Legislature(2007 - 2008)BUTROVICH 205

03/15/2007 03:30 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 64(JUD) Out of Committee
Moved CSSB 89(JUD) Out of Committee
        SB  89-ELECTRONIC MONITORING OF GANG PROBATIONER                                                                    
3:35:55 PM                                                                                                                    
CHAIR FRENCH announced  the consideration of SB  89 and solicited                                                               
a motion  to adopt  Version \E committee  substitute (CS)  as the                                                               
working document                                                                                                                
SENATOR  HUGGINS  motioned to  adopt  Version  \E  CS for  SB  89                                                               
labeled, 25-LS0644\E. There was no objection.                                                                                   
3:36:21 PM                                                                                                                    
SENATOR   WIELECHOWSKI  explained   that  the   previous  version                                                               
addressed  gang  members  on  probation,   but  did  not  include                                                               
parolees. The  Criminal Division of  the Department of  Law asked                                                               
that  parolees be  included and  so a  new section  was added  to                                                               
accommodate  that request.  The Department  of Corrections  (DOC)                                                               
suggested removing  the word  "continuous" to  give it  leeway in                                                               
cost  effectively administering  the program  and that  was done.                                                               
That resulted  in a  revised indeterminate  DOC fiscal  note. The                                                               
current  analysis indicates  the estimated  general fund  cost at                                                               
$195 thousand, which is down from about $1 million.                                                                             
This last  weekend he received a  demonstration from constituents                                                               
who  do  this   type  of  work.  Essentially,   a  Blackberry  is                                                               
programmed  so  that  whenever  someone  moves in  or  out  of  a                                                               
particular zone the PDA [personal  digital assistant] beeps. When                                                               
that  happens someone  contacts  the person  who  is wearing  the                                                               
ankle  bracelet to  find  out  what is  happening.  That is  more                                                               
passive than having  someone sitting in a room  watching a number                                                               
of   different  screens.   Removing  the   requirement  for   the                                                               
monitoring  to  be  continuous will  have  a  fairly  significant                                                               
impact, he stated.                                                                                                              
3:38:20 PM                                                                                                                    
CHAIR FRENCH, directing  a question to Mr. Peeples,  asked if $40                                                               
per day per ankle monitor is the cost estimate that was applied.                                                                
DWAYNE  PEEPLES, Deputy  Commissioner, Department  of Corrections                                                               
(DOC), referenced  the analysis  on page  2 of  the indeterminate                                                               
fiscal note,  which breaks out  a series of scenarios.  The right                                                               
column shows a  passive model ratio of 1 probation  officer to 40                                                               
offenders.  DOC  allocates  $40  per  day  under  the  system  of                                                               
releasing   inmates  from   institutions  under   furlough.  That                                                               
includes  release to  a halfway  house,  a community  residential                                                               
center or on electronic monitoring.  That is fairly comparable to                                                               
this, he  stated and  it does  not use  GPS. The  numbers reflect                                                               
first  year estimates  that include  startup costs  of purchasing                                                               
computers and vests for new probation officers.                                                                                 
CHAIR FRENCH  noted that the daily  cost per offender is  $17 and                                                               
the estimate for collections is 30  percent. He asked if the idea                                                               
is to charge probationers for the ankle bracelets.                                                                              
MR. PEEPLES said that's the idea.  For this program DOC would try                                                               
to recover about $75,000 per year toward operating costs.                                                                       
3:41:55 PM                                                                                                                    
CHAIR  FRENCH highlighted  the previous  policy discussion  about                                                               
the  difference  between  a  special   condition  and  a  general                                                               
condition. Making it  a special condition would  require a higher                                                               
burden  of  proof and  his  understanding  is  that it  would  be                                                               
necessary to  prove that  the person  is a  member of  a criminal                                                               
street  gang for  the condition  to  apply. Making  it a  general                                                               
condition would  be a lower  burden of  proof; it would  apply to                                                               
anyone who is  convicted of a felony provided that  there is some                                                               
nexus between  the crime that  was committed and  criminal street                                                               
3:43:07 PM                                                                                                                    
ANNE CARPENETI,  Assistant District Attorney,  Criminal Division,                                                               
Department of Law,  said right now it's pegged to  the finding of                                                               
the aggravating factor, which is  AS 12.55.155(c)(29). As drafted                                                               
this may be a Blakley  factor meaning that prosecutors would need                                                               
to prove to the jury beyond  a reasonable doubt the connection to                                                               
an  aggravating factor.  Mr. Svobodny  previously suggested  that                                                               
another  approach would  be to  make  it a  general condition  of                                                               
probation.  That  way  it  wouldn't  require  going  through  the                                                               
procedure that  under Blakley is  required for  every aggravating                                                               
factor unless it's connected to a prior conviction.                                                                             
CHAIR FRENCH  summarized that for  this condition to  apply, both                                                               
the grand  jury and the  trial jury would  have to find  that the                                                               
crime was committed by a criminal street gang member.                                                                           
MS. CARPENETI said that's the effect.                                                                                           
3:44:30 PM                                                                                                                    
SENATOR WIELECHOWSKI recalled that  Mr. Svobodny suggested making                                                               
it a special condition for anyone  who is on parole or probation.                                                               
For  fiscal  reasons   he  limited  it  to  those   who  met  the                                                               
aggravating factor under AS 12.55.155(c)(29).                                                                                   
CHAIR FRENCH observed that the  fiscal conversation may be better                                                               
suited for the  finance committee. This committee  is to confront                                                               
legal questions such as whether  the application should be narrow                                                               
and apply  to all or  broad and apply to  few. He would  defer to                                                               
the bill sponsor.                                                                                                               
SENATOR  WIELECHOWSKI  said   his  goal  is  to   deal  with  the                                                               
increasing gang problems in Anchorage.  The idea is to keep track                                                               
of gang members  who are on parole so that  if they do congregate                                                               
or go  to prohibited  areas the movement  will be  recorded using                                                               
global positioning  system (GPS).  The policy call  to make  it a                                                               
special condition  was to  keep the  cost down,  but it  could be                                                               
expanded to any number of people on parole or probation.                                                                        
3:46:09 PM                                                                                                                    
CHAIR FRENCH said  he just wanted the committee to  make a heads-                                                               
up  eyes-wide-open  policy   call  while  the  bill   is  in  the                                                               
SENATOR HUGGINS stated a preference  to keep the bill narrow, but                                                               
he is concerned about the state's liability.                                                                                    
CHAIR FRENCH  acknowledged it  is a  valid question,  adding that                                                               
that is a tough legal doctrine.                                                                                                 
SENATOR  WIELECHOWSKI  agreed  that  it would  be  difficult  for                                                               
anyone to go against the state.                                                                                                 
SENATOR HUGGINS said  the benefit is that this will  show what it                                                               
costs.  If  it  proves  to  be  successful  the  program  can  be                                                               
3:47:51 PM                                                                                                                    
CHAIR FRENCH  found no  further questions  or comments  and asked                                                               
the will of the committee.                                                                                                      
SENATOR HUGGINS  motioned to report  CSSB 89(JUD)  from committee                                                               
with  individual  recommendations  and attached  fiscal  note(s).                                                               
There being no objection, it was so ordered.                                                                                    
At ease 3:48:33 PM                                                                                                            

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