Legislature(2019 - 2020)BELTZ 105 (TSBldg)

03/25/2019 01:30 PM JUDICIARY

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01:31:39 PM Start
01:31:41 PM SB33
03:09:04 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 33 ARREST;RELEASE;SENTENCING;PROBATION TELECONFERENCED
Heard & Held
-- Testimony <Invitation Only> --
+ Bills Previously Heard/Scheduled TELECONFERENCED
           SB 33-ARREST;RELEASE;SENTENCING;PROBATION                                                                        
                                                                                                                              
1:31:41 PM                                                                                                                    
CHAIR HUGHES announced  that the only order of  business would be                                                               
SENATE  BILL  NO.  33,  "An Act  relating  to  pretrial  release;                                                               
relating  to sentencing;  relating  to  treatment program  credit                                                               
toward  service  of  a  sentence  of  imprisonment;  relating  to                                                               
electronic  monitoring; amending  Rules  38.2  and 45(d),  Alaska                                                               
Rules  of  Criminal Procedure;  and  providing  for an  effective                                                               
date." [CSSB 33(STA) was before the committee.]                                                                                 
                                                                                                                                
CHAIR HUGHES made preliminary remarks.                                                                                          
                                                                                                                                
1:32:31 PM                                                                                                                    
JOHN SKIDMORE,  Division Director, Criminal  Division, Department                                                               
of Law, Anchorage,  stated that the majority of SB  33 relates to                                                               
pretrial issues.  The issues related  to bail were a  response to                                                               
the  public  outcry about  bail  being  considered a  "catch  and                                                               
release" program, which was how  a KTVA television station dubbed                                                               
it in  an April  12, 2018  newscast. This  bill would  return the                                                               
vast majority of sentences to pre-Senate  Bill 91 law. He said he                                                               
would highlight other changes to the law.                                                                                       
                                                                                                                                
1:34:23 PM                                                                                                                    
MR. SKIDMORE reviewed Section 1.                                                                                                
                                                                                                                                
     Section 1: Legislative intent. Expressing intent that                                                                      
       the Alaska Court System use videoconferencing for                                                                        
     pretrial hearings.                                                                                                         
                                                                                                                                
This   would   encourage  the   court   to   move  forward   with                                                               
videoconferencing in pretrial hearings, he said.                                                                                
                                                                                                                                
1:35:06 PM                                                                                                                    
MR. SKIDMORE reviewed Section 2.                                                                                                
                                                                                                                                
     Section 2:  Increases the amount of  time available for                                                                    
     an  arraignment to  happen from  24 hours  to 48  hours                                                                    
     from the  time of  arrest. Eliminates  language related                                                                    
     to  proceeding with  an arraignment  regardless of  the                                                                    
        availability of a risk assessment conducted by a                                                                        
     pretrial services officer.                                                                                                 
                                                                                                                                
MR. SKIDMORE explained that Section  2 would revert to pre-Senate                                                               
Bill 91  law. He  related that the  48-hour requirement  from the                                                               
time of arrest  to arraignment falls mid-range  compared to other                                                               
states' requirements. In 2010, Alaska  was one of only two states                                                               
that relied  on a 24-hour  requirement. Most states had  moved to                                                               
48 hours and some to 72-hour provisions, he said.                                                                               
                                                                                                                                
He said the Department of  Law envisions that reinstating the 48-                                                               
hour  requirement would  be helpful  during weekends  or holidays                                                               
during  higher arrest  periods. The  compressed time  period does                                                               
not allow the  department time to review cases  and file charges.                                                               
In  response  to Chair  Hughes,  he  recalled  that at  least  95                                                               
percent of the cases were filed  within the 24-hour limit, but it                                                               
could be even higher.                                                                                                           
                                                                                                                                
1:37:42 PM                                                                                                                    
SENATOR KIEHL  asked whether any offenders  were released because                                                               
their arraignments were not held timely.                                                                                        
                                                                                                                                
MR. SKIDMORE responded  that he was unsure. He said  that in some                                                               
instances the charges  had to be amended. He  reiterated that the                                                               
department  viewed this  change  as  beneficial during  weekends,                                                               
especially   on  Sundays.   He  recalled   that  the   department                                                               
previously  estimated  it  could  save  $50,000  by  not  holding                                                               
arraignments on holidays and weekends.                                                                                          
                                                                                                                                
1:38:57 PM                                                                                                                    
MR. SKIDMORE  directed attention to  page 2. He  reviewed Section                                                               
3.                                                                                                                              
                                                                                                                                
        Section 3: Eliminates language related to a risk                                                                        
     assessment conducted by a pretrial services officers.                                                                      
                                                                                                                                
MR. SKIDMORE  characterized Section  3 as a  conforming amendment                                                               
to remove  reference to the  risk assessment tool  throughout the                                                               
bill since it would no longer be used.                                                                                          
                                                                                                                                
1:39:40 PM                                                                                                                    
MR. SKIDMORE reviewed Section 4.                                                                                                
                                                                                                                                
     Section  4: Eliminates  language  requiring a  judicial                                                                    
     officer  to review  any condition  of release  that has                                                                    
     prevented  the  defendant  from  being  released.  Also                                                                    
     eliminates  language requiring  a  judicial officer  to                                                                    
     find  by  clear and  convincing  evidence  that a  less                                                                    
     restrictive  condition  cannot  reasonably  ensure  the                                                                    
     defendant's appearance or the safety of the victim.                                                                        
                                                                                                                                
MR. SKIDMORE referred  to page 2, lines 26-28 of  the bill, which                                                               
read,  "THE  JUDICIAL  OFFICER SHALL  REVISE  ANY  CONDITIONS  OF                                                               
RELEASE  THAT HAVE  PREVENTED THE  DEFENDANT FROM  BEING RELEASED                                                               
  "  Removing this  language means  that the  court would  not be                                                               
required  to revise  conditions, he  said.  If this  law were  to                                                               
pass,  the  court could  consider  whether  conditions should  be                                                               
changed,  but it  would not  require  the court  to change  those                                                               
conditions.                                                                                                                     
                                                                                                                                
1:40:44 PM                                                                                                                    
SENATOR KIEHL  related his understanding  that current  law would                                                               
require  the  court  to  change  the  defendant's  conditions  of                                                               
release  if less  restrictive conditions  could apply  that would                                                               
ensure public  safety and that the  person would show up  for the                                                               
hearing. He asked whether he had misunderstood the provision.                                                                   
                                                                                                                                
MR.  SKIDMORE answered  yes. He  read a  portion of  the language                                                               
being deleted from current law:                                                                                                 
                                                                                                                                
     [UPON REVIEW  OF THE  CONDITIONS, THE  JUDICIAL OFFICER                                                                    
     SHALL  REVISE  ANY  CONDITIONS  OF  RELEASE  THAT  HAVE                                                                    
     PREVENTED THE DEFENDANT FROM  BEING RELEASED UNLESS THE                                                                    
     JUDICIAL  OFFICER FINDS  ON THE  RECORD  THAT THERE  IS                                                                    
     CLEAR  AND CONVINCING  EVIDENCE  THAT LESS  RESTRICTIVE                                                                    
     RELEASE CONDITIONS CANNOT REASONABLY ENSURE THE ?.]                                                                        
                                                                                                                                
He  said  the  department  interpreted  this  to  mean  that  the                                                               
judicial  officer   "shall"  revise  any  conditions   that  have                                                               
prevented  a defendant  from being  released  unless the  officer                                                               
found by  clear and convincing  evidence that the person  posed a                                                               
danger.  It  would require  the  court  to change  conditions  of                                                               
release unless it  met that higher burden.  Under pre-Senate Bill                                                               
91 law, the court could  exercise its authority to determine what                                                               
conditions  were   appropriate  based  a  preponderance   of  the                                                               
evidence.  This provision  would place  a greater  requirement on                                                               
the court and restrict the court's discretion.                                                                                  
                                                                                                                                
1:42:30 PM                                                                                                                    
MR. SKIDMORE  directed attention to page  3 of SB 33,  to Section                                                               
5.                                                                                                                              
                                                                                                                                
     Section 5: Eliminates inability to pay as a reason for                                                                     
     a judicial officer to conduct subsequent bail hearings                                                                     
     and a review of the person's conditions of release.                                                                        
                                                                                                                                
MR.  SKIDMORE  said  that  Section   5  would  require  that  new                                                               
circumstances  must   be  presented   in  order  to   change  any                                                               
conditions of release. Under current  law, if a person was unable                                                               
to  post  bail, the  person's  inability  to  pay bail  could  be                                                               
considered  as a  new  condition. This  means  that the  person's                                                               
ability to  pay could be  considered twice, first, when  the bail                                                               
is set  and again  when bail  is to be  revised. Section  5 would                                                               
revert to pre-Senate Bill 91 law, he said.                                                                                      
                                                                                                                                
1:43:50 PM                                                                                                                    
SENATOR KIEHL  asked why  this change should  be made  given that                                                               
financial  circumstances often  change. For  example, the  person                                                               
might  rely on  an  aunt or  uncle  to help  post  bail, but  the                                                               
relatives might  not be  able to  do so.  He asked  whether those                                                               
changes would no longer matter to the court.                                                                                    
                                                                                                                                
MR. SKIDMORE  responded that  a family  member's ability  to post                                                               
bail is not  considered when bail is set. He  referred to page 4,                                                               
[lines 29-31 through page 6, line 13] of Section 7, which read:                                                                 
                                                                                                                                
       (c) In determining the conditions of release under                                                                       
     this chapter, the court shall consider the following:                                                                      
          (1) the  nature and  circumstances of  the offense                                                                    
          charged;                                                                                                              
          (2)  the  weight  of   the  evidence  against  the                                                                    
          person;                                                                                                               
          (3) the  nature and extent of  the person's family                                                                    
          ties and relationships;                                                                                               
          (4) the person's employment status and history;                                                                       
          (5) the length and  character of the person's past                                                                    
          and present residence;                                                                                                
          (6) the person's record of convictions;                                                                               
          (7)  the person's  record of  appearance at  court                                                                    
          proceedings;                                                                                                          
          (8)  assets  available  to   the  person  to  meet                                                                    
          monetary conditions of release;                                                                                       
          (9)  the   person's  reputation,   character,  and                                                                    
          mental condition;                                                                                                     
          (10) the effect of the  offense on the victim, any                                                                    
          threats made  to the victim,  and the  danger that                                                                    
          the person poses to the victim; and                                                                                   
          (11) any other facts that are relevant to the                                                                         
          person's appearance or the person's danger to the                                                                     
          victim, other persons, or the community.                                                                              
                                                                                                                                
He  said  that subsection  (c)  provides  11  items that  can  be                                                               
considered.  He  reviewed  several.  Paragraph  (3)  reads,  "the                                                               
nature   and   extent   of   the   person's   family   ties   and                                                               
relationships,"  which  does  not  refer  to  a  family  member's                                                               
ability  to  post  bail,  he  said.  Paragraph  (4)  reads,  "the                                                               
person's  employment status  and  history." This  would give  the                                                               
court some sense  of the person's income, he said.  If the person                                                               
were to lose  his/her job in the interim, it  would provide a new                                                               
piece of  information. However,  the bail  hearing would  be held                                                               
based on the loss of a job and not an inability to pay.                                                                         
                                                                                                                                
MR.  SKIDMORE directed  attention to  paragraph (8),  which read,                                                               
"assets available  to the person  to meet monetary  conditions of                                                               
release;". He said  that the assets of the defendant  and not the                                                               
defendant's  family or  friends  is one  factor  the court  would                                                               
consider  when initially  setting bail.  He acknowledged  that if                                                               
the  assets  were  to  change   it  would  be  considered  a  new                                                               
condition. The inability to pay  simply would mean how much money                                                               
the person  has in his/her  bank account, he said.  Other factors                                                               
that might  impact the  person's inability to  pay are  ones that                                                               
should initially be considered, he said.                                                                                        
                                                                                                                                
1:47:06 PM                                                                                                                    
CHAIR  HUGHES  asked what  timeframe  is  involved when  bail  is                                                               
initially  set. She  referred to  paragraph  (3) on  page 3  that                                                               
states "at  least seven days  have elapse."   She  indicated that                                                               
this is  a fairly short timeframe,  so it would be  unlikely that                                                               
big changes in assets would occur.                                                                                              
                                                                                                                                
MR. SKIDMORE answered  that the defendant's bail would  be set at                                                               
the initial  arraignment. The court  would evaluate and  set bail                                                               
the  first  time  the  person  appears  in  court.  The  statutes                                                               
indicate that  if the person has  not been released in  the first                                                               
48  hours after  bail  has been  set, the  person  can request  a                                                               
subsequent bail  hearing. The defendant could  articulate the new                                                               
information and factors  that the court did not have  at the time                                                               
of  the  initial  hearing.  In   his  experience,  those  factors                                                               
typically  include things  such  as that  the defendant  proposes                                                               
being  released  to a  third-party  custodian,  or the  defendant                                                               
requests electronic monitoring. He  could not recall any instance                                                               
when  the person  requested the  same bail  amount. Instead,  the                                                               
defendant always  requested bail  be reduced in  combination with                                                               
the new proposal  for conditions of release. He  pointed out that                                                               
the hearing could  happen within 48 hours and it  can be repeated                                                               
as  often as  new information  becomes available.  This provision                                                               
seeks to eliminate  multiple bail hearings on  subsequent days in                                                               
which the same information was being presented.                                                                                 
                                                                                                                                
1:49:24 PM                                                                                                                    
MR. SKIDMORE reviewed Section 6.                                                                                                
                                                                                                                                
     Section 6:  Conforming amendment.  Eliminates reference                                                                    
     to AS 33.07.                                                                                                               
                                                                                                                                
He said that this is a  conforming amendment that pertains to the                                                               
responsibilities of pre-trial services officers.                                                                                
                                                                                                                                
1:49:41 PM                                                                                                                    
MR. SKIDMORE reviewed Section 7.                                                                                                
                                                                                                                                
     Section 7: Largely reenacts the  bail statute as it was                                                                    
     prior to  January 1,  2018. Eliminates  the requirement                                                                    
     that the  release decision be  tied to a  person's risk                                                                    
     assessment  score.   Eliminates  the   presumptions  of                                                                    
     release  and the  requirement that  a judicial  officer                                                                    
     find  by clear  and  convincing evidence  that no  less                                                                    
     restrictive condition can ensure  the appearance of the                                                                    
     defendant or  safety of the community  or victim before                                                                    
     a judicial officer can impose monetary bail.                                                                               
                                                                                                                                
MR.  SKIDMORE said  Section  7  begins on  page  3,  line 30.  He                                                               
remarked that he discussed this  provision earlier in response to                                                               
Senator Kiehl's  question. He  pointed out  that Section  7 would                                                               
revert  to  pre-Senate Bill  91  law.  He directed  attention  to                                                               
subsection  (a),  AS  12.30.011,  which states  that  a  judicial                                                               
officer  "shall order  a person  charged  with an  offense to  be                                                               
released on  the person's own  recognizance?." He said  that this                                                               
provides a  starting point. It  is required per  the Constitution                                                               
of the State of Alaska, he said.                                                                                                
                                                                                                                                
MR. SKIDMORE reviewed subsection (b):                                                                                           
                                                                                                                                
     (b) If  a judicial officer determines  that the release                                                                    
     under (a)  of this  section will not  reasonably assure                                                                    
     the appearance of  the person or will pose  a danger to                                                                    
     the  victim,  other  persons,  or  the  community,  the                                                                    
     officer  shall impose  the least  restrictive condition                                                                    
     or conditions that will  reasonably assure the person's                                                                    
     appearance and  protect the victim, other  persons, and                                                                    
     the community.  In addition to conditions  under (a) of                                                                    
      this section, the judicial officer may, singly or in                                                                      
     combination, ?                                                                                                             
                                                                                                                                
He  explained that  subsection (b)  would set  out 20  conditions                                                               
that could be  imposed. This subsection seeks to  include as many                                                               
options as possible for the  court to consider. Some options were                                                               
the appearance bond, bail bond,  performance bond, restriction on                                                               
travel and  association, restrictions on possessing  weapons, the                                                               
requirement to maintain employment,  restrictions on contact with                                                               
victims, and  restrictions related to  alcohol use, he  said. All                                                               
of these conditions were found in the pre-Senate Bill 91 law.                                                                   
                                                                                                                                
MR. SKIDMORE explained  the new language in  paragraph (18) would                                                               
allow the  court to order pretrial  services officer supervision.                                                               
While Senate Bill 91 law  implemented pretrial services officers,                                                               
SB 33  would modify  the organization  of the  supervision within                                                               
the Department of Corrections.                                                                                                  
                                                                                                                                
MR. SKIDMORE explained subsection (c).                                                                                          
                                                                                                                                
       (c) In determining the conditions of release under                                                                       
     this chapter, the court shall consider the following:                                                                      
                                                                                                                                
         (1) the  nature  and circumstances  of the  offense                                                                    
         charged;                                                                                                               
         (2) the weight of the evidence against the person;                                                                     
         (3) the  nature and extent  of the  person's family                                                                    
         ties and relationships;                                                                                                
        (4) the person's employment status and history;                                                                         
         (5) the length  and character of the  person's past                                                                    
         and present residence;                                                                                                 
         (6) the person's record of convictions;                                                                                
         (7)  the person's  record  of  appearance at  court                                                                    
         proceedings;                                                                                                           
         (8) assets available to the person to meet monetary                                                                    
         conditions of release;                                                                                                 
         (9) the person's reputation,  character, and mental                                                                    
         condition;                                                                                                             
         (10) the effect  of the offense on  the victim, any                                                                    
         threats made to the victim, and the danger that the                                                                    
         person poses to the victim; and                                                                                        
         (11)  any other  facts  that  are relevant  to  the                                                                    
         person's appearance or  the person's danger  to the                                                                    
         victim, other persons, or the community.                                                                               
                                                                                                                                
MR. SKIDMORE reviewed  Section 7, subsection (d),  which began on                                                               
page  6. He  explained  that pre  Senate Bill  91  law created  a                                                               
rebuttable  presumption  that  no  condition  or  combination  of                                                               
conditions could  ensure the  safety of the  community or  that a                                                               
person  would   not  be  a   flight  risk.  That   provision  was                                                               
subsequently  found  unconstitutional  by the  [Alaska  Court  of                                                               
Appeals] under Hamburg v. State.                                                                                                
                                                                                                                                
He  said that  SB  33  would allow  an  individual under  certain                                                               
circumstances  to meet  a rebuttable  presumption  that a  person                                                               
would likely appear or would  not pose a danger. Those conditions                                                               
are listed  in Section 7(d),  he said.  The court would  set some                                                               
conditions  or combination  of conditions  for  bail. This  would                                                               
provide a  significant change  from the  original law,  which was                                                               
found to be unconstitutional.                                                                                                   
                                                                                                                                
1:53:51 PM                                                                                                                    
CHAIR HUGHES directed attention to page  6, line 2, and asked for                                                               
clarification that  this language was  not in pre-Senate  Bill 91                                                               
law or in Senate Bill 91.                                                                                                       
                                                                                                                                
MR.  SKIDMORE  answered by  referring  to  page  6, line  18,  AS                                                               
12.30.011(d)(2), which read:                                                                                                    
                                                                                                                                
     (2) there is  a rebuttable presumption that  there is a                                                                    
     substantial risk  that the person will  not appear, and                                                                    
     the  person  poses  a  danger   to  the  victim,  other                                                                    
     persons, or the community, if the person is                                                                                
                                                                                                                                
He said that  this language gave the impression  that bail should                                                               
not be set  because it was not possible to  ensure the conditions                                                               
could be  met. However, the  Constitution of the State  of Alaska                                                               
states  that a  person is  entitled to  reasonable bail,  so that                                                               
language was found unconstitutional.                                                                                            
                                                                                                                                
CHAIR  HUGHES asked  whether the  unconstitutional language  just                                                               
described was  in pre-Senate Bill 91  law or if it  was in Senate                                                               
Bill 91.                                                                                                                        
                                                                                                                                
MR. SKIDMORE reiterated  that the language in  pre-Senate Bill 91                                                               
law was  found to  be unconstitutional.  He reiterated  that this                                                               
language would  revert to  pre-Senate Bill  91 law.  However, the                                                               
language  was  altered in  SB  33  to  ensure  that it  would  be                                                               
constitutional.                                                                                                                 
                                                                                                                                
1:55:47 PM                                                                                                                    
SENATOR  KIEHL  said   it  seemed  to  him  that   there  was  an                                                               
unconstitutional  presumption  that  bail   would  not  work  and                                                               
Section 7  provides replacement language that  presumes that bail                                                               
would not work. He said he was unsure of the distinction.                                                                       
                                                                                                                                
MR. SKIDMORE  explained that the specific  language in pre-Senate                                                               
Bill  91  law  indicated  that no  condition  or  combination  of                                                               
conditions  could   ensure  the   safety  or  appearance   of  an                                                               
individual.  That language  left  the court  in  the position  of                                                               
having to  deny bail  because it could  not impose  any condition                                                               
that  would ensure  the person  would not  flee or  commit a  new                                                               
crime. That restriction provided  the defendant no opportunity to                                                               
post bail and be released from jail during the pretrial phase.                                                                  
                                                                                                                                
He  explained that  SB 33  started with  the premise  that it  is                                                               
appropriate  for  a  defendant  to   be  out  on  bail.  It  also                                                               
establishes  the presumption  that  release on  the person's  own                                                               
recognizance  (OR)  is not  appropriate  for  defendants who  are                                                               
charged with certain  crimes, such as murder  or sexual felonies.                                                               
The presumption  is that some  other conditions would need  to be                                                               
set, he said.                                                                                                                   
                                                                                                                                
SENATOR KIEHL  pointed out that  this subsection does  not appear                                                               
to set the  standards for the pretrial  conditions for defendants                                                               
charged with more dangerous crimes.                                                                                             
                                                                                                                                
MR. SKIDMORE  answered that  Section 7,  subsection (b)  lays out                                                               
the options. He referred  to page 4, line 14 to  page 5, line 28,                                                               
which  outlines  the  types  of conditions  that  the  court  can                                                               
select.   For  example,   conditions  could   include  electronic                                                               
monitoring,  assigning a  third-party  custodian, supervision  by                                                               
pretrial  services, or  placing  restrictions on  contact with  a                                                               
victim. Thus, guidance would be  available. This language removes                                                               
the concern that  none of the conditions would  ensure the safety                                                               
of the  community or the  defendant's appearance in  court. Under                                                               
Section  7, the  presumption would  be that  conditions for  bail                                                               
must  be  imposed  rather  than  to allow  the  defendant  to  be                                                               
released from jail on his/her own recognizance, he said.                                                                        
                                                                                                                                
2:00:25 PM                                                                                                                    
SENATOR MICCICHE  observed that  AS 12.30.011  currently includes                                                               
an unsecured  performance bond and  an appearance bond.  He asked                                                               
what the  difference was  between those  bonds. He  further asked                                                               
why the performance bond was removed in SB 33.                                                                                  
                                                                                                                                
MR. SKIDMORE  explained that an  appearance bond would  be issued                                                               
to ensure  someone appears  in court  whereas a  performance bond                                                               
would  be issued  to ensure  that someone  complies with  all the                                                               
other conditions of bail. The  appearance bond would be forfeited                                                               
for  not  appearing  in  court. The  performance  bond  would  be                                                               
forfeited if  the defendant  violated any  of the  conditions for                                                               
release, such as consuming alcohol.                                                                                             
                                                                                                                                
SENATOR MICCICHE said a performance  bond is required in existing                                                               
law but he did  not see it mentioned in SB 33.  He referred to AS                                                               
12.30.011  on  page  4,  lines  1-2  to  language  related  to  a                                                               
performance bond.                                                                                                               
                                                                                                                                
MR.  SKIDMORE  directed attention  to  page  4, lines  19-20,  to                                                               
subsection (b)(3), which requires  the execution of a performance                                                               
bond  in a  specified  amount  of cash  to  be  deposited in  the                                                               
registry of the court.                                                                                                          
                                                                                                                                
2:02:31 PM                                                                                                                    
MR. SKIDMORE reviewed Section 8.                                                                                                
                                                                                                                                
     Section 8: Eliminates the requirement that a pretrial                                                                      
     services officer not be available in the area before a                                                                     
     third-party custodian can be appointed.                                                                                    
                                                                                                                                
MR.  SKIDMORE explained  that pretrial  services officers  were a                                                               
new  concept in  Senate Bill  91 law.  The law  requires pretrial                                                               
services officers  to be used  whenever possible but it  does not                                                               
allow the  use of third-party  custodians. Section 8  would allow                                                               
the court  the option  of assigning  a pretrial  services officer                                                               
supervised  by  the  Department  of  Corrections,  a  third-party                                                               
custodian, or the use of  electronic monitoring in every location                                                               
to provide public  safety and ensure that  defendants will appear                                                               
in court. He  reviewed the advantages for  having options. First,                                                               
it  would give  the court  greater discretion  by allowing  it to                                                               
select the  most appropriate condition in  each instance. Second,                                                               
a pretrial  services officer would  not be limited to  a specific                                                               
geographic    area   since    the   pretrial    service   officer                                                               
responsibilities were reorganized within the department.                                                                        
                                                                                                                                
2:04:23 PM                                                                                                                    
SENATOR KIEHL said he had  questions about the efficacy. He asked                                                               
which method would  work better to ensure  that defendants appear                                                               
in court  dates and that  they receive appropriate  sanctions for                                                               
any  violations of  pretrial  conditions. He  said  he has  heard                                                               
anecdotal horror stories about third-party custodians.                                                                          
                                                                                                                                
MR. SKIDMORE argued  that it is not a question  of whether third-                                                               
party custodians  or pretrial services  officers are  better, but                                                               
rather to consider what would  work best on a case-by-case basis.                                                               
During the  past 20  years he  has worked  in the  communities of                                                               
Dillingham  and  Bethel  and,  in  his  experience,  it  was  not                                                               
feasible for pretrial officers to  be located in every community,                                                               
especially in  small villages, such  as Togiak. Even  if pretrial                                                               
services supervision  was available  in some  areas, it  might be                                                               
more effective  to assign a third-party  custodian. Although some                                                               
third-party custodians fail, he has  seen them succeed more often                                                               
than not. The court and  the prosecution must evaluate the third-                                                               
party  custodians  to  ensure  that  they  are  able  to  provide                                                               
appropriate  services. He  argued that  having all  three options                                                               
would  help  provide  public  safety.   In  response  to  Senator                                                               
Micciche,  he clarified  that under  current  law, when  pretrial                                                               
services  officers are  available a  third-party custodian  could                                                               
not be used.                                                                                                                    
                                                                                                                                
SENATOR MICCICHE  asked whether  the DOL has  considered imposing                                                               
sanctions  or violations  on third-party  custodians  who do  not                                                               
fulfill their agreements.                                                                                                       
                                                                                                                                
MR. SKIDMORE answered that  currently, third-party custodians who                                                               
do not  perform their responsibilities  would be in  violation of                                                               
AS 11.56.758.                                                                                                                   
                                                                                                                                
CHAIR HUGHES  asked for the  current number of  pretrial services                                                               
officers. She  further asked how  often the department  would use                                                               
these officers rather than third-party custodians.                                                                              
                                                                                                                                
2:10:12 PM                                                                                                                    
JENNIFER   WINKELMAN,  Director,   Division   of  Probation   and                                                               
Parole/Pretrial,  Department  of  Corrections,  Juneau,  reported                                                               
that the  division has a total  of 78 staff assigned  to pretrial                                                               
services. The division has hub  offices in Kenai, Juneau, Palmer,                                                               
Fairbanks, and Anchorage. She reported  that Palmer and Fairbanks                                                               
each  have nine  officers and  one supervisor.  Anchorage has  20                                                               
officers and three supervisors. Kenai  and Juneau each have three                                                               
officers, while Ketchikan  has one officer. They  all operate out                                                               
of the Division of Probation and Parole offices, she said.                                                                      
                                                                                                                                
CHAIR HUGHES  asked whether third-party custodians  are necessary                                                               
to ensure  adequate coverage, especially  since the  officers are                                                               
not in some villages.                                                                                                           
                                                                                                                                
MS.  WINKELMAN answered  that  it is  more  likely that  pretrial                                                               
services officers  would not  be available  in the  villages. For                                                               
example, ones outside of Nome  or Bethel. She said that providing                                                               
supervision by  third-party custodians  could be  more beneficial                                                               
in  those rural  areas. She  said  she was  uncertain that  using                                                               
third-party  custodians  would  be  a better  option  than  using                                                               
pretrial  services  officers,  but  she agreed  that  having  the                                                               
option available would be beneficial.                                                                                           
                                                                                                                                
CHAIR  HUGHES  asked for  further  clarification  on whether  the                                                               
pretrial  services   officers  typically  do  not   work  in  the                                                               
community in which they live, but travel to communities.                                                                        
                                                                                                                                
MS.  WINKELMAN  answered  that  the  pretrial  services  officers                                                               
travel  to  rural areas  based  on  the department's  supervision                                                               
policy.  She recalled  that they  must  provide supervision  once                                                               
every  four or  six  months, but  she would  have  to review  the                                                               
policy.  She confirmed  that the  officers do  not reside  in the                                                               
villages.                                                                                                                       
                                                                                                                                
CHAIR   HUGHES  asked   about   accountability  for   third-party                                                               
custodians and if any improvements were needed.                                                                                 
                                                                                                                                
MS. WINKELMAN  said she has  not reviewed  accountability because                                                               
the   department  has   limited   involvement  with   third-party                                                               
custodians. They  are assigned  by the court.  She offered  to do                                                               
some research and report back to the committee.                                                                                 
                                                                                                                                
2:13:33 PM                                                                                                                    
SENATOR  MICCICHE  said AS  11.56.758  seems  to be  directed  at                                                               
immediate reporting.  He read, "Violation  of a  custodian's duty                                                               
is a class  A misdemeanor if the released person  is charged with                                                               
a  felony and  a class  B misdemeanor  if the  released party  is                                                               
charged  with  a  misdemeanor."  He  recalled  in  at  least  one                                                               
instance a third-party custodian  supplied drugs to the defendant                                                               
released on charges  of drug possession. He  asked if third-party                                                               
custodians are ever charged under the penalty provision.                                                                        
                                                                                                                                
MR. SKIDMORE answered that he did  not have the statistics on the                                                               
frequency  of  charges  made  under AS  11.56.758  with  him.  He                                                               
recalled that  prior to  Senate Bill 91  law, this  provision was                                                               
used.  He was  unsure if  any additional  charges could  be filed                                                               
when a third-party custodian supplied  narcotics to the defendant                                                               
assigned  to  him.  If the  narcotics  were  illegal,  additional                                                               
criminal charges  should have been  filed, he said.  This statute                                                               
currently  exists to  provide enforcement  of the  responsibility                                                               
for third-party custodians.                                                                                                     
                                                                                                                                
SENATOR MICCICHE  said the committee  should review  this further                                                               
and  institute  some  clear  expectations  and  consequences  for                                                               
third-party custodians.                                                                                                         
                                                                                                                                
CHAIR  HUGHES  agreed.   She  noted  that  the   vast  number  of                                                               
communities do not have correctional pretrial services officers.                                                                
                                                                                                                                
2:16:40 PM                                                                                                                    
SENATOR KIEHL  asked what the  existing standards are  for third-                                                               
party custodians.                                                                                                               
                                                                                                                                
MS. WINKELMAN deferred the question to Mr. Skidmore.                                                                            
                                                                                                                                
MR.  SKIDMORE  said  the  standards  for  third-party  custodians                                                               
approved by  the court are  found in AS  12.30. He said  that the                                                               
court would  evaluate whether the  person would be a  good third-                                                               
party  custodian  but  he  was   not  aware  of  any  established                                                               
criteria. However,  Section 9 does  identify the criteria  when a                                                               
third-party custodian cannot be appointed.                                                                                      
                                                                                                                                
SENATOR  KIEHL suggested  that this  was an  opportunity to  do a                                                               
better  job   regarding  third-party   custodians.  He   said  he                                                               
fundamentally disagrees  with Mr. Skidmore that  the state cannot                                                               
determine   whether   third-party  custodians   or   correctional                                                               
pretrial  services  officers  work   better.  He  said  that  the                                                               
department should  develop standards for  third-party custodians.                                                               
He  strongly  suspected  that  pretrial  services  officers  were                                                               
providing  better  results.  He expressed  concern  about  moving                                                               
towards third-party  custodians without a clear  understanding of                                                               
what would likely work.                                                                                                         
                                                                                                                                
2:19:07 PM                                                                                                                    
CHAIR HUGHES asked  whether the department had  any statistics on                                                               
violations that  occur under  third-party custodians  as compared                                                               
to pretrial services officers.                                                                                                  
                                                                                                                                
MS. WINKELMAN answered  no. She said she was  uncertain about the                                                               
incidence of  problems with third-party custodians.  However, the                                                               
department would  have information on pretrial  services officers                                                               
since they  fall under the  department's supervision.  In further                                                               
response to Chair Hughes, she said  that she was uncertain if the                                                               
district attorney or court system tracks third-party custodians.                                                                
                                                                                                                                
2:19:58 PM                                                                                                                    
NANCY  MEADE, General  Counsel, Alaska  Court System,  Anchorage,                                                               
responded  that the  court system  does not  compile data  on the                                                               
number  of  third-party  custodians   assigned.  She  offered  to                                                               
research the number  of times the statute  previously referred to                                                               
was used and report back to the committee.                                                                                      
                                                                                                                                
2:21:28 PM                                                                                                                    
MR. SKIDMORE reviewed  Section 9. He directed  attention to pages                                                               
7-8 of SB 33.                                                                                                                   
                                                                                                                                
       Section 9: Reenacts the prohibition on appointing                                                                        
     individuals who may be called as a witness in the case                                                                     
     from being appointed as third-party custodians.                                                                            
                                                                                                                                
MR. SKIDMORE said that Section  9 would revert to pre-Senate Bill                                                               
91 law  in terms of  restrictions for third-party  custodians. He                                                               
referred to page 8, lines 4-5  in Section 9. Prior law restricted                                                               
appointing  third-party  custodians  who  might be  called  as  a                                                               
witness in a case from serving.  He explained that Senate Bill 91                                                               
law changed the  language to "a reasonable  probability" that the                                                               
person  might be  called  as  a witness.  He  explained that  the                                                               
difficulty  with  the  Senate  Bill  91 law  was  timing.  It  is                                                               
difficult to  evaluate early on  the parties who might  be called                                                               
as  witnesses in  a  case. Bail  and  third-party custodians  can                                                               
generally be assessed  within the first week after  an arrest was                                                               
made,  he said.  At that  point, the  prosecution would  still be                                                               
compiling information  and nuances of  the case, so  a prosecutor                                                               
may  not be  able to  identify  potential witnesses.  He said  it                                                               
would  be a  better  practice to  use the  guideline  that "if  a                                                               
person  may  be  called  as  a  witness,  the  person  cannot  be                                                               
appointed."  It would  help to  ensure some  factors or  criteria                                                               
would apply to third-party custodians, he said.                                                                                 
                                                                                                                                
2:23:02 PM                                                                                                                    
SENATOR KIEHL  said that  "reasonable probability"  is a  term he                                                               
was not familiar  with, but it seemed like a  lower standard than                                                               
probable  cause. He  asked whether  this  determination would  be                                                               
made at the prosecutor's sole discretion.                                                                                       
                                                                                                                                
MR.  SKIDMORE   answered  the   prosecutor  would   decide  which                                                               
witnesses  the state  will call  on a  case. Senate  Bill 91  law                                                               
established the "reasonable probability"  standard that the state                                                               
applied  when  determining  the  witnesses  list.  However,  that                                                               
language does not  preclude the defense from calling  a person as                                                               
a witness, he said.                                                                                                             
                                                                                                                                
He explained  that SB 33  proposes a prohibition on  appointing a                                                               
third-party  custodian who  might  be called  as  a witness.  The                                                               
department  interpreted  this  to  mean it  would  apply  to  any                                                               
witnesses for  the prosecution or  the defense. When  a potential                                                               
third-party custodian  is identified as a  potential witness, the                                                               
judge would  want to know the  reason the person would  be called                                                               
as a  witness and  what evidence  the person  might offer  in the                                                               
case.  The state  would need  to  articulate the  reason and  the                                                               
court would  evaluate it, but  it may be  too early to  know that                                                               
information.  Of  course,   it  is  not  carte   blanche  that  a                                                               
prosecutor  would  decide  the  potential  third-party  custodian                                                               
might be  a witness  since it  could include  potential witnesses                                                               
for the  defense or any  witnesses who  have a connection  to the                                                               
case. The court would ultimately evaluate it, he said.                                                                          
                                                                                                                                
2:25:35 PM                                                                                                                    
SENATOR KIEHL  asked what standard  the judge could apply  if the                                                               
language reads "may."                                                                                                           
                                                                                                                                
MR. SKIDMORE  answered that the  "preponderance of  the evidence"                                                               
standard  is used  for bail  hearings. The  state would  indicate                                                               
that   the  person   might  be   called,  and   the  prosecutor's                                                               
explanation must  withstand the scrutiny  of the court,  he said.                                                               
However,  "reasonable probability"  is  not the  burden of  proof                                                               
typically used in criminal law.                                                                                                 
                                                                                                                                
2:27:21 PM                                                                                                                    
SENATOR  MICCICHE  offered  his  belief that  the  standards  for                                                               
third-party custodians set  out in Section 9 seemed  to be fairly                                                               
minimal.  He asked  whether  AS 11.41  covered  crimes against  a                                                               
person.                                                                                                                         
                                                                                                                                
MR. SKIDMORE answered yes.                                                                                                      
                                                                                                                                
SENATOR MICCICHE  recapped that  third-party custodians  must not                                                               
have been convicted in the previous  three years of a crime under                                                               
AS 11.41,  have criminal charges  pending, or be on  probation in                                                               
this state or  in another jurisdiction. He asked  Mr. Skidmore if                                                               
there were any  other standards he might  suggest for third-party                                                               
custodians. For example,  he did not see any  restriction for any                                                               
recent  drug  convictions. He  suggested  this  was important  to                                                               
consider given the opioid crisis in the state.                                                                                  
                                                                                                                                
MR. SKIDMORE  acknowledged that he  had not given any  thought to                                                               
potential criteria, but he could do  so. He clarified that he was                                                               
speaking  on behalf  of the  department and  was not  necessarily                                                               
conveying his  thoughts on the matter.  Typically, the department                                                               
would  seek  consensus  from prosecutors  throughout  Alaska.  He                                                               
acknowledged he  would hesitate to offer  any suggestions without                                                               
going through the departmental vetting process, he said.                                                                        
                                                                                                                                
2:29:35 PM                                                                                                                    
SENATOR MICCICHE said  he may speak to other  people with respect                                                               
to   the   criteria    for   third-party   custodians.   "Minimal                                                               
requirements is a generous term for the current list," he said.                                                                 
                                                                                                                                
CHAIR HUGHES  remarked that  she was  surprised at  the leniency.                                                               
She  expected   potential  third-party  custodians  to   have  no                                                               
criminal history.                                                                                                               
                                                                                                                                
2:30:10 PM                                                                                                                    
MR. SKIDMORE reviewed Section 10.                                                                                               
                                                                                                                                
       Section 10: Prohibits the court from granting jail                                                                       
     credit for time spent on electronic monitoring before                                                                      
     trial.                                                                                                                     
                                                                                                                                
MR. SKIDMORE pointed out that  the committee previously discussed                                                               
Section  10 as  it related  to SB  12. Briefly,  the court  would                                                               
decide  who  could  be placed  on  electronic  monitoring  during                                                               
pretrial. The court  would not make any  determination on whether                                                               
electronic monitoring  was the appropriate place  or circumstance                                                               
for  a   person  to  serve   his/her  sentence.   Instead,  post-                                                               
conviction, the  Department of Corrections  would conduct  a risk                                                               
assessment analysis  and a  classification analysis  to determine                                                               
the  appropriate   place  for  the  offender   to  serve  his/her                                                               
sentence.   Without   an   assessment  by   the   Department   of                                                               
Corrections, the  decision to use electronic  monitoring would be                                                               
made at  a bail hearing, even  if not appropriate. He  noted that                                                               
the  Justin Schneider  case highlighted  this  issue. Section  10                                                               
would  prohibit  the  court  from  granting  pretrial  electronic                                                               
monitoring  from  being  used  as  credit  towards  the  ultimate                                                               
sentence that would be imposed.                                                                                                 
                                                                                                                                
He cautioned  that the current language  could encourage pretrial                                                               
delays.  Offenders  released  on pretrial  electronic  monitoring                                                               
might seek  delays prior to  sentencing in  order to build  up as                                                               
much  credit as  possible against  the sentence  in the  pretrial                                                               
phase to reduce any potential time served, he said.                                                                             
                                                                                                                                
2:32:40 PM                                                                                                                    
MR. SKIDMORE said that one of  the great ills that Senate Bill 91                                                               
law  sought  to address  was  the  rise  in the  pretrial  prison                                                               
population.  However, the  pretrial prison  population is  driven                                                               
not just by the number of  people sentenced, but by the length of                                                               
time between  their arrests and  when the case is  resolved. That                                                               
period of time  is all deemed pretrial time, he  said. Section 10                                                               
seeks to  ensure that  pretrial delays  do not  occur, especially                                                               
since delays never benefit the victims.                                                                                         
                                                                                                                                
2:33:22 PM                                                                                                                    
MR. SKIDMORE read Sections 11 and 12.                                                                                           
                                                                                                                                
      Section 11: Conforming amendment to the changes made                                                                      
     by section 10.                                                                                                             
                                                                                                                                
     Section 12: Adds prosecuting authority to the list of                                                                      
     entities  that   can  be  notified   if  a   person  is                                                                    
     discharged from a treatment program for noncompliance.                                                                     
                                                                                                                                
2:34:11 PM                                                                                                                    
MR. SKIDMORE turned to page 9 of SB 33 and reviewed Section 13.                                                                 
                                                                                                                                
     Section 13: Limits the amount of jail credit that can                                                                      
      be granted for time spent in a treatment program to                                                                       
     180 days.                                                                                                                  
                                                                                                                                
MR. SKIDMORE  advised members that  the department does  not want                                                               
to discourage people from  obtaining treatment pretrial. However,                                                               
pretrial treatment should be limited,  or it could create delays.                                                               
Most programs  last six months or  less, which is the  reason 180                                                               
days was  selected. Longer treatment  programs should  be pursued                                                               
after the underlying criminal offense is resolved, he said.                                                                     
                                                                                                                                
2:35:16 PM                                                                                                                    
SENATOR MICCICHE noted that Section  12 is not specific about the                                                               
type of treatment.  He asked whether the  treatment could include                                                               
sex offender treatment programs.                                                                                                
                                                                                                                                
MR.  SKIDMORE  answered  that  it   could  include  any  type  of                                                               
treatment program, but sex  offender treatment programs typically                                                               
last  longer  than six  months  and  are  not typically  used  by                                                               
defendants in  pretrial. Those programs encourage  people to talk                                                               
about  their inappropriate  behavior and  most defense  attorneys                                                               
would advise  their clients  not to admit  anything prior  to the                                                               
adjudication  process  because  it   could  potentially  be  used                                                               
against them.                                                                                                                   
                                                                                                                                
2:36:34 PM                                                                                                                    
CHAIR  HUGHES related  her understanding  that this  section does                                                               
not require the treatment to be residential treatment.                                                                          
                                                                                                                                
MR. SKIDMORE offered to further  review AS 12.55.027. He said his                                                               
impression is  that it would  need to be a  residential treatment                                                               
program.  The  law  has  generally  considered  providing  credit                                                               
against  a  sentence  that  involves   some  restriction  on  the                                                               
defendant's  movement or  other liberties.  He offered  to report                                                               
his findings to the committee.                                                                                                  
                                                                                                                                
2:37:42 PM                                                                                                                    
SENATOR  MICCICHE recalled  that  the  prosecuting authority  was                                                               
added  to  require  notification.  He asked  whether  the  victim                                                               
should be added to the list of those notified.                                                                                  
                                                                                                                                
MR. SKIDMORE  said he had not  considered that matter but  he did                                                               
not initially see any problem in  doing so. He said he was unsure                                                               
why  victims were  not included.  He offered  to research  it and                                                               
report back to the committee.                                                                                                   
                                                                                                                                
2:38:50 PM                                                                                                                    
MR. SKIDMORE  referred to AS 12.55.027(a).  He read, "reformation                                                               
and rehabilitation of  the defendant if the court  finds that the                                                               
program  places  a  substantial restriction  on  the  defendant's                                                               
freedom  of movement  and behavior  and is  consistent with  this                                                               
section." This  language implies  that it would  need to  be some                                                               
sort of residential program, he said.                                                                                           
                                                                                                                                
2:39:26 PM                                                                                                                    
MR. SKIDMORE read Sections 14 and 15.                                                                                           
                                                                                                                                
       Section 14: Conforming amendment. Conforms to the                                                                        
     change made in section 2.                                                                                                  
                                                                                                                                
     Section 15: Adds authority for the commissioner of the                                                                     
        department of corrections to supervise pretrial                                                                         
     defendants.                                                                                                                
                                                                                                                                
MR. SKIDMORE said  that Section 15 really gets to  the "heart and                                                               
soul"  of  pretrial services  officers.  He  said that  AS  33.07                                                               
created the  pretrial service unit  previously. Section  15 would                                                               
add the  pretrial services officer  program into the  Division of                                                               
Probation  and  Parole.  As  Ms.  Winkelman  described,  pretrial                                                               
services officers have only been  available in communities on the                                                               
road system  or the ferry  system, which limits the  program. The                                                               
state  seeks to  expand  the program  to  communities in  Western                                                               
Alaska that already  have probation and parole  offices, he said.                                                               
Adding  this  function  to  the division  would  also  limit  the                                                               
overhead expenses for supervision  and management of the program.                                                               
The powers  of the commissioner  include "provide  supervision of                                                               
defendants  released  while  awaiting  trial as  ordered  by  the                                                               
court." This language was added in  Section 15 to ensure that the                                                               
Department   of  Corrections   appropriately  has   authority  to                                                               
supervise individuals pretrial.                                                                                                 
                                                                                                                                
2:42:11 PM                                                                                                                    
MR. SKIDMORE  directed attention  to page  10 of  SB 33  and read                                                               
Section 16.                                                                                                                     
                                                                                                                                
     Section   16:   Requires   the  commissioner   of   the                                                                    
     department  of corrections  to make  officers available                                                                    
     to  the courts  for pretrial  supervision. Also  allows                                                                    
     the commissioner to contract  with private entities for                                                                    
     electronic monitoring services.                                                                                            
                                                                                                                                
2:42:42 PM                                                                                                                    
MR. SKIDMORE reviewed Sections 17-19.                                                                                           
                                                                                                                                
     Section 17:  Clarifies that  probation officers  may be                                                                    
     made available to district courts.                                                                                         
                                                                                                                                
     Section 18:  Adds pretrial supervision  to the  list of                                                                    
     duties  which  a  probation  officer  may  perform  and                                                                    
     clarifies that  when performing those  duties probation                                                                    
     officers are pretrial services officers.                                                                                   
                                                                                                                                
     Section 19: Lays out the  duties of a probation officer                                                                    
     when  acting  as  a pretrial  services  officer.  These                                                                    
     duties   include   arresting  defendants   and   filing                                                                    
     criminal  complaints for  violations  of conditions  of                                                                    
     release.                                                                                                                   
                                                                                                                                
MR.  SKIDMORE  said these  three  sections  create the  statutory                                                               
changes required to allow probation  and parole officers to serve                                                               
as pretrial  services officers.  He pointed  out that  this would                                                               
mean probation officers would be  available to district courts to                                                               
cover misdemeanors, not just felonies.                                                                                          
                                                                                                                                
He   explained  that   these  three   sections  pertain   to  the                                                               
responsibility  for supervising  pretrial  services and  ensuring                                                               
that the department maintains the  legal authority to do so. This                                                               
would also allow the department to be nimble, he said.                                                                          
                                                                                                                                
2:44:43 PM                                                                                                                    
MR. SKIDMORE  referenced page 12  of SB 33. He  reviewed Sections                                                               
20 and 21.                                                                                                                      
                                                                                                                                
     Section  20:   Conforming  amendment.   Eliminates  the                                                                    
     reference  to AS  33.07, which  is  where the  pretrial                                                                    
     services  program is  currently  located.  AS 33.07  is                                                                    
     repealed in the bill.                                                                                                      
                                                                                                                                
     Section  21:   Eliminates  the  requirement   that  the                                                                    
     Department   of  Corrections   report  to   the  Alaska                                                                    
     Criminal Justice Commission  on pretrial defendant risk                                                                    
     levels  and charges  and pretrial  recommendations made                                                                    
     by pretrial services officers.                                                                                             
                                                                                                                                
MR. SKIDMORE  explained that it  did not  make any sense  to have                                                               
the department  continue to  report on  risk assessment  since it                                                               
would no longer be a requirement in statute.                                                                                    
                                                                                                                                
2:46:24 PM                                                                                                                    
MR. SKIDMORE reviewed Section 22.                                                                                               
                                                                                                                                
     Section 22:  Conforming amendment  to the  changes made                                                                    
     in section 23.                                                                                                             
                                                                                                                                
He  said that  this  is  a conforming  amendment  to court  rules                                                               
related to using  contemporaneous two-way videoconferencing. This                                                               
terminology also  more accurately  describes the  technology than                                                               
"television."                                                                                                                   
                                                                                                                                
2:47:29 PM                                                                                                                    
MR. SKIDMORE reviewed Section 23.                                                                                               
                                                                                                                                
     Section  23: Expands  the  types  of pretrial  hearings                                                                    
     available   to  the   Alaska   Court   System  to   use                                                                    
     videoconferencing.                                                                                                         
                                                                                                                                
MR. SKIDMORE said the department  has been working with the court                                                               
system on  suggested changes to  ensure that the rule  is drafted                                                               
to address any issues related to videoconferencing.                                                                             
                                                                                                                                
2:48:06 PM                                                                                                                    
SENATOR KIEHL asked  whether Ms. Meade could  describe any issues                                                               
the court system has with videoconferencing.                                                                                    
                                                                                                                                
MS. MEADE concurred  with Mr. Skidmore that the  court system has                                                               
been working  with the Department  of Law on  language acceptable                                                               
to both entities  in terms of videoconferences.  These issues are                                                               
primarily related  to Section 23,  but also  to Section 1  of the                                                               
bill.                                                                                                                           
                                                                                                                                
She explained that  the Alaska Supreme Court has  been working on                                                               
rules related to videoconferencing for  some time. The court does                                                               
have some concerns  related to which hearings  are appropriate to                                                               
hold  by videoconferences.  The  current rule  reflects what  the                                                               
Alaska Supreme Court decided about a  year ago, which is to allow                                                               
certain  proceedings to  be conducted  by video  when all  of the                                                               
logistics are in place.                                                                                                         
                                                                                                                                
MS. MEADE  explained that the  Department of Law seeks  to expand                                                               
some of  these options in SB  33. Although she believed  that she                                                               
and Mr. Skidmore have reached  agreement on when videoconferences                                                               
would   be   acceptable,   some  concerns   remain   related   to                                                               
constitutional  rights.   For  example,  when  a   defendant  has                                                               
evidence being  presented against him/her at  a pretrial hearing,                                                               
the  defendant has  constitutional rights  to have  this evidence                                                               
presented in person. The court  also faces logistical issues when                                                               
holding more hearings by videoconference.                                                                                       
                                                                                                                                
She offered  that the  court has  spearheaded projects  to ensure                                                               
acceptable  equipment  for  facilities. The  court  system  staff                                                               
assesses any  equipment needed at  prisons and  orders, installs,                                                               
and  maintains the  equipment.  She said  that  the Alaska  Court                                                               
System  seeks to  hold more  hearings by  videoconference. Still,                                                               
defendants have the  option to appear at a number  of hearings by                                                               
rule. She  reported that the  court system  sends a judge  to the                                                               
Anchorage  jail court  twice a  day,  every day,  to provide  in-                                                               
person  arraignments.  In  some   regions  and  places,  such  as                                                               
Kotzebue,   the  court   conducts   a  number   of  hearings   by                                                               
videoconference to the Anvil  Mountain Correctional Facility. The                                                               
court   has    the   infrastructure    in   place    to   conduct                                                               
videoconferences.  As committee  members have  experienced during                                                               
legislative  hearings,  sometimes videoconferences  diminish  the                                                               
effectiveness, she  said. The court  system seeks to  continue to                                                               
cooperate   and  spearhead   videoconferences   with  the   state                                                               
agencies. She  acknowledged that this administration  has focused                                                               
on increasing videoconferences.                                                                                                 
                                                                                                                                
2:52:39 PM                                                                                                                    
MR. SKIDMORE reviewed Section 24.                                                                                               
                                                                                                                                
       Section 24: Allows a defendant or the defendant's                                                                        
     counsel to consent to a continuance of trial.                                                                              
                                                                                                                                
MR. SKIDMORE  explained that when  requesting a  continuance, the                                                               
defense counsel can make the  request and, in some circumstances,                                                               
without approval  by a  defendant. He said  this is  really about                                                               
efficiency,   just   as   Ms.   Meade   indicated.   Transporting                                                               
teleconferencing equipment  that does not  always work  can delay                                                               
cases. He said  that it is difficult to get  a defendant to court                                                               
so the person  can state that they have agreed  to a continuance.                                                               
He said that  in viewing the decisions left to  a defendant or to                                                               
counsel,  that  considerable  case  law discusses  what  type  of                                                               
decisions  each  one  of  them gets  to  make.  Continuances  are                                                               
generally the types  of things defense counsel gets  to decide as                                                               
opposed  to defendants.  This language  would add  consistency to                                                               
what that case  law describes and seeks to eliminate  some of the                                                               
associated pretrial delay.                                                                                                      
                                                                                                                                
2:53:54 PM                                                                                                                    
MR. SKIDMORE read Sections 25 and 26.                                                                                           
                                                                                                                                
     Section 25: Repealer section.                                                                                              
                                                                                                                                
MR.  SKIDMORE explained  that Section  26,  is the  applicability                                                               
section.                                                                                                                        
                                                                                                                                
MR. SKIDMORE read Section 27.                                                                                                   
                                                                                                                                
     Section  27:  Transition   section.  Ensures  that  the                                                                    
     Department  of   Corrections  can  still   monitor  any                                                                    
     defendant  that is  currently on  pretrial release  and                                                                    
     under the supervision of  the Department of Corrections                                                                    
     despite  the  transfer  of   that  authority  from  the                                                                    
     pretrial services program to probation.                                                                                    
                                                                                                                                
MR. SKIDMORE said  that Section 28 relates to  the uncodified law                                                               
of Alaska.                                                                                                                      
                                                                                                                                
MR. SKIDMORE read Section 29.                                                                                                   
                                                                                                                                
     Section [29]: Effective Date. This Act takes effect on                                                                     
     July 1, 2019.                                                                                                              
                                                                                                                                
2:55:27 PM                                                                                                                    
CHAIR  HUGHES  asked  for further  explanation  of  the  repealed                                                               
statutes listed in Section 25.                                                                                                  
                                                                                                                                
MR. SKIDMORE explained that AS  12.55.027(g) pertains to pretrial                                                               
credit against sentences that are  openly imposed. It is repealed                                                               
because subsection (d) is being  eliminated. The current language                                                               
states that  a credit  against a  sentence of  imprisonment under                                                               
(d) of this  section may grant credit of not  more than 360 days.                                                               
He  characterized  it  as  a  conforming  change.  The  remaining                                                               
repealed statutes, including  AS 33.07.010, 33.07.020, 33.07.030,                                                               
33.07.040, and 33.07.090, pertain  to statutes that establish the                                                               
pretrial  services unit  within  the  Department of  Corrections.                                                               
Since that unit  is transferred to the Division  of Probation and                                                               
Parole in SB 33, Sections 15-19 are obsolete, he said.                                                                          
                                                                                                                                
2:57:28 PM                                                                                                                    
SENATOR KIEHL commented that AS  33.07.030 sets out the duties of                                                               
the  pretrial  service officers,  but  some  provisions, such  as                                                               
recommendations to the court and  how restrictive the environment                                                               
must be, were no longer listed.  He asked Mr. Skidmore to discuss                                                               
the shift in approach.                                                                                                          
                                                                                                                                
2:57:49 PM                                                                                                                    
MR.  SKIDMORE  explained  that maintaining  pretrial  supervision                                                               
throughout the  state was deemed  important, but that  also meant                                                               
finding   [budgetary]   efficiencies   elsewhere.   Changing   AS                                                               
12.30.011  eliminates  the  way  judges  are  tied  to  the  risk                                                               
assessment tool.  Under current  law, pretrial  services officers                                                               
use a  risk assessment  tool that drives  much of  the discussion                                                               
about bail. These officers spend  an inordinate amount of time on                                                               
risk  assessment,  which examines  factors  that  the court,  the                                                               
prosecution, and the defense  already evaluate. Instead, pretrial                                                               
service  officers  will  now  focus  exclusively  on  supervision                                                               
rather  than  answer  questions   about  an  offender's  criminal                                                               
history for the  court prior to an arraignment.  People can still                                                               
use the tool, but they are not required to do so, he said.                                                                      
                                                                                                                                
SENATOR  KIEHL  recalled  that pretrial  services  officers  were                                                               
recommending the  least restrictive  supervision that  would keep                                                               
the public safe  yet still ensure that the defendant  shows up in                                                               
court.  This language  would leave  it to  the court  to evaluate                                                               
supervision. He  expressed concern that by  deleting the language                                                               
at  this   juncture  also  removes   the  presumption   that  the                                                               
department  would  not  be  recommending  the  least  restrictive                                                               
environment.   He  asked   whether  that   decision  is   covered                                                               
elsewhere.                                                                                                                      
                                                                                                                                
MR. SKIDMORE answered yes. He  directed attention to Section 7 on                                                               
page 4, lines 8-13 and read Sec. 12.30.011(b):                                                                                  
                                                                                                                                
     If  a  judicial  officer determines  that  the  release                                                                    
     under (a)  of this  section will not  reasonably assure                                                                    
     the appearance of  the person or will pose  a danger to                                                                    
     the  victim,  other  persons,  or  the  community,  the                                                                    
     officer  shall impose  the least  restrictive condition                                                                    
     or conditions that will  reasonably assure the person's                                                                    
     appearance and  protect the victim, other  persons, and                                                                    
     the community.                                                                                                             
                                                                                                                                
He  agreed that  Senator Kiehl  identified the  department's goal                                                               
and  said that  the  pretrial services  officers  would not  make                                                               
recommendations about how to achieve  it. Section 7 would provide                                                               
guidance for any arguments the  prosecution or the defense wanted                                                               
to  make.  This section  provides  the  statutory authority  that                                                               
controls the  way the judge  would make decisions  and ultimately                                                               
set conditions of release.                                                                                                      
                                                                                                                                
SENATOR KIEHL  said that  he would  hold additional  questions on                                                               
the  risk assessment  tool,  which he  thought  was an  important                                                               
tool.                                                                                                                           
                                                                                                                                
He  referred  to   the  court  rule  amendment   for  delays  and                                                               
continuance in  Section 24.  He understood  that a  defendant and                                                               
his/her  attorney  must  sign  off on  a  continuance.  He  asked                                                               
whether the  defendant might  decide to  go to  trial as  soon as                                                               
possible, even  if it  might pose  risks for  the case  later. He                                                               
said  this provision  would allow  the attorney  to move  forward                                                               
with  a continuance  against the  client's  wishes. He  suggested                                                               
that an argument could be made for personal responsibility.                                                                     
                                                                                                                                
MR. SKIDMORE answered that this was  a shift from the attorney to                                                               
the defendant  controlling the tactical  timing of  an attorney's                                                               
readiness to go to trial. He  recalled a Southeast Alaska case in                                                               
which a defendant  was charged with murder but  insisted on going                                                               
to trial.  The defense  counsel argued  against it,  stating that                                                               
the case had  recently been assigned, so he/she  needed more time                                                               
to prepare  for trial.  Due to  the court  rule, the  judge moved                                                               
forward  with the  trial  and the  defendant  was convicted.  The                                                               
defendant subsequently  filed for post-conviction  relief arguing                                                               
that counsel was ineffective.                                                                                                   
                                                                                                                                
He said  that this scenario  highlighted the situation  that this                                                               
change  would   seek  to  avoid.  He   explained  that  sometimes                                                               
defendants rush headlong into trial,  often creating appellate or                                                               
post-conviction   release  issues.   When  the   defense  counsel                                                               
requests additional  time and  the court can  verify the  need, a                                                               
continuance should be granted to  ensure the defendant receives a                                                               
fair trial. Keep  in mind that the prosecution,  the defense, and                                                               
the  judge are  all  under ethical  obligation  to do  everything                                                               
possible  to ensure  every defendant  receives a  fair trial,  he                                                               
said. However, this does not  mean that a defendant is forfeiting                                                               
the  right  to a  speedy  trial,  which  is different  than  this                                                               
criminal rule. In  response to Senator Kiehl, he said  he did not                                                               
recall whether the defendant won the post-conviction relief.                                                                    
                                                                                                                                
3:07:17 PM                                                                                                                    
SENATOR  KIEHL offered  his belief  that  any mentally  competent                                                               
defendant has the right to screw up his/her own defense.                                                                        
                                                                                                                                
[SB 33 was held in committee.]                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects
CSSB33(STA) Version M.PDF SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 Transmittal Letter.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 - Pretrial Sectional.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 - DOC-PopMgmt - FN.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 - DOA-PD-FN.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 - DOC-PopMgmt-Pretrial-FN.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 -Law-CrimDiv-FN.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33-DOA - OPA-FN.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33-DPS-AST-PrisTrans-FN.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 - PSEA Letter of Support.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
Support Crime Bills AACOP.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 33 DOL Exhibit -Pretrial Assessment.pdf SJUD 3/25/2019 1:30:00 PM
SB 33
SB 34