Legislature(2019 - 2020)BUTROVICH 205

02/14/2019 03:30 PM STATE AFFAIRS

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Heard & Held
-- Public Testimony <Time Limit May Be Set> --
Heard & Held
            SB  33-ARREST;RELEASE;SENTENCING;PROBATION                                                                      
3:55:30 PM                                                                                                                    
ACTING CHAIR MICCICHE announced that  the final 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                                                               
He asked Mr. Skidmore to give a broad overview of the bill.                                                                     
3:56:04 PM                                                                                                                    
JOHN SKIDMORE,  Director, Criminal  Division, Department  of Law,                                                               
Anchorage, said  SB 33 looks at  the pretrial issues of  bail and                                                               
release pending  trial. He related  that over the last  18 months                                                               
it has  become clear that  the reforms [initiated by  Senate Bill                                                               
91]  have created  problems. Some  of those  were addressed  last                                                               
year in  House Bill 312,  but the  problems continue. What  SB 33                                                               
seeks  to do  is return  the  law to  what  it was  prior to  the                                                               
criminal justice reform regarding how  bail is addressed. The two                                                               
areas  to pay  attention to  are 1)  how it  changes our  laws in                                                               
determining  what  bail is  appropriate  and  what conditions  of                                                               
release are  appropriate, and 2)  how we monitor  the individuals                                                               
released in pretrial.                                                                                                           
MR.  SKIDMORE explained  that the  Pretrial Enforcement  Division                                                               
(PED)  created by  Senate Bill  91 added  about 60  new positions                                                               
within DOC  and was  designed to  provide the  court with  a risk                                                               
assessment  analysis  for  each  offender that  came  before  the                                                               
court. More  importantly, it intended  to provide  supervision of                                                               
individuals released  pretrial. SB  33 maintains  the supervision                                                               
portion, but  it transfers  the authority  from PED  to probation                                                               
and parole officers. This efficiency  allows DOC to better manage                                                               
its  resources for  probation, parole,  and pretrial  supervision                                                               
and rids  the department of the  unnecessary administrative costs                                                               
created  by  the  PED.  The  idea of  providing  courts  with  an                                                               
expanded  number of  options  when considering  what  to do  when                                                               
releasing an  inmate is maintained.  Releasing a person  on their                                                               
own recognizance (OR) is still  the preferred option under SB 33.                                                               
Additional options  that would be available  include the expanded                                                               
use of  third-party custodians, electronic  monitoring (EM)  by a                                                               
private company, and release with DOC monitoring.                                                                               
He summarized  that the determinations  of when an  inmate should                                                               
be released  and under  what conditions  are the  primary changes                                                               
made in  SB 33.  It returns  the law to  what it  was previously.                                                               
Release is  no longer  tied to  the flawed  risk-assessment tool.                                                               
Leaving  a  judge's  determination  attached  to  a  flawed  tool                                                               
creates serious problems, he said.                                                                                              
4:00:50 PM                                                                                                                    
SENATOR REINBOLD  questioned the wisdom of  retaining the release                                                               
of a  prisoner on  their own recognizance  (OR) as  the preferred                                                               
option. "Maybe the criminal would like  that but I'm not sure the                                                               
victims  would   think  that's  the   best  option.  I   find  it                                                               
outlandish, personally," she said.                                                                                              
MR.  SKIDMORE  clarified  that  his  comment  was  based  on  the                                                               
constitution that  says everyone is entitled  to reasonable bail.                                                               
The statutes prior  to Senate Bill 91, under Senate  Bill 91, and                                                               
under SB 33 all indicate that  release on OR is what should occur                                                               
unless  the court  determines  that doing  so  cannot assure  the                                                               
safety  of the  community or  the appearance  of the  individual.                                                               
It's  that part  that allows  the  court to  place conditions  on                                                               
somebody so they are held in  custody, he said. SB 33 returns the                                                               
presumptions to what it was prior to Senate Bill 91.                                                                            
SENATOR  REINBOLD  pointed  out  there  are  also  constitutional                                                               
requirements regarding  protection of victims' rights  and public                                                               
safety. She maintained  that the vast majority  of Alaskans agree                                                               
with her  that there  are not enough  protections for  the victim                                                               
and that a  lot of these people are released  again and again not                                                               
only  because  of the  pretrial  risk  assessment tool  but  also                                                               
because of  the use of OR.  She emphasized that public  safety is                                                               
paramount, and the  system is failing Alaskans.  She committed to                                                               
look further into release on OR.                                                                                                
ACTING CHAIR  MICCICHE asked Mr.  Skidmore to clarify that  SB 33                                                               
repeals the bail provisions under  Senate Bill 91 and returns the                                                               
law to  what it was before  that bill passed and  that it repeals                                                               
the pretrial enforcement and the risk assessment tool.                                                                          
MR.  SKIDMORE confirmed  that SB  33 repeals  what was  in Senate                                                               
Bill 91  regarding bail  and, with one  exception, returns  it to                                                               
what it  was previously.  The exception  is that  the presumption                                                               
that no bail condition would  be appropriate in certain cases was                                                               
found unconstitutional in Williams v.  State. SB 33 replaces that                                                               
presumption with  one that says  individuals that  commit certain                                                               
types  of offenses  should be  presumed dangerous  and the  court                                                               
needs to set appropriate conditions.                                                                                            
ACTING  CHAIR  MICCICHE  asked  if SB  33  repeals  the  pretrial                                                               
release risk assessment tool.                                                                                                   
MR.  SKIDMORE  confirmed  that  SB 33  repeals  and  replaces  AS                                                               
12.30.011 that tied the courts'  determinations of release to the                                                               
risk assessment tool so that tool will no longer be relied on.                                                                  
ACTING  CHAIR MICCICHE  expressed concern  about reinstating  the                                                               
third-party custodian system,  because it seems to  be laced with                                                               
opportunity  for further  offences.  He asked  if  there was  any                                                               
research that supports its return.                                                                                              
4:06:21 PM                                                                                                                    
MR.  SKIDMORE replied  there  is  no research  or  data, but  his                                                               
experience is  that it depends  on the court's ability  to assess                                                               
the individual,  after the prosecutor  and defense  attorney pose                                                               
questions, and  make a  judgement call about  whether or  not the                                                               
person will  be a good  third-party. While there is  no guarantee                                                               
of success,  the purpose  behind SB  33 is  to provide  judges as                                                               
many options  as possible to  determine how and whether  they can                                                               
release an  individual while  still maintaining  community safety                                                               
and ensuring the person shows up for court.                                                                                     
4:08:34 PM                                                                                                                    
ACTING  CHAIR MICCICHE  said that  at  another time  he'd like  a                                                               
detailed  discussion   about  how  a  third-party   candidate  is                                                               
evaluated as appropriate to manage  the release of an offender or                                                               
alleged  offender, because  he has  stories that  are disturbing.                                                               
They  include  individuals  trolling  for  young  females  to  be                                                               
released  to  their  care  and   supporting  the  young  females'                                                               
substance abuse while in the person's care.                                                                                     
4:09:30 PM                                                                                                                    
SENATOR  REINBOLD highlighted  victims' rights  and the  public's                                                               
right to  protection under Article  I Sections  12 and 24  of the                                                               
constitution. She asked for assurance  that there will be balance                                                               
and that victims and the public will not be forgotten.                                                                          
4:11:16 PM                                                                                                                    
SENATOR  KAWASAKI,  noting that  inability  to  pay was  removed,                                                               
asked if there was data showing that provision was problematic.                                                                 
MR. SKIDMORE  clarified that the  inability to post bail  is only                                                               
removed  as  a basis  for  a  second  bail hearing.  He  directed                                                               
attention  to Section  7 on  page  6 of  the bill.  It lists  the                                                               
factors the  court is  supposed to consider  at the  initial bail                                                               
hearing, such as  the person's employment status  and history and                                                               
the assets available to meet  the monetary conditions of release.                                                               
Under current  law, if  a person  has not  posted bail  within 48                                                               
hours, the  court is required to  hold a second bail  hearing and                                                               
consider inability  to pay  a second  time and  potentially lower                                                               
the  bail  just to  allow  the  person to  get  out  of jail.  He                                                               
reiterated  that  it's not  that  the  inability  to pay  is  not                                                               
considered; it's that  it should not form the basis  for a second                                                               
4:13:36 PM                                                                                                                    
SENATOR KAWASAKI questioned  whether being in jail  for more than                                                               
a couple  of days and  possibly losing one's job  wouldn't impact                                                               
the ability to pay.                                                                                                             
MR. SKIDMORE  agreed that  the impacts  of being  in jail  can be                                                               
significant,  but bail  is not  set to  keep people  from getting                                                               
out. The constitution  says excessive bail shall  not be required                                                               
but  a reasonable  bail is  appropriate. He  agreed with  Senator                                                               
Reinbold that when  the court sets bail it is  a balancing act to                                                               
consider all 11 factors. The  person is considered innocent until                                                               
proven guilty, but  the court must also  consider the appropriate                                                               
measures  to protect  the community  and ensure  the person  will                                                               
appear  for court.  Monetary bail  is one  of the  tools for  the                                                               
judge  to  ensure  those  things  are  accomplished.  To  Senator                                                               
Reinbold's point, he said an  Alaska Supreme Court case from 1966                                                               
said the  right to not have  unreasonable bail is not  a right to                                                               
release on  own recognizance.  He said, "I  have not  stated that                                                               
somebody has  a right to  be released on their  own recognizance;                                                               
I've only  stated that there  is a  right to reasonable  bail and                                                               
that  OR is  the starting  point  for that  analysis." There  are                                                               
multiple ways  to go about  securing release and bail  should not                                                               
be reduced just because somebody can't pay, he said.                                                                            
SENATOR REINBOLD said the right to  a speedy trial is not working                                                               
for  the victim  or defendant  and she  wants to  discuss how  to                                                               
change that.                                                                                                                    
MR. SKIDMORE  said the provisions  that try to address  the speed                                                               
of getting a  case to trial include limiting  credit for somebody                                                               
receiving treatment  pretrial to 6 months  and eliminating credit                                                               
when  a person  is  released pretrial  on electronic  monitoring.                                                               
These provisions  are designed to  avoid situations that  lead to                                                               
cases being  delayed. He acknowledged  that those  two provisions                                                               
would  not solve  the problem  entirely. He  said this  will take                                                               
continuing  work  and  he  looks  forward  to  working  with  the                                                               
legislature to seek solutions.                                                                                                  
4:20:08 PM                                                                                                                    
SENATOR REINBOLD  offered her understanding that  there are about                                                               
40,000 arrests  in the state a  year and 40 officers  watch those                                                               
on pretrial  release. She asked  how that benefits the  people of                                                               
Alaska and assures public safety.                                                                                               
MR.  SKIDMORE pointed  out that  SB 33  is designed  to give  the                                                               
courts  multiple  options,  not  just pretrial.  Having  just  40                                                               
officers  monitor  all  the  people  that  are  released  is  not                                                               
feasible,  but  it's  more  realistic  when  there  are  multiple                                                               
options. He  deferred to  the DOC for  specifics on  how pretrial                                                               
officers do their jobs.                                                                                                         
4:22:26 PM                                                                                                                    
ACTING CHAIR MICCICHE listed the  individuals available to answer                                                               
MR. SKIDMORE said the foregoing were the highlights of SB 33.                                                                   
ACTING  CHAIR MICCICHE  asked him  to address  video conferencing                                                               
and the arraignment question.                                                                                                   
MR. SKIDMORE  said SB  33 returns the  arraignments to  48 hours,                                                               
but  he  believes  that  the   Court  System  will  try  to  have                                                               
individuals arraigned  within 24  hours of  arrest. The  48 hours                                                               
provides more  flexibility to manage certain  cases and resources                                                               
on  weekends  and  holidays.  The  second  aspect  is  trying  to                                                               
increase the use of video  teleconferencing. It is currently used                                                               
in  courtrooms  across  the  state   for  arraignments  and  bail                                                               
hearings and  is recognized as  something that has  potential and                                                               
great  benefit. He  noted that  discussions about  this provision                                                               
are ongoing  between the Department  of Law and the  Court System                                                               
on how to  best achieve the goals  and desires of DOL  as well as                                                               
balancing concerns of the Court System.                                                                                         
ACTING  CHAIR MICCICHE  asked what  has  changed regarding  video                                                               
teleconferencing other than the suggestion to increase its use.                                                                 
MR. SKIDMORE replied  there are two aspects. The first  is in the                                                               
legislative intent  in Section 1  that encourages greater  use of                                                               
video  teleconferencing. The  second (in  the latter  sections of                                                               
the bill) is  trying to adjust the Court Rules  in terms of where                                                               
video teleconferencing is authorized.                                                                                           
4:25:27 PM                                                                                                                    
SENATOR  KAWASAKI commented  that changing  arraignments from  24                                                               
hours to  48 hours seems to  be going in the  wrong direction. He                                                               
asked  if a  lot of  arraignments  aren't already  done by  video                                                               
MR.  SKIDMORE  replied  the   criminal  rule  currently  requires                                                               
arraignments  to be  done by  video teleconferencing  when it  is                                                               
available so the majority are done  that way. He said he believes                                                               
that  some areas  of  the state  still  transport prisoners  when                                                               
video  teleconferencing  is  available,   despite  the  rule,  by                                                               
relying on  the term "shall."  With regard to the  question about                                                               
48 hours for  arraignments going in the wrong  direction, he said                                                               
it's not about  trying to delay an arraignment. It  is to provide                                                               
flexibility  in particularly  complex  cases and  for cases  that                                                               
come in on  weekends and holidays. He noted that  most states use                                                               
the 48 hour standard or longer for arraignments                                                                                 
4:29:19 PM                                                                                                                    
ACTING  CHAIR  MICCICHE  noted that  the  requirement  for  video                                                               
conferencing existed under  Court Rule and the only  change in SB                                                               
33 is to change from  television to contemporaneous two-way video                                                               
conference. Observing  that video conferencing didn't  seem to be                                                               
the  default, he  asked if  stronger language  such as  "whenever                                                               
possible"  instead of  "whenever convenient"  would lead  to cost                                                               
MR. SKIDMORE responded  that the preferred description  is a two-                                                               
way  video  teleconference which  is  more  inclusive of  various                                                               
technologies.   The  bill   also   expands  the   use  of   video                                                               
teleconferencing for other trial court  hearings such as pretrial                                                               
conferences  where  each  case  is discussed  for  two  or  three                                                               
minutes. The way  the Court Rules are currently  written allows a                                                               
defendant  to say  they want  to  be transported  to their  court                                                               
hearing. The  bill says the court  gets to determine if  a person                                                               
should   be  transported   or  if   a  video   teleconference  is                                                               
appropriate for those  types of hearings. He shared  that part of                                                               
the  current  discussions  with  the  Court  System  involve  the                                                               
logistics of  that and whether  there are certain  hearings, such                                                               
as  an  evidentiary  hearing,  that a  person  should  appear  in                                                               
person. He  summarized that the  overall intent is to  expand the                                                               
number of  video conference  hearings and make  it the  judge who                                                               
makes that decision as opposed to the defendant.                                                                                
4:32:03 PM                                                                                                                    
SENATOR REINBOLD  said she believes video  conferencing will save                                                               
money and  she agrees  with Senator  Kawasaki regarding  24 hours                                                               
for an arraignment  hearing. She also gave a shout  out and thank                                                               
you to prosecutors who work long, hard hours.                                                                                   
4:33:31 PM                                                                                                                    
ACTING CHAIR MICCICHE stated he would hold SB 33 in committee.                                                                  

Document Name Date/Time Subjects
SSTA Agenda Week of 02.11.19.pdf SSTA 2/14/2019 3:30:00 PM
SB0034A.PDF SSTA 2/14/2019 3:30:00 PM
SB 34
SB 34 Highlights.pdf SSTA 2/14/2019 3:30:00 PM
SB 34
SB 34 - Probation and Parole Sectional.pdf SSTA 2/14/2019 3:30:00 PM
SB 34
SB0034-1-2-012319-LAW-N.PDF SSTA 2/14/2019 3:30:00 PM
SB 34
SB0034-2-2-012319-COR-Y.PDF SSTA 2/14/2019 3:30:00 PM
SB 34
SB0034-3-2-012319-COR-Y.PDF SSTA 2/14/2019 3:30:00 PM
SB 34
Court System Fiscal Note.pdf SSTA 2/14/2019 3:30:00 PM
SB 33 Transmittal Letter.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB0033A.PDF SSTA 2/14/2019 3:30:00 PM
SB 33
SB 33 - Pretrial Highilghts.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB 33 - Pretrial Sectional.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-DOL-FN#1.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-DPS-FN#2.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-DOA-FN#3.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-DOA-FN#4.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-DOC-FN#5.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-DOC-FN#6.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB33-Court System-FN.pdf SSTA 2/14/2019 3:30:00 PM
SB 33
SB 33 & 34-GOA Bills Matrix 1-30-19.pdf SSTA 2/14/2019 3:30:00 PM