Legislature(2007 - 2008)BELTZ 211

03/05/2007 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Teleconference --
SB 7 FELONS' RIGHT TO VOTE
Heard & Held
* SB 89 ELECTRONIC MONITORING OF GANG PROBATIONER
Heard & Held
SB 36 SENTENCING FOR ALCOHOL-RELATED CRIMES
Scheduled But Not Heard
Bills Previously Heard/Scheduled
        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.                                                                                                        

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