Legislature(2013 - 2014)BELTZ 105 (TSBldg)
01/31/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 64 | TELECONFERENCED | |
SB 64-OMNIBUS CRIME/CORRECTIONS BILL
1:32:43 PM
CHAIR COGHILL announced the consideration of SB 64. [Version G
was before the committee.] He recapped the previous meeting and
provided an outline of the meeting today. He invited Mr. Taylor
to come forward.
1:35:46 PM
RON TAYLOR, Deputy Commissioner, Department of Corrections
(DOC), offered comments on Version G. In Section 29, subsection
(f), on page 18, DOC would like to tie participation in the PACE
program to the risk assessment tool, not to the identity of
being at high risk for violating the conditions of probation.
Because the term "high risk" isn't defined, the interpretation
would be subjective and subject to change depending on the
commissioner.
CHAIR COGHILL noted the suggestion.
MR. TAYLOR referenced the new paragraph (7) on page 20, lines
19-22. He reported that DOC's current policy is to conduct a
risk assessment on sentenced felons that have a term of
incarceration of 45 days or more, and 63 percent are complete at
this time. He assured the committee that DOC could comply with
the new requirement.
CHAIR COGHILL asked what value DOC places on 45 days and what
effect it would have to change the timeframe to 30 days.
MR. TAYLOR replied the 45 days was a policy call; changing to 30
days would expand the number of assessments that would need to
be done.
CHAIR COGHILL said he'd give it some thought.
MR. TAYLOR directed attention to the proposed Recidivism
Reduction Grant Program and fund described in Section 31. He
said that because DOC does not have a grant program, they don't
know what infrastructure is needed to manage and administer the
grants. At this time DOC is reaching out to other departments
for guidance.
CHAIR COGHILL asked if DOC also needs guidance on what to do.
MR. TAYLOR confirmed that DOC needs to understand the
legislative intent regarding the number and size of the grants.
He reviewed the five requirements for a re-entry program listed
on page 21, lines 3-8, and requested more flexibility.
1:45:38 PM
CHAIR COGHILL asked how the general requirements for the
existing re-entry programs compare.
MR. TAYLOR replied the requirements in the bill are more rigid.
The existing re-entry centers may provide stipends for housing,
case management, referrals for substance abuse, and referrals
for employment but they don't provide all the things that the
bill requires. He suggested that a broader array of other
services ought to be allowed, particularly in rural communities
where resources are more limited.
CHAIR COGHILL granted that it might be preferable to have a
statutory requirement for measurable outcomes so the person can
be held accountable. He asked if DOC has considered that for
other programs.
MR. TAYLOR said that DOC would be willing to work with the
committee to broaden this section and allow more flexibility for
re-entry services and programing. He also suggested that
collaboration with another agency may be advantageous.
CHAIR COGHILL mentioned the meetings on this legislation during
the Interim, and asked how DOC interacts with the existing 24/7
programs.
MR. TAYLOR said that DOC participated in a 24/7 program in the
past, but it was discontinued. Now the department is working
actively with DHSS to establish a 24/7 pilot program in
Anchorage and Fairbanks. This is a much better option for people
who have had difficulty staying sober while on probation and
parole than sending them back to prison.
CHAIR COGHILL asked, for the discontinued 24/7 program, how much
notice DOC received on re-entry or re-incarceration.
MR. TAYLOR said he wasn't involved, but results from North
Dakota and other states have proven it to be an effective way
for people to stay sober while they're on probation and parole.
CHAIR COGHILL said he was open to suggestion on how a grant
program could focus on measurable outcomes under this condition.
He acknowledged that the provisions were perhaps too rigid and
prescriptive.
CHAIR COGHILL asked Ms. Carpeneti to provide her observations
and suggestions on the bill.
1:54:32 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, expressed
appreciation for the cooperative approach to the bill. She
offered two comments on Sections 1-15 that raise the thresholds
for theft. First, it's important that the bill states when this
change will take place, so it's clear who will get charged with
the higher crime and who will get charged with the lower crime.
She said the next comment also relates to registering
legislative intent. Several places in the current theft law say
it's a class C felony if a person steals something that's worth
over $500, but it's also a class C felony if a person steals
something worth $50 and they have two prior convictions for
theft in last five years. It's important that somewhere in the
bill it says that the legislature wants these to count.
SENATOR WIELECHOWSKI posed the scenario of a person who is
convicted today of stealing property worth $750, and this bill
becomes effective on June 1. He asked if that person's sentence
would be retroactively affected.
MS. CARPENETI replied that's why DOL wants the legislature to
articulate its intent. She noted that she read several decisions
about that this morning and the court concluded that a person
sentenced after the effective date gets the benefit of the new
law even if he/she committed the crime before the effective
date.
SENATOR WIELECHOWSKI clarified that he was referring to people
sentenced and sitting in jail before the effective date.
MS. CARPENETI responded that the court would probably find that
the person should be sentenced under the previous law, but the
decision she mentioned also talked about judges being lenient
knowing that a law is about to change. She reiterated that it
would avoid problems if the legislature registers its intent in
terms of retroactivity.
SENATOR DYSON noted a recent communication from a defense
attorney who argued at a sentencing hearing that if the
sentencing commission that was in place 10-12 years ago had done
its job there wouldn't be the very disproportionate sentencing
that's seen today.
CHAIR COGHILL summarized that a person wouldn't be sentenced
retroactively under the new law if they had been tried under the
old law.
MS. CARPENETI said that's generally true, but in the decision
she mentioned the court of appeals took the approach that if a
person committed the crime before the new law took effect but
was sentenced afterwards the person got the benefit of the new
law.
CHAIR COGHILL said he'd draft a letter of intent for her to
review.
2:01:53 PM
MS. CARPENETI turned to the bail conditions in Section 16. She
noted that this gives the judge the authority, as a condition of
bail (and probation too), to require a person to comply with the
24/7 program. That program, which is found on page 18,
subsection (g), requires the commissioner of corrections to set
eligibility requirements. She suggested that the committee think
about how this would work because the judge might not know what
the eligibility requirements are or whether the person meets
them.
CHAIR COGHILL asked if it has to be spelled out or if pointing
to AS 33.05.020(g) is sufficient.
MS. CARPENETI said she'd have to think about how to say it so
that a judge isn't ordering a person to participate in a 24/7
program when he/she doesn't meet the eligibility requirements.
CHAIR COGHILL stated that he wants the references to always
point to AS 33.05.020(g) located on page 18.
2:04:20 PM
MS. CARPENETI said the next comments relate to Section 19, when
a person qualifies for credit against a sentence while
participating in a therapeutic program. She questioned why the
committee would want to delete the language on page 11 about
allowing a program participant to go to work that's required by
the treatment program. She acknowledged that approval in advance
by the court caused problems in the past, but the advance
approval could be by the person in charge of the therapeutic
program.
CHAIR COGHILL agreed that the problem was advance approval by
the court, and that allowing a participant to work was valuable.
MS. CARPENETI directed attention to the new language on page 11,
lines 17-20, and explained that Department of Law would like the
term "rehabilitative purposes" narrowed to clarify that it is
rehabilitation related to the person's needs.
CHAIR COGHILL asked if she thought it was ambiguous enough that
it could be interpreted as recreation for rehabilitation.
MS. CARPENETI restated that the rehabilitative activity should
target the person's needs.
CHAIR COGHILL asked if the phrase "expressly limited as to both
time and purpose" didn't establish an appropriate boundary.
MS. CARPENETI replied that's dinner and a movie. Responding to a
further question, she said she'd like to draft different
language for the committee to consider.
MS. CARPENETI noted that the new language on page 12 is another
cross reference to AS 33.05.020(g), the 24/7 sobriety program.
She said that Department of Law also has concerns about the
license revocation provisions, because the bill doesn't make it
clear that the termination of revocations are only for drunk
driving and refusal, not another termination of revocation that
might have nothing to do with alcohol problems or things that
are dealt with in therapeutic courts. She noted that the
Division of Motor Vehicles could also explain the Department of
Law's concerns in this area.
SENATOR DYSON commented on the problems it causes when a person
is on probation or parole and they're arrested for driving on a
revoked license. It doesn't matter that they may be driving to a
drug test or to work. Under existing law the offender has to
wait ten years before he/she can start the process to have their
license reinstated.
MS. CARPENETI agreed that there is a significant penalty for
driving on a revoked license.
SENATOR DYSON said the person didn't hurt anyone and they're
trying to comply with the conditions of probation or parole.
MS. CARPENETI said that's why it's important to articulate the
intent.
2:11:05 PM
CHAIR COGHILL noted that the question has come up about whether
a person who has a revocation under another section of law might
commit a DUI offense so that they could get their licenses back
under this section.
MS. CARPENETI suggested the committee establish a time limit for
a person to drive successfully under a limited license before
the person qualifies to have their license revocation
terminated.
CHAIR COGHILL agreed, and commented on the importance of
accountability.
SENATOR WIELECHOWSKI reviewed the list of offenses under AS
28.15.181 that are grounds for revocation of a driver's license,
and compared it to the language in AS 28.15.181(f) that
describes when a court may terminate a revocation. Under current
law, about the only way a person can get his/her license back is
by serving the minimum period of time. The bill proposes to
change that to say a person can get his/her license suspended
for a DUI but one provision says the person can also get it back
by going through the three steps listed on page 13, lines 12-19.
He asked Ms. Carpeneti to explain her concern.
MS. CARPENETI explained that the only concern is that proposed
language doesn't say how long the person has to have received
and driven successfully under a limited license. As currently
written, a person could ask the court for their regular license
after just a week or a month. She reiterated that it seems wise
to have a track record of driving successfully on a limited
license. As currently written, there is none.
2:15:31 PM
SENATOR WIELECHOWSKI asked if the administration thinks this is
a good policy.
MS. CARPENETI replied the Department of Law has no problem with
this policy; it will encourage people to get treatment.
SENATOR WIELECHOWSKI asked if it would be better to tie it to
the 24/7 program or something similar.
MS. CARPENETI said the limited license provision in the next
section does that. She reiterated the importance of a track
record driving under a limited license.
SENATOR WIELECHOWSKI suggested the limited license should be
tied to a treatment program.
MS. CARPENETI pointed out that Section 24 does that. The limited
license provisions require a person to participate in a court-
ordered treatment program. She said that's probably 24/7, but it
has to be clarified. She said that's why it's important that a
person who is driving under a limited license has to do so long
enough that a judge can determine the person is driving safely.
SENATOR WIELECHOWSKI asked if it's tied now because that seems
logical.
MS. CARPENETI said it's not specifically tied to a court
termination of a revocation, but she believes that it's tied to
getting a limited license under paragraph (g) that starts on
page 13. The requirement under (g)(2) is to be participating in
a court-ordered treatment program, and the requirement in
paragraph (9) on page 14, line 30, says the person participates
in and pays the cost of testing. She asked for clarification
that that that means the person participates in the 24/7
program.
CHAIR COGHILL asked Ms. Meade to speak to the [previous]
requirement to drive successfully for five-years under a limited
license.
2:20:16 PM
NANCY MEADE, General Counsel, Alaska Court System, Anchorage,
Alaska, clarified the statutory reference on page 13, lines 5-6,
relating to when the court may terminate a revocation for an
offense. She explained that the reference to subsection (a)(5)
relates to DUI and subsection (a)(8) is refusal, so subsection
(f) is limited to DUI and refusals.
To understand the five-year time limit, she said it's helpful to
look at the limited license provisions in Section 24. People
that fall under this section have to be in a therapeutic court
program that, by statute, lasts a minimum of 18 months but
sometimes up to two years. During this time the person is
attending a lot of meetings and working actively with
therapists, attorneys, and the judge.
Section 24 says that while the person is participating in the
therapeutic court program and following the requirements, the
court may grant the person limited license privileges.
Presumably the person has been doing well in the program for
several months and the attorneys say he/she is a candidate for a
limited license. After 18-24 months, the person graduates from
the therapeutic court program and the case is closed; he/she is
no longer under the court's jurisdiction. Because the person is
no longer participating in a therapeutic court program, he/she
would no longer fit under Section 24 for the limited license
privilege. The question is what to do about it.
Section 23 addresses the question. It says the court may
terminate a license revocation if the person has successfully
completed a court-ordered treatment program, has not been
charged with or convicted of a violation since completing the
program, and has been driving successfully under a limited
license received under Section 24.
The five-year time limit that was previously in Section 24 was
problematic because the court doesn't have jurisdiction over the
person for the whole time and it didn't give judges any
discretion to grant a limited license for less than five years.
This would have discouraged judges from using the provision to
grant limited licenses. She said that Section 23 is slightly
different and there might be different considerations, but it
would be problematic to put in a minimum time period there too,
because the court doesn't have jurisdiction over the person
after they graduate from therapeutic court.
CHAIR COGHILL asked if it would be better to have language that
said completed a court-ordered program.
MS. MEADE offered to work with staff on language that the
committee expressed.
CHAIR COGHILL asked Ms. Carpeneti if Section 23 addresses people
who are no longer in therapeutic court.
MS. CARPENETI explained that the Section 23 provisions are
dependent on a person completing the treatment program and
driving successfully on a limited license. She offered her
belief that DMV would articulate concerns about transferring
records back and forth under these circumstances.
CHAIR COGHILL stated that at least two members of this committee
believe that the court system and DMV need to have a closer
working relationship on this issue.
2:25:31 PM
SENATOR WIELECHOWSKI directed attention to page 13, lines 28-29,
and asked if it would be wise to also sweeping in people serving
a long-term suspension who have already completed a court-
ordered treatment program.
MS. MEADE agreed that those people are not covered because the
bill is prospective. Section 23 probably won't come into play
for a year or two because there aren't any graduates that have
gone through the Section 24 limited license program. She said
it's a policy call as to whether the committee wants to grant
limited licenses to people who have previously graduated from
therapeutic courts.
SENATOR WIELECHOWSKI asked if it's a good policy call, or if
there's a policy reason not to do that.
MS. CARPENETI responded that she didn't see a policy reason not
to do it as long as the court has discretion on whether or not
to grant the limited license, but she'd like to think about it.
CHAIR COGHILL said he'd look at the other requirements that
would have to be modified.
SENATOR WIELECHOWSKI questioned if the better policy in Section
23 would be to require an ignition interlock for the entire time
that the person's license would have been revoked.
MS. CARPENETI said she didn't have any policy concern about
adding that requirement.
MS. MEADE said the court has no position on that, but the
committee should be mindful that it would be saying that felony
DUI defendants would have to have an ignition interlock for
life. She explained that these provisions are geared toward
felony DUI defendants, and felons lose their license for life
when they get a DUI
2:29:31 PM
SENATOR WIELECHOWSKI said it might be helpful to understand the
time periods that people lose their licenses and for what
offenses.
MS. CARPENETI said that for felony DUI and refusal a person
loses their license for life, but after 10 years they can
request it be returned.
MS. MEADE added that a first time DUI defendant loses their
license for 90 days; a second time DUI defendant loses their
license for one year; a third time DUI defendant is a felon
unless their priors were more than 10 years earlier. Felons for
DUI or refusal lose their license for life.
CHAIR COGHILL stated his intention to get DUI defendants under
the 24/7 program as early as possible to avoid that situation.
SENATOR WIELECHOWSKI asked if Sections 23 and 24 aim at third
time offenders.
MS. CARPENETI replied she didn't believe it is aimed at that
population, but the reality is that most people convicted of a
misdemeanor don't participate in therapeutic court.
MS. MEADE added that AS 28.15.201 has an existing subsection (d)
which is a mechanism through which misdemeanant DUIs can get
their license back.
SENATOR WIELECHOWSKI stated that if it's a policy call to give
people who have lost their license for life an opportunity to
drive again, it should be done under the most stringent
circumstances. Requiring an ignition interlock for 10 years or
longer isn't unreasonable; they've proved to be very successful,
he said.
CHAIR COGHILL said he'd like to devote the next 15 minutes to
Ms. Gutierrez who would discuss the 24/7 program.
2:33:28 PM
CARMEN GUTIERREZ, representing herself, stated that she's been
an attorney for 27 years and she worked for the Alaska
Department of Corrections from June 2009 through December 2012.
As deputy commissioner she was responsible for prisoner
rehabilitation and prisoner reentry. She opened her comments by
emphasizing the importance of breaking away from ineffective
policies of the past and adopting appropriate, evidence-based
strategies to reduce recidivism and advance successful prisoner
re-entry. SB 64 seeks to implement these new approaches.
She summarized the history of the 24/7 pilot project in
Anchorage. She said that it was initially established for
domestic violence offenders and later it was expanded to include
other kinds of offenders. The project was showing success, but
it wasn't funded last year so it closed. Nevertheless, there is
ongoing interest in the project. A judge in the second judicial
district is very interested in giving judges the option of
adding 24/7 sobriety as a pretrial condition of release.
MS. GUTIERREZ explained that under 24/7 sobriety, pre-trial and
convicted offenders are monitored using a variety of testing
methodologies such as a Breathalyzer or a SCRAM unit. The goal
is to use methodologies that are appropriate for the community
in which these programs might be established. The long-term goal
of this approach is to help people in the program begin to see
the benefits of extended sobriety. Under the program, the person
is required to go to a center and blow into an Intoximeter
twice-a-day. If the SCRAM monitoring device is used, it has the
technology to download readings from the unit to determine if a
person has ingested a prohibited substance. If the person tests
positive, a mechanism is in place where the authorities and
prosecutor's office are notified immediately and the person is
arrested and taken to jail and brought to court in a in a very
swift and certain fashion for the imposition of a sanction.
MS. GUTIERREZ cited the Rand Corporation study published in the
American Journal of Public Health on November 15, 2012 as proof
of the success of 24/7 sobriety. The study analyzed data from
participants in the South Dakota 24/7 program and found that 99
percent of the individuals passed Breathalyzer tests over a five
year period. What was more encouraging was that the 24/7 program
was associated with a 12 percent reduction in repeat DUI arrests
on a county level.
2:45:29 PM
CHAIR COGHILL noted he distributed a fact paper that has a link
to the Rand Corporation study.
SENATOR WIELECHOWSKI asked for clarification on the DUI
recidivism rate because he read it as 12 percent, not a decrease
of 12 percent.
MS. GUTIERREZ said she'd get clarification, but her
understanding is that it was a 12 percent decrease in repeat DUI
arrests.
2:47:57 PM
MS. GUTIERREZ described the PACE program, how it works, and how
it differs from the 24/7 sobriety program. She explained that
PACE is modeled after Hawaii's HOPE program that was established
in 2004 by Judge Alm who was dissatisfied by the way the state
was doing probation. As has been the case in Alaska, a
probationer would commit a technical violation by not showing up
for a scheduled appointment and months would pass before the
person would be arrested and another month or so would pass
before they would go before a superior court judge. Judge Alm
founded the program on the principle that people respond more
positively when there are swift, certain, and proportionate
sanctions imposed for bad behavior.
The PACE program follows that same methodology. If a probationer
commits a technical violation, a bench warrant is issued
immediately and with the cooperation of local authorities it is
served very quickly, often within 24 hours. The probationer is
brought to court, counsel is appointed, the person admits to the
petition, and a sanction is imposed in one court hearing, often
within 72 hours of the infraction. Under probation as usual,
that series of events would involve three or four court hearings
that would be conducted over a period of three or four months.
MS. GUTIERREZ reported that a National Institute of Justice
funded evaluation of the Hope model found that the HOPE program
is effective. Probationers were compared to a control group over
the course of a year and were found to be 55 percent less likely
to be arrested for a new crime, 72 percent less likely to use
drugs, and 61 percent less likely to skip appointments with
their probation officer. The program in Hawaii has expanded and
there are now four study sites where the Bureau of Justice is
doing further analysis. A report showing the efficacy of the
program in those locations is expected within six months.
She noted that researcher Steven Oas with the Washington State
Institute for Public Policy (WSIPP) has updated his cost benefit
analysis of new approaches to address criminality. He showed
that PACE has 90 percent odds of a positive net compared to
present value. That means that there is a 90 percent chance of
achieving better outcomes than the cost to implement the
program.
MS. GUTIERREZ asked the committee to consider deleting the
language in subparagraph (C) on page 18, lines 20-21. She
explained that the reason that the court, probation officers,
Department of Law, and defense attorneys are able to dispose the
case in one hearing is because the issues of whether or not the
person made it to the probation office for their appointment are
normally matters that are beyond evidentiary dispute. It doesn't
mean that the probation officer wouldn't file a petition to
revoke probation, but it wouldn't fall under the PACE guidelines
in Section 29. She also suggested the committee consider adding
a PACE provision for the Parole Board. People are often on
parole before they're on probation and they should get the
message about swift, certain, and proportionate sanctions as
soon as possible.
CHAIR COGHILL thanked Ms. Gutierrez.
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