Legislature(2001 - 2002)
03/21/2001 01:13 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 21, 2001
1:13 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative Jeannette James
Representative Kevin Meyer
Representative Albert Kookesh
MEMBERS ABSENT
Representative John Coghill
Representative Ethan Berkowitz
COMMITTEE CALENDAR
HOUSE BILL NO. 172
"An Act relating to therapeutic courts for offenders and to the
authorized number of superior court judges."
- HEARD AND HELD
PREVIOUS ACTION
BILL: HB 172
SHORT TITLE:THERAPEUTIC DRUG AND ALCOHOL COURTS
SPONSOR(S): REPRESENTATIVE(S)PORTER
Jrn-Date Jrn-Page Action
03/09/01 0521 (H) READ THE FIRST TIME -
REFERRALS
03/09/01 0521 (H) JUD, FIN
03/21/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BRIAN PORTER
Alaska State Legislature
Capitol Building, Room
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 172.
DEAN J. GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Assisted with the presentation of HB 172
and answered questions.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System
820 West 4th Avenue
Anchorage, Alaska 99501-2005
POSITION STATEMENT: Assisted with the presentation of HB 172
and answered questions.
BLAIR McCUNE, Deputy Director
Public Defender Agency
Department of Administration
900 West 5th Avenue, Suite 200
Anchorage, Alaska 99501-2090
POSITION STATEMENT: Expressed support for the concept of
therapeutic courts, brought up concerns regarding HB 172, and
answered questions.
MARY MARSHBURN, Director
Division of Motor Vehicles
Department of Administration
3300B Fairbanks Street
Anchorage, Alaska 99503
POSITION STATEMENT: Expressed support of HB 172 and noted it
had no direct impact on the division.
CANDACE BROWER, Program Coordinator/Legislative Liaison
Office of the Commissioner - Juneau
Department of Corrections
431 North Franklin Street, Suite 203
Juneau, Alaska 99801
POSITION STATEMENT: Assisted with the presentation of HB 172
and answered questions.
JAMES WANAMAKER, Judge
Third Judicial District Anchorage
District Court
Alaska Court System
825 West 4th Avenue
Anchorage, Alaska 99501-2004
POSITION STATEMENT: During hearing on HB 172, provided comments
and answered questions regarding the existing wellness court.
MARY UNDERWOOD
5141 Spruce Creek Circle
Anchorage, Alaska 99516
POSITION STATEMENT: Testified in support of HB 172, but
expressed the need to extend the program to the felons.
ERNIE TURNER, Director
Division of Alcoholism & Drug Abuse
Department of Health & Social Services (DHSS)
PO Box 110607
Juneau, Alaska 99811-0607
POSITION STATEMENT: During hearing on HB 172, testified in
support of therapeutic courts.
LOREN JONES, Director
CMH/API Replacement Project
Division of Mental Health and Developmental Disabilities
Department of Health & Social Services (DHSS)
PO Box 110620
Juneau, Alaska 99811-0620
POSITION STATEMENT: During hearing on HB 172, provided
information on DHSS's fiscal note.
JOHN M. RICHARD, Municipal Prosecutor
Criminal Division,
Municipality of Anchorage Department of Law
420 L Street, Suite 100
Anchorage, Alaska 99501
POSITION STATEMENT: Testified in support of [therapeutic courts
and HB 172].
CARMEN CLARKWEEKS, Private Criminal Defense Attorney
3101 C Street, Suite 200
Anchorage, Alaska 99501
POSITION STATEMENT: Offered suggestions regarding HB 172.
JULIE KITKA, President
Alaska Federation of Natives
1594 C Street, Suite 300
Anchorage, Alaska 99501
POSITION STATEMENT: During hearing on HB 172, testified in
support of alternative opportunities [to address alcohol and
substance abuse].
JANET McCABE, Chair
Board of Directors
Partners for Downtown Progress
1320 K Street
Anchorage, Alaska 99501
POSITION STATEMENT: Offered suggestions regarding HB 172.
PATRICK JAMES, Attorney
1500 West 33rd, Suite 100
Anchorage, Alaska 99503
POSITION STATEMENT: Offered suggestions regarding HB 172.
JIM HENKELMAN, Statewide Outreach Coordinator
Outreach Program
Yukon-Kuskokwim Health Corporation
700 Chief Eddie Hoffman Highway
Bethel, Alaska 99559
POSITION STATEMENT: During hearing on HB 172, testified in
support of the therapeutic court concept, but noted some
concerns.
RUDOLPH NEWMAN, Graduate
Wellness Court
3253 Carriage Drive
Anchorage, Alaska 99501
POSITION STATEMENT: During hearing on HB 172, related his
experience with wellness court.
ACTION NARRATIVE
TAPE 01-37, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:13 p.m. Representatives
Rokeberg, James, Meyer, and Kookesh were present at the call to
order. Representative Ogan arrived as the meeting was in
progress.
HB 172 - THERAPEUTIC DRUG AND ALCOHOL COURTS
[Contains discussion HB 4.]
Number 0040
CHAIR ROKEBERG announced that the committee would hear HOUSE
BILL NO. 172, "An Act relating to therapeutic courts for
offenders and to the authorized number of superior court
judges."
Number 0069
REPRESENTATIVE BRIAN PORTER, Alaska State Legislature, sponsor,
explained that crimes relating to alcohol and other drugs have
been a significant problem in Alaska. Driving while intoxicated
(DWI) is arguably the most dangerous of the state's alcohol-
related offenses. Consequently, legislatures over the years
have developed dramatic penalties for DWI offenses. He noted
that first-time DWI offenders have the smallest rate of
recidivism; four out of five DWI offenders do not repeat the
offense. After losing three days in confinement, paying
substantial fines, and losing driving privileges for over 90
days, many first-time offenders get the message. In the
process, more information has been developed about persons who
continue to offend. Representative Porter referred to past
legislation he had sponsored, which created the first felony DWI
statute in Alaska. He said the intent of that prior
legislation, in addition to getting DWI offenders out from
behind the wheel of a car for a longer period of time, was to
allow the court a longer period of time to work towards the
constitutionally required goal of offender rehabilitation.
REPRESENTATIVE PORTER offered that HB 172 was a giant step in
the direction of offender rehabilitation. He said that HB 172
is intended, with the recent advancements in psychological and
medical treatment, to dramatically reduce addictions, thus
changing the headlines which relate that another Alaskan has
lost his or her life to a driver with three, four, and even ten
prior DWI convictions. Representative Porter explained that the
program [encompassed in HB 172] is intended to provide an up-to-
date, systematic approach to an extremely important area of
Alaskan law. He remarked that he had developed HB 172 with the
assistance of all the agencies that will be involved in the
implementation of this coordinated approach.
Number 0406
REPRESENTATIVE MEYER asked why Anchorage and Bethel were chosen
as sites.
REPRESENTATIVE PORTER explained that Anchorage was chosen
because it is a significant urban area with a problem, and it
already has, at the district-court level, a therapeutic court
program in progress. Bethel was chosen because it is a hub that
serves a lot of neighboring rural areas and therefore offered a
rural approach to implementation of the program. He added that
HB 172 has provisions that ask the various agencies to
coordinate with the local residents in rehabilitation efforts.
Representative Porter explained that HB 172 creates a pilot
program and, if successful, would be expanded to other areas of
the state.
Number 0561
DEAN J. GUANELI, Chief Assistant Attorney General, Legal
Services Section-Juneau, Criminal Division, Department of Law,
said he has oftentimes stressed the importance of treatment for
DWI offenders. Jail terms serve a purpose, but at some point
offenders are released from jail; unless some form of treatment
has been provided, either while in jail or as a follow-up
afterwards, there is a likelihood that offenders will re-offend.
[The department] supports the provisions of HB 172 as they are
written. He said he thought it was important both to rely on
standard treatment programs, which involve inpatient [services]
and counseling, and to try innovative therapies, particularly
those that involve drugs [that help to combat cravings]. He
also said he was encouraged by results shown in other states
that have instituted programs [similar to that created by HB
172].
MR. GUANELI referred to provisions in HB 172 that he said [the
department] felt were important. One important provision is
that defendants, at an early point in time, get into the
therapeutic court program, that they request to get into the
program soon after arraignment, and that they enter a plea at an
early point in time. There are time limits within HB 172 that
are designed to ensure that defendants entering the program are
motivated to cure their alcohol problem. He added that he
thought that motivation was a key element to success. If too
much time is spent in legal maneuvering and filing motions, it
signals to prosecutors that the defendant is not serious about
addressing the root cause of the problem. He noted that another
problem when the legal process delays treatment is that the
window of opportunity is lost during which treatment can take
hold.
Number 0789
MR. GUANELI said that it is also important to realize that while
people are going through the criminal justice process, they may
not necessarily need to be in jail. Other options such as house
arrest (HA) and electronic monitoring (EM) exist. He said he
thought that in appropriate cases, courts should have the
latitude to use the options of HA and EM. Another important
provision of HB 172 is that while a person is serving HA or on
EM, the time served does not count against any jail sentence
imposed. He said that because of the delays that sometimes
occur during the criminal justice process, it is important that
a person not be able to argue that the time served during HA or
on EM enables him or her to avoid participating in a treatment
program. He had concern that the normal legal provisions, which
might give credit for time served during HA or on EM, would be
abused in the instance of DWI defendants. He said if a
defendant is really motivated to participate in the program,
then that person should go into the program without being
concerned about time already served during HA or on EM; the
person should just be devoted to completing the program and
getting on with life.
Number 0959
CHAIR ROKEBERG inquired about discretion of the judge with
regard to the EM provision in HB 172. He offered that there
might be circumstances in which the discretion of the judge
should take precedence over statute. He suggested that perhaps
a change could be made to allow for judicial discretion, rather
than strictly deny credit for EM.
MR. GUANELI argued that there should be a hard-and-fast rule
about whether someone does or does not get credit. He added
that the judge's discretion comes into play during sentence
imposition. If a judge were to ordinarily impose an eight-month
sentence but a defendant has already served some very strict
time under HA, then the judge could choose to impose a six-month
sentence instead. Judicial discretion is based on how much of a
sentence gets imposed; it is not based on a calculation of how
much time has been served under what conditions. The latter
calculation would only cause unnecessary litigation during a
time that could be better spent completing a treatment program.
He said that it seems [to the department] that the issue of
credit given for HA or EM should be either black or white;
either a person gets credit or does not get credit.
Number 1075
CHAIR ROKEBERG referred to HB 4, which has an increased third-
time-offender felony-category DWI offense. He said he thought
that the provision in HB 172 regarding credit for HA or EM would
take away a main tool that a judge has to provide appropriate
monitoring, as well as restricting a person's ability to be
productive. He said that part of the wellness court provisions
was to modify the offender's behavior so he or she would not
have to serve as much time in a correctional institution.
Number 1134
MR. GUANELI said [the department] believes that the offender's
incentive is provided for in HB 172 by stipulating that the
judge, despite any mandatory sentencing provisions, may suspend
the entire sentence if the court-ordered conditions for
treatment are complied with. The offender may very well have to
be on EM or serve HA, but the incentive for participating in the
treatment program is the possibility of avoiding some of the
strict mandatory sentencing provisions currently in statute.
CHAIR ROKEBERG sought clarification. He gave as an example a
judge who required HA for 240 days with EM provisions; then it
would be up to the judge's discretion that that could constitute
the sentence because of the waiver of the other mandatory
provisions, and it would be up to the judge's discretion whether
to give or include "good time" because it would be part of his
order if the judge chose to use that device. He inquired if
that was what Mr. Guaneli meant.
MR. GUANELI attempted to clarify what he meant. He said if the
judge chooses, in imposing sentence, to give a lesser sentence
because of other criteria that the defendant has had to comply
with, it is the judge's choice. But also, it is a much simpler
process to look only at whether a defendant complied with the
conditions imposed. He said that the problem faced by [the
department] is that a defendant who is on EM builds up "credit,"
and if enough credit is built up by the time of sentencing, the
defendant can just walk away from any further sentence
impositions; thus it creates a situation that [the department]
wants to avoid.
Number 1296
CHAIR ROKEBERG said he understood that Mr. Guaneli did not want
the public defender claiming the defendant had already spent 240
days on EM and therefore had met the statutory requirement for
sentencing. Chair Rokeberg said he was attempting to point out,
however, that if the judge decided to let the defendant meet the
statutory requirement of sentence imposition while on EM, then
the judge had full discretion to do so under HB 172.
MR. GUANELI responded that if the judge was going to allow that
scenario, then that was up to the judge. He said he would
rather have the judge make that decision at the time of sentence
imposition instead of being forced into that situation because
time elapsed while the defendant was under HA. Mr. Guaneli
further clarified that the time for discretion by a judge is
while imposing a sentence and in deciding how much [time] to
suspend. He did not want to allow for possible manipulation of
the [judicial] process.
Number 1349
CHAIR ROKEBERG noted there were concerns about the "gate
keeping" provisions of HB 172. He said he would describe the
problem as an historic reluctance on the part of the district
attorney to participate in the existing program. There had been
criticism of the provision that has the prosecuting attorney act
as the gatekeeper in determining who could enter into the
program.
MR. GUANELI explained that the current Naltrexone program in the
district court has had just a small number of cases. [The
department] has been reluctant to participate for a couple of
reasons. One reason is that there are not any structured
provisions in the existing program such as can be found in HB
172. It is important that all parties know what the rules are.
The second reason is that the existing program is in district
court, and he said [the department] feels that felony drunk
driving cases should be handled in superior court. He added
that HB 172 cures a number of what [the department] considers
shortcomings of the existing program. One, [the program in HB
172] continues to be at the superior court level, and two, it
requires that at least the restitution and other portions of a
sentence be imposed at an early point in time, thus enabling the
victim to begin collecting restitution. Another point Mr.
Guaneli made was that [the department] was involved in
developing the program encompassed in HB 172; [the department]
believes in the program and is very willing to participate in
it.
Number 1517
CHAIR ROKEBERG asked Mr. Guaneli to comment on some of the
problems that revolved around timelines. He said he had heard
of cases where there was a failure to enter into a judgment
and/or suspended imposition of sentence (SIS), or restitution
orders in a timely manner.
Number 1540
MR. GUANELI said that the specific provisions regarding
timelines are that defendants have to request to get into the
program within 45 days, and once accepted, defendants have to
enter a plea within 45 days. He said [the department] thinks
those are appropriate provisions that will enable the process to
move along in a timely manner, and will ensure that defendants
who are accepted into the program are ones who are highly
motivated to participate. He noted that last year the
legislature had passed a bill that said a defendant who pleads
guilty within 30 days of arraignment gets a mitigating factor
against the sentence, thereby showing that the defendant is
remorseful and really wants to make amends for his or her
conduct. That statute gives the defendant a 30-day window,
whereas HB 172 gives the defendant up to 90 days to enter a plea
and then an additional 30 days before sentence is imposed, a
total of four months, which Mr. Guaneli said he thought was
plenty of time for an offender to take stock of the situation
and make the decision to get on with the program.
CHAIR ROKEBERG asked if there would be any misdemeanants before
this court [that is created by HB 172], or if it is only going
to involve felony cases.
MR. GUANELI said that the program [created by HB 172] is set up
at the superior court level. The superior court in Alaska is
called the "court of general jurisdiction" and as such has
jurisdiction over all cases. Misdemeanor drunk driving cases
can be filed in the superior court, and can proceed through the
superior court. As an example, if [the department] has a case
wherein the "look-back" provisions cause the defendant to be
treated legally as a second offender, but [the department] knows
that the defendant has third and fourth convictions far in the
past, [the department] can choose to have the offender go to the
superior court and participate in the program. He added that
the program is intended to focus on felony cases because most
everyone feels that that is where most of the problems are, but
the latitude is there to send other types of cases to the court
[created by HB 172].
Number 1702
MR. GUANELI, in response to questions posed by Chair Rokeberg,
said that the role of the gatekeeper - that being the prosecutor
- is to set guidelines and choose the appropriate "second
offenders" who are not really second offenders but third and
fourth offenders. He said that the court could not accept
someone into the program without the agreement of the
prosecutor; the prosecutor, the defense, and the court all have
an integral role in the program, and also have a stake in the
success of the offender. It takes an enormous amount of time to
bring each offender back for periodic review hearings, to offer
encouragement when needed, and to discourage inappropriate
behavior before it gets out of hand. Getting agreement from all
parties involved that any given case is an appropriate one for
the program, and worth the resources expended, is an important
part of the process.
MR. GUANELI also responded that nothing in HB 172 is designed to
interfere with existing programs, and it was his understanding
that there might be amendments offered later that will make that
absolutely clear. With regard to the provisions in HB 172 that
are not consistent with current practices, Mr. Guaneli said that
if the district court wishes to maintain those practices they
now indulge in, they are free to do so; the program in HB 172 is
designed to be at the superior court level and funded thus. If
the court system wants to have other types of programs at other
levels and is willing to fund them, it can.
Number 1865
REPRESENTATIVE OGAN referred to page 4, line 2, regarding the
30-day provision, and asked what the current standard of
practice was.
MR. GUANELI said that generally in felony cases, the amount of
time that elapses between entering a plea and sentencing usually
depends on how much time the probation office needs to write a
pre-sentence report for the judge. In other words, it is the
time needed to investigate the person's background, write a
report, and make a recommendation. He said he believed that
felony drunk driving cases have a shortened process and
therefore do not take as long as murder cases or rape cases. He
added that by the time most of [the drunk driving] cases have
gotten to the point of entering a judgment, enough is known
about the offender, as well as what the appropriate action to
take is, that 30 days is plenty of time in which to allow the
probation office to write a report. He noted, however, that in
serious felony cases in Anchorage it often takes six weeks to
get a pre-sentence report written, and then a sentencing hearing
must be scheduled, so in the most serious of felony cases it
would ordinarily take longer than 30 days.
Number 1959
MR. GUANELI, in response to questions by Representative Ogan,
said that the 30-day time limit would not have a fiscal impact
on the Department of Law. With regard to a presumptive or
mandatory sentence being suspended, he said that even looking
only at the impact on the Department of Corrections (DOC), if an
offender did not set foot in a DOC facility, it would create
savings. The average sentence for a felony drunk driver in
Anchorage is a period of several months, and if an offender
successfully completes the long period of probation, it means
that the DOC won't have to deal with that offender and will
therefore experience less impact.
REPRESENTATIVE OGAN mentioned he had questions regarding the
handout provided by the Alaska Judicial Council.
CHAIR ROKEBERG suggested deferring those questions to the
representative from the Alaska Court System (ACS).
Number 2088
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System (ACS
or the "court"), said the court supports the idea of therapeutic
courts, and is encouraged by the legislature's support of them.
Currently, there are three therapeutic courts in Alaska: a
mental health court that treats criminal defendants with
significant mental health problems; a soon-to-be-operational
therapeutic court for felony-drug offenders; and the wellness
court, started by Judge Wanamaker, that treats alcohol-related
offenders with a Naltrexone-based therapy. He said that because
these types of programs are new, the court felt that it was wise
to start off with pilot projects so that data can be developed
in order to determine effectiveness. He noted that the
anecdotal evidence from Judge Wanamaker's court was thus far
very encouraging.
MR. WOOLIVER explained that both HB 4 and HB 172 generate a
superior-court-judge position. However, only one position is
needed. If the position is created through passage of HB 172,
then another position will not be necessary under HB 4, or visa
versa. He added that the fiscal note in HB 172 includes a
range-10 clerk, who will do all the scheduling and paperwork
associated with the therapeutic courts.
CHAIR ROKEBERG mentioned details of the fiscal notes for HB 172
as they compared with the fiscal notes for HB 4.
MR. WOOLIVER admitted that the fiscal note for HB 4 mistakenly
did not reflect the appropriate amount for equipment
expenditures. Mr. Wooliver, in response to Representative
Rokeberg, agreed that the proposed amendments to the "purpose"
language clarified that HB 172 would not affect the existing
programs. The provisions of HB 172 only applied to the pilot
program that it created.
Number 2315
BLAIR McCUNE, Deputy Director, Public Defender Agency (PDA),
Department of Administration, testified via teleconference. He
said that he supported the therapeutic court concept. He
acknowledged that the agencies involved had done a lot of work
in creating HB 172. He added, however, that [the PDA] had
concern over the credit-for-time-served issue. He said that
[the PDA] has participated in the existing therapeutic courts in
good faith; a lot of work goes into ensuring that specific
programs are deserving of credit for time served, and [the PDA]
does not see a need for the provision eliminating credit for
time served. He added that contrary to comments made by Mr.
Guaneli, [the PDA] did not think there were many cases of credit
given for EM or HA. Mr. McCune noted that other states
sometimes use diversion programs without having judgments or
convictions, though he acknowledged that the DOL did not favor
those types of programs.
CHAIR ROKEBERG mentioned that the fiscal note reflected 2.75
people providing service for 95 people.
MR. McCUNE explained that typically it takes four attorneys to
handle the caseload of a superior court judge. The personnel
component reflected in HB 172 is a decrease from the norm. In
response to questions by Chair Rokeberg, Mr. McCune said that
the PDA's fiscal note for HB 172 would not impact the fiscal
note for HB 4. The two pieces of legislation have separate
fiscal impacts with regard to the PDA; HB 4 would extend
statewide .... [Tape changed sides mid-sentence.]
TAPE 01-37, SIDE B
Number 2480
CHAIR ROKEBERG noted that "the credibility gap's got to kind of
narrow up a little bit."
MR. McCUNE agreed to look as closely as possible at [the fiscal
impact] of both pieces of legislation.
Number 2467
MARY MARSHBURN, Director, Division of Motor Vehicles, Department
of Administration, testified via teleconference. She said
simply that HB 172 did not directly affect the division. She
did, however, want to express support of HB 172 from the general
standpoint of the problem with alcohol as it relates to driving.
She said [the division] thinks that HB 172 coupled with
treatment programs will provide more effective ways of dealing
with offenders.
Number 2448
CANDACE BROWER, Program Coordinator/Legislative Liaison, Office
of the Commissioner - Juneau, Department of Corrections (DOC),
offered that anytime someone can be diverted from the DOC there
would be a cost savings to the state. She said she thinks that
the program [created by HB 172] is a tremendous idea, and [the
DOC] is hoping that treating offenders will create not only
short-term cost savings, but long-term cost savings as well
because, as the report by the Alaska Judicial Council
highlighted, recidivism will be reduced. She noted that prior
testimony reflected that if someone can successfully complete
treatment, the savings, both monetarily and in terms of human
resources, are tremendous. She said the DOC fully supports HB
172; [the DOC] thinks that it is the key to helping defer costs
in the DOC, and in keeping people out of jail. She explained,
in response to questions from Representative Ogan, that part of
the wellness court is a compliance component, which creates a
necessity for the department to monitor offenders and assist
them in staying in compliance; that necessity is the reason for
the positive fiscal note. She also said that if the program is
successful, she would like to see (although could not guarantee)
a decrease in future funding requests. She noted that another
item the DOC has been looking at, and working on, was one of the
fiscal notes for HB 4; if some people can be diverted through
the therapeutic court, those people would not require treatment
within the DOC.
CHAIR ROKEBERG agreed that if HB 172 passes, there should be
savings. He noted that probation officers (PO) would provide
follow-up, and acknowledged that perhaps not enough resources
were being directed toward POs to ensure proper follow-up for
offenders.
Number 2310
REPRESENTATIVE JAMES commented that although she agreed that
passage of HB 172 would create savings, she did not see any way
to calculate what those savings would be. In addition, she
noted that there is always a cost associated with implementing a
new program. She said it seemed to her that the whole theory
behind the concept of therapeutic courts was to keep drunks off
the road, and that would certainly generate private savings,
both in lives and property.
MS. BROWER, in response to questions from Representative Ogan,
said that the fiscal note for HB 172 was based on existing
substance-abuse statutes, and not on any other proposed
legislation. And regardless of other legislation that might
pass, the programs created by HB 172 would only serve a specific
number of offenders.
Number 2178
JAMES WANAMAKER, Judge, Third Judicial District Anchorage,
District Court, Alaska Court System, testified via
teleconference and noted that he was speaking as an individual
judge who runs the wellness court, and not on behalf of the
entire ACS. He said the statements of Mr. Guaneli and others
reassured him that HB 172 could be crafted so that the existing
wellness court would not be placed in the same regulatory
structure as the pilot felony court program. He also said that
there were only three prosecutors in Alaska: one in the DOL,
another in the Municipality of Anchorage, and the third in the
City and Borough of Juneau. Retaining a diversity of approaches
was healthy and was preserved [by HB 172], he opined, thus a
large part of his concerns had been taken care of.
JUDGE WANAMAKER noted that HB 172 contained two tools. One
tool, the provision for suspending mandatory sentences when a
defendant has completed a therapeutic program, works very well
with the therapeutic-court concept, and he hoped that that tool
would be made available to the existing therapeutic courts. The
second tool is credit for time served. Currently, credit for
time served is done by judicial decision; it is an area
warranting serious scrutiny if the intent is to change the
current procedures. As a final point, Judge Wanamaker said it
would be nice if there were some legislative recognition of the
existing wellness court program at the municipal district court
level, along with some additional funds. He noted that he had
recently had a philosophical discussion with Chief Monagan (ph)
of the Anchorage Police Department regarding the point at which
the municipality steps in and takes care of what would otherwise
be the state's business in taking care of drunk drivers, and to
what extent state funds should flow.
CHAIR ROKEBERG said he wanted to applaud Judge Wanamaker's work
with the wellness court. He affirmed that there were proposed
amendments that would ensure that the existing therapeutic
courts were allowed to continue. He noted, however, that he
could not make any promises about additional funding but would
work on that issue. Chair Rokeberg asked if Judge Wanamaker had
regained access to electronic monitoring (EM).
JUDGE WANAMAKER said yes and no. In the application for bail it
had been done in one case, and proved to be a successful
vehicle. A judge worries, when putting an alcoholic defendant
out on bail, about whether he or she will kill someone while
driving and about the safety of the public. In the
aforementioned case, the wellness court had the cooperation of
the DOC; the defendant took Naltrexone in jail for three weeks
and then, in addition to continuing Naltrexone, went on to house
arrest (HA) with electronic monitoring (EM), as a condition of
bail. This particular case made use of a bail plan combined
with a treatment plan. He said he felt very safe with that
defendant being out on those conditions. Further, those
conditions allowed for a flow right into treatment; the
defendant has been in the program without any "slips" for many
months.
CHAIR ROKEBERG requested that Judge Wanamaker speak to the
provisions regarding the deadlines for imposing the entering a
plea and a judgment of conviction. He acknowledged that there
have been difficulties in [the wellness court] and thus he
inquired as to how those [deadlines] would work in [the wellness
court].
Number 1873
JUDGE WANAMAKER specified that the [goal] of therapeutic court
is to situate the defendant such that the defendant can succeed.
Above all, there must be cooperation from the prosecutor because
without it nothing is possible. Judge Wanamaker said that he is
following a "free-form" manner, and therefore he felt that the
bill is too restrictive in the timelines and the manner in which
cases come forward. He pointed out, "Nothing gets in the
wellness court or stays in there without the prosecutor's say-
so." Therefore, the prosecutor has control and doesn't need the
restrictions in the bill. In further response to Chair
Rokeberg, Judge Wanamaker noted that a prosecutor can, case by
case, work out the restitution and insurance claims in the Rule
11 agreements.
CHAIR ROKEBERG asked that Judge Wanamaker review for the
committee, what happens when a typical client comes before the
wellness court, specifically as it relates to the plea, the
timing, and the conviction. He asked if, ultimately, suspended
impositions are done. He also inquired as to how the individual
typically pleas.
JUDGE WANAMAKER answered that there would always be a guilty
plea or a no-contest plea. He explained that typically there is
an agreement with the prosecutor that if the individual
completes the treatment, some charge will be dismissed or some
minimum jail time will be imposed. Therefore, the agreement
includes a benefit to the defendant if the defendant completes
treatment. Typically, if the defendant doesn't complete the
treatment, the defendant faces open sentencing by the judge. In
further response to Chair Rokeberg, Judge Wanamaker specified
that the agreed-upon period of time a client is before the
[wellness court] is 18 months. He pointed out that it takes at
least 18 months to rid a person's system of the effects of
alcohol, though in some cases, the prosecutor and the defense
will settle on a shorter time, such as nine months. In regard
to the dismissal of other charges, Judge Wanamaker noted that
almost every DWI [which he sees] has an associated crime of
driving with a revoked license, which has mandatory penalties.
In such a case, the prosecution will typically dismiss the
charge of driving with a revoked license.
Number 1661
MARY UNDERWOOD, testifying via teleconference, informed the
committee that she had a daughter who was in the wellness
program. Ms. Underwood noted her support of HB 172. She
related her belief that alcoholism is a disease and should be
treated as such. "Ninety-eight percent of the country is
affected by someone with an addiction," she said. Therefore,
everyone knows someone who is affected by this disease.
MS. UNDERWOOD expressed the need for HB 172 to apply to felons
at the state level. "If this is kept at a misdemeanor level,
the courts will be overrun with these cases," she predicted.
She also predicted that most of these individuals would become
repeat offenders until they reach the felon level, at which time
the individual will leave the wellness program. Putting these
individuals in jail is not the answer because they won't receive
the necessary help or treatment. Ms. Underwood said that she
has witnessed, firsthand, the improvement of the individuals in
the program.
Number 1479
ERNIE TURNER, Director, Division of Alcoholism & Drug Abuse,
Department of Health & Social Services (DHSS), testified in
support of therapeutic courts, wellness courts, drug courts, and
other similar courts. He informed the committee that for a
time, he worked for a state that had deferred prosecution for
all DWIs. In that program, there was a 69 percent success rate
after two years. Therefore, those 69 percent weren't
prosecuted. One of those individuals is Mr. Turner's daughter.
Mr. Turner related the [department's] belief that the pilot
projects would work on an outpatient basis with the Naltrexone
and the EM. He expressed his hope that the norm in all courts
will be deferred sentencing or prosecution as well as a
treatment program that treats the disease rather than the
symptoms/problems of the disease.
CHAIR ROKEBERG inquired as to the fiscal note prepared by the
division. Chair Rokeberg said that he was unclear how the
$501.3 [thousand] in total operating costs for FY 2002 was
determined in light of the $6,821 per patient in the Anchorage
program.
Number 1310
LOREN JONES, Director, CMH/API Replacement Project, Division of
Mental Health and Developmental Disabilities, Department of
Health & Social Services, informed the committee that the
parties involved in drafting this legislation agreed that an
intensive outpatient program for one year would be appropriate.
Therefore, the total program is based on an intensive basis,
which would be more intensive at the beginning and dwindle
through the year. He specified that [the cost] includes
urinalyses (URs), Naltrexone, physical exams, and administrative
costs for developing reports for the court. Furthermore, all of
this was based on the current Medicaid regulations and the
amount paid for this service under the Medicaid program, which
amounted to $6,821 per person. That per-person Medicaid amount
was multiplied by the 80 people in the Anchorage court and the
15 people in the Bethel court, for a total of $545,000.
Furthermore, it was computed that about 25 percent of the cost
would be covered by the 80 individuals paying for that portion
of their treatment on a sliding-fee scale. Therefore, the net
cost to the state is $409,000 in Anchorage. For the cost in
Bethel, only 10 percent was subtracted because the area has
fewer people that have the income to contribute. Thus, the net
cost to the state is $92,081 in Bethel. Adding the totals of
$409,000 and $92,081 results in the $501.3 [thousand] fiscal
note.
Number 1183
CHAIR ROKEBERG commented that the ASAP (Alcohol Safety Action
Program) had been missed and probably should be placed in the
fiscal note too.
MR. JONES pointed out that the probation officer who would
oversee the treatment and the court is included in the
Department of Corrections' fiscal note. He specified, "These
persons would not be part of the ASAP program."
CHAIR ROKEBERG asked if the individual would have to have been
referred to the ASAP in order to enter the [therapeutic court]
program.
MR. JONES related his understanding that generally, the ASAP
referral occurs after sentencing. In this bill, once an
individual is accepted in the [therapeutic court] program, the
individual would enter a plea. Upon sentencing, all of the
conditions would then take place. Normally, in other courts
this would be the point at which an individual would be referred
to the ASAP. However, [under HB 172] these individuals will be
kept within the wellness [court] program and will continue to
return to court. The probation officer would perform the
oversight. Therefore, [the DHSS's fiscal note] reports the cost
of the treatment.
CHAIR ROKEBERG said he thought that after there was a charge,
prior to the conviction, the ASAP would enter in.
MR. JONES specified that it is normally after a conviction. He
said, "Generally, the court order reads that you will report to
[the] ASAP and follow the conditions thereof." In some cases,
the individual, the defense attorneys, or the court will seek
treatment prior to going to court. However, normally the
official assignment to the ASAP occurs upon sentencing.
Number 1051
CHAIR ROKEBERG related the current situation in [Judge
Wanamaker's court] in which the $100 for ASAP and the $50 for
Naltrexone are paid, and the individual is sent out the door.
MR. JONES pointed out that "we" were specific in that "we" felt
that with all the timelines set by the court and the voluntary
nature of this [program], the treatment had to be available and
effective. There couldn't be a waitlist. He expressed the need
for the treatment to be tied to the actions of the court, the
judge, and the probation officer. Therefore, the treatment
needs to be dedicated to these individuals and thus it is
different from Judge Wanamaker's court.
MR. JONES, in further response to Chair Rokeberg, agreed that
some of the waitlist could be overcome with the funding,
specifically for those on an outpatient basis in Anchorage. Mr.
Jones reiterated that this program would be an intensive
outpatient program. However, if this bill was passed, it would
take some of the pressure off the outpatient waitlists in
Anchorage and Bethel. After the assessment, if there is the
need for residential monitoring, then they would try to place
the person in residential care. That cost was not included in
the fiscal note and thus would be absorbed [by the department].
He related the department's belief that most persons could be
maintained in an intensive outpatient program due to the
enhanced monitoring and intensiveness of the outpatient program.
MR. TURNER interjected that he has spoken with some people who
have taken Naltrexone who say that it has completely eliminated
their compulsion to drink. Therefore, the hope is that with
Naltrexone and EM, the individual can comply with the outpatient
program and not need to enter an inpatient program. He
highlighted that this could result in a cost savings if this
program works.
CHAIR ROKEBERG mentioned that there is another drug, Bufano
(ph), which has experienced some efficacy in Europe and Canada.
Number 0856
REPRESENTATIVE MEYER asked if everyone can use Naltrexone.
MR. TURNER explained that Naltrexone has to be prescribed by a
physician. There could be some side effects to Naltrexone. As
with any drug that a person has to metabolize, Naltrexone would
probably not be prescribed to a person with a severely damaged
liver. Therefore, the use of Naltrexone will occur on a case-
by-case basis.
REPRESENTATIVE MEYER expressed his hope that these therapeutic
courts will become common [before] the end of the trial period,
which he hopes will only last six months to a year.
Representative Meyer inquired as to the success rate in regard
to residential versus outpatient treatment.
MR. TURNER pointed out that the two are very different.
Individuals in outpatient treatment are assessed in the earlier
stages of the disease and their problems are a lot less severe
than those in inpatient [facilities]. He also noted that the
earlier a disease is identified, the better chance there is for
recovery. Mr. Turner surmised that in therapeutic court some of
these individuals will be assessed as needing inpatient
treatment. However, EM and Naltrexone would end the need for
inpatient [treatment].
Number 0695
JOHN M. RICHARD, Municipal Prosecutor, Criminal Division,
Municipality of Anchorage Department of Law, testified via
teleconference. Mr. Richard stated his support of [HB 172]. He
reviewed the chronology of the mental health court and Judge
Wanamaker's wellness court, which he believes to be an
extraordinary accomplishment. Furthermore, he expressed his
pleasure in seeing the adequate funding and forethought by the
legislature in ratcheting this up a notch to the superior court.
However, Mr. Richard expressed concern about the 12,000 cases
handled in district court because that is a lot of people that
need help. He estimated that below 10 percent or perhaps even
below 5 percent of the people in district court have felony
records and almost all felony offenders have misdemeanor
records. In regard to addressing the disease in its early
stages in the criminal justice system, that would mean
addressing it in district court because people go to district
court before going to superior court.
CHAIR ROKEBERG requested that Mr. Richard review the difference
in the percentage of DWIs handled by the Municipality of
Anchorage versus the state. He also requested Mr. Richard's
analysis of the state's position regarding wellness court to
this point.
MR. RICHARD informed the committee that the Municipality of
Anchorage's jurisdiction is limited to misdemeanor offenses.
The municipal prosecutor's office began in approximately 1975
when a couple of positions were authorized by the assembly in
order to help out the [state] District Attorneys office with
some traffic cases, which he recalled were "fined" as DWIs. The
municipal prosecutor's office has expanded to employ about 35
people, of which a bit fewer than half are lawyers. This office
handles about 12,000 new misdemeanor filings a year and 1,500
petitions for revoked probation. Also, in recent years this
office has reassumed responsibility for about 10,000 contested
traffic cases a year. The state, on the other hand, can handle
all the misdemeanors that it wants to, although the state's role
in misdemeanors has diminished, as has its ability to devote
resources to misdemeanors. Therefore, it has been "a good
thing" that the municipality has been able to pick up the slack
so far.
MR. RICHARD also informed the committee that when the city
assumed responsibility for practically all the driving-while-
license-suspended (DWLS) cases, it amounted to about 40 percent
of the [state] District Attorneys office's misdemeanor caseload.
The District Attorneys office still handles violations for
domestic violence restraining orders, which are not on the
[Municipality of] Anchorage books. He said he thinks the
violations for domestic violence restraining orders and the
felony DWIs are the major mission of the misdemeanor section of
the Anchorage [prosecutor's] office. This approach is fairly
consistent because the district court handles all the felony
DWIs. He clarified that the district court judges act as
superior court judges pro tem when handling the felony DWIs.
CHAIR ROKEBERG surmised that could be due to the caseload at
that level.
MR. RICHARD answered, "I suppose." He said that it would be "a
good thing" if adding a superior court judge in Anchorage
allowed a district court judge to do district court work.
Number 0105
MR. RICHARD turned to the state's position on the time sequence,
which he says he understands and agrees with. If all those days
are added, the sum is 120 days. Mr. Richard pointed out that
until after an individual is sentenced, the individual can move
to withdraw the plea for any fair and just reason, which has
been liberally interpreted in this jurisdiction. After
sentencing, a plea may be withdrawn to correct a manifest
injustice, which is a more difficult situation. Mr. Richard
said he believes that to be the basis for the state's position,
and he agrees with it. However, he emphasized that sometimes
prosecutors and judges have to take chances on people. He said,
"The way we handle the case doesn't involve taking a plea and
...." [Tape ended mid-sentence.]
TAPE 01-38, SIDE A
Number 0016
MR. RICHARD referred to [the program at] Akeela House, Inc.
(Akeela), which is for 18 months. He noted that the Salvation
Army Adult Rehabilitation Program is used. That program is
between 12 and 18 months, and is not state approved. Sometimes,
all that time is necessary. He informed the committee of one of
his larger successes, which involved a young woman who had been
abused as a young child. This young woman was on the streets as
a teen and became a cocaine addict and prostitute. This young
woman was in court on about a dozen DWLS cases for which he
threatened the maximum time on all those cases. This young
woman ended up successfully completing [the program at] Akeela
and having a normal adult life. This illustrates that sometimes
it is necessary to use more time than the structure of this bill
would allow.
Number 0242
CARMEN CLARKWEEKS, Private Criminal Defense Attorney, testified
via teleconference. She informed the committee that she is a
former prosecutor for the State of Alaska, and worked for the
Appellate Union Division for the [Municipality] of Anchorage;
she also was the Deputy Chief Prosecutor and the Chief
Prosecutor for the [Municipality] of Anchorage. She related her
experience with drafting legislation for the Municipality of
Anchorage. She informed the committee that four of her drafted
pieces of criminal legislation are currently at the National
Model Law Institute for suggested model law for other
jurisdictions. Ms. Clarkweeks related her belief that she is
probably the only attorney who has appeared in wellness court,
mental health court, and "overall attorney court" as both the
prosecutor and defense attorney. Therefore, she felt that she
had some special insight.
MS. CLARKWEEKS remarked that HB 172 is, in theory, a good piece
of legislation, and she said that she would share her view on
ways to address some of the aforementioned concerns. She
directed the committee to page 4, line 21, subsection (k), which
has two conditions for bail or probation. She suggested moving
subsection (m) to be a third condition for bail or probation in
order to solve potential problems or conflicts with the U.S.
Supreme Court cases that discuss forcibly requiring people to
submit to medication between a change of plea and sentencing.
Additionally, she suggested that by adding a fourth condition,
which would require an individual to pay restitution as a
condition of bail, then Mr. Guaneli's fear that victims will be
left without restitution for a long time can be avoided. Ms.
Clarkweeks agreed with Mr. Guaneli regarding the importance of
victim satisfaction. However, she said, when victims come to
wellness and mental health court, they become supportive of the
recovery of the offender 99 percent of the time.
Number 0492
MS. CLARKWEEKS informed the committee that she taught a seminar
regarding [restitution] in Nygren v. State, which is the
decision that discusses receiving credit for time [served] under
electronic monitoring (EM). Her experience with this case has
led to her suggestion to delete subsection (l) entirely. She
explained that the Nygren decision says that "as a
constitutional rule, based on both the due process clause and
the equal protection clause, an individual who on bail is
subject to restrictions that are substantial restraint on
liberty, the equivalent of incarceration, (indisc.) entitles
credit."
MS. CLARKWEEKS said she was not sure that the legislature could
change constitutional law in this way. In the past there was
not legislative authority for EM as a condition of bail or
sentence and thus those requesting credit for time spent on EM
as a condition of bail have been denied. Ms. Clarkweeks also
informed the committee of an unpublished [Alaska] Court of
Appeals decision regarding the case of Jeffrey Jack McCraken
(ph), who requested credit for time he spent on electronic
monitoring between his conviction and the time his appeal was
decided. This unpublished decision said that "relief of
electronic monitoring was not the same as a substantial
restriction on incarceration, that it was similar to jail."
MS. CLARKWEEKS said that decision and the "Laws v. Gunter (ph)"
decision took place before the DOC had a program that released
people for EM. Now that the DOC allows EM to be credit towards
jail time, it will be interesting to say that EM as bail isn't
the same as what the DOC does. Ms. Clarkweeks expressed the
need for that to be decided in the courts rather than to hinder
this legislation, particularly when the judge has the power to
decide the sentence as he or she so chooses.
Number 0700
MS. CLARKWEEKS noted that as a criminal defense attorney, she
represents people currently in wellness court, who she said are
motivated, although they can't get their presumptive sentencing
taken away. Therefore, she said, "My clients, who are on
electronic monitoring for six or seven months, who are coming
into court once every three weeks to meet with the judge, are
doing all those things in recognition that in the end, they are
going to get little or no consideration for it. They are
motivated simply by the fear that if they don't change their
life now, they are going to hurt someone badly ... or that
they're going to die or they're going to rot in jail." She
mentioned that prosecutors have said to her that wellness court
is an "easy out" for the defendant, but that isn't so, because
the defendant receives almost no benefit. Furthermore, wellness
court is "hard work."
MS. CLARKWEEKS informed the committee that people who are
currently in a wellness court with a presumptive (indisc.) are
people with DWIs, for the most part, and the [state] District
Attorneys office has objected to every person being admitted
into that program. When people do get into the program, [the
District Attorneys office] has insisted that they leave wellness
court as a condition of getting charges dismissed. Therefore,
one could not continue in wellness court and receive the same
rules and agreements that would be afforded in criminal court.
She indicated that the same situation occurs in the mental
health court. Ms. Clarkweeks pointed out that the Municipality
of Anchorage has 95 percent of the people who are in wellness
court, while the State of Alaska has about 5 percent. She said,
"I have been told to my face, both as a prosecutor and as a
defense attorney, 'We don't want to be probation officers; it's
a waste of our time to sit there in court and have to hear how
these people are doing.'"
Number 0902
MS. CLARKWEEKS predicted that this attitude, coupled with the
provisions in HB 172, which provides people with more credit
than they currently receive, will cause the [state] District
Attorneys office to have more resistance. She related her
belief that the District Attorneys office will only agree to
utilize wellness court in cases in which [the District Attorneys
office] has weak proof of the offense. She emphasized, "Weak
cases legally, as opposed to offenders who are best suited to be
in the program, is a bad standard." She said such a standard
will likely lead to the program's failure.
MS. CLARKWEEKS, for the foregoing reasons, suggested that the
committee change subsection (e) on page 3 so that it would read
as follows:
"A criminal case may be referred to a therapeutic
court upon the request of the prosecutor, the
defendant, or the court if the defendant's request is
made within 45 days of arraignment. The court may
accept a defendant into the therapeutic court if the
defendant is not charged with an unclassified felony,
a class A felony, or an offense under AS 11.41.410 -
11.41.470, so long as the defendant is appropriate for
the therapeutic model and meets the standards of the
court."
This language would allow a presumably neutral fact finder, the
judge, to determine whether the defendant's background is
suitable for the program versus whether there is a weak case.
Ms. Clarkweeks related her belief that requiring the consent of
the prosecutor is a bad idea.
Number 1101
MS. CLARKWEEKS turned to the timeline and noted her agreement
that people should be allowed to opt in to the program. She
explained that her objection to the 45 days specified in
subsection (e) is because there isn't discovery at that point.
She said, "It isn't fair to make a criminal defense attorney
give advice to a client before they've had a chance to review
the tape recording, read the file, look at the photographs."
Therefore, she indicated the need to change that provision to
refer to 45 days to completion of discovery.
MS. CLARKWEEKS agreed that there should be early plea once an
individual is in the program. However, she disagreed with the
fast sentencing for the following reasons. First, she believes
that there will be more startup difficulties in obtaining
treatment than the DOC recognizes. Second, Ms. Clarkweeks
disagreed with the 120 days. She emphasized the need to remove
the 45 days [the time from which the defendant's arraignment
occurs] from the 120 days. Upon the defendant's entrance into
therapeutic court, there would be 45 days in which the defendant
would need to enter a plea. After the entry of the plea, there
would be 30 days for the court to enter a judgment of
conviction. Therefore, there would possibly be 75 days,
assuming the individual starts treatment when the plea is
changed, which will be difficult.
MS. CLARKWEEKS informed the committee that in wellness court
Judge Wanamaker requires the individual to do (indisc.) meetings
in 90 days as a function of enforcing the [use of] Naltrexone,
which an individual has to take for a certain period of time
before knowing if it's working. The individual only has 75
days, which doesn't work practically to provide the amount of
time to know if the treatment is working. That 75 days also
doesn't work for Ms. Clarkweeks, as a sentencing judge, because
she would want to know that these people can be sober longer
than 75 days before sentencing. She emphasized, "Seventy-five
days doesn't do it if you're talking about reducing a ten-year
presumptive term to zero." In conclusion, Ms. Clarkweeks
suggested that the committee could add the quick sentencing,
restitution, and victim's statement as a condition of bail
rather than "speed up the sentencing."
CHAIR ROKEBERG requested that Ms. Clarkweeks mark up the bill
and write a short memorandum [regarding her suggestions] to send
to the committee.
Number 1321
JULIE KITKA, President, Alaska Federation of Natives (AFN),
testified via teleconference. Ms. Kitka related that there are
still many questions regarding how this would work. She
questioned whether the court in Anchorage and the court in
Bethel would develop separately, one as an urban model and the
other as a rural model. Furthermore, there are concerns
regarding whether this would be adequately funded as well as
having the memoranda of agreement worked out with the various
parties involved. In regard to the Bethel court, she said,
there is no knowledge of the views of those in Western Alaska
regarding whether this model would be used as a mechanism to
resolve these issues. However, Ms. Kitka complimented the
sponsor's attempt to look at alternatives to the current system,
which AFN is very interested in. She noted that AFN is also
interested in ways to reduce recidivism and deal with alcohol
and drug abuse.
MS. KITKA informed the committee that AFN had a number of
meetings this past year with the [U.S.] Department of Justice
regarding alcohol and substance abuse. She expressed pleasure
in the fact that [former] U.S. Attorney General Janet Reno began
a directive to identify the best practices and strategies to
reduce alcohol and substance abuse among American Indians and
Alaska Natives. A report on these best practices was produced
in August 2000 by the Department of Justice. One of the
promising practices that is particularly relevant to Native
Americans is the Pueblo Zuni Recovery Center in New Mexico.
This recovery center takes a holistic approach to the different
segments of the community that are affected by substance abuse.
This recovery center has three primary programs: the
comprehensive day treatment program, the DWI school, and an
underage drinking initiative.
MS. KITKA further explained that although these programs focus
on different populations, the underlying core mission of
reducing the incidence of chemical dependency is [present in
all]. This underlying mission is achieved by helping the
clients to address their underlying issues with dependency and
to embrace a healthier lifestyle. The clients of this recovery
center are received from the tribal court that orders these
people to this recovery center. Ms. Kitka remarked that the
Pueblo Zuni Recovery Center is a model worthy of review. She
also suggested that this legislation could be modified such that
the Bethel therapeutic court could use a holistic approach. In
conclusion, Ms. Kitka informed the committee that AFN is working
on alcohol control and ways to promote sobriety. The holistic
approach is being reviewed as well as restorative justice.
Therefore, AFN does support the legislature in creating
alternative opportunities.
CHAIR ROKEBERG related his belief that this legislation is
intentionally drafted as uncodified state law in order to
provide flexibility to the judge. Therefore, presumably the
judge assigned to Bethel will have that ability. Chair Rokeberg
said, "I think that there is, clearly, the flexibility involved
in this bill to do precisely what you're endeavoring to do out
there in terms of the holistic or restorative justice approach."
MS. KITKA announced that AFN will follow this closely and will
attempt to provide the committee with some specific written
amendments and comments. She reiterated her hope to continue to
work with the legislature in developing alternative
opportunities that would address the root of the problem.
Number 1771
JANET McCABE, Chair, Board of Directors, Partners for Downtown
Progress, testified via teleconference. She explained that
Partners for Downtown Progress is a nonprofit corporation that
addresses social problems in the community. Specifically,
Partners for Downtown Progress has worked with Judge Wanamaker
to support the wellness court. Partners for Downtown Progress
has applied for and obtained funding from the Department of
Justice; this funding has paid for some of the noncourt costs of
the program. Ms. McCabe said that Partners for Downtown
Progress strongly supports the therapeutic court approach. Ms.
McCabe noted that she had submitted her suggestions to the
committee. The first suggestion is to add a new subsection (b)
that reads as follows:
It is the intent of the legislature to recognize and
continue the Anchorage Wellness Court as a separate
Therapeutic Court which has already demonstrated the
success of the therapeutic court approach and passed
beyond the pilot project stage. It is the intent of
the legislature that the Wellness Court continue to be
made available to municipal defendants charged with
misdemeanor crimes arising from addiction to or abuse
of alcohol, including misdemeanor charges for driving
under the influence of alcohol (DUI), but that it not
be bound by operating procedures set out for the
felony Therapeutic Court."
CHAIR ROKEBERG interjected that he believes that would be dealt
with in an amendment that the committee has.
Number 1848
MS. McCABE pointed out that the Department of Justice funding
that supports the extra court costs related to the wellness
court is going expire December 2001. Without a fiscal note or
federal funds supporting the wellness court, there will be no
funding for it. Therefore, she emphasized the importance of the
fiscal note [for HB 172] to include funding for the wellness
court. She specified that the best way to handle the funding
would be for it to go directly to the municipality. Partners
for Downtown Progress would like to participate as a nonprofit
and "lend what remaining money we have from our grant."
However, she expressed the need to have the legislature's
partnership.
CHAIR ROKEBERG asked if the grant was for $150,000 over a one-
year period.
MS. McCABE indicated that the grant is getting extended. She
explained that Partners for Downtown Progress supports
individuals up to $1,000 for their treatment and for the first
doses of Naltrexone as well as some scholarships for group
therapy. Ms. McCabe said that she felt that [using therapeutic
courts] is a good approach and cost-effective.
CHAIR ROKEBERG inquired as to the annualized budget.
MS. McCABE reiterated that the annualized budget was $150,000,
but the Partners for Downtown Progress is attempting to stretch
that amount [over] 18 months, which will barely cover 40
participants. [This program] has relied on the friendship and
goodwill of the prosecutor, defender, and court system. "We
can't keep costing them money and not pay for it," she said.
She specified the need for more money for the defender side of
the municipality as well as for the ability to cover more
people. Ms. McCabe stated that this program needs between
$300,000 and $400,000 annually in order to serve 40-70 people.
That money should go [directly] to the municipality and the
court system.
Number 1970
MS. McCABE continued her testimony and noted her strong support
of Ms. Clarkweeks' testimony regarding relying too heavily on
the DOL to support this program. In the past the DOL has not
indicated its support of the therapeutic court approach, Ms.
McCabe said; therefore, she was in support of modifying page 3,
lines 23-27, as suggested by Ms. Clarkweeks. Ms. McCabe also
urged the committee to delete the time deadline for entering a
plea and for entering a judgment of conviction. She said:
These provisions do not recognize that each case must
be handled individually in a therapeutic court. And
this is one of the critical elements to making the
process work. We would note that judges are selected
for their good judgment, and state law ... is not
needed to override their judgment ... by imposing a
specific time deadline.
The therapeutic judges are trained in this process, and one of
the items emphasized is the rapid timing involved in getting
people into treatment. She remarked that Mr. Guaneli is
mistaken in claiming that treatment will be delayed without
deadlines.
MS. McCABE turned to the issue of EM and urged the committee to
delete subsection (l) on page 4, line 26. She said:
The HAP/EM program, authorized by the legislature in
1998, has proved to be a highly effective therapeutic
treatment for addicted offenders. Defendants are
strictly constrained and monitored. Their activities
are highly limited, and sobriety is strictly enforced.
However, they are able to pay for the cost of their
own treatment. It really is at no cost to the state.
Furthermore, she said, HAP/EM makes it possible for the
defendant to earn money to pay restitution, which would be
difficult to do in jail. Ms. McCabe directed the committee's
attention to the law it passed in 1998, which she read as
clearly saying that HAP/EM is the equivalent of jail and that
there is no effective difference in the way that the program
works for sentenced and unsentenced prisoners.
CHAIR ROKEBERG requested that Ms. McCabe discuss the "grubstake
program."
MS. McCABE explained that participants sign a plan in which the
participant agrees to pay for half the cost of treatment.
[Partners for Downtown Progress] pays up to $800 or half the
cost of treatment, whichever is less. [Partners for Downtown
Progress] also pays for the first month of Naltrexone because
often these individuals are in a halfway house where they can't
obtain it. [Partners for Downtown Progress] also provides
scholarships for group programs that the judge includes in the
court order. Ms. McCabe said, "It has worked very well."
Number 2176
PATRICK JAMES, Attorney, began by saying that an armed robber
doesn't start off as an armed robber but rather as a petty
thief. Generally, this individual is going to be present in
juvenile court or district court, which is an appropriate time
for intervention. However, superior court deals with
individuals who have a long history of criminal activity. From
the defender's point of view, if an individual can enter
treatment prior to entering a plea and be given Nygren credit,
then it is a win-win situation. In such a situation, the
individual has tried to rectify the situation and the DOC's
burden of housing the individual has been relieved.
Furthermore, the individual is paying for this, which is an
incentive.
MR. JAMES said that currently the following two programs are
available: Lacosta (ph) and Nygren. Although some insurance
covers these, most of the cost is paid by the individual. Mr.
James informed the committee that he has never been able to get
the [state] District Attorneys office to agree to the
modification of a bail condition in order that the defendant
enter treatment and receive the Nygren credit. He related the
District Attorneys office's view as, "Lets have our pound of
flesh and then you can go into treatment."
MR. JAMES emphasized that with treatment, one must be self-
motivated. Obviously, one good reason to be self-motivated is
to stay out of jail. Mr. James informed the committee that he
has been doing defense regarding DWIs for about 20 years. In
his personal experience, first-time offenders who have attended
the Lacosta and Genesis House (ph) [programs] have low
recidivism rates. There is a high success rate because the
intervention occurs when the person wants it, and the individual
is looking at 72 hours versus a substantial amount of time. He
reiterated the need to start this in district court versus
superior court where there isn't time or where the individual is
already a hardened criminal. He mentioned that the [Partners
for Downtown Progress] is a good idea.
Number 2341
MR. JAMES pointed out that during the meetings used to set up
the wellness court, no one from the [state] District Attorneys
office was present. Furthermore, when in wellness court Judge
Wanamaker has requested that everyone applaud the individual for
his or her efforts, the only person not applauding is the
district attorney. Mr. James said, "If you think these people
[the District Attorneys office] are going to cooperate with the
court system, you're very much mistaken. They've got their own
agenda." With regard to the DOC, he explained that Lacosta and
Genesis House don't want to deal with the DOC because of the
control factors. With regard to the [deadlines for filing]
motions, Mr. James indicated support of Ms. Clarkweeks'
testimony on that issue.
MR. JAMES turned to the issue of credit for EM, which he viewed
as a ploy by the District Attorneys Office to obtain "their
pound of flesh." He reiterated that the District Attorneys
Office should not be trusted. Furthermore, he wasn't sure that
the legislature could saddle Bethel Superior Court with these
added responsibilities. In conclusion, Mr. James reiterated the
need to begin this process in juvenile court or district court.
TAPE 01-38, SIDE B
CHAIR ROKEBERG mentioned Ms. Clarkweeks' suggestion to change
the 45 days to discovery [rather than to arraignment].
MR. JAMES explained that the state doesn't start giving
discovery until the arraignment occurs, even though everything
is not complete at the time of arraignment. Therefore, 45 days
is an unrealistic timeframe. Mr. James agreed with Ms.
Clarkweeks in regard to the defendant opting in, once the
defendant is accepted into drug court. However, he said, "what
the state is trying to do here is, they will give you the carrot
if you're caught, but you're going to have to give up all that
stuff. And that'll never fly." Furthermore, he predicted that
the supreme court will object because it violates state and
constitutional rights.
Number 2412
MR. JAMES informed the committee that last summer Judge
Wanamaker put on a presentation in which it was brought out that
there are no treatment facilities for drug or alcohol abuse
available to a female through the DOC unless that female had at
least six months to serve. Currently, Lacosta is the only
facility that a female can go to for Nygren credit.
CHAIR ROKEBERG returned to Mr. James' discussion of the 45 days
and requested clarification.
MR. JAMES clarified that he believes an individual, after
entering a program, should have to do something in less than 45
days. He pointed out that this program is not for people who
don't accept their first responsibility, which is that they did
something wrong and need help.
CHAIR ROKEBERG related his understanding that currently the bill
is drafted such that the acceptance in the court is made within
45 days of arraignment. He asked if that is problematic.
MR. JAMES replied yes.
CHAIR ROKEBERG inquired as to where the line will be drawn
because [per Mr. James' testimony] discovery is never complete.
MR. JAMES reiterated that first an individual must admit that
there is a problem and commit to doing something about the
problem. Therefore, he said he believes that the individual
must commit himself to the jurisdiction by entering a no-contest
or guilty plea to the underlying charge shortly after acceptance
in the wellness program and before the actual treatment happens.
CHAIR ROKEBERG said, "Well, that's 45 days."
Number 2307
MR. JAMES clarified, "That's not 45 days from arraignment.
Arraignment is during the regular court. I'm talking from the
time of wellness court, not from the initial arraignment, which
happens 24 hours after arrest."
CHAIR ROKEBERG reiterated, "The bill says that you've got 45
days from arraignment to get accepted into the [wellness] court
and then you've got 45 days from the first appearance in the
court to make your plea."
MR. JAMES specified that the problem lies with the 45 days to
get accepted into the [wellness] court. He said he doesn't
believe that "we" are set up to handle it within that timeframe,
given the delays in the discovery and processing that are
inherent in this type of acceptance program. With such a
timeline, once the program has been entered into, the individual
accepts the fact that the legal issues involving his/her arrest
will not be litigated. In response to Chair Rokeberg, Mr. James
offered to provide further suggestions in writing.
Number 2188
JIM HENKELMAN, Statewide Outreach Coordinator, Outreach Program,
Yukon-Kuskokwim Health Corporation (YKHC), informed the
committee that he has been working for the YKHC in a number of
capacities over the past few years. He mentioned that Ms. Kitka
may not be aware of the extent to which YKHC has been involved
in the development of this bill. The YKHC strongly supports the
therapeutic court concept. However, Mr. Henkelman expressed
concern with the fiscal note that removes a district court judge
position in Bethel and replaces it with a superior court judge
position. He didn't see how that would significantly reduce the
overwhelming workload.
CHAIR ROKEBERG related his understanding that replacing a
district court judge position with a superior court judge
position was due to the difficulty in recruiting a district
court judge for the open seat.
MR. WOOLIVER agreed that there has been difficulty in recruiting
a district court judge for the open seat in Bethel. However, he
pointed out that "it's also a felony jurisdiction versus a
misdemeanor jurisdiction."
MR. HENKELMAN maintained that the huge caseload will remain. He
related his belief that the alcohol problem is serious and could
be significantly helped with the therapeutic court process. Mr.
Henkelman expressed his optimism for the benefits produced by
using the therapeutic court process, although it will take some
time before the benefits are evident.
MR. HENKELMAN, in response to Chair Rokeberg, said that he has
not been personally involved in this [therapeutic court] issue,
although he noted he has had a discussion with Orie Williams
(ph) and Sandra Mearnoff (ph) regarding this issue.
CHAIR ROKEBERG related his belief that this is an excellent
opportunity to provide for additional funding and work into a
more holistic approach. He requested that Mr. Henkelman speak
to the holistic approach.
MR. HENKELMAN remarked that he liked the language of HB 172 that
read, "Each therapeutic court shall be adapted to fit the
available local resources and cultural traditions." There are
many programs around the country that use traditional
approaches, he noted, as is the case with the YKHC treatment
programs for inhalants. To be able to utilize traditional
cultural values and traditional teachings in a therapeutic
process will make the treatment more successful for people in
the [rural] region in particular. Such an approach makes the
chances of long-term success much greater than with the Western
approach.
Number 1973
REPRESENTATIVE MEYER returned to the issue of the district court
judge position in Bethel. He asked if the district court
position is being changed to a superior court judge position or
if a judge is being added for six months.
MR. WOOLIVER explained that currently there is funding for a
district court judge, and there is an acting district court
judge in Bethel. However, that position has not been filled
with a full-time judge. Therefore, this bill pushes the current
district court judge position to that of a superior court judge.
In further response to Representative Meyer, Mr. Wooliver
clarified that a superior court judge would be added; there will
be two judges there. He specified that rather than having a
superior court judge and a district court judge, there will be
two superior court judges.
REPRESENTATIVE MEYER asked Mr. Henkelman if he felt that having
two superior court judges on a full-time basis would be helpful.
MR. HENKELMAN said he hears that the number of cases that a
superior court judge handles in Bethel is far more than any
other judge handles in the state. Therefore, there is a
critical need. He related his understanding that there are so
many cases that the court is run on a plea-bargain system in
order to go through as many cases as they can, as fast as they
can, which causes him some serious concerns.
Number 1885
RUDOLPH NEWAN, Graduate, Wellness Court, thanked Judge Wanamaker
for giving him the opportunity to turn his life around. His
past life was lost in the disease of alcoholism. He shared with
the committee that he was locked up 46 times in his life. The
wellness court works, and it would be great to expand it. Mr.
Newman informed the committee of a Newsweek article he read that
discussed a monthly shot for alcoholism. Mr. Newman reviewed
the changes in his life [since wellness court], changes that
have placed him back in society. He praised Naltrexone in
helping him stay sober, which has taken him 41 years to achieve.
Mr. Newman, a former Bethel resident, said that [the therapeutic
court] would be wonderful in Bethel. In conclusion, Mr. Newman
said, "It's not the carpenter building the house; it's the house
building the carpenter."
MR. NEWMAN, in response to Chair Rokeberg, informed the
committee that he graduated from the wellness court three years
ago, and he has not been taking Naltrexone for over three
months. He explained the process, which included Alcoholics
Anonymous (AA) meetings and Naltrexone-user meetings. The
meetings discuss what is going on in an individual's personal
life and how that individual makes it on a daily basis. Mr.
Newman specified that he took Naltrexone for six months, which
was his choice. At the same time, he was working on the 12
steps of AA.
Number 1529
REPRESENTATIVE MEYER inquired as to the possible side effects of
Naltrexone.
MR. NEWMAN answered that in his personal experience, Naltrexone
made him drowsy and made his stomach feel as if it were in
knots. He noted that the side effects are different for
different people. However, Naltrexone took the craving [for
alcohol] away so that he could focus on himself. He noted that
he did have nightmares. Mr. Newman also noted that he has an
excellent support system. In response to Representative Meyer,
Mr. Newman said he has been sober about ten months.
CHAIR ROKEBERG announced that the public hearing on HB 172 would
be held open. He noted his intention to hear HB 172 and its
amendments on Friday, at which time HB 4 and its amendment will
also be heard. [HB 172 was held over.]
ADJOURNMENT
Number 1322
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:01 p.m.
| Document Name | Date/Time | Subjects |
|---|