Legislature(2017 - 2018)BELTZ 105 (TSBldg)
02/17/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB54 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 54 | TELECONFERENCED | |
SB 54-CRIME AND SENTENCING
CHAIR COGHILL announced the consideration of SB 54. Speaking as
the sponsor, he explained that the bill contains the policy
revisions recommended by the Alaska Criminal Justice Commission.
He reviewed the contents of the packet and noted that John
Skidmore and Renee McFarland were available online to answer
questions.
1:37:51 PM
JORDAN SHILLING, Staff, Senate Judiciary Committee and Senator
John Coghill, introduced SB 54 on behalf of the sponsor,
starting with the following sectional summary:
Section 1
AS 11.56.757(a) - Violation of condition of release.
Changes the offense of violation of condition of
release to a crime.
Section 2
AS 11.56.757(b) - Violation of condition of release.
Changes the offense of violation of condition of release
to a crime (class B misdemeanor).
MR. SHILLING explained that in 2015 the Alaska Criminal Justice
Commission ("Commission") recommended downgrading violations of
conditions of release (VCOR) to an arrestable, detainable
violation. That recommendation was enacted through Senate Bill
91, but implementation did not occur as the Commission intended.
While the bill did include an arrest provision so that VCOR
offenders could be arrested, some of those individuals were not
held in jail because judges did not believe they had the
authority to hold the defendant pending a bail review by the
judge in the underlying case.
CHAIR COGHILL added that the Commission tried to follow data-
driven practices and consider the need for rehabilitation,
sufficiency of state resources, the effect of recidivism rates,
and peer review metadata. The Commission also had to consider
the need to confine offenders to maintain public safety,
deterrence, and public condemnation.
MR. SHILLING said the Commission ultimately recommended
returning violation of condition of release to a criminal
offense. Section 1 is conforming and changes the term "offense"
to "crime" because offense can include noncriminal behavior.
Section 2 makes VCOR a class B misdemeanor instead of a
violation that has a penalty of up to $500.
1:41:00 PM
SENATOR WIELECHOWSKI asked if there are exceptions because there
were good policy reasons for changing VCOR from a crime to a
violation. "I wonder if there is a way to craft this so the
[less] egregious ones are violations and the ones that are more
egregious are class B misdemeanors."
MR. SHILLING said the Commission considered different approaches
to resolving this problem, but ultimately settled on returning
it to a criminal offense.
CHAIR COGHILL, speaking as sponsor, said he was open to
suggestions that would give the court some flexibility in
administering the punishment, including the misdemeanor when
needed.
1:42:36 PM
SENATOR MEYER concurred with Senator Wielechowski that some
flexibility is warranted.
1:43:11 PM
MR. SHILLING continued the sectional review.
Section 3
AS 11.66.130(a) - Sex trafficking in the third degree.
Distinguishes between people who are profiting and
promoting a place of prostitution and people who
are participating in a cooperative of independent
sex workers and engaging in prostitution without
receiving compensation or promoting prostitution.
Section 4
AS 11.66.135(a) - Sex trafficking in the fourth degree.
Distinguishes between a person engaging in conduct
that institutes, aids, or facilitates prostitution,
and a person who is also receiving compensation for
prostitution services rendered by another.
MR. SHILLING explained that Sections 3 and 4 seek to ensure that
sex workers cannot be prosecuted for sex trafficking if they are
merely working together and not exploiting one another. This is
the balance that House Bill 349 sought to strike last year.
However, those provisions created an unintended loophole that
could allow sex traffickers to avoid prosecution for lower
degrees of sex trafficking. Those provisions are repealed in
Section 15 of SB 54.
He noted that the Commission also recommended the legislature
define the term "compensation" and the sponsor asked the
Department of Law and the Public Defender to draft a definition.
CHAIR COGHILL said his office is still waiting on the
definition.
1:45:33 PM
MR. SHILLING continued the sectional review.
Section 5
AS 12.55.125(e) - Sentences of imprisonment for
felonies.
Increases the presumptive sentence for a class C
felony that is a first felony conviction to up to 90
days imprisonment and up to 18 months suspended
imprisonment.
MR. SHILLING explained that under current law, an individual who
is convicted of a class C felony, but has no prior felonies on
their record, receives a presumptive sentence of up to 18 months
of felony probation supervision. If an aggravator is proven the
individual can be sentenced up to 5 years in prison. This
provision was recommended by the Commission and enacted by
Senate Bill 91. The intention was to allow these offenders to
maintain social ties to the community while the supervision
ensured that they were complying with their conditions.
Prosecutors and the public voiced concern with this provision
and said there ought to be some active imprisonment, regardless
of whether it was a first offense or not. Section 5 removes the
provision that requires probation for first-time felony
offenders and imposes 0 to 90 days of active imprisonment and a
suspended period of imprisonment of up to 18 months.
CHAIR COGHILL encouraged members to read the Commission's
Recommendation 5-2017.
SENATOR WIELECHOWSKI asked what the penalty is for a first-time
DUI offense and if SB 54 changes it.
MR. SHILLING replied that is a class A misdemeanor and the
penalty that is typically imposed is 3 days active imprisonment
and 27 days suspended. However, the maximum jail time is 30
days.
SENATOR WIELECHOWSKI asked if Senate Bill 91 changed the
penalty.
MR. SHILLING replied the number of days wasn't changed but
Senate Bill 91 requires an individual with a first-time DUI to
serve a minimum of 3 days on electronic monitoring with home
confinement.
1:48:34 PM
SENATOR MEYER observed that SB 54 doesn't guarantee imprisonment
for a defendant convicted of a first-time class C felony, but it
could be up to 90 days.
MR. SHILLING agreed and noted that prior to passage of Senate
Bill 91, the court could impose a penalty ranging from 0 days up
to two years.
SENATOR MEYER highlighted that one example of a class C felony
is somebody shooting at another person.
CHAIR COGHILL said the committee should probably talk about the
range of C felony conduct. The bill generally follows the
Commission's recommendation that 0 to 90 days imprisonment with
additional suspended time would be enough to get the defendant
into some corrective action.
1:50:52 PM
MR. SHILLING continued the sectional review.
Section 6
AS 12.55.125 - Sentences of imprisonment for felonies.
Requires the court to impose a term of probation for felony
sex offenders.
MR. SHILLING explained that in 2015 the Commission recommended a
limit of 5 years probation for a felony sex offender and 3 years
probation for all other felony offenders. At the time, the
required minimum for a felony sex offender was 15 years
probation. That statute conflicted with Senate Bill 91 and it
was repealed. When the bill moved to the House the probation
term limit was increased to 15 years, but the mandatory minimum
was not resurrected. While the Commission has not heard of a
felony sex offender who has not had a term of probation imposed,
it seemed prudent to require it in law so that couldn't happen.
He suggested the committee could allow the provision in SB 54 to
stand or determine other unique minimums for felony sex
offenders.
CHAIR COGHILL summarized that SB 54 imposes mandatory probation,
which would give both the Board of Parole and judges a lot of
discretion.
MR. SHILLING added that Section 6 would allow from 1 day up to
15 years probation for a felony sex offender
Section 7
AS 12.55.135(a) - Sentences of imprisonment for
misdemeanors.
A person convicted of an A misdemeanor may be
sentenced up to 60 days if the defendant has one
previous conviction for a similar offense.
MR. SHILLING explained that Section 7 addresses the Commission's
recommendation regarding class A misdemeanors. Senate Bill 91
enacted a presumptive sentence of 0 to 30 days for most class A
misdemeanors. Prosecutors voiced concern about the escalator, so
the Commission recommended: 0 to 30 days for a first class A
misdemeanor; 0 to 60 days for a second class A misdemeanor; and
up to one year for a third class A misdemeanor. Assault, even
the first time, and certain sex offenses are exceptions and
those have sentences of up to 1 year.
Page 3, line 28, specifies that the aggravator to receive a
sentence up to one year requires two or more convictions.
Page 4, lines 9-11, creates the 0-60 range for one previous
conviction for a similar offense.
1:55:07 PM
Section 8
AS 12.55.135(b) - Sentences of imprisonment for
misdemeanors.
A person convicted of violation of conditions of
release may be sentenced to up to 5 days of
imprisonment.
MR. SHILLING explained that Section 8 is a continuation of the
Commission's recommendation regarding violation of the condition
of release.
Section 9
AS 12.55.135(l) - Sentences of imprisonment for
misdemeanors.
A person convicted of theft in the fourth degree (and
similar offenses) may be sentenced up to 10 days of
active imprisonment for third and subsequent
convictions.
MR. SHILLING explained that Section 9 addresses two
recommendations the Commission made regarding theft in the
fourth degree. First, it explicitly says that a six-month term
of probation can be imposed for first and second convictions of
theft in the fourth degree. This is what Senate Bill 91 intended
but the probation term limit was not included in that specific
statute.
Section 9 also provides up to 10 days active imprisonment for a
third conviction of theft in the fourth degree. He noted that
this differs from the Commission's recommendation in 2016, which
provided five days suspended imprisonment for a third and
subsequent conviction of theft in the fourth degree.
CHAIR COGHILL suggested the members look at the Commission's
Recommendations 2-2017 and 9-2017 as well as a list of these
misdemeanors for context.
MR. SHILLING highlighted for the members that this section could
be clarified in a future committee substitute.
CHAIR COGHILL agreed.
1:58:48 PM
MR. SHILLING continued the sectional review.
Section 10
AS 12.63.100(6) - Definitions.
Updates the definition of "sex offense" to conform to
amendments to sex trafficking in the third and fourth
degrees.
Section 11
AS 18.67.101 - Incidents and offenses to which this chapter
applies.
Updating the offenses for which the Violent Crimes
Compensation Board may order payment of compensation to
conform to amendments to sex trafficking in the third and
fourth degrees.
MR. SHILLING said Sections 10 and 11 are conforming sections
related to sex trafficking.
Section 12
AS 29.25.070(g) - Penalties.
Clarifies that limitations of municipal authority to impose
punishments does not apply to non-criminal offenses.
MR. SHILLING said Section 12 is a recommendation from the
Commission and a priority of the Municipality of Anchorage.
Although not intended, this provision was interpreted to apply
to noncriminal offenses. Replacing the terms "offense" and "law"
with "crime" will allow a municipality to have its own unique
punishments for infractions and violations.
SENATOR MEYER asked if a municipality could impose a higher
penalty than the state for a DUI offense.
MR. SHILLING said a municipality could not impose a longer term
of imprisonment, but it could be open to interpretation whether
the fine could be higher. He noted there is also a discussion
about forfeiture and impoundment of vehicles. For example, the
Municipality of Anchorage ordinance impounds an individual's
vehicle for first time DUI, whereas state law doesn't impose
that penalty until a second DUI.
He suggested the committee may want to further define
"punishment" to clarify the way a municipality would respond to
non-jail punishments such as fines and vehicle impoundment.
CHAIR COGHILL said he's open to discussion on the matter, but he
hasn't seen language he's willing to put in the bill.
SENATOR MEYER asked if the Municipality of Anchorage has a
choice of charging an individual under state law versus local
law and if the state picks up the court costs if they charge
under state law.
CHAIR COGHILL asked Mr. Skidmore to address the question.
2:03:00 PM
JOHN SKIDMORE, Director, Criminal Division, Department of Law
(DOL), Anchorage, Alaska, said the arresting agency has the
discretion to refer the case to the municipal prosecutor or the
state prosecutors. When the case is referred to either agency,
that agency would screen the case under the appropriate
authorizing legislation. For the state that is a state statute
and for a municipality that is the municipal code. Neither
agency can screen out a case and force the other to take it, but
an agency could decline to prosecute, and the other agency could
pick up the case.
SENATOR MEYER said his concern is about potential cost shifting.
"If APD picks up somebody for DUI and then they decide to use
the state law for that case, then does the cost automatically
shift to the state versus the municipality?"
MR. SKIDMORE replied costs could be shifted, and that has always
been a possibility. If a case is referred to the state as
opposed to the municipality, the state bears the cost of the
prosecution and incarceration that might follow. Similarly, if a
case is referred to the municipality, the municipality bears the
cost of the prosecution and subsequent incarceration.
CHAIR COGHILL offered his understanding that the [Municipality
of Anchorage] prosecutes misdemeanors but not felonies.
MR. SKIDMORE said both Anchorage and Juneau have enacted
municipal codes that allow prosecution of misdemeanors, but
municipalities do not prosecute felony conduct. That is left to
the State of Alaska unless the charges are under federal law.
2:06:21 PM
SENATOR MEYER offered his understanding that driving under the
influence is a class A misdemeanor.
CHAIR COGHILL added that the third DUI is a felony offense.
2:06:40 PM
MR. SHILLING clarified that the third DUI in 10 years becomes a
felony.
He continued the sectional review.
Section 13
AS 33.07.010 - Pretrial services program; establishment.
Limits the assessment of pretrial risk to defendants
brought into custody, or any defendant if requested by
prosecution.
MR. SHILLING explained that when Senate Bill 91's pretrial
provisions go into effect January 1, 2018, the Department of
Corrections (DOC) will be required to conduct a pretrial risk
assessment on all defendants, regardless of whether they are in
custody. Because the purpose of the assessment is to inform
judges and pretrial services officers in making a release
decision, the DOC argued that it was unreasonable to require an
assessment for defendants who were not in custody. The
Commission agreed and recommended that pretrial risk assessments
be limited to defendants in custody and any defendant for which
the prosecution requests an assessment.
Section 14
AS 34.03.360(10) - Definitions.
Updates the definition of "illegal activity involving
a place of prostitution" to conform to amendments to
sex trafficking in the third and fourth degrees.
MR. SHILLING explained that the definitions is Section 14
conform to the sex trafficking changes and accommodate the
renumbering in Section 3.
Section 15
Repealed statutes
Repeals duplicative felony DUI sentencing provisions and
certain sex trafficking statutes.
MR. SHILLING explained that [AS 11.66.130(b) and AS
11.66.135(b); and AS 12.55.125(e)(4)(B), AS 12.55.125(e)(4)(C),
and AS 12.55.125(e)(4)(D)] are repealed. They relate to the
inadvertent loophole created regarding sex trafficking he
mentioned earlier, and the Commission's recommendation that all
felony DUI sentencing provisions be in one location. With
passage of Senate Bill 91, felony DUI sentencing statutes are
found in both Title 11 and Title 28. SB 54 repeals them from
Title 11 and they remain in Title 28.
Section 16
Uncodified law
This section contains applicability provisions.
Section 17
Effective date
Section 13 takes effect January 1, 2018.
MR. SHILLING explained that Section 13 addresses the pretrial
risk assessment and those provisions do not go into effect until
January 1, 2018.
Section 18
Effective date
Other than section 17, this bill takes effect immediately.
CHAIR COGHILL highlighted that violation of condition of
release, class C felonies, theft in the fourth degree, and the
municipal penalty are the four large questions the bill seeks to
answer. The sex trafficking issue isn't a Commission
recommendation, but it was inserted as part of Senate Bill 91
and it needs attention to ensure the intent is clear.
2:12:57 PM
SENATOR MEYER said he continues to have concern about the class
C felonies and the ability to separate violent and nonviolent
conduct. He expressed interest in treating violent conduct more
harshly than the nonviolent and observed that the bill "isn't
quite there yet."
CHAIR COGHILL suggested he read the record from the Alaska
Criminal Justice Commission where the Department of Law
discussed separating violent and nonviolent behavior. They also
talked about a broader penalty range, and that might be
something to consider. He emphasized that he didn't want to bump
against the next felony level and lose the benefit of changing
behavior, but he is open to the discussion.
SENATOR MEYER said his other concern is the class B misdemeanor
to address the rise in thievery. He asked for clarification of
Sections 7 and 9.
CHAIR COGHILL said Section 7 deals with class A misdemeanors and
the aggravator that could be added. The class B misdemeanors,
theft in the fourth degree, are addressed in Section 9.
2:16:08 PM
MR. SHILLING clarified that robbery and burglary are felonies.
Section 9 deals with theft in the fourth degree and things that
are similar such as removal of ID marks, unlawful possession,
issuing a bad check, and criminal simulation. The bill envisions
up to 10 days of active imprisonment for a third conviction of
theft of items valued under $250
SENATOR MEYER asked what the penalty is for breaking into a
house and stealing $500 worth of jewelry.
MR. SHILLING explained that burglary and robbery are felonies.
Theft of property between $250 and $1,000, without committing
either a burglary or robbery, is a class A misdemeanor.
CHAIR COGHILL suggested Mr. Skidmore also answer the question.
MR. SKIDMORE said Mr. Shilling answered the question correctly.
If a person breaks into a home with intent to steal, that is
burglary in the first degree, which is a class B felony.
Stealing property off another person through force or threat is
considered a robbery. Theft of property under $250 is a class B
misdemeanor and is called theft in the fourth degree. Theft of
property between $250 and $1,000 would be a class A misdemeanor
and is called theft in the third degree.
SENATOR MEYER asked if breaking into an electronics store versus
a home is still considered a robbery.
MR. SKIDMORE answered no. Breaking into a building other than a
residence is burglary in the second degree, a class C felony.
Taking an electronic device out of someone's purse or pocket is
not a robbery because it is not done through force. That is
theft and the degree depends on the value of the item.
SENATOR MEYER asked how the device is valued.
MR. SKIDMORE replied AS 11.46.980 says the value of the property
is market value at the time and place of the crime, unless
otherwise specified. If the market value cannot be determined,
the replacement cost of the property after the crime is used.
SENATOR MEYER commented on the frustration that people have
about increased thefts, the opioid epidemic, and police
frustrations with Senate Bill 91.
CHAIR COGHILL talked about the need to restore confidence of the
public, police, and prosecutors and the need to have tools
available.
2:24:16 PM
SENATOR MEYER noted that the committee had not received a fiscal
note and that increased enforcement will cost more.
CHAIR COGHILL clarified that Senate Bill 91 was intended to save
criminal activity and divert any savings to programs. "If we
save Alaska from more crime that will save us money as a safer
society."
2:25:16 PM
SENATOR WIELECHOWSKI reviewed the field manual for crime and
asked if breaking into a house is burglary in the first degree,
a class A felony
MR. SKIDMORE answered yes; burglary in the first degree is when
someone enters or remains unlawfully in a residence with the
intent to commit a crime. Burglary in the second degree is when
someone enters and remains unlawfully in a building other than a
dwelling.
SENATOR WIELECHOWSKI asked if breaking into a shed and taking
something would be burglary in the second degree; and if
stealing someone's boat and trailer would also be theft.
MR. SKIDMORE explained that a boat is considered a motor vehicle
and that type of theft is automatically a felony, whereas
stealing a bicycle would be theft and the degree would depend on
the value of the property. He noted that earlier he read that
governing statute to Senator Meyer. Addressing the question of
breaking into a shed, he read AS 11.81.900(b)(5) and determined
a shed does not meet the definition of a building, therefore
that would not be a burglary. It would be theft and the degree
would be determined by the value of the property stolen.
2:28:53 PM
SENATOR WIELECHOWSKI stated agreement with Senator Meyer that
the theft issue is enormous. He asked how Alaska's penalties for
theft compare to other states. "I wonder if there's maybe a few
things where we just want to tick up the penalty a little bit,
so we just stop what I'm seeing as really an epidemic in this
area."
CHAIR COGHILL said the intention is to increase penalties to the
point that there is accountability with the capacity for
diversion. He asked Mr. Skidmore how a case is analyzed and
eventually leads to plea bargaining.
MR. SKIDMORE explained that when a case is referred to the
Department of Law, it is screened to determine whether it has
sufficient evidence to meet the elements of a particular crime.
Thereafter, it is a question of whether there are resources to
carry out the prosecution.
CHAIR COGHILL asked if the degree of theft increases if the
property that is stolen is required for a person's livelihood.
MR. SKIDMORE answered no; the statute does not describe that
element. The statute talks primarily about the value of the
property although the crime can be elevated for things like an
access device or a firearm.
SENATOR WIELECHOWSKI asked if people are committing the same
crimes over and over; and his sense of what can be done to break
this cycle of escalating thefts.
MR. SKIDMORE replied you're asking the million-dollar question
and there isn't a simple answer. He confirmed that the same
people frequently do come back and commit the same crimes. This
is borne out in his personal experience and the recidivism data.
He opined that it will be a case by case and defendant by
defendant analysis to determine what sanction is appropriate. In
large part that is why discretion is built into the criminal
justice system.
CHAIR COGHILL said that was part of the debate as the Commission
looked at how to hold people accountable and give the
opportunity for diversion.
SENATOR MEYER noted the opioid epidemic in Alaska and expressed
his belief that a lot of the murders are a result of drug
activity. He said he supports treatment to get people off
addictive drugs, but realizes that only works if the person
wants the help. He expressed interest in hearing from the
Department of Corrections regarding drug treatment options and
the prevalence of drugs in prison.
CHAIR COGHILL said DOC will be available at a future meeting to
address these questions.
SENATOR MEYER said there is no silver bullet but looking for
ways to stop the revolving door is one option.
CHAIR COGHILL highlighted that many of the programs and
community support services established in Senate Bill 91 are
just starting. "We still have to hold people accountable, give
opportunity to change where they can, and when they won't change
we have to hold them accountable at a higher level."
He asked Ms. McFarland if she had any comments.
2:40:19 PM
RENEE MCFARLAND, Attorney, Public Defender Agency, Anchorage,
Alaska, clarified that whether theft from a shed constitutes
burglary or not depends on the nature of the shed. The closer it
approximates a building the more likely it qualifies as a
building and therefore would qualify as burglary in the second
degree. She said this is often a factual question for juries to
consider.
2:41:08 PM
MR. SHILLING, following up on Senator Wielechowski's question
about what works to reduce crime, highlighted that the
Commission relied heavily on the large body of research about
the things that don't work when it made its recommendations last
year. One of the findings of that research was that longer
prison stays do not reduce the likelihood of committing crimes
in the future.
He reminded the committee that the Commission made it clear that
the 2017 recommendations are not based on a large body of
research. They are in response to other factors such as
community condemnation and retribution. He also reminded the
committee that the justice reinvestment initiative is about
spending less money on things that don't work and aren't
supported by research and investing any savings in things that
do reduce crime such as substance abuse treatment, violence
prevention, and pretrial services.
CHAIR COGHILL added that the Department of Corrections looked at
the current programs and found that over 80 percent were
effective, based on the justice reinvestment review.
SENATOR WIELECHOWSKI said he's concerned about the small group
of people that, for whatever reason, can't be rehabilitated.
"What do we do with those people?"
CHAIR COGHILL said starting this time next year there will be
pretrial risk assessments but that's not now, so we'll keep
looking.
[SB 54 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 54 - ACJC Recommendations.pdf |
SJUD 2/17/2017 1:30:00 PM |
SB 54 |
| SB 54 - Bill Contents.pdf |
SJUD 2/17/2017 1:30:00 PM |
SB 54 |
| SB 54 - Sectional Summary.pdf |
SJUD 2/17/2017 1:30:00 PM |
SB 54 |
| SB 54 - Sponsor Statement.pdf |
SJUD 2/17/2017 1:30:00 PM |
SB 54 |