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 even be 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  would  ensure  public                                                               
safety and that the person would  show up for a hearing. He asked                                                               
whether he had misunderstood the provision.                                                                                     
                                                                                                                                
MR. SKIDMORE  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 prevented a                                                               
defendant from being  released unless the officer  found by clear                                                               
and convincing  evidence that  the person  posed a  danger. 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  change 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 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, once when the  bail was initially set and again                                                               
when bail was 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 these                                                               
relatives might  not be  able to  do so.  He asked  whether these                                                               
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  subsection  (c)  would  allow  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 only 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 defendant's  assets,  but not  the                                                               
defendant's family  or friends  is one of  the factors  the court                                                               
would consider  when initially setting  bail. If  the defendant's                                                               
assets were to change it would  be considered a new condition. An                                                               
inability to pay simply would mean  how much money the person had                                                               
in  his/her bank  account. Other  factors that  might impact  the                                                               
person's  inability to  pay should  initially  be considered,  he                                                               
said.                                                                                                                           
                                                                                                                                
1:47:06 PM                                                                                                                    
CHAIR HUGHES asked  what timeframe was involved  when setting the                                                               
initial  bail. She  referred  to  paragraph (3)  on  page 3  that                                                               
states "at least seven days  have elapse."   It would be unlikely                                                               
that significant changes in assets  would occur during this short                                                               
timeframe.                                                                                                                      
                                                                                                                                
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 any new                                                               
information or  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 reducing  bail combined with  the new                                                               
proposal for conditions of release.  He pointed out that the bail                                                               
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  conforming amendment  would  pertain 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.  This                                                               
provision  was  previously  discussed   in  response  to  Senator                                                               
Kiehl's question.  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 would  provide  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  new subsection seeks to  include as                                                               
many options as possible for  the court to consider. Some options                                                               
include  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. All of these  conditions were found in  the pre-                                                               
Senate Bill 91 law, he said.                                                                                                    
                                                                                                                                
MR. SKIDMORE  explained that 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 reviewed 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  Section 7 of 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.  This                                                               
significant change would  allow the court to  set some conditions                                                               
or combination of conditions for bail.                                                                                          
                                                                                                                                
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                                                               
provides 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 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  related  his  understanding  that  there  was  an                                                               
unconstitutional  presumption  that  bail  would  not  work,  and                                                               
Section 7  would provide 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 meant that  no condition or combination of conditions                                                               
could ensure  the safety  or appearance of  an individual  so the                                                               
courts  denied bail  because it  could not  impose any  condition                                                               
that  would ensure  the person  would not  flee or  commit a  new                                                               
crime. That restriction  meant the defendant could  not post bail                                                               
and be released from jail  during the pretrial phase [contrary to                                                               
their constitutional right].                                                                                                    
                                                                                                                                
He explained  that SB  33 started  with the  premise that  it was                                                               
appropriate  for  a  defendant  to   be  out  on  bail.  However,                                                               
defendants charged with certain crimes,  such as murder or sexual                                                               
felonies could  be denied  bail because  being released  on their                                                               
own  recognizance would  not be  appropriate. 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 referred to conditions  of release in 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.  He referred to page  4, line                                                               
14  through  page  5,  line   28,  that  outlined  the  types  of                                                               
conditions  that the  court  could  select, including  electronic                                                               
monitoring,  assigning a  third-party  custodian, supervision  by                                                               
pretrial  services, or  placing  restrictions on  contact with  a                                                               
victim.  This  language removed  the  concern  that none  of  the                                                               
conditions  would  ensure the  safety  of  the community  or  the                                                               
defendant's appearance in court, 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.  In  further  response  to                                                               
Senator Micciche,  he directed attention to  subsection (b)(3) on                                                               
page  4,  lines   19-20,  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, which  required  pretrial                                                               
services  officers to  be used  whenever possible.  However, that                                                               
law did  not allow the  use of third-party custodians.  Section 8                                                               
would change  that by allowing  the court  an option to  assign a                                                               
pretrial  services  officer  supervised   by  the  Department  of                                                               
Corrections, a  third-party custodian,  or the use  of electronic                                                               
monitoring in  every location. This  would provide  public safety                                                               
and ensure that  defendants would appear in  court. The advantage                                                               
of  having  options  would  mean the  court  would  have  greater                                                               
discretion  to  select the  most  appropriate  condition in  each                                                               
instance.  Since the  pretrial  service officer  responsibilities                                                               
were  reorganized  within  the department,  a  pretrial  services                                                               
officer would  not be limited  to a specific geographic  area, he                                                               
said.                                                                                                                           
                                                                                                                                
2:04:23 PM                                                                                                                    
SENATOR KIEHL said he had  questions about the efficacy. He asked                                                               
which  method of  supervision would  work better  to ensure  that                                                               
defendants  appear at  court dates  and that  defendants received                                                               
appropriate sanctions for any  violations of pretrial conditions.                                                               
He remarked  that he has  anecdotally heard horror  stories about                                                               
third-party custodians.                                                                                                         
                                                                                                                                
MR. SKIDMORE argued that it was  not a question of whether third-                                                               
party custodians  or pretrial services  officers are  better, but                                                               
to consider what worked best on a case-by-case basis.                                                                           
                                                                                                                                
During his 20  years of experience working in  the communities of                                                               
Dillingham and Bethel  he found it was not  feasible for pretrial                                                               
officers to  be located in  every community, especially  in small                                                               
villages,  such as  Togiak. He  suggested that  it might  be more                                                               
effective  to assign  a third-party  custodian.  More often  than                                                               
not, he  has seen third-party  custodians succeed. The  court and                                                               
the prosecution  must evaluate  third-party custodians  to ensure                                                               
that they are  able to provide appropriate services,  he said. He                                                               
offered  his belief  that  having all  three  options would  help                                                               
provide public  safety. In further response  to Senator Micciche,                                                               
he  clarified  that under  current  law,  when pretrial  services                                                               
officers are available a third-party custodian cannot 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.  Palmer and  Fairbanks each  have nine                                                               
officers and one supervisor, Anchorage  has 20 officers and three                                                               
supervisors,  Kenai  and Juneau  each  have  three officers,  and                                                               
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   villages,                                                               
particularly ones outside of Nome  or Bethel. She said that using                                                               
third-party custodians could be  more beneficial in smaller rural                                                               
communities.  She said  she was  uncertain  if 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  travel to  communities but                                                               
do not live in the community in which they work.                                                                                
                                                                                                                                
MS.  WINKELMAN  answered  that  the  pretrial  services  officers                                                               
travel  to  rural areas  based  on  the department's  supervision                                                               
policy and they  must provide supervision once every  four or six                                                               
months. She said she would have to review the policy.                                                                           
                                                                                                                                
CHAIR   HUGHES  asked   about   accountability  for   third-party                                                               
custodians and whether any improvements were needed.                                                                            
                                                                                                                                
MS.  WINKELMAN offered  to research  it  and report  back to  the                                                               
committee. She said that third-party  custodians were assigned by                                                               
the court, so she has not reviewed accountability issues.                                                                       
                                                                                                                                
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 while 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.  However, if  the narcotics  were illegal,  additional                                                               
criminal charges  should have been filed.  This statute currently                                                               
exists to provide enforcement of the responsibility for third-                                                                  
party custodians, he said.                                                                                                      
                                                                                                                                
SENATOR MICCICHE  said the committee  should review  this further                                                               
and  institute  some  clear  expectations  and  consequences  for                                                               
third-party custodians.                                                                                                         
                                                                                                                                
CHAIR  HUGHES  agreed,  especially   since  the  vast  number  of                                                               
communities do not have 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 that   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 improve                                                               
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. While 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  using 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  that  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 Section 9 on page  8, lines 4-5. Prior law restricted                                                               
appointing third-party  custodians if they  might be called  as a                                                               
witness in a case. 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 might  be difficult to evaluate early on in                                                               
cases  which  parties might  be  called  as witnesses.  Bail  and                                                               
third-party  custodians  can  generally be  assessed  within  the                                                               
first  week  after   an  arrest.  However,  at   that  point  the                                                               
prosecution would  still be compiling information  and nuances of                                                               
the  case. Thus,  a  prosecutor  might 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  also help  to ensure                                                               
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 would  call on  a case.  Senate Bill  91 law                                                               
established the "reasonable probability"  standard that the state                                                               
would apply  when determining the  witnesses list.  However, that                                                               
language would not preclude the  defense from calling a person as                                                               
a witness, he said.                                                                                                             
                                                                                                                                
He  explained  that   SB  33  would  propose   a  prohibition  on                                                               
appointing  a third-party  custodian  who might  be  called as  a                                                               
witness.  The  department interpreted  that  would  apply to  any                                                               
witnesses for  the prosecution or  the defense. Once  a potential                                                               
third-party custodian was identified  as a potential witness, the                                                               
judge would need  to know why the person was  called as a witness                                                               
and what  evidence the  person might offer,  and the  court would                                                               
evaluate  it.  However,  it  may   be  too  early  to  know  that                                                               
information. Of  course, this  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 was  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. However,                                                               
"reasonable probability"  was 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 referred to  crimes against a                                                               
person.                                                                                                                         
                                                                                                                                
MR. SKIDMORE answered yes.                                                                                                      
                                                                                                                                
SENATOR  MICCICHE  related  his  understanding  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.  He was  not  aware of  any                                                               
restriction for  any recent drug  convictions, but this  would be                                                               
important to consider given the opioid crisis in the state.                                                                     
                                                                                                                                
MR.  SKIDMORE  answered  that he  had  not  considered  potential                                                               
criteria, but he  could do so. He clarified that  he was speaking                                                               
on  behalf of  the  department. Typically,  the department  would                                                               
seek  consensus from  prosecutors throughout  Alaska. He  said he                                                               
hesitated  to offer  any suggestions  without  going through  the                                                               
departmental vetting process.                                                                                                   
                                                                                                                                
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,                                                               
that  she expected  potential  third-party  custodians would  not                                                               
have any 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 related  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 the                                                               
pretrial  period. The  court would  not make  a 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.  Absent an  assessment  by  the Department  of                                                               
Corrections, the  decision to use electronic  monitoring would be                                                               
made at a  bail hearing, even if it was  not appropriate, such as                                                               
in the  Justin Schneider case.  Section 10 would address  this by                                                               
prohibiting   the  court   from   granting  pretrial   electronic                                                               
monitoring from being used as credit towards the final sentence.                                                                
                                                                                                                                
One  problem  with  the  current   language  was  that  it  might                                                               
encourage  pretrial delays.  For example,  offenders released  on                                                               
pretrial  electronic  monitoring  might   seek  delays  prior  to                                                               
sentencing  in order  to  build  up as  much  credit as  possible                                                               
against  their sentences  in  the pretrial  phase  to reduce  any                                                               
potential time served.                                                                                                          
                                                                                                                                
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 was not just                                                               
driven 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 would  be  considered  pretrial time,  he  said.                                                               
Section  10 would  seek 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 reviewed Section 13 on page 9.                                                                                     
                                                                                                                                
     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 pretrial treatment. 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                                                               
once 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 or if  the treatment could include sex offender                                                               
treatment programs.                                                                                                             
                                                                                                                                
MR. SKIDMORE  answered that treatment  could include any  type of                                                               
treatment program, but sex  offender treatment programs generally                                                               
last  longer  than six  months  and  are  not typically  used  by                                                               
defendants in pretrial. Since those  programs encourage people to                                                               
talk about  their inappropriate behavior, most  defense attorneys                                                               
would advise  their clients  not to admit  anything prior  to the                                                               
trial 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, but  his                                                               
impression was that  it would need to be  a residential treatment                                                               
program.  The  law  has  generally   provided  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 asked whether the  victim should be added to the                                                               
list of those notified.                                                                                                         
                                                                                                                                
MR. SKIDMORE said  that he had not considered the  matter, but he                                                               
did not  initially see any  problem in doing  so. He said  he was                                                               
unsure why  victims were omitted.  He offered to research  it and                                                               
report back to the committee.                                                                                                   
                                                                                                                                
2:38:50 PM                                                                                                                    
MR. SKIDMORE, in response to  an earlier question, 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 reviewed 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  the pretrial                                                               
service unit  was previously created  under AS 33.07.  Section 15                                                               
would  add  the  Pretrial  Services   Officer  Program  into  the                                                               
Division  of Probation  and Parole.  As Ms.  Winkelman described,                                                               
pretrial services  officers have  been limited to  communities on                                                               
the road  system or the ferry  system. The state seeks  to expand                                                               
the program to communities in  Western Alaska that currently have                                                               
probation and  parole offices, he  said. Adding this  function to                                                               
the division  would also limit 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 has                                                               
the  appropriate authority  to supervise  individuals during  the                                                               
pretrial period.                                                                                                                
                                                                                                                                
2:42:11 PM                                                                                                                    
MR. SKIDMORE read Section 16 on page 10.                                                                                        
                                                                                                                                
     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  pertain   to  the                                                               
responsibility for supervising pretrial  services and ensure that                                                               
the  department  maintains  the   statutory  authority  to  allow                                                               
probation  and  parole officers  to  serve  as pretrial  services                                                               
officers. He  said that this  also meant that  probation officers                                                               
would be available to district  courts to cover misdemeanors, not                                                               
just felonies.                                                                                                                  
                                                                                                                                
2:44:43 PM                                                                                                                    
MR. SKIDMORE reviewed Sections 20 and 21 on page 12.                                                                            
                                                                                                                                
     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 related to  videoconferences. These  issues are                                                               
primarily found in Section 23 but also 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 had                                                               
some concerns  about 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 a constitutional  right to have  this evidence                                                               
presented in person. The court  also faces logistical issues when                                                               
holding more hearings by videoconference.                                                                                       
                                                                                                                                
She  said  that the  court  has  spearheaded projects  to  ensure                                                               
acceptable  equipment for  facilities.  The  Alaska Court  System                                                               
staff has  the responsibility to  assess any equipment  needed at                                                               
prisons and orders, installs, and  maintains the equipment. While                                                               
the  Alaska  Court   System  seeks  to  hold   more  hearings  by                                                               
videoconference, defendants still have the  option to appear at a                                                               
number of  hearings by  court rule.  Currently, the  court system                                                               
sends a  judge to  the Anchorage  jail court  twice a  day, every                                                               
day, to provide in-person arraignments.  The court system has the                                                               
infrastructure in  place to conduct videoconferences  and does so                                                               
in some regions.  For example, in Kotzebue, the  court conducts a                                                               
number  of  hearings by  videoconference  to  the Anvil  Mountain                                                               
Correctional  Facility. The  court  system seeks  to continue  to                                                               
cooperate   and  promote   videoconferences   with  other   state                                                               
agencies, which is supported by this administration.                                                                            
                                                                                                                                
2:52:39 PM                                                                                                                    
MR. SKIDMORE reviewed Section 24 on page 15.                                                                                    
                                                                                                                                
     Section  24:  Allows  a defendant  or  the  defendant's                                                                    
     counsel to consent to a continuance of trial.                                                                              
                                                                                                                                
MR.  SKIDMORE  explained that  the  defense  counsel can  make  a                                                               
request for  a continuance  and in some  circumstances can  do so                                                               
without the  defendant's approval. He  said this is  really about                                                               
efficiency,   just   as   Ms.   Meade   indicated.   Transporting                                                               
teleconferencing  equipment that  does not  always  work and  can                                                               
delay cases. It  is difficult to get defendants to  court just to                                                               
allow  them to  state that  they  have agreed  to a  continuance.                                                               
Considerable  case law  discusses  what types  of decisions  were                                                               
left to  a defendant or  to counsel. Continuances  were generally                                                               
the  type  of  decision  that defense  counsel  would  decide  as                                                               
opposed to  the defendants. This  language would  add consistency                                                               
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)   pertained  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 was 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 defendant's                                                               
environment must be were no  longer listed. He asked Mr. Skidmore                                                               
to discuss the shift in the approach being taken.                                                                               
                                                                                                                                
MR.  SKIDMORE  explained  that maintaining  pretrial  supervision                                                               
throughout  the state  was deemed  important, but  it also  meant                                                               
finding   [budgetary]   efficiencies.   Changing   AS   12.30.011                                                               
eliminated judges  from being tied  to the risk  assessment tool.                                                               
Under  current  law,  pretrial   services  officers  use  a  risk                                                               
assessment tool  to determine bail. Currently,  officers spend an                                                               
inordinate amount of  time on risk assessment  to examine factors                                                               
that  the  court,  the  prosecution,   and  the  defense  already                                                               
evaluate.  Instead,  pretrial  service officers  will  now  focus                                                               
exclusively on supervision rather  than to answer questions about                                                               
an offender's  criminal history prior  to an  arraignment. People                                                               
could 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 appeared in                                                               
court.  This   language  would  allow   the  court   to  evaluate                                                               
supervision. He  expressed concern that by  deleting the language                                                               
at  this juncture  would  also remove  the  presumption that  the                                                               
department  would  not  be  recommending  the  least  restrictive                                                               
environment.  He   asked  whether   that  decision   was  covered                                                               
elsewhere.                                                                                                                      
                                                                                                                                
MR. SKIDMORE answered yes. He  directed attention to Section 7 on                                                               
page 4, lines 8-13 and read AS 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 on  how to  achieve it.  Section 7  would provide                                                               
guidance for  any arguments  by the  prosecution or  the defense.                                                               
This  section would  provide the  statutory authority  to control                                                               
the  way  the  judge  would make  decisions  and  ultimately  set                                                               
conditions of release.                                                                                                          
                                                                                                                                
SENATOR KIEHL  said that  he would  hold additional  questions on                                                               
the important risk assessment 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  an 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 would forfeit                                                               
the right  to a  speedy trial,  which is  not covered  under this                                                               
criminal rule, he said. In response  to Senator Kiehl, he said he                                                               
did  not recall  whether  the defendant  won the  post-conviction                                                               
relief.                                                                                                                         
                                                                                                                                
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