences  over  the  weekend  to  not  interrupt  a                                                               
person's  work week.   "The  program  works; most  people on  the                                                               
program quit drinking  completely," he said.   Another 30 percent                                                               
of  participants  quit  drinking  after  their  first  or  second                                                               
violation, and  the remaining 17  percent who have three  or more                                                               
fails on the  program are probably candidates for  treatment.  He                                                               
noted that South  Dakota has been collecting data  on the program                                                               
for 10 years, and they have  a 74 percent reduction in recidivism                                                               
for folks between  their second and third DUI  [driving under the                                                               
influence], and between  the third and fourth  DUI, the reduction                                                               
is 44  percent.  A  study published  in the [American  Journal of                                                               
Public Health] showed  a 9 percent decrease  in domestic violence                                                               
and  a 12  percent decrease  in  drunk driving.  "The program  is                                                               
reducing   recidivism,  it's   making  the   public  safer,   and                                                               
ultimately it saves the state money."   The bottom line is that a                                                               
majority of  the people  in the program  quit drinking,  and when                                                               
they  are not  drinking they  are not  committing new  crimes, he                                                               
opined.                                                                                                                         
                                                                                                                                
MR.  SHILLING   turned  to  Section   23,  AS   12.55.027,  which                                                               
incentivizes treatment  and lays out the  requirements to receive                                                               
credit  for  time served  while  in  a  treatment facility.    By                                                               
relaxing  requirements on  treatment programs,  the programs  can                                                               
offer better  treatment, and participants  can more  readily earn                                                               
credit for time served.   Offenders have very little incentive to                                                               
enter a  treatment program if  they might not receive  credit for                                                               
their  time there,  he  stated.   For  25  years  the court  made                                                               
determinations on  what counted  as credit for  time served  in a                                                               
treatment  program based  on years  of case  law, beginning  with                                                               
Billie T. Ward  Nygren, Appellant, v. State  of Alaska, Appellee,                                                             
616 P.2d  20 (1980).  In  2007, the legislature put  this section                                                               
in statute,  and it is much  more restrictive than it  was before                                                               
2007.   It leaves little room  for an offender to  participate in                                                               
activities that  these treatment programs would  like to provide,                                                               
such as  going to a job  center or a vocational  technical class,                                                               
attending  church,  or  attending Alcoholics  Anonymous  (AA)  or                                                               
Narcotics Anonymous  (NA) meetings.   The programs would  like to                                                               
provide   the   abovementioned   activities;  however,   if   the                                                               
participants  engage  in  those  activities they  are  likely  to                                                               
jeopardize getting  credit for their  time served.   He suggested                                                               
relaxing the  requirements in this  statute as it  will encourage                                                               
rehabilitation and will allow treatment  programs to do more.  It                                                               
also brings the  statute more in line as to  how things were done                                                               
prior to  2007.   The changes in  SB 64 are  written so  that the                                                               
state is still  preventing credit for time served for  going to a                                                               
dinner and  a movie, for example.   The program must  remain very                                                               
restrictive  such   that  the  setting  must   be  equivalent  to                                                               
incarceration.   The individual has  to remain on the  grounds of                                                               
the facility  at all times  and can only get  a day pass  for the                                                               
above-mentioned  activities or  any purpose  directly related  to                                                               
the individual's  treatment.   This section  encourages treatment                                                               
and is by far less expensive to the state than a prison bed.                                                                    
                                                                                                                                
2:27:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted that the committee  passed a bill                                                               
in response to  a case on this  point a couple of years  ago.  It                                                               
was proposed  by the Legislative  Affairs Agency, and  he thought                                                               
the  statutes no  longer have  the  "approved in  advance by  the                                                               
court" provision.                                                                                                               
                                                                                                                                
2:28:34 PM                                                                                                                    
                                                                                                                                
MR. SHILLING responded that he was  aware of the statutes and had                                                               
performed research regarding  the bill passed in  2007, which had                                                               
significant  debate.    The  DOL   represented  this  statute  as                                                               
something that  would largely  be conforming  to what  the courts                                                               
were  already  doing.    He  surmised  that,  inadvertently,  the                                                               
statute  was  much more  restrictive  than  how credit  for  time                                                               
served had been  treated before 2007.  He opined  that this is an                                                               
attempt to re-examine the actions in 2007.                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  that he  thought "something"  was                                                               
done after that.                                                                                                                
                                                                                                                                
2:29:46 PM                                                                                                                    
                                                                                                                                
MR. SHILLING referred to Sections  26-28, the Public Advocates in                                                               
Community Re-Entry  (PACE) program.   When  offenders are  put on                                                               
probation they are  basically given a list of  things they cannot                                                               
do, like use drugs or drink alcohol.                                                                                            
                                                                                                                                
2:30:05 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  advised that  she  did  not see  ignition                                                               
interlock devices listed in Section 26.                                                                                         
                                                                                                                                
MR. SHILLING said  that is just the title of  that Section and on                                                               
the  committee's  copy,  Section  26 begins  with  subsection  AS                                                               
33.05.020,  subsection (f);  however,  he  does believe  ignition                                                               
interlock devices  are discussed in  other parts of  the statute.                                                               
"You just can't see it here in SB 64."                                                                                          
                                                                                                                                
2:31:03 PM                                                                                                                    
                                                                                                                                
MR. SHILLING  responded to Representative  LeDoux that it  is not                                                               
somewhere  else  in subsection  (f),  but  somewhere else  in  AS                                                               
33.05.020,  and SB  64  does not  currently  deal with  interlock                                                               
devices at all.                                                                                                                 
                                                                                                                                
2:31:25 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PRUITT  stated that  there is  a reference  in the                                                               
bill that  the offender  can either use  the interlock  device or                                                               
the 24/7 program.   He thinks it may be a  policy call, and there                                                               
is actually one  point where if the offender screws  up he or she                                                               
will be sent back to the  interlock, and that doesn't make sense,                                                               
he opined.                                                                                                                      
                                                                                                                                
2:32:06 PM                                                                                                                    
                                                                                                                                
MR.  SHILLING responded  that there  are no  references to  it in                                                               
Version L, although  he has heard that a member  of the committee                                                               
is working on an amendment.   There are earlier versions of SB 64                                                               
in  the Senate  Judiciary  Standing Committee  where members  had                                                               
attempted to work  on a limited license concept,  and an ignition                                                               
interlock  was one  of  the requirements  for  getting a  limited                                                               
license, he stated, but the current  version of the bill does not                                                               
refer to the ignition interlock.                                                                                                
                                                                                                                                
2:33:08 PM                                                                                                                    
                                                                                                                                
MR.  SHILLING continued  his presentation  and noted  that Public                                                               
Advocates  in Community  Re-Entry (PACE)  is a  new way  of doing                                                               
probation.    Within  the  PACE  program,  should  an  individual                                                               
violate the  conditions of his  or her probation, it  can trigger                                                               
an  individual  going  back  to  jail.   The  revolving  door  of                                                               
individuals coming in  and out of Alaska's prisons is  one of the                                                               
biggest cost drivers to the  Department of Corrections.  "There's                                                               
a way to stop this revolving door,"  he stated.  He read from the                                                               
2012 DOC Offender  Profile that 14 percent of  those serving time                                                               
were there due to parole or  probation violations.  He noted that                                                               
the PACE program  was first developed in Hawaii and  is now being                                                               
used in 17  other states.  People on the  program are re-arrested                                                               
less,  use drugs  less, miss  fewer  appointments with  probation                                                               
officers, and ultimately  spend fewer days in  jail, he remarked.                                                               
The program involves frequent random  drug tests, and it responds                                                               
to any violation  with swift and certain  circumstance, much like                                                               
24/7.   Probation today, without  PACE, comes with high  rates of                                                               
violations, and often times affords  offenders the opportunity to                                                               
continue using  drugs, which  in most  cases means  continuing to                                                               
commit crimes, he highlighted.   Current drug testing tends to be                                                               
too infrequent and  sanctions too rare and delayed,  but yet when                                                               
sanctions are imposed, they tend to  be too severe with months or                                                               
years  in  prison rather  than  a  two  to three-day  jail  term.                                                               
Probation officers have a lot  of discretion, and PACE takes away                                                               
that  discretion.   Currently,  a  probation  officer could  have                                                               
someone on his or her  caseload who violates multiple times, "and                                                               
finally when they rack up,  say, seven violations, that probation                                                               
officer might finally  revoke their probation and  send them back                                                               
to jail."   At  that point,  he explained,  the person  will have                                                               
several costly  court hearings and  may not  be back in  jail for                                                               
six  months, "and  so  the sanction  doesn't  quickly follow  the                                                               
violation."   The PACE  program and  24/7 are  successful because                                                               
sanctions quickly follow the violation,  and current probation is                                                               
anything  except  swift and  certain.    He  noted that  PACE  is                                                               
intensive but can be low cost.   In Hawaii, the program grew from                                                               
35  participants to  more than  1,400 without  adding courtrooms,                                                               
judges,  court  clerks,  police  officers, or  jail  cells.    He                                                               
submitted that  under SB 64,  PACE will be  established statewide                                                               
immediately, and  the DOC estimates needing  additional personnel                                                               
for  the program.   The  PACE  probationers are  55 percent  less                                                               
likely to be arrested for a  new crime, 72 percent less likely to                                                               
use  drugs, 61  percent  less likely  to  skip appointments,  and                                                               
ultimately  53  percent  less  likely  to  have  their  probation                                                               
revoked and as a  result serve 48 percent less days  in jail.  He                                                               
noted  that 48  percent  is  a large  amount  when talking  about                                                               
prison costs of $160 per day, per offender.                                                                                     
                                                                                                                                
2:37:10 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER  questioned if  Hawaii's Opportunity  Probation with                                                               
Enforcement (HOPE) is the same as PACE.                                                                                         
                                                                                                                                
MR. SHILLING responded that it is exactly the same approach.                                                                    
                                                                                                                                
2:37:30 PM                                                                                                                    
                                                                                                                                
MR. SHILLING  continued his presentation  with Section  29, which                                                               
deals  with  assessments  the  Department  of  Corrections  (DOC)                                                               
conducts when an  inmate enters prison, such as  an interview and                                                               
evaluation in order  to understand the inmate's  risks and needs.                                                               
This  type of  assessment offers  DOC an  idea of  the underlying                                                               
reasons the  person committed  the crime in  the first  place and                                                               
potential needs.   Based  upon that assessment,  DOL gets  a good                                                               
idea if  the offender needs to  be in PACE or  in substance abuse                                                               
or mental health  treatment.  The Department  of Corrections uses                                                               
a  54-item  assessment,  which  looks  into  family  and  marital                                                               
issues,  attitudes, and  substance abuse  and/or alcohol  issues.                                                               
However,  when  an  individual  is sentenced  to  serve  time  in                                                               
Alaska, more often  than not, they are not  assessed or evaluated                                                               
and, therefore, DOC does not know  the needs of most offenders in                                                               
prison.  If they are not  assessed, they cannot be linked to FASD                                                               
treatment  or  understand the  underlying  root  causes of  their                                                               
crimes.  He  related that the DOC assesses less  than half of the                                                               
felons  and hardly  any misdemeanants  even though  misdemeanants                                                               
truly are Alaska's future felons.   A risk-needs assessment takes                                                               
about 45 minutes,  and Section 29 requires one  for offenders who                                                               
have been  sentenced to 30  days or  more in prison.   Therefore,                                                               
there  will   be  a  significant   increase  in  the   number  of                                                               
assessments  DOC  will  conduct,  and  the  department  estimates                                                               
needing additional probation officers to do them.                                                                               
                                                                                                                                
2:39:23 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER asked  why risk assessments are  not being performed                                                               
now.                                                                                                                            
                                                                                                                                
2:39:40 PM                                                                                                                    
                                                                                                                                
MR.  SHILLING responded  that  it is  partly  not putting  enough                                                               
emphasis on  understanding the prison population,  but more often                                                               
it is  an issue regarding  resources.   He believes there  is not                                                               
the necessary personnel to assess all of the inmates.                                                                           
                                                                                                                                
2:40:01 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER asked if an  assessment requires special training or                                                               
if it is easily performed.                                                                                                      
                                                                                                                                
2:40:11 PM                                                                                                                    
                                                                                                                                
MR.   SHILLING  noted   that  probation   officers  conduct   the                                                               
assessments in  the facilities  and do  receive training,  but he                                                               
deferred to DOC.                                                                                                                
                                                                                                                                
2:40:26 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER asked if risk assessments are relatively new.                                                                      
                                                                                                                                
2:40:38 PM                                                                                                                    
                                                                                                                                
MR.  SHILLING  responded  that inmates  have  been  screened  and                                                               
assessed for quite some time.   The model of assessment currently                                                               
used by DOC  is an industry standard and he  believes DOC adopted                                                               
it  recently, but  he  deferred  to DOC.    He  pointed out  that                                                               
Section 29  has a delayed  effective date  for 2016 in  order for                                                               
DOC  to  provide  the  necessary  policies.    He  continued  his                                                               
presentation  and  noted that  the  Senate  Finance Committee  CS                                                               
urges  DOC  to   place  more  emphasis  on   FASD  screening  and                                                               
assessments.    Mr.  Shilling  noted that  SB  64  establishes  a                                                               
commission to review,  analyze, and evaluate the  effects of laws                                                               
and  practices  within  the   state's  criminal  justice  system.                                                               
Originally  this  commission  had  17 members  without  a  sunset                                                               
clause or  an executive  director.   In an  effort to  reduce the                                                               
cost  of the  commission,  certain  positions were  consolidated,                                                               
which  left  the group  with  12  members.   The  Senate  Finance                                                               
Committee eliminated  two more positions, leaving  the commission                                                               
with 10  members, and it  provided for a 4-year  sunset provision                                                               
and an audit provision.                                                                                                         
                                                                                                                                
2:42:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LEDOUX  asked  why  only one  ethnic  group,  the                                                               
Alaska Native Community, is represented on the commission.                                                                      
                                                                                                                                
MR.   SHILLING  said   Native   Alaskans  are   disproportionally                                                               
represented in the Alaska prison system.   She made a good point,                                                               
and  it  is  a  policy  call  of  the  House  Judiciary  Standing                                                               
Committee, he added.  The sponsor is open to that discussion.                                                                   
                                                                                                                                
2:43:30 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER  stated it  is appropriate  for the  House Judiciary                                                               
Standing Committee to make sure there are no gaps.                                                                              
                                                                                                                                
2:43:57 PM                                                                                                                    
                                                                                                                                
MR. SHILLING  added that the  Senate Finance Committee  made some                                                               
adjustments  on the  fiscal note.   The  Alaska Judicial  Council                                                               
(AJC)  reduced   the  number  of   staff  it   required,  shaving                                                               
approximately  $100,000  off the  cost  of  the commission.    He                                                               
further  noted  that the  sponsor  resisted  adding an  executive                                                               
director, which would have added quite  a bit to the fiscal note.                                                               
He conveyed  that the  powers and duties  of the  commission were                                                               
pulled  directly  from  the  Alaska   State  Constitution.    The                                                               
commission  will be  staffed by  the AJC,  he explained,  and the                                                               
members of the  commission will receive no  compensation, meet at                                                               
least  quarterly, and  produce an  annual report.   Mr.  Shilling                                                               
advised that  the commission is  an attempt to  [reestablish] the                                                               
Alaska Sentencing  Commission, which  existed in the  early 1990s                                                               
and  produced  some   good  work,  and  it   will  mainly  review                                                               
presumptive sentencing.                                                                                                         
                                                                                                                                
MR. SHILLING said  that one of the last main  components of SB 64                                                               
is the Recidivism Reduction Fund  [page 47-51 of the slide show].                                                               
When  prisoners  have  served  their  entire  sentence  they  are                                                               
released, and  every state releases prisoners  differently.  Some                                                               
states transition them into halfway  houses or some other type of                                                               
phased re-entry. In  Alaska, more often than  not, when prisoners                                                               
are released  they are released  into the  parking lot.   They do                                                               
not  have first  month's  rent;  they do  not  have  money for  a                                                               
deposit;  they are  very unemployable;  and  they do  not have  a                                                               
solid safety  net, he  explained.  Many  of these  individuals go                                                               
directly  to a  homeless  shelter,  and many  of  them return  to                                                               
prison within the  first six months, and this is  one of the root                                                               
causes of  Alaska's high recidivism rate.   Moreover, individuals                                                               
from  rural  Alaska  are  probably being  released  into  a  city                                                               
unfamiliar to them, and many do  not have the same family network                                                               
that  members of  the  community  might have,  he  noted.   As  a                                                               
result, many  individuals go back to  jail "in no time."   On the                                                               
other  hand,  he opined,  if  individuals  could  be put  into  a                                                               
transitional  re-entry   program,  a  place  with   a  structured                                                               
environment,   sober  living,   available   treatment  and   case                                                               
management,  and assistance  in getting  a job,  the state  could                                                               
greatly improve  their chances  of not  re-offending.   The graph                                                               
[on  page 48]  shows  the  recidivism curve,  and  a majority  is                                                               
happening in  the first  year and  not the  first six  months [he                                                               
corrected  himself  from prior  testimony].    It is  known  that                                                               
treatment  works,  in  that  when DOC  provides  treatment  in  a                                                               
facility there  is roughly a 20  percent drop in recidivism.   He                                                               
opined  that  should  the  state  [offer]  treatment,  assistance                                                               
getting  a job,  and  housing during  this  critical and  fragile                                                               
period  after  release,  the state  could  see  lower  recidivism                                                               
rates.    The  recidivism  fund  can  only  distribute  money  to                                                               
programs that  meet the following  criteria [listed on  page 51]:                                                               
there must  be a case  management program; it must  require sober                                                               
living,  treatment  or a  referral  for  treatment for  substance                                                               
abuse or mental health must be  available; there has to be a work                                                               
placement    program,   including    vocational   education    or                                                               
volunteering; and  there must  be a  one-year cap  on the  time a                                                               
resident can  stay in the  program.  The Senate  Finance Standing                                                               
Committee moved  the fund from  the DOC,  which did not  have the                                                               
infrastructure in  place to run  a grant fund, to  the Department                                                               
of Health  and Social  Services (DHSS),  which has  the necessary                                                               
granting infrastructure to do so-much more inexpensively.                                                                       
                                                                                                                                
2:48:05 PM                                                                                                                    
                                                                                                                                
CHAIR  KELLER  asked if  DHSS  would  just  manage the  fund  and                                                               
grants.                                                                                                                         
                                                                                                                                
MR.  SHILLING  agreed.    However,   the  DOC  Commissioner  must                                                               
cooperate with  the Commissioner  of DHSS  on deciding  where the                                                               
money goes, but the clerical  administration of the fund would be                                                               
done by  DHSS.  Continuing, he  said the rest of  the legislature                                                               
refers to  applicability, transitional provisions,  and effective                                                               
dates.   He  noted that  all  of the  changes made  in the  House                                                               
Judiciary  Standing   Committee  on  SB  64   apply  to  offenses                                                               
occurring on or  after the effective date of the  Act.  The first                                                               
meeting  of the  Alaska  Sentencing Commission  will  be held  no                                                               
later than  September 30,  2014.   Sections 36  and 38  allow the                                                               
relevant  departments to  begin drafting  regulations immediately                                                               
upon  passage of  SB 64,  rather  than wait  until its  effective                                                               
date.  He reiterated that  Section 37 creates a delayed effective                                                               
date for  the assessment portion  of SB  64, which allows  DOC to                                                               
wait until  2016 to begin  assessing individuals  incarcerated 30                                                               
days  or longer.   Section  39 establishes  an overall  effective                                                               
date for SB 64, which is July 1, 2014.                                                                                          
                                                                                                                                
2:51:12 PM                                                                                                                    
                                                                                                                                
TRACEY WOLLENBERG,  Deputy Director, Appellate  Division, Central                                                               
Office,  Public Defender  Agency,  Department of  Administration,                                                               
referred to Section 2, the  custodial interference provision, and                                                               
said  her concern  is  the  way it  is  currently  written.   She                                                               
expressed that it would criminalize  a representation to a lawful                                                               
custodian that  the person has  a legal right  to take or  keep a                                                               
child without  simultaneously requiring  that the person  has the                                                               
intent to actually  act upon that representation.   She suggested                                                               
language requiring not only that  the state prove that the person                                                               
represented but that  he or she had a right  to [take the child].                                                               
That can  entail a  person making a  simple statement  to another                                                               
about a belief  that he or she  has a legal right,  but also that                                                               
there is  intent to actually  act upon that representation.   She                                                               
then stated her  concern with Section 23, which is  to conform to                                                               
pre-2007  law  in   allowing  jail  credit  for   time  spent  in                                                               
residential  treatment.   She  noted  that  substantial time  was                                                               
spent  on this  provision while  SB  64 was  in Senate  Judiciary                                                               
Standing Committee.  The Public Defender's Office  spoke with the                                                               
Department of Law and the  sponsor's office about this provision.                                                               
The provision was modified to  accurately reflect that the credit                                                               
should  hinge   on  whether  the   particular  person   is  under                                                               
conditions  approximating incarceration,  rather than  hinging on                                                               
whether  the  program allowed  other  residents  to go  out  with                                                               
recreational  passes.     Her   concern  relates   to  subsection                                                               
(c)(2)(D), page 12, lines 29-31,  as the wording is ambiguous and                                                               
may  unintentionally  cause  credit   to  hinge  on  whether  the                                                               
residents  are generally  eligible for  a certain  type of  pass,                                                               
rather than credit  hinging on whether the  person is constrained                                                               
under  conditions  of  confinement  or  conditions  approximating                                                               
incarceration.    She  offered   that  the  language  could  read                                                               
"periods  during which  the resident  is permitted  to leave  the                                                               
facility  for rehabilitative  purposes  directly  related to  the                                                               
person's  treatment, so  long  as the  periods  during which  the                                                               
resident is permitted to leave ...."   In that manner, the credit                                                               
really ties into  whether the person is under  the conditions the                                                               
legislature  envisions  in  order  to  qualify  for  credit,  she                                                               
opined.                                                                                                                         
                                                                                                                                
2:55:11 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG verified  that conceptually the language                                                               
should say "during which the resident is" or "the defendant is."                                                                
                                                                                                                                
MS. WOLLENBERG answered in the affirmative.                                                                                     
                                                                                                                                
2:55:39 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG,   referring   to   Ms.   Wollenberg's                                                               
custodial interference  language, asked if the  language on [page                                                               
2],  line  19, should  be  "the  person intentionally  represents                                                               
...."   He added that  the language  currently says a  person now                                                               
must know that he or she has no  legal right "to do so," which he                                                               
thinks would  carry the general mental  intent to do the  act and                                                               
reckless as  to the effect.   He asked if  she felt it  should be                                                               
that the  person actually intends  to misrepresent....  "You want                                                               
it  so that  it's  not  just a  reckless  intent,  but an  actual                                                               
specific intent to misrepresent.  Am I right?"                                                                                  
                                                                                                                                
MS.  WOLLENBERG  remarked  that  as  written  it  criminalizes  a                                                               
representation.   In  light of  the  default provision  regarding                                                               
mens  rea,  the  mental  state   for  that  would  be  "knowingly                                                               
represents  to a  lawful custodian  that the  person has  a legal                                                               
right  to take  or  keep  the child  or  an incompetent  person."                                                               
Conceivably,  she  said,  that  would  criminalize  someone  from                                                               
saying to  another person, "I have  a right to take  this child,"                                                               
if he or  she knowingly makes that  statement without necessarily                                                               
requiring proof  of any corresponding  intent to actually  act on                                                               
that statement.   The concept  is building in an  additional mens                                                               
rea that  would require the  state to  prove that the  person who                                                               
knowingly made the  statement also had the intent to  act on that                                                               
statement or intent to take the child.                                                                                          
                                                                                                                                
CHAIR KELLER asked  Ms. Wollenberg to work on the  issue with the                                                               
sponsor.                                                                                                                        
                                                                                                                                
2:58:34 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  reiterated that if  the intent is  to take                                                               
the child,  why it would  not be attempted kidnapping  instead of                                                               
custodial interference.                                                                                                         
                                                                                                                                
2:59:03 PM                                                                                                                    
                                                                                                                                
CHAIR KELLER closed public testimony.                                                                                           
                                                                                                                                
2:59:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG noted the [the  act] would be an attempt                                                               
to  interfere  with  the  lawful  custodian  because  the  person                                                               
entitled  to the  child is  the custodian  so it  is interference                                                               
with the parental right.                                                                                                        
                                                                                                                                
CHAIR KELLER said deliberation will continue on Wednesday.                                                                      
                                                                                                                                
3:01:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG  noted   that  Representative   LeDoux                                                               
brought up  an issue that he  has never fully thought  about, and                                                               
that  is  the  difference   between  custodial  interference  and                                                               
kidnapping.                                                                                                                     

Document Name Date/Time Subjects
CSHB 127 (JUD) Proposed Amendments D.1 and D.2.pdf HJUD 3/24/2014 1:00:00 PM
HB 127
SB 64 - Bill Versions.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 - Fiscal Notes.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 - Support Documents.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 - Letters of Support-Opposition.zip HJUD 3/24/2014 1:00:00 PM
SB 64
SB 64 Letter of Opposition~Fred Meyer.pdf HJUD 3/24/2014 1:00:00 PM
SB 64