Legislature(2007 - 2008)BELTZ 211
03/05/2007 01:30 PM JUDICIARY
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* first hearing in first committee of referral
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SB 89-ELECTRONIC MONITORING OF GANG PROBATIONER 2:16:42 PM CHAIR FRENCH announced the consideration of SB 89 by Senators Wielechowski and McGuire. SENATOR WIELECHOWSKI, Co-Sponsor of SB 89, explained that the bill is in response to burgeoning gang-related activity, particularly in Anchorage. Anchorage has had 20 gang-related crimes this year and in 2006 the municipality had 122 gang- related cases. Thus the issue is a legislative priority for both the Anchorage Police Department and the Municipality of Anchorage. Basically SB 89 requires gang members who are on probation to wear electronic ankle monitors. This would help police to monitor violent offenders' movements and to supervise their activities. He noted that San Bernardino California initiated a similar program that has been very successful. SENATOR WIELECHOWSKI referenced the fiscal note and suggested it is a little high. He understands the cost for each unit is about $8 per day so most of the cost in the fiscal note is for personnel services, which increase in successive years. The question to address, he said, is whether the monitoring should be active or passive. CHAIR FRENCH asked for an explanation of the difference between active and passive management. SENATOR WIELECHOWSKI said his understanding is that there is a continuum for management, but typically one person is able to monitor 15 people. Under active monitoring, which is what the fiscal note assumes, all movement would be monitored continually. If a person is shown visiting a place that is off limits, a police officer could be sent to investigate. Under a more passive option, someone would check the monitor several times a day. If the monitor showed that a person visited some place that was off limits, a probation officer or police officer would possibly be sent out to investigate. CHAIR FRENCH asked if there are known vendors that supply this service. SENATOR WIELECHOWSKI said he couldn't speak to specifics, but he understands that electronic monitoring is currently used and that there are different management levels. 2:21:57 PM SENATOR McGUIRE, Co-Sponsor of SB 89, added that this may seem like an unusual step, but indications from other states are that electronic monitoring is a successful way to contain activity. "We want to stop the deaths. We want to stop these young people, in particular young people, from getting involved in these gangs and ending up losing their lives and this is one step toward it," she stated. CHAIR FRENCH opened public testimony. 2:24:41 PM CAROL COMEAU, Superintendent of the Anchorage School District and member of a task force on gang and youth violence, voiced support for the legislation if the courts have adjudicated the person as a gang member. She said the district already has students who are on probation and wearing electronic ankle bracelets in school. SB 89 would give the authorities another tool and would allow students to go to school and get an education. MS. COMEAU referenced active and passive monitoring and opined that the judge should decide which method to use for a particular individual. SENATOR WIELECHOWSKI asked if the task force she is on had recommended either active or passive monitoring. MS. COMEAU said the policy task force did not make a recommendation, but Chief Heun would probably have that information. 2:27:20 PM KEN GARDNER COBB, Anchorage Police Department, explained that part of his job is to coordinate a response to gang activity and SB 89 would be an asset in that effort. He has done some Internet research and has learned that the ankle monitors have Global Positioning System (GPS) tracking capabilities. Also they have software so that inclusion and exclusion zones can be established. An inclusion zone might be a school or a place of employment and an exclusion zone might be a night club, movie theatre or a certain part of town. If the device works as described and is cost-effective there is reason for great enthusiasm. He said the bill calls for adjudicating gang members who have been involved in gang motivated crimes. Those are crimes that are for the benefit of a gang or in association with a gang. In Anchorage a majority of the crimes are what are called gang related, which is where a gang member or associate is involved in a fight over a girl, over property, or over a showing of disrespect. Initially the bill will not affect many people so it would be a cost-effective trial. If it is effective the program could be expanded to include gang related crimes. "That is where we will see the real value in the future," he said. 2:31:17 PM RICK SVBODNY, Chief Assistant District Attorney General, Criminal Division, stated support for SB 89. Gang violence, particularly in Anchorage, is a major problem and is a difficult area to prosecute. SB 89 would provide a tool that could benefit law enforcement and the prosecution, he opined. MR. SVBODNY, responding to previous testimony, said that under the current structure it is probable that Blakeley would be implicated. That is the state would be required to prove that the individual is a gang member or has gang involvement. He suggested that a way to get around that is to require wearing an ankle monitor as a general condition of probation. He noted that that gives the judge discretion, which is absent under the current structure. If the judge does not exercise that discretion he or she would have to make written findings to explain why an ankle bracelet is not appropriate. If wearing an ankle monitor is a condition of probation, the prosecution would not be required to prove gang involvement beyond a reasonable doubt at trial. At a sentencing hearing the prosecution would have to prove, by a preponderance of the evidence, that there was gang involvement. That is another and easier way that the underlying purpose of the bill can be fulfilled, he stated. MR. SVBODNY said just two district attorneys responded to a statewide query and they told him that the aggravating factor necessary for this to be implemented has rarely, if ever, been found. He suggested that given that history this would not be implemented very often. MR. SVBODNY referenced the discussion regarding active versus passive monitoring and opined that technology is ahead of what is recognized here. In fact parents are able to monitor their children's movements using GPS tracking devices that are implanted in their kid's shoes. The idea behind SB 89 is to keep gang members from congregating and technology isn't too far from helping that to happen in a cost effective way, he said. He relayed that he is a member of the Policy Board of the Western States Information Network, a regional intelligence sharing system that deals with gang members and drugs. Part of that includes running a watch center in Sacramento to avoid conflicts or shootouts when different agencies end up working on different cases in the same general area. Basically the officers wear ankle monitors and that information goes to the center for deconfliction. In that system one person is able to monitor the entire state of California and the entire state of Hawaii. Clearly, it can be cost-effective, he stated. MR. SVBODNY pointed out that judges continue to rule that electronic monitoring is the functional equivalent of jail time. To address that he would suggest that the bill specifically say that someone who is on probation and wearing an ankle monitor does not get credit for serving jail time. In addition he asked the committee to consider allowing the parole board to make this a condition of parole. Responding to Ms. Comeau's comment about wearing ankle monitors to school, he advised that the bill applies to adults. In his view it would not include juveniles. 2:40:28 PM SENATOR WIELECHOWSKI responded that he does not believe this legislation is the appropriate vehicle to define incarceration so he does not favor incorporating the suggestions. MR. SVBODNY clarified he was not suggesting the bill define incarceration. Simply say that under this bill electronic monitoring does not count as incarceration. CHAIR FRENCH asked for confirmation that his canvas of district attorneys found that this aggravator is rarely used. MR. SVBODNY replied he was told that it has never been found. He understands that it has been stipulated to a couple of times in the Anchorage Superior Court. CHAIR FRENCH added "as a course of agreed upon disposition." MR. SVBODNY replied it would be that or with other aggravating factors having been found or stipulated to. CHAIR FRENCH responded, "Stipulated to, but not found. Not after a contested hearing." MR. SVBODNY agreed. CHAIR FRENCH remarked that making it a general condition that every convicted felon is subject to takes care of the problem of proof, but then someone would have to review 2-3 thousand felony cases every year to decide who would wear the expensive ankle monitors. MR. SVBODNY replied it isn't that onerous because there must be a nexus between a condition of probation and the crime that was committed. "A judge may decide if a person has shoplifted 80 times from Fred Meyer that they are going to monitor you to see that you don't go to Fred Meyer. But they would have to be making that nexus." CHAIR FRENCH questioned what the nexus is between an ankle monitor and criminal street gang activity. MR. SVBODNY replied "You presume that if a court makes a finding that this is gang related - that is by preponderance of evidence because it is a condition of probation - that it is necessary for there to be electronic monitoring unless the court finds a reason not to do it." CHAIR FRENCH mused he can see the defense argument already. That is that the first ankle monitor is of no value whatsoever; it will provide no information about whom the individual is associating with. Not until a number of monitors are out in the community will it be possible to see whether people wearing ankle monitors are spending time in the same proximity. SENATOR WIELECHOWSKI said one rationale is to keep gang members from congregating, but it's also a powerful tool to track gang members and keep them from going to prohibited places. SENATOR McGUIRE opined that wearing an ankle monitor might help some people get out of a gang and on with their lives. Certainly other gang members wouldn't want someone around who was wearing an ankle monitor and was under scrutiny. 2:47:12 PM CHAIR FRENCH noted that he received a letter from Fairbanks Police Chief Daniel P. Hoffman supporting the bill. DWYANE PEEPLES, Deputy Commissioner, Department of Corrections, stated that the department supports the concept of SB 89. He explained that to develop the fiscal note he worked with the prime sponsor of the companion House bill [HB 133]. It assumes that there would be a fairly large body of offenders that would be monitored this way. Coming up with a number has been difficult, but right now about 96 people with gang related associations have been identified. CHAIR FRENCH said he would be interested to know whether all the people are from Anchorage. 2:49:50 PM SENATOR THERRIAULT joined the meeting. MR. PEEPLES said juvenile justice has about 75 individuals in that would fall under this issue and the Municipality of Anchorage has identified 122 individuals. The fact that there are people in both the juvenile and the adult system is an indication that this is a pervasive issue, he said. And the fiscal note assumes that the numbers will build by about 15 to 20 per year. According to the people running the San Bernardino system, this is a very tough group to monitor, which is part of the argument for having GPS tracking. MR. PEEPLES reported that system vendors are currently available in Alaska so that isn't a big issue. CHAIR FRENCH, noting the high and escalating fiscal note, asked if the fiscal note compensates for population growth or assumes that more and more people will be placed on probation. MR. PEEPLES responded he calculated 15 additions each year. CHAIR FRENCH asked if he was saying that the cost to monitor 15 probationers for a year is $174,000. MR. PEEPLES said yes and most of the cost is staff time. He elaborated that the original interpretation was for active continuous monitoring - 24/7. The computer software that monitors the GPS would notify whoever is responsible if someone exits or enters an exclusion zone. Individuals could also be monitored in the field using a laptop. He noted that the California program, which is fairly intensive, has a 1:20 monitoring ratio and that is inadequate. After looking at other models he chose a 1:15 ratio. SENATOR WIELECHOWSKI asked what a passive system would entail and how much it would save. MR. PEEPLES replied there are various models, but the system could be set up with large inclusion zones. "If it went off you could go pick somebody up and not be too concerned about how much movement they had. Or you could just download the GPS on a daily basis, review what they've done and then do some reinforcement on if they are deviating out of an inclusion zone." Under the least active model one person could probably monitor 50 people, he said. SENATOR WIELECHOWSKI asked if he had prepared a fiscal note for a passive system. MR. PEEPLES said no, but it would be fairly easy to do. SENATOR WIELECHOWSKI said he'd like to see that so the options could be evaluated. SENATOR McGUIRE commented she appreciates the work that has been done on the fiscal note and she looks forward to seeing one for a passive model. CHAIR FRENCH found no further questions or testimony and announced he would hold SB 89 in committee to allow time to get some questions answered.