Legislature(2019 - 2020)BUTROVICH 205
03/14/2019 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB73 | |
| SB33 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 73 | TELECONFERENCED | |
| += | SB 23 | TELECONFERENCED | |
| += | SB 24 | TELECONFERENCED | |
| += | SB 33 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
SB 33-ARREST;RELEASE;SENTENCING;PROBATION
3:56:59 PM
CHAIR SHOWER announced the consideration of SENATE BILL 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."
He said the bill was heard last on 3/12/19 and public testimony
was held and closed. He advised that written testimony could be
submitted to senate.state.affairs@akleg.gov up until 6:00 pm on
the day that the bill moves from committee. The intent today is
to adopt the proposed committee substitute (CS) that makes only
technical and conforming changes.
3:57:53 PM
SENATOR COGHILL moved to adopt the CS for SB 33, work order 31-
GS1030\M, as the working document.
CHAIR SHOWER found no objection and version M was adopted.
3:58:32 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Department of Law, Anchorage, introduced himself.
SENATOR COGHILL referenced Section 5 and asked for the rationale
for not including the inability to post bail. He also asked what
the parameters are for posting bail outside of inability to pay.
MR. HENDERSON explained that this returns to the pre-Senate Bill
91 version of the bail statute, which is that the person's
inability to post bail standing alone, is not new information in
a subsequent hearing. The distinction that Section 7 draws is
that is a valid factor to consider when a person initially
appears before the court. If there is a subsequent bail hearing,
Section 5 eliminates a person's inability to pay to stand alone
as the only factor to consider.
SENATOR COGHILL asked where the new information generally comes
in.
MR. HENDERSON replied that Section 5 talks about the subsequent
bail hearing and the new information referred to in that section
relates to Section 4. He explained that when a person comes in
and is initially arraigned, bail is set by the judicial officer
(or it could also have been previously set by warrant). At that
time the person is advised of their rights, including the right
to counsel.
4:03:34 PM
SENATOR COGHILL asked if the clear and convincing evidence
standard still applies for the other factors considered in
Section 7.
MR. HENDERSON said returning to the pre-2016 law means returning
to the court reaching its decision as to the appropriate bail
based on the preponderance of the evidence standard.
SENATOR COGHILL asked if the goal is still the least
restrictive. It's the evidence level that is different.
MR. HENDERSON agreed; the court still shall impose the least
restrictive available means, which means not excessive bail.
SENATOR COGHILL asked for a reminder about the difference
between the standards for clear and convincing and a
preponderance of the evidence.
MR. HENDERSON explained that the lowest level of proof is
reasonable suspicion, meaning that the person can articulate a
reasonable basis for their decision. The next level, probable
cause, is that it is more likely than not. A preponderance of
the evidence is the standard proposed in most civil cases. Clear
and convincing is a higher standard that is generally imposed in
family and child and child-in-need-of-aid (CINA) cases. The
court has to be confident in the evidence presented to make the
decision. Finally, proof beyond a reasonable doubt is the
highest standard in the law. Before the state can convict
somebody of a criminal act in front of a jury, it has to prove
that the evidence leads to only one reasonable and logical
conclusion.
SENATOR COGHILL offered the conclusion that if a person is
unable to make monetary bail, they must meet a higher standard
to get a subsequent bail hearing as a non-monetary issue.
MR. HENDERSON clarified that under the current law, depending on
a person's risk level, the court is presumed to release on their
own recognizance (OR) unless it finds by clear and convincing
evidence that a monetary bail is warranted. The bill removes
that presumption and the bail decision is instead based on the
totality of the circumstances based on a preponderance of the
evidence.
SENATOR COGHILL related that that was where he was heading.
4:07:37 PM
SENATOR REINBOLD said she believes that bail is excessively low
in most circumstances and she would like a provision that
prohibits that. She asked if the prosecution looks into a
person's finances if a defendant says they can't pay their bail.
MR. HENDERSON clarified that looking into a person's finances is
not the purpose of a bail hearing. He said that when there is
discussion about a review of bail regarding ability to pay, the
person's finances have usually been reviewed by the court. If
the person is represented by defense counsel, that officer of
the court is operating in good faith on information received
from their client. The prosecution relies on that information
unless there is reason to dispute it.
SENATOR REINBOLD responded that she doesn't know of a single
case of a defendant saying they had money for bail. She opined
that some effort should go into looking at a defendant's
finances, there should be a penalty for lying about ability to
pay, and the bail hearing should look carefully at the danger
the person poses to the public. Victim and public safety should
be paramount and trials and punishment should be swift. The
focus should not be about getting people back out on the street
quickly, she said.
4:10:51 PM
SENATOR MICCICHE said he heard that someone with a criminal
history acknowledged that it wasn't until their third arrest
when family and friends gave up and no longer bailed them out
that they decided to turn their life around. He asked Mr.
Henderson if he recognizes that that monetary bail has value and
if providing some other method of release doesn't eliminate the
potential that loved ones or friends will get tougher and help
the offender realize the seriousness of their behavior.
MR. HENDERSON said his personal experience is that every
defendant is different and some do and some do not have family
and friends that will help. The DOL does not consider the source
of funds for bail; it's the prerogative of the family or friends
whether or not to post bail. He asked if that answered the
question.
SENATOR MICCICHE clarified that the point he was making is that
the reason for bail is to put something at risk and have people
realize that continuing their behavior will come at a cost. He
noted that he wanted to talk to the court about whether they
were considering revising the bail schedules in light of these
[crime] bills.
MR. HENDERSON responded that the purpose of bail is twofold: 1)
to ensure the defendant shows up for court and 2) to ensure that
the community is safe. Under the current system, reformation of
the criminal behavior is a post-conviction/sentencing issue. He
added, "We should and we have tried to take steps in a pretrial
status to make sure the person gets help, the correction of that
behavior is a post-correction issue."
4:15:15 PM
SENATOR MICCICHE said he understands the explanation on formal
community condemnation but he believes there's value in keeping
repeat offenders in jail pretrial. He highlighted that the
victims in his district would say they are victims of people on
pretrial release who repeat their criminal behavior while
awaiting trial.
SENATOR KAWASAKI listed the factors the court considers when
setting bail conditions and asked if this discussion is about
just the one.
MR. HENDERSON agreed that the ability to pay is just one factor
the court considers in setting bail. What SB 33 does is make
sure the judge has the tools necessary to set the appropriate
bail. Holding someone without bail would be unconstitutional.
4:17:17 PM
SENATOR KAWASAKI asked for clarification that the judge has the
discretion to deny bail on the pretext that the crime was
extremely violent.
MR. HENDERSON said that's correct. He explained that the
prosecution has identified to the court that an unclassified
felony, a class A felony, a sexual felony, a felony DUI, or a
crime against a person with previous convictions of a person
crime are the types of highly dangerous, criminal behavior that
need special focus. He directed attention to subsection (d) on
page 6, line 13, that provides a rebuttable presumption that
there is a substantial risk that the person will not appear and
that they pose a danger to the victim, other persons, or the
community.
CHAIR SHOWER highlighted the growing anger from citizens in his
district and others throughout the state that people are
released from jail and continue to commit the same types of
crimes. He asked if the risk assessment tool is completely
broken or if the Department of Law has identified areas that
could be fixed.
MR. HENDERSON responded that he would discuss the inherent flaws
in the tool and DOC could talk about how the tool is used on a
day-to-day basis. He described the risk assessment tool as
theoretically a good idea because most prosecutors and judges
would say that more information is better, particularly when
talking about bail. However, only assesses a person's criminal
doesn't account for the surrounding circumstances of the offense
such as whether the person was in possession of a weapon,
associating with other felons, or if they were on bail at the
time of arrest. He noted that the tool also didn't consider out-
of-state convictions, but that has been partially addressed in
House Bill 312 and it will be addressed going forward.
The risk assessment, which is based on static information,
generates two risk assessment scores: 1) the risk of failure to
appear and 2) the risk of new criminal activity. The flaw is
that the current criminal law anticipated just one risk level
and this forced bail decisions because of the presumptions in
the law. Practitioners have addressed this by agreeing to rely
on just the highest of the two scores. SB 33 fixes the problem
by directing the court to address the totality of the
circumstances.
4:24:58 PM
CHAIR SHOWER asked, 1) if SB 33 addresses the concerns the DOL
has identified and 2) if the bill returns too much discretion to
the judges.
MR. HENDERSON replied the answer to the first question is yes
and the answer to the second question is no. He added that the
pre-2016 law has sideboards for how the court can frame bail
decisions. The law lists specific factors the court can consider
and the rebuttable presumption talks about how the court should
look at certain types of cases differently than less serious
cases. SB 33 drives that point home, he said.
SENATOR REINBOLD recalled being "scared to death" about the
phase 3, pretrial risk assessment tool when Senate Bill 91
passed. She described it as a faulty tool that was developed in
a back room. The result is that "it allowed some of the most
dangerous people I've ever seen back out on the streets in
Alaska creating an epidemic in Alaska of crime." She
acknowledged that House Bill 312 fixed the issues to a certain
extent. She said her "bottom line" concern is whether judges are
held accountable. "What's the penalty for the judge if he or she
continues to release dangerous people? They're an important part
of keeping the people safe," she said.
4:28:15 PM
JENNIFER WINKELMAN, Director, Division of Probation and Parole,
Department of Corrections, Juneau, stated that it is a policy
decision of this administration to eliminate the risk assessment
tool. She agreed with earlier testimony that the tool considers
just static factors and it only looks at the previous five
years. She explained that DOC contracted with an outside agency
to work with the Department of Law to develop the tool. She said
she believes that the tool is similar to what other states use
but she can see the flaw in using static factors to drive the
release decisions.
CHAIR SHOWER asked if DOC believes that SB 33 corrects the
"catch and release" loophole or flaw.
MS. WINKELMAN answered yes.
CHAIR SHOWER, noting that DOC earlier reported that about 45
percent of inmates in custody are unsentenced, he asked if DOC
believes the bill will cause that number to rise.
MS. WINKELMAN deferred the question to the deputy commissioner.
4:31:20 PM
KELLY GOODE, Deputy Commissioner, Department of Corrections,
Anchorage, confirmed that the proposed changes will change the
prison population. She added that public safety is a goal of the
administration and those challenges will be addressed as they're
identified. She noted that the fiscal note will reflect this.
CHAIR SHOWER commented that the current draft of SB 33 will
drive a larger fiscal note.
Ms. GOODE said she agrees in general.
SENATOR KAWASAKI emphasized the need for updated fiscal notes
from all the relevant agencies. He recalled his and Senator
Reinbold's unsuccessful efforts during their tenures in the
House to amend the risk assessment tool to at least include out
of state criminal history. They proposed a budget amendment the
next year, but that, too, was unsuccessful. He noted that House
Bill 312 provided a partial fix. He asked, absent the risk
assessment tool, how folks will identify whether a person should
or should not be released.
SENATOR COGHILL observed that DOC will no longer be part of the
decision if the risk assessment tool is eliminated, as proposed
in SB 33. He maintained that the tool isn't as static as some
people claim because it did consider the current circumstance.
He noted that criminal history wasn't collected before the tool
was implemented so there wasn't a lookback. He related that part
of the idea for the risk assessment was to keep low risk
individuals out of jail and at some point, he'll ask how that
worked.
4:36:11 PM
SENATOR KAWASAKI agreed with Senator Coghill that the pretrial
risk assessment tool gave a numeric score on whether an
individual posed a risk or not. The presumption was that if
their score was low, they would be released. He restated his
earlier question which was, absent the risk assessment tool, how
will folks identify whether a person should or should not be
released. He also asked if there will be an added cost.
MR. HENDERSON described the bail hearing process under SB 33 and
under the pre-2016 law. He explained that bail is initially set
at the first court appearance or by warrant. The court considers
things like the type of offense, the level of the offense
classification, and the person's criminal history. In a
subsequent bail hearing the accused has generally proposed a
particular bail release such as electronic monitoring, reduction
in the bail, or some other condition. The Department of Law
receives notice of that at least 48 hours before the hearing and
seeks victim input. At the hearing their goal is to apprise the
court of the relevant factors to consider when setting bail or
considering bail release. These factors could include ties to
the community, length of residency in Alaska, length of
residency in the community where the crime was committed, the
family and support network or lack thereof, prior criminal
history and its scope, and if the person showed up for past
court hearings. The court is apprised of the factors and makes
the ultimate bail decision.
SENATOR REINBOLD opined that a primary reason that Senate Bill
91 passed was the notion that it would fix the pretrial issues.
Her perspective is that things have gotten worse because of
pretrial delays. She emphasized that delays always benefit the
defendant and she believes that judges need to be held
accountable for this. She listed the factors the pretrial risk
assessment tool did not consider such as whether the criminal
possessed a weapon, felon to felon contact, out of state
convictions, and convictions that occurred more than five years
ago. She emphasized that it's not the fiscal note that's the
most important consideration. Rather, it's the cost to the
public, she said.
4:41:33 PM
SENATOR COGHILL said he continues to believe that risk
assessment tools and pretrial accountability have value. He
asked Ms. Goode if DOC had adopted regulations to implement the
pretrial system as mandated by the 2016 law.
MS. GOODE said this administration learned that DOC had not
developed regulations to implement Senate Bill 91 but work was
started on the regulations for the risk assessment tool. The
Department of Law is removing that work but she believe that DOC
needs to look at the process with fresh eyes.
SENATOR COGHILL asked if the Department of Law will draft the
regulations.
MS. GOODE confirmed that DOC would be working the Department of
Law and reiterated the need to look at things with fresh eyes.
SENATOR COGHILL said he brought it up because it's important to
understand that the 2016 law mandated developing regulations to
implement the risk assessment tool and that never happened.
MS. GOODE responded that DOC is aware it didn't happen and is
looking into it.
SENATOR REINBOLD asked if DOC has been implementing the law
according to statute.
MS. GOODE answered yes.
SENATOR REINBOLD stressed that the law has been implemented and
it is failing many Alaskans. The crime data supports this, she
said. She stated support for SB 33.
CHAIR SHOWER commented on the need to get the terminology right
regarding probation, parole, and pretrial.
4:48:22 PM
SENATOR COGHILL asked Ms. Winkelman to talk about the benefit
and downside of transitioning pretrial services officers to
probation officers.
MS. WINKELMAN explained that, by statute, both probation
officers and pretrial services officers are officers of the
court. Pretrial services officer duties extend to district court
and probation officers, by statute, cover superior court. Her
understanding is that the bill extends district court
responsibilities to probation officers. She said the duties of
these officers are interchangeable, their classification under
the Department of Administration has been probation officer, and
the recruitment for either position is for a probation officer.
They discharge their duties dependent on the particular
defendant, which is similar to police officers. "Bottom line, I
think it would be seamless," she said.
SENATOR COGHILL asked how caseloads would be separated between
pretrial services officers and probation officers.
MS. WINKELMAN explained that in urban areas probation officers
have the opportunity for caseloads that are specialized for
things like sex offenders or mental health. It depends on
demand, but there isn't that opportunity in rural areas where
the officer has to do it all, which ranges from writing the pre-
sentence report to supervising a pretrial caseload. She
reiterated that the training is the same for all officers.
SENATOR COGHILL said he's more likely to support the bill
because it retains pretrial supervision. He said he continues to
believe that it benefits public safety.
SENATOR REINBOLD shared that she, too, believes that pretrial
supervision is a good idea.
4:54:10 PM
SENATOR MICCICHE asked Ms. Meade to discuss the revised bail
schedule and if the changes in SB 33 might send a message to the
court that the existing bail schedule is exacerbating the
current situation.
NANCY MEADE, General Counsel, Administrative Services, Office of
the Administrative Director, Alaska Court System, Anchorage,
stated that the bail schedule was revised in December 2017 and
there are no current plans to revise it. She said she didn't
believe that SB 33 would require any changes to the bail
schedule, but things may change by the end of the session.
SENATOR MICCICHE recalled asking about the bail schedule that
seemed to be weighted toward release on own recognizance (OR)
and being told that the courts viewed Senate Bill 91 as a signal
from the legislature and the courts adjusted the bail schedule
accordingly. He asked if she agrees that if the laws are
adjusted accordingly in the other direction, the courts may
tighten things and reduce OR a bit.
MS. MEADE confirmed that is a possibility. She explained that
the recent changes were largely done to unify the bail schedules
across all districts in the state. She also clarified that the
new bail schedules did not result in materially more categories
of OR releases than before. It was driven by the new criminal
justice reform studies that did authorize more releases than
otherwise.
SENATOR REINBOLD asked, 1) if Senate Bill 64 affected the bail
schedule, 2) if there are several judges on the Criminal Justice
Working Group, and 3) which judges would look at and potentially
adjust the bail schedule.
MS. MEADE replied Senate Bill 64 did not result in changes to
the bail schedules, but it did create the statute that
established the Criminal Justice Commission. Membership of the
commission includes a justice or retired justice, a superior
court judge, and a district court judge. Those individuals
stopped voting on the commission after they determined it was
not appropriate for them to be part of the policy calls coming
out of the commission. Now those judges attend the meetings and
provide guidance. The Criminal Justice Working Group includes
Chief Justice Bolger and Attorney General Clarkson. That group
deals with operational and logistical issues across the criminal
justice agencies to help improve operations. She asked Senator
Reinbold to restate the third question.
SENATOR REINBOLD responded saying she is pleased that the judges
who serve on the commission no longer vote because it was a
serious separation of powers issue when they did. She said the
third question was which judges would look at and potentially
adjust the bail schedule
MS. MEADE clarified that the statute required the court to be
involved in the Criminal Justice Commission. She explained that
the presiding judges from each judicial district have passed one
statewide bail schedule to ensure consistency across the
districts.
SENATOR REINBOLD asked for the names of the judges that would
change the bail schedule.
MS. MEADE listed: Trevor Stephens from Ketchikan, Paul Roetman
from Kotzebue, William Morse from Anchorage, and Michael
MacDonald from Fairbanks.
5:00:48 PM
CHAIR SHOWER asked where the risk assessment tool was codified
in law.
MR. HENDERSON said he'll check but he believes it's in AS 33.05.
CHAIR SHOWER suggested he send the answer by email.
SENATOR MICCICHE asked if he means the existence of the pretrial
assessment tool or the content of the tool.
CHAIR SHOWER replied both. "Bottom line, I want to go over the
whole thing," he said.
CHAIR SHOWER held SB 33 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SSTA OFFICIAL AGENDA MEMO.pdf |
SSTA 3/14/2019 3:30:00 PM |
Agenda |
| SB 73 Sponsor Statement.pdf |
SSTA 3/14/2019 3:30:00 PM |
SB 73 |
| SB 73.PDF |
SSTA 3/14/2019 3:30:00 PM |
SB 73 |
| SB 73 Sectional Analysis.pdf |
SSTA 3/14/2019 3:30:00 PM |
SB 73 |
| SB 73 1959 Law for Succession.pdf |
SSTA 3/14/2019 3:30:00 PM |
SB 73 |
| SB 73 All State Succession Lists.pdf |
SSTA 3/14/2019 3:30:00 PM |
SB 73 |
| SB 73 Fiscal Note - Gov. Office.pdf |
SSTA 3/14/2019 3:30:00 PM |
SB 73 |
| SB 33 Transmittal Letter.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM SSTA 3/19/2019 3:30:00 PM |
SB 33 |
| SB0033A.PDF |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| M.pdf |
SSTA 3/14/2019 3:30:00 PM SSTA 3/19/2019 3:30:00 PM |
CS for SB 33 Ver. M SB 33 |
| SB 33 - Pretrial Highilghts.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM SSTA 3/19/2019 3:30:00 PM |
SB 33 |
| SB 33 - Pretrial Sectional.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM SSTA 3/19/2019 3:30:00 PM |
SB 33 |
| SB33-DOL-FN#1.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| SB33-DPS-FN#2.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| SB33-DOA-FN#3.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| SB33-DOA-FN#4.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| SB33-DOC-FN#5.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| SB33-DOC-FN#6.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |
| SB33-Court System-FN.pdf |
SSTA 2/21/2019 3:30:00 PM SSTA 3/12/2019 3:30:00 PM SSTA 3/14/2019 3:30:00 PM |
SB 33 |