Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/10/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| 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
1:37:28 PM
CHAIR COGHILL announced the consideration of SB 64. He asked for
a motion to adopt the proposed work draft committee substitute
(CS).
1:38:00 PM
SENATOR DYSON moved to adopt work draft CS for Senate Bill 64,
labeled 28-LS0116\E, as the working document.
CHAIR COGHILL announced that without objection, Version E was
before the committee. He asked Mr. Shilling to describe the
summary of changes and where they're found in the bill.
1:38:55 PM
JORDAN SHILLING, Staff, Senator Coghill, explained that the new
Version E completely removes two aspects of the former draft,
Version G. These are the fiscal analysis requirement that was
found in Section 22 and the limited license found in Sections
22-25 and Sections 27-28.
He said Version E also has additions. The first three sections
incorporate the amendment that Senator Wielechowski described
during the last meeting.
CHAIR COGHILL added that the title of that amendment was
custodial interference in the first degree.
MR. SHILLING explained that this addition is designed to close a
loophole that currently exists for attempted child abduction.
CHAIR COGHILL offered his understanding that this addresses
attempted child abduction in the first and second degree.
MR. SHILLING explained that it is a crime of custodial
interference in the second degree if a relative attempts to
remove a child for a protracted period, but the law doesn't
address a non-relative that tries to do the same thing. This
addition closes that loophole.
The next large change is found in Sections 4-18 that address the
felony theft thresholds. The previous draft increased the
threshold from $500 to $1,000 and Version E reduces it to $750.
CHAIR COGHILL noted that he's been trying to increase the
threshold for eight years, and this is an effort to maintain
momentum.
1:41:02 PM
SENATOR WIELECHOWSKI joined the committee.
MR. SHILLING said the next significant change occurs in the 24/7
sobriety statutes found in Section 19. Concern was voiced that
the previous draft applied 24/7 pretrial too broadly and it
could possibly infringe on privacy. Version E attempts to
address that concern by specifying which classifications of
crime for which a person could be put on 24/7 pretrial. These
crimes include unclassified felonies, class A felonies, sexual
felonies, and a misdemeanor or felony involving domestic
violence.
The next substantive change is to the Nygren credit found in
Section 22. The previous draft said that employment was the only
reason a person could leave a treatment facility and still
receive credit for time served. Version E expands that to
include vocational training and community volunteering.
Subparagraph (D) on lines 13-17 has additional language to
clarify that the leave is for rehabilitative purposes directly
related to the person's treatment plan and that the director of
the treatment program has oversight.
Sections 26 and 27 are new sections that allow the Parole Board
to place parolees in the PACE program. With this change, the
program could include both probationers and parolees.
Section 28 removes from paragraph (7) the provision requiring an
annual report to the legislature.
Section 29 changes the requirements for a program to qualify for
a grant from the new recidivism reduction grant program and
fund. These changes are found on page 18, lines 1-6. Paragraph
(3) previously specified that the program had to provide on-site
residential treatment for substance abuse. Not many programs in
the state would meet that requirement so Version E allows
referrals for treatment outside the reentry center. Paragraph
(4) previously said the program had to require full-time
employment. Version E adds vocational training or community
volunteer work that is approved by the director of the treatment
program. Paragraph (5) previously limited residential placements
in the program to 150 days. Providers indicated this is too
short for successful reentry and Version E limits the placements
to a maximum of one year.
Sections 30 and 31 make two changes to the Alaska Criminal
Justice Commission. The first change clarifies that the
legislators on the commission are ex officio, nonvoting members.
The second change provides a seat on the commission for the
public defender.
CHAIR COGHILL opened public testimony.
1:47:46 PM
QUINLAN STEINER Director, Public Defender Agency, Department of
Administration (DOA), said he had two comments to offer and the
first relates to the so called Nygren credit in Section 22. The
concern is that the current draft appears to expand the ability
to obtain treatment opportunities and also receive credit, but
it may not do that. Paragraph (C) provides a procedural
improvement for getting credit for employment and an expansion
for vocational training, but work could have been approved in
the previous version. It just had to be approved by the court.
He said this is an improvement, but it doesn't necessarily
expand treatment significantly.
MR. STEINER said his primary concern is that, as currently
drafted, paragraph (D) will exclude entire programs because of
the possibility that sometime during the program somebody could
obtain a pass that doesn't fit the definition. The phrase
"rehabilitative purpose directly related to the person's
treatment plan" may be read to require some approved treatment
plan by the court rather than simply a treatment model, which is
what most programs follow. This subsection also adds the
requirement that the pass be approved by the director of the
treatment program, but that may not be the person who approves
passes. Treatment programs don't tend to change their models
simply to fit statutory requirements, so this requirement may be
exclusionary.
MR. STEINER summarized that while there has been intent
expressed to expand treatment opportunities, the unintended
consequence of Version E is that it will not.
1:51:28 PM
CHAIR COGHILL said the purpose is to ensure that if a person is
to get credit, the pass must be tied to their treatment. He
requested suggestions for improved language.
MR. STEINER said the language in the previous draft is
preferable.
CHAIR COGHILL explained that he was trying to give credit to
somebody who gets bonafide help in their treatment while they're
required to be under custody. He asked if removing the word
"plan" would help.
MR. STEINER agreed that would help.
CHAIR COGHILL asked if he agrees with the basic concept that the
purpose is to give these people, who are supposed to be in jail,
a reason to have treatment.
MR. STEINER said he agrees with the concept but drawing it too
narrowly eliminates any benefit from the changes. Removing the
term "plan" would help because it takes out the idea of a
written treatment plan, but what hasn't been addressed
explicitly on the record is reintegration into the community as
part of treatment. For example, a person could get credit for
attending an AA or NA meeting, but it's not clear if spending
time out in the community with a senior member of the program
would qualify even if it's part of the treatment. Without an
explicit statement or rewording the language, that situation
might not receive credit. He highlighted that because the
program is evaluated and not the person's conduct in the
program, the entire program is excluded by barring what is
referred to as the buddy pass.
CHAIR COGHILL said the intention is to ensure that direct
supervision is credible. He said his view is that the phrase
"both time and purpose by the director" has to be inserted to
make sure that the person receives jail time credit for
employment, vocational training, or community volunteer. These
are given credibility by the director of the treatment program,
he said.
1:56:45 PM
MR. STEINER said he believes that when somebody is allowed a
pass, it is part of the program that is approved by the
director. The concern is that it might not be the director who
actually stamps "approved" on the pass; it might be the
caseworker and that would exclude the program. He suggested that
it would alleviate the problem if these requirements were in an
earlier subsection so that the defendant's conduct in the
program or the restrictions on the defendant could be evaluated
rather than the program itself.
SENATOR WIELECHOWSKI asked if the following would ease his
concerns: 1) page 12, line 15, delete "plan" 2) page 12, line
17, delete "by the director of the treatment program" and 3)
state on the record that the intent is that reintegration into
society does count towards Nygren credit.
MR. STEINER agreed that those would be clear improvements,
although there would still be the question of whether or not the
program itself is evaluated or how the defendant is treated in
the program.
CHAIR COGHILL stated his intention to pose the question to the
Department of Law.
MR. STEINER noted that he submitted language to accomplish what
he suggested, which is to move paragraphs (1) and (2) from
subsection (c) to subsection (b).
CHAIR COGHILL said his intention is to find a solution and move
the bill on Wednesday.
2:01:20 PM
MR. STEINER said his second comment relates to the new paragraph
(2) regarding custodial interference on page 2. The language in
paragraph (2) mimics paragraph (1) in terms of the conduct that
is criminalized. However, in paragraph (1) the word "entice"
relates to a specific intent and in paragraph (2) there is no
intentional conduct that's articulated and criminalized. Because
there isn't a specific definition, it's ambiguous and could
create some problems.
SENATOR WIELECHOWSKI suggested the solution is to remove the
words "entice, or".
MR. STEINER agreed.
MR. STEINER also pointed out that his previous comments with
regard to the use of the word "director" also apply to page 18,
line 4. This relates to adding PACE to parole, and it may not be
the director of the treatment program who issues the approval.
CHAIR COGHILL asked if it would work to simply delete the
reference to the director.
MR. STEINER said yes.
CHAIR COGHILL asked Ms. Carpeneti if he clearly articulated the
intention with regard to the Nygren credit. That is that if
somebody is receiving credit for time served, there has to be
real value for the treatment.
2:04:54 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law (DOL), Juneau, Alaska
said the concern was clearly articulated. With regard to
concern, She also agreed with Mr. Steiner's suggestion to remove
the term "by the director" from page 12, line 17.
CHAIR COGHILL noted that the other suggestion was to remove
"plan" from page 12, line 15.
MS. CARPENETI said that too makes sense.
SENATOR WIELECHOWSKI asked if there wasn't also an issue with
the use of the word "program" on page 12, line 17.
MS. CARPENETI replied this is about treatment programs so it
makes sense to leave it there. With regard to Mr. Steiner's
suggestion to move paragraphs (1) and (2) from subsection (c) to
subsection (b), she said she would be prepared to comment on
Wednesday.
CHAIR COGHILL said he likes Mr. Steiner's idea about separating
the program and the conduct of the person. The other issue is
whether or not a statement on the record about reintegration is
sufficient, he said.
MS. CARPENETI expressed concern with Mr. Steiner's comments
about reintegration. This is talking about getting credit for
time in jail and it's too easy to say "reintegration" because
that may be a two day weekend pass with a buddy, she said. That
may be helpful for the person, but that shouldn't necessarily
count for credit for time served. Using the term "reintegration
time" is very broad and would cover periods that are nothing at
all like incarceration.
CHAIR COGHILL said this issue should be brought up again to
clarify the intent. He asked if there would be sufficient
accountability if the word "director" was removed on page 18,
line 4.
MS. CARPENETI said she didn't have a concern with that
suggestion.
CHAIR COGHILL said he was open to the discussion.
2:10:47 PM
SENATOR WIELECHOWSKI asked Ms. Carpeneti her view of the
suggestion in Section 2 to remove the term "entice, or" on page
2, line 17.
MS. CARPENETI said she didn't see a problem, but she'd give it
more thought. She offered additional comments on Version E. On
page 14, line 7, she suggested replacing "and" with "or" so the
reference would be to "controlled substances or alcoholic
beverages." She also pointed out that on page 14, line 13,
"notice by the next business day" would not be a 24/7 program it
would be a 24/4 program.
2:13:04 PM
CHAIR COGHILL asked Colonel Butler to discuss the success of the
24/7 program in Montana, and the importance of law enforcement
responding on the same day.
2:13:20 PM
COLONEL TOM BUTLER, Montana Highway Patrol, described his
involvement in the 24/7 program in Montana, including the
implementation of the SCRAM and similar devices because
geography limits the ability to do twice daily breath testing in
some places. He said the data from North Dakota and the
anecdotal data from Montana illustrates that twice daily breath
testing is best if it's available. He acknowledged that Alaska
may have some of the same geographic limitations as Montana and
that using SCRAM and other devices is better than doing nothing
at all.
CHAIR COGHILL asked if it's been successful for things other
than drinking and driving.
COLONEL BUTLER said the provisions of 24/7 were expanded during
the last legislative session to any crime where alcohol was a
nexus and the penalty for the crime was 6 months or longer. The
primary target was partner or family member assault when alcohol
was a factor. The Montana data hasn't been analyzed, but North
Dakota has excellent statistics and he expects the same sort of
results in Montana.
CHAIR COGHILL noted that SB 64 also includes the use of the 24/7
program for the more serious crimes involving alcohol.
COLONEL BUTLER said initially he was generally suspicious of the
24/7 program, but he's learned that jailing your way out of
alcohol problems isn't the answer. He highlighted the
psychological impact of being reminded of your crime by having
to show up twice a day to blow into a Breathalyzer. He said he
believes that's the cause of the benefits that South Dakota has
seen.
CHAIR COGHILL noted that SB 64 has the requirement for twice
daily testing when practicable. It also applies if the person is
charged with an alcohol-related or substance abuse offense that
is an unclassified felony, class A felony, sexual felony, or a
crime of domestic violence.
COLONEL BUTLER commented that this addresses the subset of
people that can't handle alcohol.
2:25:21 PM
CHAIR COGHILL returned attention to page 14, subsections (g)(1)
and (2), and asked Ms. Carpeneti if they provide flexibility or
nullify one another.
MS. CARPENETI said she believes that paragraphs (1) and (2) work
together so that both apply to a person.
CHAIR COGHILL asked if the requirement to file should be in both
sections.
MS. CARPENETI said DOL's point is that it shouldn't be difficult
to get notice to the person within 24 hours, because it's a
matter of a telephone call or FAX.
CHAIR COGHILL asked the Department of Corrections to speak to
the matter.
2:28:18 PM
RON TAYLOR, Deputy Commissioner, Department of Corrections
(DOC), Anchorage Alaska, said he understands Ms. Carpeneti's
concern and DOC would recommend changing the language to say
"notice as soon as possible."
CHAIR COGHILL said that could be ambiguous and stretch into a
couple of business days.
MS. CARPENETI expressed concern with the suggestion and
recommended including the phrase "within 24 hours."
2:29:45 PM
CHAIR COGHILL asked if it should say "within 24 hours unless not
practical."
MS. CARPENETI replied within 24 hours is practical for everybody
in this age; that's what makes it a 24/7 program.
She continued to offer comments on the bill. She noted that on
page 14, lines 22-23, the current version removes paragraph (C)
that included any other violations. Ms. Gutierrez recommended
this because those violations often require an evidentiary
hearing. Ms. Carpeneti said it would be important to say on the
record that the other violations of conditions of probation
would be handled the way they are now.
MR. TAYLOR said that's correct.
CHAIR COGHILL said the idea was to ensure that the swift and
certain action didn't get delayed because of scheduling issues.
MS. CARPENETI asked if the risks and needs assessments described
on page 17, lines 17-18, apply to people serving sentences on
ankle monitors and at home.
MR. TAYLOR confirmed the risk and needs assessments would be
done on people serving sentences on ankle monitors and at home.
CHAIR COGHILL noted that Senator Dyson had an amendment.
2:34:54 PM
SENATOR DYSON moved to adopt Amendment 1, labeled 28-
LS0116\G.11.
CHAIR COGHILL objected for discussion purposes
AMENDMENT 1
OFFERED IN THE SENATE
TO: CSSB 64(JUD), Draft Version "E"
Page 1, line 10, following "beverages;":
Insert "relating to waiver of jurisdiction
in juvenile cases;"
Page 21, following line 20:
Insert new bill sections to read:
"* Sec. 31. AS 47.12.030(a) is amended to read:
(a) When a minor who was at least 16 years of
age at the time of the offense is charged by
complaint, information, or indictment with an offense
specified in this subsection, and, when after a
hearing and consideration of the minor's
individualized risk assessment, the court determines
that the minor is not amenable to treatment under this
chapter, this chapter and the Alaska Delinquency Rules
do not apply to the offense for which the minor is
charged or to any additional offenses joinable to it
under the applicable rules of court governing criminal
procedure. The minor shall be charged, held, released
on bail, prosecuted, sentenced, and incarcerated in
the same manner as an adult. If the minor is convicted
of an offense other than an offense specified in this
subsection, the minor may attempt to prove, by a
preponderance of the evidence, that the minor is
amenable to treatment under this chapter. If the court
finds that the minor is amenable to treatment under
this chapter, the minor shall be treated as though the
charges had been heard under this chapter, and the
court shall order disposition of the charges of which
the minor is convicted under AS 47.12.120(b). The
provisions of this subsection apply when the minor is
charged by complaint, information, or indictment with
an offense
(1) that is an unclassified felony or a
class A felony and the felony is a crime against a
person;
(2) of arson in the first degree;
(3) that is a class B felony and the felony
is a crime against a person in which the minor is
alleged to have used a deadly weapon in the commission
of the offense and the minor was previously
adjudicated as a delinquent or convicted as an adult,
in this or another jurisdiction, as a result of an
offense that involved use of a deadly weapon in the
commission of a crime against a person or an offense
in another jurisdiction having elements substantially
identical to those of a crime against a person, and
the previous offense was punishable as a felony; in
this paragraph, "deadly weapon" has the meaning given
in AS 11.81.900(b); or
(4) that is misconduct involving weapons in
the first degree under
(A) AS 11.61.190(a)(1); or
(B) AS 11.61.190(a)(2) when the
firearm was discharged under circumstances
manifesting substantial and unjustifiable risk of
physical injury to a person.
* Sec. 32. AS 47.12.030 is amended by adding a new
subsection to read:
(d) For purposes of making a determination
under this section, the standard of proof is by a
preponderance of the evidence, and the burden of
proof that the minor is amenable to treatment
under this chapter is on the minor."
Renumber the following bill sections accordingly.
Page 22, line 6:
Delete "and"
Following "Act":
Insert ", AS 47.12.030(a), as amended by sec. 31 of
this Act, and AS 47.12.030(d), as enacted by sec. 32
of this Act,"
Page 22, line 7:
Delete "34"
Insert "36"
Page 22, line 11:
Delete "34"
Insert "36"
Page 22, line 12:
Delete "34"
Insert "36"
2:35:38 PM
CHUCK KOPP, Staff, Senator Fred Dyson, sponsor of Amendment 1,
labeled 28-LS0116\G.11, explained that this introduces judicial
determination and oversight into the auto waiver section of the
juvenile justice statute as it pertains to 16 and 17-year-olds.
A judge would have discretion to determine, based on a risk
needs assessment and a preponderance of the evidence presented
by the juvenile, that he/she is amenable to treatment in the
juvenile justice system.
CHAIR COGHILL asked if a preponderance of the evidence is a new
standard.
MR. KOPP answered no; this is the same standard that is applied
when a minor is waived into the adult system for having
committed an auto waiver offense. It's a consistent standard
that's used throughout the statute.
2:38:57 PM
SENATOR DYSON asked Mr. Kopp to discuss what happens to a 16 or
17-year-old who is put in adult prison.
MR. KOPP explained that the minor is isolated from the main
population and has limited opportunity during the day for
activities like exercise. In that type of environment, the
degradation of the minor's behavior over time is significant, he
said.
CHAIR COGHILL said he has more sympathy for the victims who have
suffered the effects of a heinous crime; they may not feel that
justice is being done if the minor is not waived into the adult
system.
SENATOR DYSON observed that the idea of retribution is contrary
to this nation's sense of justice. The public certainly has to
be protected, but hopefully there can also be reparation for the
youth who committed the crime. That's the goal of juvenile
court.
CHAIR COGHILL commented that justice and rehabilitation are both
part of the correctional system.
2:43:52 PM
CRIS PROVOST, representing himself, Anchorage, Alaska, said he
retired from the Office of Public Advocacy last June and most
recently worked in the child advocacy section. He described SB
64 as an ideal vehicle for the proposed amendment because they
have the same goals. The amendment provides in the auto waiver
statute the option of asking the superior court for a hearing so
the 16 or 17-year-old can present his/her case. The judge will
then decide if the juvenile should be auto waived as an adult or
if the juvenile has proved by a preponderance of the evidence
that he/she is amenable to treatment by age 20 in the juvenile
system.
CHAIR COGHILL summarized that it looks as though the judge would
still have the flexibility to waive the juvenile into the adult
system if he/she finds by a preponderance of the evidence the
need to do that. He asked if that's because of the nature of the
crime and a review of the juvenile based on their risk
assessment.
MR. PROVOST clarified that this is the auto waiver statute so
the juvenile is charged as an adult and they're taken to jail,
not a juvenile facility. It's up to the juvenile to request a
hearing before the superior court, and the judge will make a
determination whether the juvenile stays in the adult system or
is dealt with by the juvenile justice system. In 2011, there
were 25 states that had this provision, he said.
CHAIR COGHILL said his expectation is that this would become the
norm.
2:48:23 PM
MR. PROVOST agreed it would be the norm for unclassified
felonies, but some juveniles facing less serious felonies don't
want to be in the juvenile justice system. He said the
statistics show that in the last five years, 9.5 youths per year
have been auto waived.
CHAIR COGHILL asked if a juvenile who successfully petitions to
remain in the juvenile system would have his/her crime dismissed
once he/she comes of age.
MR. PROVOST explained that the trial on the merits of the
criminal charges will come after the discretionary waiver
hearing. If the minor is reverse waived into juvenile justice
jurisdiction, he/she will be adjudicated delinquent based on
those charges, but there won't be an adult conviction.
2:50:03 PM
SENATOR WIELECHOWSKI asked him to expand on the explanation of
how the process is handled now.
MR. PROVOST explained that the prosecution is the gatekeeper,
and DOL sometimes uses discretion and decides not to auto waive
a child; a judge has no say in the matter.
SENATOR WIELECHOWSKI asked if it's fair to say that this would
change the current system where the prosecutor has the sole
discretion to a system where the judge has the discretion.
MR. PROVOST said yes, although the law really doesn't provide
discretion. It says a child who is charged with this crime shall
be treated as an adult. That's what happens if the prosecution
strictly follows the law. Amendment 1 does provide discretion
for a judge to decide whether it's appropriate to keep the
juvenile in the adult system or move back to juvenile justice.
The models are different: the adult model provides punishment
and the juvenile model provides restorative justice.
SENATOR WIELECHOWSKI asked why this is an important change from
a policy standpoint.
MR. PROVOST said the recidivism rate for adults is 70 percent
and the recidivism rate for juveniles that go through the
juvenile justice treatment program varies but right now it's 37
percent. Juveniles who are auto waivered into the adult system
will recidivate more quickly, more seriously, and more
frequently than similarly situated juveniles who are treated in
the juvenile justice system. Auto waiving juveniles into the
adult system doesn't make society safer.
CHAIR COGHILL thanked Mr. Provost and asked Mr. Steiner if he
had anything to add.
2:53:47 PM
MR. STEINER said the data he's seen shows that recidivism rates
are lower for juveniles who are handled under the juvenile
system versus juveniles who are handled through the adult
system. He agreed with Mr. Provost that the lower level
offenders that are handled in the adult system under the waiver
statute get out of prison without getting the level of
programing that is appropriate for their needs. He offered his
expectation that this amendment will enhance public safety and
reduced recidivism.
He said the waiver statute, although changed, is essentially
intact in the sense that these individuals will still be charged
as adults in adult court. The juvenile will have to prove by a
preponderance of the evidence that he/she can rehabilitate
him/herself by majority age. This is a significant burden and
what will practically happen is that the juveniles who committed
the very highest level of offenses with the most violent conduct
will likely not be able to establish their ability to
rehabilitate themselves in a short period of time
CHAIR COGHILL asked how that would be established.
MR. STEINER explained that the facts of the case, the juvenile's
history, and psychological assessments are evaluated to
determine whether or not it's possible to formulate a treatment
program that would allow the juvenile to be rehabilitated by the
time he/she comes of age. With the more brutal homicide and sex
assault cases that's not an easy thing to establish, especially
when the timeframe is just a couple of years. In these cases the
juvenile is generally unlikely to prevail. But for the lower
level crimes, the juvenile is more likely to get a finding that
will keep him/her in the juvenile system. He said he thinks
that's why the recidivism rates are so much lower, because
similarly situated juveniles are not dealing with the same level
of violent conduct as the unclassified felonies.
2:58:18 PM
CHAIR COGHILL observed that the committee is generally
supportive of Amendment 1 and it fits within the scope of the
bill, but he would hold it until the next meeting.
SB 64 was held in committee.
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