03/24/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| HB250 | |
| SB64 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 64 | TELECONFERENCED | |
| + | HB 250 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 127 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 24, 2014
1:20 p.m.
MEMBERS PRESENT
Representative Wes Keller, Chair
Representative Bob Lynn, Vice Chair
Representative Gabrielle LeDoux
Representative Lance Pruitt
Representative Max Gruenberg
MEMBERS ABSENT
Representative Neal Foster
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 127
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- MOVED CSHB 127(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 250
"An Act making an expression of apology, responsibility,
liability, sympathy, commiseration, compassion, or benevolence
by a health care provider inadmissible in a medical malpractice
case; requiring a health care provider to advise a patient or
the patient's legal representative to seek legal advice before
making an agreement with the patient to correct an unanticipated
outcome of medical treatment or care; and amending Rules 402,
407, 408, 409, and 801, Alaska Rules of Evidence."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 64(FIN)
"An Act relating to theft and property offenses; relating to the
definition of 'prior convictions' for certain theft offenses;
establishing the Alaska Criminal Justice Commission and
providing an expiration date; relating to the crime of custodial
interference; relating to the duties of the Alaska Judicial
Council; relating to jail-time credit for offenders in court-
ordered treatment programs; relating to conditions of release,
probation, and parole; relating to duties of the commissioner of
corrections and board of parole; establishing a fund for
reducing recidivism in the Department of Health and Social
Services; requiring the commissioner of health and social
services to establish programs for persons on conditions of
release or probation that require testing for controlled
substances and alcoholic beverages; requiring the board of
parole to establish programs for persons on parole that require
testing for controlled substances and alcoholic beverages;
relating to the duties of the Department of Health and Social
Services; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(STA)
02/27/14 (H) STA AT 8:00 AM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(STA)
03/06/14 (H) STA AT 8:00 AM CAPITOL 106
03/06/14 (H) Moved CSHB 127(STA) Out of Committee
03/06/14 (H) MINUTE(STA)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
03/07/14 (H) <Bill Hearing Canceled>
03/10/14 (H) STA RPT CS(STA) NT 1DP 1NR 3AM
03/10/14 (H) DP: LYNN
03/10/14 (H) NR: GATTIS
03/10/14 (H) AM: KELLER, KREISS-TOMKINS, HUGHES
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
03/14/14 (H) Heard & Held
03/14/14 (H) MINUTE(JUD)
03/19/14 (H) JUD AT 1:00 PM CAPITOL 120
03/19/14 (H) Heard & Held
03/19/14 (H) MINUTE(JUD)
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 250
SHORT TITLE: MEDICAL MALPRACTICE ACTIONS
SPONSOR(s): OLSON
01/21/14 (H) PREFILE RELEASED 1/17/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) HSS, JUD
02/27/14 (H) HSS AT 3:00 PM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(HSS)
03/13/14 (H) HSS AT 3:00 PM CAPITOL 106
03/13/14 (H) Scheduled But Not Heard
03/14/14 (H) HSS AT 8:00 AM CAPITOL 106
03/14/14 (H) Moved CSHB 250(HSS) Out of Committee
03/14/14 (H) MINUTE(HSS)
03/17/14 (H) HSS RPT CS(HSS) NT 6DP
03/17/14 (H) DP: REINBOLD, PRUITT, KELLER, NAGEAK,
TARR, HIGGINS
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SB 64
SHORT TITLE: OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL
SPONSOR(s): JUDICIARY
02/27/13 (S) READ THE FIRST TIME - REFERRALS
02/27/13 (S) STA, JUD
04/04/13 (S) STA AT 9:00 AM BUTROVICH 205
04/04/13 (S) <Bill Hearing Postponed>
04/09/13 (S) STA RPT CS 1DP 1NR 1AM NEW TITLE
04/09/13 (S) DP: DYSON
04/09/13 (S) NR: GIESSEL
04/09/13 (S) AM: COGHILL
04/09/13 (S) STA AT 9:00 AM BUTROVICH 205
04/09/13 (S) Moved CSSB 64(STA) Out of Committee
04/09/13 (S) MINUTE(STA)
07/25/13 (S) JUD AT 10:00 AM WASILLA
07/25/13 (S) Heard & Held
07/25/13 (S) MINUTE(JUD)
01/29/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/29/14 (S) Heard & Held
01/29/14 (S) MINUTE(JUD)
01/31/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/31/14 (S) Heard & Held
01/31/14 (S) MINUTE(JUD)
02/03/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/03/14 (S) Heard & Held
02/03/14 (S) MINUTE(JUD)
02/05/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/05/14 (S) Heard & Held
02/05/14 (S) MINUTE(JUD)
02/07/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/07/14 (S) -- MEETING CANCELED --
02/10/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/10/14 (S) Heard & Held
02/10/14 (S) MINUTE(JUD)
02/12/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/12/14 (S) Moved CSSB 64(JUD) Out of Committee
02/12/14 (S) MINUTE(JUD)
02/14/14 (S) JUD RPT CS 4DP 1NR NEW TITLE
02/14/14 (S) DP: COGHILL, MCGUIRE, WIELECHOWSKI,
DYSON
02/14/14 (S) NR: OLSON
02/14/14 (S) FIN REFERRAL ADDED AFTER JUD
02/25/14 (S) FIN AT 9:00 AM SENATE FINANCE 532
02/25/14 (S) Heard & Held
02/25/14 (S) MINUTE(FIN)
03/06/14 (S) FIN AT 5:00 PM SENATE FINANCE 532
03/06/14 (S) Heard & Held
03/06/14 (S) MINUTE(FIN)
03/11/14 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/11/14 (S) Heard & Held
03/11/14 (S) MINUTE(FIN)
03/11/14 (S) FIN AT 5:00 PM SENATE FINANCE 532
03/11/14 (S) Heard & Held
03/11/14 (S) MINUTE(FIN)
03/13/14 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/13/14 (S) Moved CSSB 64(FIN) Out of Committee
03/13/14 (S) MINUTE(FIN)
03/14/14 (S) FIN RPT CS 3DP 1NR 3AM NEW TITLE
03/14/14 (S) DP: KELLY, MEYER, HOFFMAN
03/14/14 (S) NR: OLSON
03/14/14 (S) AM: FAIRCLOUGH, DUNLEAVY, BISHOP
03/14/14 (S) TRANSMITTED TO (H)
03/14/14 (S) VERSION: CSSB 64(FIN)
03/17/14 (H) READ THE FIRST TIME - REFERRALS
03/17/14 (H) JUD, FIN
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ERIKA O'SULLIVAN, Staff
Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 250 on behalf of the prime
sponsor, Representative Kurt Olson.
MEGAN WALLACE, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Services
Juneau, Alaska
POSITION STATEMENT: Spoke to the difference between an admission
and a statement against interest within HB 250.
MIKE HAUGEN, Executive Director
Alaska State Medical Association
Anchorage, Alaska
POSITION STATEMENT: Testified regarding improved communication
in the medical arena and in support of HB 250.
JORDAN SHILLING, Staff
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 64 as staff to the Senate
Judiciary Committee, which Senator John Coghill chairs.
TRACEY WOLLENBERG, Deputy Director
Appellate Division
Central Office
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided suggestions for SB 64.
ACTION NARRATIVE
1:20:20 PM
CHAIR WES KELLER called the House Judiciary Standing Committee
meeting to order at 1:20 p.m. Representatives Gruenberg,
LeDoux, Lynn, Pruitt, and Keller were present at the call to
order.
HB 127-OMBUDSMAN
1:21:51 PM
CHAIR WES KELLER announced that the first order of business
would be HB127, "An Act clarifying that the Alaska Bar
Association is an agency for purposes of investigations by the
ombudsman; relating to compensation of the ombudsman and to
employment of staff by the ombudsman under personal service
contracts; providing that certain records of communications
between the ombudsman and an agency are not public records;
relating to disclosure by an agency to the ombudsman of
communications subject to attorney-client and attorney work-
product privileges; relating to informal and formal reports of
opinions and recommendations issued by the ombudsman; relating
to the privilege of the ombudsman not to testify and creating a
privilege under which the ombudsman is not required to disclose
certain documents; relating to procedures for procurement by the
ombudsman; relating to the definition of 'agency' for purposes
of the ombudsman Act and providing jurisdiction of the ombudsman
over persons providing certain services to the state by
contract; and amending Rules 501 and 503, Alaska Rules of
Evidence." [Before the committee was proposed committee
substitute (CS) for HB 127, Version 28-LS0088\D, Gardner,
3/19/14.]
CHAIR KELLER spoke of his conviction that HB 127 is one of the
most important bills in the legislature this session.
1:22:52 PM
CHAIR KELLER noted that more work needs to be done on the law
defining the ombudsman. He noted a constituent call he received
last night regarding the importance of the legislature having an
investigative branch that can look into "the activities of where
ever we spend our money." Chair Keller said that it is
important to have a strong ombudsman with investigative
jurisdiction. "It helps the legislature maintain in a state
that ... has a strong executive/judicial element and a weaker
legislature, and that is why I was determined to go slow with HB
127." Unfortunately, he said, he has been streamlining the
process so the more essential elements of the bill can pass
[this session], but there is a consensus on the committee that
this issue will continue into the interim.
1:25:13 PM
CHAIR KELLER closed public testimony.
1:26:19 PM
REPRESENTATIVE MAX GRUENBERG thanked everybody who worked on the
bill. He noted that good progress has been made in coming to
where it is today. He said the committee is down to one
amendment, and he moved to adopt Amendment 1, labeled 28-
LS0088\D.1, Gardner, 3/20/14, which read:
Page 3, lines 9 - 10:
Delete "construction, and office space"
Insert "and office space, and for construction limited
to providing and maintaining office space for the
office of the ombudsman"
1:26:24 PM
CHAIR KELLER objected.
1:26:55 PM
The committee took an at-ease from 1:26 p.m. to 1:28 p.m.
1:28:17 PM
REPRESENTATIVE GRUENBERG withdrew Amendment 1 and moved to adopt
proposed committee substitute (CS) for HB 127, labeled 28-
LS0088\D, Gardner, 3/19/14, as the working document.
1:28:45 PM
CHAIR KELLER objected.
1:29:46 PM
CHAIR KELLER removed his objection. There being no further
objections, Version D was before the committee.
1:29:58 PM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 1, labeled 28-
LS0088\D.1, Gardner, 3/20/14, [text provided previously].
CHAIR KELLER objected.
1:30:20 PM
REPRESENTATIVE GRUENBERG stated that [CSHB 127, Version] D, page
3, line 9-10, appears to provide the ombudsman with the
opportunity to engage in any kind of construction or to acquire
and renovate any kind of office space. It is the intent of the
committee to limit the language to office space for the
ombudsman's office, he opined. The amendment makes this
clarification, he explained.
1:31:21 PM
CHAIR KELLER removed his objection. There being no further
objections, Amendment 1 was adopted.
1:31:41 PM
REPRESENTATIVE BOB LYNN moved to report CSHB 127, labeled 28-
LS0088\D, Gardner, 3/19/14, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objections, CSHB 127(JUD) was reported from the
House Judiciary Standing Committee.
1:32:01 PM
The committee took an at-ease from 1:32 p.m. to 1:34 p.m.
1:34:24 PM
HB 250-MEDICAL MALPRACTICE ACTIONS
CHAIR KELLER announced that the next order of business would be
HB 250, "An Act making an expression of apology, responsibility,
liability, sympathy, commiseration, compassion, or benevolence
by a health care provider inadmissible in a medical malpractice
case; requiring a health care provider to advise a patient or
the patient's legal representative to seek legal advice before
making an agreement with the patient to correct an unanticipated
outcome of medical treatment or care; and amending Rules 402,
407, 408, 409, and 801, Alaska Rules of Evidence."
REPRESENTATIVE GRUENBERG moved to adopt CSHB 250(HSS) 28LS0967\P
as the working document. There being no objections, Version P
was before the committee.
1:35:24 PM
ERIKA O'SULLIVAN, Staff, Representative Kurt Olson, Alaska State
Legislature, offered the following statement:
My named is Erika O'Sullivan, Staff to Representative
Kurt Olson. Before you today is HB 250, "An Act
making an expression of apology, responsibility,
liability, sympathy, commiseration, compassion, or
benevolence by a health care provider inadmissible in
a medical malpractice case; requiring a health care
provider to advise a patient or the patient's legal
representative to seek legal advice before making an
agreement with the patient to correct an unanticipated
outcome of medical treatment or care; and amending
Rules 402, 407, 408, 409, and 801, Alaska Rules of
Evidence." Before I get into the presentation of the
bill, I would like to acknowledge that Mr. Mike
Haugen, the Executive Director of the Alaska State
Medical Association is online, as is Ms. Megan Wallace
from [Legislative Legal Services], and hopefully Mr.
Doug Wojcieszak, the author of Sorry Works, will be
attempting to call in, but he is on the East Coast and
has some prior commitments so we'll see if we can get
him online as well. So they will be available to
testify or answer questions. We'll start by
addressing the intent of the bill and then go into an
explanation of changes. House Bill 250, also known as
the "I'm sorry" bill, would render expressions of
apology or sympathy by a health care provider to a
patient related to an unanticipated outcome of
treatment inadmissible as evidence in a malpractice
case. This is similar to legislation that has passed
in over 30 states. As you saw in your bill packets,
there is a state-by-state breakdown of the legislation
in a document assembled by the American Medical
Association. As addressed in the sponsor statement,
the bill is intended to clear up the gray area which
now exists between apologies and admissions of
neglect, and to improve doctor/patient relationships,
especially in cases ending in a less than favorable
outcome. Unfortunately, health care providers often
cut off communication after adverse events, which can
lead to anger and the perception that there is a lack
of caring, or that a mistake was made even if in
reality no error occurred. It is not negligence but
rather a failure in communication between the provider
and patient that often results in malpractice
lawsuits. This bill will by no means prohibit
malpractice lawsuits, but to quote Bioethicist Arthur
Caplan, whose full interview you saw in your bill
packets, "You can talk about your feelings without
having that held against you or being the trigger to a
lawsuit." This legislation will enable health care
providers to better fulfill their moral and ethical
responsibilities to patients and their families for
expressions of compassion and sympathy without fear of
retribution in the form of a lawsuit. And, I can now
go into an explanation of the changes in Version A to
Version P, if that is what the committee is interested
in. Okay.
1:38:09 PM
So, the changes from the original bill version to the
version you see in front of you, Version P, are as
follows: on page 1, line 1, of the bill title the word
liability was deleted. It was also deleted under
Section 1(a) on page 1, line 12, and under Section
2(1) on page 3, line 6. The sponsor felt that
including the word liability undermined the intent of
the bill and that an expression of liability was in
fact closer to an admission of negligence and should
not necessarily be excluded in the civil case or
arbitration. Under Section 1(a) on page 2, line 14,
subsection (5) was added. And, this subsection was
added with the intent of closing a potential loophole
should an indirect offer to compromise, write off, or
furnish payment occur. Under Section 1(a) page 2,
line 18, subsection (b) was added. And, this
subsection, basically, the sponsor felt this was
necessary to clarify that if a statement prefaced by
or made in conjunction with an admission of negligence
or liability be subject to additional scrutiny and not
necessarily be deemed inadmissible. On page 3, line
7, of the Section 09.55.545, the word "to" was deleted
and "in writing that the patient or patient's legal
representative may" was added. This addition of "in
writing" remedies a potential proof problem; it was
something that was brought forth by co-sponsor
Representative Gruenberg, so this way everyone has
their bases covered, everyone is informed of their
rights, and changing the word "to" to the word "may"
again insured that patients or their representatives
were made aware of their rights but this was not a
directive to seek legal counsel. So again, making
aware versus a directive.
1:40:11 PM
And finally, under Section 4, page 4, line 4, the
CONDITIONAL EFFECT was amended to include Section AS
09.55.545. This was basically a language cleanup
because in the original bill only AS 09.55.544 would
require a 2/3 majority to take effect, and this left
open the possibility that should the bill pass with a
simple majority that one section would be added and
the other section would not. So, this was to ensure
that those sections were added.
1:41:19 PM
REPRESENTATIVE GRUENBERG questioned if there is a technical
difference between an "admission" and a "statement against
interest," and he requested the citation for the two issues in
the Rules of Evidence.
1:42:14 PM
MEGAN WALLACE, Attorney, Legislative Legal Counsel, Legislative
Legal and Research Services, Legislative Affairs Services,
explained that an admission is considered not hearsay under
Alaska Rules of Evidence 801, and a statement against interest
is an exception to the Hearsay Rules under Alaska Rules of
Evidence 804.
1:43:12 PM
REPRESENTATIVE GRUENBERG surmised that located on page 2, lines
[20-22], are expressions of sympathy that are inadmissible, but
if it is legally an admission [of liability] that is admissible.
He suggested the language be changed to "an admission or a
statement against interest," since they are legally two
different [issues].
1:44:24 PM
MS. WALLACE said that HB 250 does not define admission as only
an admission under Alaska Rules of Evidence 801, and she thought
it might clarify whether the statement is construed as an
admission or a statement against interest. She opined that the
legislature can't determine every statement that this rule will
apply to as to whether a court would construe it to be an
admission or just a statement against interest. She said that
admission of liability or negligence is just a general term, and
it was not intentionally meant to be constrained to the
definition of admission by party opponent under Alaska Rules of
Evidence 801.
REPRESENTATIVE GRUENBERG, as co-sponsor, said they would take a
few days to look at this issue, as a sharp lawyer might say he
or she is not offering this as an admission, but a statement
against interest, and that is not the intention of HB 250. He
expressed that he thinks it is a very good bill.
CHAIR KELLER agreed, and he said that the fact that it is law in
over 30 tells us that most of these questions have probably been
vetted many times. "So we shouldn't have a whole lot of trouble
getting the bugs out of it," he added.
1:47:19 PM
REPRESENTATIVE LYNN noted his understanding about a doctor
telling a relative of someone who passed away that they are
sorry for their loss and they have his or her sincerest
sympathy, but how would HB 250 address a doctor saying "I'm
really sorry I left the sponge in your lungs?" He asked if that
would be admissible evidence.
MS. O'SULLIVAN advised that the addition of subsection (b) [page
2, lines 18-22] was attempted to address that concern exactly.
There is precedence in 20 other states where similar subsections
exist to clarify that if an admission of negligence is made in
conjunction with an apology, without expression of benevolence,
that that statement is subject to additional scrutiny.
1:49:10 PM
REPRESENTATIVE GABRIELLE LEDOUX asked for the purpose of HB 250,
because a statement of apology, sympathy, commiseration, or
compassion has nothing to do with a statement of liability. She
questioned why it would be introduced as the plaintiff would not
introduce it to make the doctor look good, "if all you're
talking about is if the doctor said, 'I'm really sorry this
happened.'"
1:51:12 PM
MS. O'SULLIVAN responded that there is a strong precedence for
these bills in other states as members of the medical community
have expressed it feels like there is a gag order on them in
that they cannot communicate effectively with their patients;
they feel hindered by the fear of lawsuits. She opined that HB
250 attempts to get the conversation going and stop lawsuits
before they happen. She then referred to the Journal of Health
& Life Sciences Law contained within each member's packet on
page 133-134, wherein a survey was performed and 37 percent of
respondents said that if there had been an apology or
explanation of what had happened that they would not have sued.
These laws are an important component in the bigger picture of
malpractice reform, and she explained that she has spoken with
doctors and their representatives and they feel HB 250 is
necessary. Ms. O'Sullivan deferred to the Executive Director of
the Alaska State Medical Association [Mike Haugen] to speak in
more detail.
1:52:20 PM
REPRESENTATIVE LEDOUX speculated that [physicians] may be
hamstrung by the actual statute, or they may be hamstrung
because their insurance company gives them strict orders to keep
their mouths shut.
1:55:23 PM
MIKE HAUGEN, Executive Director, Alaska State Medical
Association, stated that the Alaska State Medical Association
supports HB 250. Physicians feel it should lead to improved
communications between patients and physicians, and it should
lessen the chance for miscommunication which results in fear of
litigation, he opined.
1:56:09 PM
CHAIR KELLER announced HB 250 was set aside.
SB 64-OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL
1:56:20 PM
CHAIR KELLER announced that the final order of business would be
SB 64, "An Act establishing the Alaska Sentencing Commission;
relating to jail-time credit for offenders in court-ordered
treatment programs; allowing a reduction of penalties for
offenders successfully completing court-ordered treatment
programs for persons convicted of driving while under the
influence or refusing to submit to a chemical test; relating to
court termination of a revocation of a person's driver's
license; relating to limitation of drivers' licenses; relating
to conditions of probation and parole; and providing for an
effective date." [Before the committee was committee substitute
(CS) for SB 64(FIN).]
1:57:32 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, stated that SB 64 was introduced last session and
was heard in the Senate State Affairs, Judiciary, and Finance
Standing Committees and also during the interim. The Department
of Law (DOL), Public Defender Agency, Department of Corrections
(DOC), Department of Public Safety (DPS) and the Alaska Court
System have worked consistently throughout the process to
produce CSSB 64.
1:58:45 PM
REPRESENTATIVE LANCE PRUITT moved to adopt CSSB 64, labeled 28-
LS0116\L as the working document. Hearing no objections,
Version L was adopted.
1:59:09 PM
MR. SHILLING continued with a slide presentation, and [page 2 of
the slide show] showed the state-of-the-art, medium security
facility, Goose Creek Correctional Center, which opened in 2011
for $250 million to build and $50 million to operate. The cost
to house an inmate is approximately $160 per day and $5,400 per
year, which is roughly twice as much as it costs to house a
prisoner in the lower 48. He noted that Alaska is at a
crossroads in that if the prison population continues to grow at
its current rate (an average of 3 percent a year with the budget
growing approximately 7 percent per year), the state's prisons
will be full again in two years. [Page 4] depicts Alaska's
Institutional Inmate Population from fiscal years (FY) 2003 to
2020. He related that the state must either plan to build a new
prison now, send the state's prisoners outside, or look at
programs that have proven to work. He noted there are programs
other states have implemented to reduce recidivism, reduce the
budget, and put off the huge capital and operating expenses of
building another prison. He stated that approximately 2/3 of
the state's prisoners have returned to prison within
approximately three years of release, and most return in the
first six months. Alaska has one of the highest recidivism
rates in the country. With state revenues falling, "is this how
Alaska wants to spend its money?" he asked.
MR. SHILLING said many states have been in the same position of
needing new prisons, so they identified issues that were driving
their prison growth and passed laws to fix the problems. Over
the past couple of years, 15 states that worked on justice
reform have actually closed prisons. Texas was faced with
building four new prisons and instead the state funded
evidenced-based programs and actually closed a few prisons a
couple of years later. Kentucky is projected to save
approximately $400 million over the next decade, and Arkansas
expects to save about a billion dollars. "Alaska hasn't done
much in the way of corrections reform," he noted. A majority of
Alaska's criminal statutes were rewritten in 1982, and since
that time, effective ways to address prison problems have been
found. He explained that the three goals of SB 64 is to improve
public safety, reduce recidivism, and reduce cost. The DOC has
similar goals; its mission statement includes secure
confinement, reformative programs, and community re-integration.
Those goals are pulled from the Alaska Constitution, so "it's
not that their goals or missions are wrong, it's how they're
allocating their resources to reach those goals," he opined. He
presented a graph of DOC resource allocation, and the highest
allocation for full-time positions is in secure confinement, and
only about 4 percent of its staff work on reformative programs.
Additionally, only 6 percent of money spent is on reformative
programs, and "it's actually those very areas where we can
affect recidivism-it's the reformative programs and the
supervised release," he explained. If Alaska keeps doing the
same things, it will keep getting the same results.
MR. SHILLING said [page 9] depicts Alaska's drop of
approximately 1.5 percent in recidivism over four years; it is
not happening quickly enough. He reiterated that at that rate,
Alaska's prison system will be full by 2016. Senate Bill 64 has
eight main pieces will help the recidivism problem. It
establishes a 24/7 [24 hours a day and 7 days a week] sobriety
program, which includes twice-a-day alcohol testing and swift
punishment for violations. The bill creates the Alaska Criminal
Justice Commission to evaluate Alaska's system and make
recommendations, including sentencing recommendations. The bill
expands a program called Probation Accountability with Certain
Enforcement (P.A.C.E.), which is an intensive type of probation
that decreases drug use and new crimes, and ultimately decreases
days spent in jail. Senate Bill 64 also requires the DOC to
conduct more assessments of its prisoners, and it establishes a
recidivism reduction fund intended to grant money to
transitional or re-entry programs. The bill increases the 1970
felony theft threshold from $500 to $1,200, it incentivizes
residential treatment, and it expands the ability to receive
credit for time in treatment.
2:05:54 PM
MR. SHILLING responded to Chair Keller that the first three
sections of SB 64 deal with custodial interference. He advised
that these sections were the result of an amendment in the
Senate Judiciary Standing Committee and, he opined, it doesn't
necessarily fit the overall theme of the bill, but it is a
worthy effort. The sections close a potential loophole in the
Alaska Statutes. He explained that if an abductor goes into a
school or day care, essentially impersonating a parent, and
attempts to take that child, he or she can only be charged with
criminal mischief in the fourth degree, even though it is
clearly an attempted abduction. Section 2, page 2, creates a
crime of custodial interference in the second degree if an
individual attempts to abduct a child in that manner, he stated.
2:07:14 PM
REPRESENTATIVE GRUENBERG related that there is custodial
interference in the first and second degree. First degree
custodial interference involves taking a child out of the state
and is a felony, and second degree custodial interference is a
misdemeanor as the child is not removed from the state. He said
there is a U.S. Supreme Court decision wherein "that difference
is constitutional" and there may be an Alaska Supreme Court case
on the issue also. He then posed a question that he withdrew.
2:08:22 PM
REPRESENTATIVE LEDOUX asked, if the child's [abductor] is not a
relative, why is it custodial interference and not kidnapping?
2:08:40 PM
MR. SHILLING deferred to the Department of Law.
2:08:53 PM
REPRESENTATIVE GRUENBERG advised there is a general attempt
statute that applies to anything; "if you attempt murder you
marry the statutes up," he said. It could be considered a
conspiracy, as well, or attempted kidnapping.
2:09:25 PM
REPRESENTATIVE LEDOUX asked why it is not kidnapping for a
stranger to walk into a day care and claim to be the parent-
whether the stranger is caught there or actually takes the
child. She again questioned why the discussion was custodial
interference, why the sections are needed, and why it would not
be covered by the kidnapping statute.
2:09:58 PM
MR. SHILLING responded that the current custodial interference
statutes only apply to relatives, so the attempt is to bring
non-relatives under that umbrella. He agreed that it may be
appropriate and said he will research the issue.
2:10:13 PM
REPRESENTATIVE GRUENBERG, in reference to page 2, lines 19-20,
said it must be shown that the defendant is not a relative, does
not have the right to keep the child, and is aware he or she has
no right to keep the child. He noted that, should an individual
make a statement that he or she has a legal right to take the
child, that statement would not be considered an attempt [as the
individual has not gone far enough into the crime]. It would
not be a conspiracy because [the action] does not require two or
more individuals; a conspiracy is a criminal contract. He
described this scenario as probably falling within a loophole as
the crime is not completed, and there is no kidnapping, but
simply a representation.
2:11:41 PM
MR. SHILLING continued that Sections 4-19 of SB 64 [pages 13-23
of the slide show] addresses the felony theft threshold put in
place by the 1978 legislature, in which the dividing line
between a misdemeanor theft and a felony theft is $500. The
threshold does not take inflation into account wherein $500 is
equal to approximately $1,800 today, and, he noted, what
amounted to a misdemeanor twenty years ago, now effectively
constitutes a felony. He stated that SB 64 goes into 15
different statutes where this monetary threshold has been
placed, and it includes theft and property crimes. "We raised
the level between a class C felony and a class A misdemeanor,
and, similarly, we moved the class B level up a little bit as
well," he stated [page 22 of the slide show].
2:13:03 PM
REPRESENTATIVE LEDOUX asked if the felony had mandatory jail
time.
MR. SHILLING responded that he was not sure if there is a
mandatory minimum on any of these property claims, and many are
pled down. He imagined there are some people who have committed
thefts who do not serve jail time-but some certainly do.
REPRESENTATIVE LEDOUX asked if they are pled down to
misdemeanors.
2:13:33 PM
MR. SHILLING responded that in some areas of Alaska the answer
is yes. He said he has heard that in the Matanuska-Susitna
Valley, for example, "they treat any theft, even if it is $501,
they don't plead down, they just go for the felony, but I've
heard in other areas in Alaska they do plead deals regularly."
One of the aspects of raising the felony theft threshold is the
cost it incurs on the state. The public defender's agency
demonstrates that defending a misdemeanor is approximately 1/3
of the cost of defending a class B or C felony [page 15 of the
slide show]. He added that most of these crimes are committed
by young people; those ages 18-30 commit the bulk of property
crimes. A felony conviction carries life-long consequences and
greatly diminishes an individual's ability to be productive. He
related that this problem disproportionally affects those in
rural Alaska and used the example that if a window is broken in
Juneau or Anchorage it could be under the $500 level, and yet
that same window could easily invoke a felony in rural Alaska
where everything is 30-40 percent more expensive. As inflation
continues, the problem continues, he stated, and year after year
it will become easier to be convicted of a felony and it will
cost the state more and more money.
2:15:11 PM
REPRESENTATIVE PRUITT offered a suggestion of language that
allows for the 30-40 increase of costs in rural areas. As
Alaska will always have a disparity in the price scenario, he
suggested coming up with a mechanism allowing local
municipalities the ability to determine the level. He said he
struggles with increasing [the threshold] on the basis that it
is more expensive in rural areas and prefers giving rural areas
the option to make that determination.
2:16:21 PM
MR. SHILLING responded that ultimately what the legislature does
with the sections will be a policy call with the House Judiciary
Standing Committee, and he found Representative Pruitt's
suggestion interesting as he had not heard it before. There
will always be a price disparity between rural and urban Alaska,
and he deferred to DOL as to how it could be implemented in SB
64. He noted there have been suggestions to actually peg the
felony theft threshold to inflation which would negate the
necessity to continually pass bills to track inflation.
2:17:48 PM
MR. SHILLING continued that Alaska is one of the last states to
adjust for inflation and noted the average threshold for 34
states is approximately $1,230. A concern from the small
business community is if the change will lead to more theft,
and, intuitively, it seems it might. However, Arkansas doubled
its threshold and has seen a steady rate of theft with no
increase; Ohio did the same and has a decrease in theft; South
Carolina is steady on theft; Maryland raised its threshold to
$1,000 and it slightly lowered the rate of thefts; and Delaware
and Utah have stayed steady.
MR. SHILLING noted that Alaska has been struggling with alcohol
for decades [pages 24-30 of the slide show] and the societal
cost is huge. He mentioned its role in Fetal Alcohol Spectrum
Disorders (FASD), suicide, domestic violence, and sexual
assault. He related that alcohol is a factor in most crimes.
It is involved in 75 percent of domestic violence offenses, and
public defenders will say that for 99 percent of their clients,
alcohol is a factor in their crimes. He stated that addressing
the issue of alcohol abuse will cause a reduction of recidivism
in Alaska. Mr. Shilling pointed out that Sections 20-22
establish the 24/7 Sobriety Program in the pre-trial phase. The
program was developed in South Dakota in 2005, and it curbs
alcohol use, makes the public safer, reduces recidivism, and
costs the state "next to nothing." The 24/7 program is a
growing trend in the United States; South Dakota, North Dakota,
and Montana have implemented the program. Eleven states,
including Alaska, have pending legislation, and five more states
are operating pilot programs. The program simply requires the
participant to refrain from using alcohol for 24 hours a day and
7 days a week, and it requires the participant to show up twice
a day for a breath alcohol test. In the event someone lives in
an area where it is not convenient to go to a testing site twice
a day, which is much of Alaska, the court can order that the
person use electronic monitoring, he explained.
2:20:45 PM
CHAIR KELLER asked, "How does the swift response-that makes it
so effective-work when it's an electronic monitor?"
2:20:52 PM
MR. SHILLING responded that the swiftness is much more important
than the severity of the sentence, which is a huge part of the
program. It is more difficult to implement with ankle monitors
and the response is slower; however, it does still reduce
recidivism. South Dakota has roughly 15 percent of their
participants on electronic monitoring because they live so far
away from the testing sites, and Mr. Shilling has effectiveness
data for the committee. This program is a new tool for Alaska,
and it helps to keep the public safe. The program is court
ordered and can be done as a condition of probation or parole,
or during pre-trial. If an offender commits a crime that falls
under unclassified felonies, class A felonies, sexual felonies,
misdemeanor or felony domestic violence, DUI refusal, or
misconduct involving a controlled substance, and alcohol is a
factor, the court can order that person on 24/7 sobriety. The
program is particularly effective for repeat DUI offenders and
is self-funded by the $4.00-$5.00 per day testing fees, which is
paid for by the offender.
MR. SHILLING said that the program can work anywhere that has
landlines and local law enforcement, which excludes communities
that do not have a Village Public Safety Officer (VPSO), for
example. An individual can test in person or with an ankle
bracelet, home-based device, or portable breathalyzer [page 27
of the slide show]. While in the program, participants remain
in society, conduct their daily lives, go to work, pay their
fees, and fulfill their responsibilities as long as they remain
sober. Persons can be on the program anywhere from a week to a
couple of years, he said. [Page 28 of the slide show] shows a
graph depicting an average participation of approximately three
months; the far right graph depicts individuals in the program
for about two years. He noted the program is based on personal
responsibility and is backed by swift and certain sanctions in
that if the offender "blows hot" he/she is arrested immediately
and receives a quick hearing and a short jail sentence, usually
one to three days. He said that judges in South Dakota schedule
these jail sentences over the weekend to not interrupt a
person's work week. "The program works; most people on the
program quit drinking completely," he said. Another 30 percent
of participants quit drinking after their first or second
violation, and the remaining 17 percent who have three or more
fails on the program are probably candidates for treatment. He
noted that South Dakota has been collecting data on the program
for 10 years, and they have a 74 percent reduction in recidivism
for folks between their second and third DUI [driving under the
influence], and between the third and fourth DUI, the reduction
is 44 percent. A study published in the [American Journal of
Public Health] showed a 9 percent decrease in domestic violence
and a 12 percent decrease in drunk driving. "The program is
reducing recidivism, it's making the public safer, and
ultimately it saves the state money." The bottom line is that a
majority of the people in the program quit drinking, and when
they are not drinking they are not committing new crimes, he
opined.
MR. SHILLING turned to Section 23, AS 12.55.027, which
incentivizes treatment and lays out the requirements to receive
credit for time served while in a treatment facility. By
relaxing requirements on treatment programs, the programs can
offer better treatment, and participants can more readily earn
credit for time served. Offenders have very little incentive to
enter a treatment program if they might not receive credit for
their time there, he stated. For 25 years the court made
determinations on what counted as credit for time served in a
treatment program based on years of case law, beginning with
Billie T. Ward Nygren, Appellant, v. State of Alaska, Appellee,
616 P.2d 20 (1980). In 2007, the legislature put this section
in statute, and it is much more restrictive than it was before
2007. It leaves little room for an offender to participate in
activities that these treatment programs would like to provide,
such as going to a job center or a vocational technical class,
attending church, or attending Alcoholics Anonymous (AA) or
Narcotics Anonymous (NA) meetings. The programs would like to
provide the abovementioned activities; however, if the
participants engage in those activities they are likely to
jeopardize getting credit for their time served. He suggested
relaxing the requirements in this statute as it will encourage
rehabilitation and will allow treatment programs to do more. It
also brings the statute more in line as to how things were done
prior to 2007. The changes in SB 64 are written so that the
state is still preventing credit for time served for going to a
dinner and a movie, for example. The program must remain very
restrictive such that the setting must be equivalent to
incarceration. The individual has to remain on the grounds of
the facility at all times and can only get a day pass for the
above-mentioned activities or any purpose directly related to
the individual's treatment. This section encourages treatment
and is by far less expensive to the state than a prison bed.
2:27:58 PM
REPRESENTATIVE GRUENBERG noted that the committee passed a bill
in response to a case on this point a couple of years ago. It
was proposed by the Legislative Affairs Agency, and he thought
the statutes no longer have the "approved in advance by the
court" provision.
2:28:34 PM
MR. SHILLING responded that he was aware of the statutes and had
performed research regarding the bill passed in 2007, which had
significant debate. The DOL represented this statute as
something that would largely be conforming to what the courts
were already doing. He surmised that, inadvertently, the
statute was much more restrictive than how credit for time
served had been treated before 2007. He opined that this is an
attempt to re-examine the actions in 2007.
REPRESENTATIVE GRUENBERG said that he thought "something" was
done after that.
2:29:46 PM
MR. SHILLING referred to Sections 26-28, the Public Advocates in
Community Re-Entry (PACE) program. When offenders are put on
probation they are basically given a list of things they cannot
do, like use drugs or drink alcohol.
2:30:05 PM
REPRESENTATIVE LEDOUX advised that she did not see ignition
interlock devices listed in Section 26.
MR. SHILLING said that is just the title of that Section and on
the committee's copy, Section 26 begins with subsection AS
33.05.020, subsection (f); however, he does believe ignition
interlock devices are discussed in other parts of the statute.
"You just can't see it here in SB 64."
2:31:03 PM
MR. SHILLING responded to Representative LeDoux that it is not
somewhere else in subsection (f), but somewhere else in AS
33.05.020, and SB 64 does not currently deal with interlock
devices at all.
2:31:25 PM
REPRESENTATIVE PRUITT stated that there is a reference in the
bill that the offender can either use the interlock device or
the 24/7 program. He thinks it may be a policy call, and there
is actually one point where if the offender screws up he or she
will be sent back to the interlock, and that doesn't make sense,
he opined.
2:32:06 PM
MR. SHILLING responded that there are no references to it in
Version L, although he has heard that a member of the committee
is working on an amendment. There are earlier versions of SB 64
in the Senate Judiciary Standing Committee where members had
attempted to work on a limited license concept, and an ignition
interlock was one of the requirements for getting a limited
license, he stated, but the current version of the bill does not
refer to the ignition interlock.
2:33:08 PM
MR. SHILLING continued his presentation and noted that Public
Advocates in Community Re-Entry (PACE) is a new way of doing
probation. Within the PACE program, should an individual
violate the conditions of his or her probation, it can trigger
an individual going back to jail. The revolving door of
individuals coming in and out of Alaska's prisons is one of the
biggest cost drivers to the Department of Corrections. "There's
a way to stop this revolving door," he stated. He read from the
2012 DOC Offender Profile that 14 percent of those serving time
were there due to parole or probation violations. He noted that
the PACE program was first developed in Hawaii and is now being
used in 17 other states. People on the program are re-arrested
less, use drugs less, miss fewer appointments with probation
officers, and ultimately spend fewer days in jail, he remarked.
The program involves frequent random drug tests, and it responds
to any violation with swift and certain circumstance, much like
24/7. Probation today, without PACE, comes with high rates of
violations, and often times affords offenders the opportunity to
continue using drugs, which in most cases means continuing to
commit crimes, he highlighted. Current drug testing tends to be
too infrequent and sanctions too rare and delayed, but yet when
sanctions are imposed, they tend to be too severe with months or
years in prison rather than a two to three-day jail term.
Probation officers have a lot of discretion, and PACE takes away
that discretion. Currently, a probation officer could have
someone on his or her caseload who violates multiple times, "and
finally when they rack up, say, seven violations, that probation
officer might finally revoke their probation and send them back
to jail." At that point, he explained, the person will have
several costly court hearings and may not be back in jail for
six months, "and so the sanction doesn't quickly follow the
violation." The PACE program and 24/7 are successful because
sanctions quickly follow the violation, and current probation is
anything except swift and certain. He noted that PACE is
intensive but can be low cost. In Hawaii, the program grew from
35 participants to more than 1,400 without adding courtrooms,
judges, court clerks, police officers, or jail cells. He
submitted that under SB 64, PACE will be established statewide
immediately, and the DOC estimates needing additional personnel
for the program. The PACE probationers are 55 percent less
likely to be arrested for a new crime, 72 percent less likely to
use drugs, 61 percent less likely to skip appointments, and
ultimately 53 percent less likely to have their probation
revoked and as a result serve 48 percent less days in jail. He
noted that 48 percent is a large amount when talking about
prison costs of $160 per day, per offender.
2:37:10 PM
CHAIR KELLER questioned if Hawaii's Opportunity Probation with
Enforcement (HOPE) is the same as PACE.
MR. SHILLING responded that it is exactly the same approach.
2:37:30 PM
MR. SHILLING continued his presentation with Section 29, which
deals with assessments the Department of Corrections (DOC)
conducts when an inmate enters prison, such as an interview and
evaluation in order to understand the inmate's risks and needs.
This type of assessment offers DOC an idea of the underlying
reasons the person committed the crime in the first place and
potential needs. Based upon that assessment, DOL gets a good
idea if the offender needs to be in PACE or in substance abuse
or mental health treatment. The Department of Corrections uses
a 54-item assessment, which looks into family and marital
issues, attitudes, and substance abuse and/or alcohol issues.
However, when an individual is sentenced to serve time in
Alaska, more often than not, they are not assessed or evaluated
and, therefore, DOC does not know the needs of most offenders in
prison. If they are not assessed, they cannot be linked to FASD
treatment or understand the underlying root causes of their
crimes. He related that the DOC assesses less than half of the
felons and hardly any misdemeanants even though misdemeanants
truly are Alaska's future felons. A risk-needs assessment takes
about 45 minutes, and Section 29 requires one for offenders who
have been sentenced to 30 days or more in prison. Therefore,
there will be a significant increase in the number of
assessments DOC will conduct, and the department estimates
needing additional probation officers to do them.
2:39:23 PM
CHAIR KELLER asked why risk assessments are not being performed
now.
2:39:40 PM
MR. SHILLING responded that it is partly not putting enough
emphasis on understanding the prison population, but more often
it is an issue regarding resources. He believes there is not
the necessary personnel to assess all of the inmates.
2:40:01 PM
CHAIR KELLER asked if an assessment requires special training or
if it is easily performed.
2:40:11 PM
MR. SHILLING noted that probation officers conduct the
assessments in the facilities and do receive training, but he
deferred to DOC.
2:40:26 PM
CHAIR KELLER asked if risk assessments are relatively new.
2:40:38 PM
MR. SHILLING responded that inmates have been screened and
assessed for quite some time. The model of assessment currently
used by DOC is an industry standard and he believes DOC adopted
it recently, but he deferred to DOC. He pointed out that
Section 29 has a delayed effective date for 2016 in order for
DOC to provide the necessary policies. He continued his
presentation and noted that the Senate Finance Committee CS
urges DOC to place more emphasis on FASD screening and
assessments. Mr. Shilling noted that SB 64 establishes a
commission to review, analyze, and evaluate the effects of laws
and practices within the state's criminal justice system.
Originally this commission had 17 members without a sunset
clause or an executive director. In an effort to reduce the
cost of the commission, certain positions were consolidated,
which left the group with 12 members. The Senate Finance
Committee eliminated two more positions, leaving the commission
with 10 members, and it provided for a 4-year sunset provision
and an audit provision.
2:42:43 PM
REPRESENTATIVE LEDOUX asked why only one ethnic group, the
Alaska Native Community, is represented on the commission.
MR. SHILLING said Native Alaskans are disproportionally
represented in the Alaska prison system. She made a good point,
and it is a policy call of the House Judiciary Standing
Committee, he added. The sponsor is open to that discussion.
2:43:30 PM
CHAIR KELLER stated it is appropriate for the House Judiciary
Standing Committee to make sure there are no gaps.
2:43:57 PM
MR. SHILLING added that the Senate Finance Committee made some
adjustments on the fiscal note. The Alaska Judicial Council
(AJC) reduced the number of staff it required, shaving
approximately $100,000 off the cost of the commission. He
further noted that the sponsor resisted adding an executive
director, which would have added quite a bit to the fiscal note.
He conveyed that the powers and duties of the commission were
pulled directly from the Alaska State Constitution. The
commission will be staffed by the AJC, he explained, and the
members of the commission will receive no compensation, meet at
least quarterly, and produce an annual report. Mr. Shilling
advised that the commission is an attempt to [reestablish] the
Alaska Sentencing Commission, which existed in the early 1990s
and produced some good work, and it will mainly review
presumptive sentencing.
MR. SHILLING said that one of the last main components of SB 64
is the Recidivism Reduction Fund [page 47-51 of the slide show].
When prisoners have served their entire sentence they are
released, and every state releases prisoners differently. Some
states transition them into halfway houses or some other type of
phased re-entry. In Alaska, more often than not, when prisoners
are released they are released into the parking lot. They do
not have first month's rent; they do not have money for a
deposit; they are very unemployable; and they do not have a
solid safety net, he explained. Many of these individuals go
directly to a homeless shelter, and many of them return to
prison within the first six months, and this is one of the root
causes of Alaska's high recidivism rate. Moreover, individuals
from rural Alaska are probably being released into a city
unfamiliar to them, and many do not have the same family network
that members of the community might have, he noted. As a
result, many individuals go back to jail "in no time." On the
other hand, he opined, if individuals could be put into a
transitional re-entry program, a place with a structured
environment, sober living, available treatment and case
management, and assistance in getting a job, the state could
greatly improve their chances of not re-offending. The graph
[on page 48] shows the recidivism curve, and a majority is
happening in the first year and not the first six months [he
corrected himself from prior testimony]. It is known that
treatment works, in that when DOC provides treatment in a
facility there is roughly a 20 percent drop in recidivism. He
opined that should the state [offer] treatment, assistance
getting a job, and housing during this critical and fragile
period after release, the state could see lower recidivism
rates. The recidivism fund can only distribute money to
programs that meet the following criteria [listed on page 51]:
there must be a case management program; it must require sober
living, treatment or a referral for treatment for substance
abuse or mental health must be available; there has to be a work
placement program, including vocational education or
volunteering; and there must be a one-year cap on the time a
resident can stay in the program. The Senate Finance Standing
Committee moved the fund from the DOC, which did not have the
infrastructure in place to run a grant fund, to the Department
of Health and Social Services (DHSS), which has the necessary
granting infrastructure to do so-much more inexpensively.
2:48:05 PM
CHAIR KELLER asked if DHSS would just manage the fund and
grants.
MR. SHILLING agreed. However, the DOC Commissioner must
cooperate with the Commissioner of DHSS on deciding where the
money goes, but the clerical administration of the fund would be
done by DHSS. Continuing, he said the rest of the legislature
refers to applicability, transitional provisions, and effective
dates. He noted that all of the changes made in the House
Judiciary Standing Committee on SB 64 apply to offenses
occurring on or after the effective date of the Act. The first
meeting of the Alaska Sentencing Commission will be held no
later than September 30, 2014. Sections 36 and 38 allow the
relevant departments to begin drafting regulations immediately
upon passage of SB 64, rather than wait until its effective
date. He reiterated that Section 37 creates a delayed effective
date for the assessment portion of SB 64, which allows DOC to
wait until 2016 to begin assessing individuals incarcerated 30
days or longer. Section 39 establishes an overall effective
date for SB 64, which is July 1, 2014.
2:51:12 PM
TRACEY WOLLENBERG, Deputy Director, Appellate Division, Central
Office, Public Defender Agency, Department of Administration,
referred to Section 2, the custodial interference provision, and
said her concern is the way it is currently written. She
expressed that it would criminalize a representation to a lawful
custodian that the person has a legal right to take or keep a
child without simultaneously requiring that the person has the
intent to actually act upon that representation. She suggested
language requiring not only that the state prove that the person
represented but that he or she had a right to [take the child].
That can entail a person making a simple statement to another
about a belief that he or she has a legal right, but also that
there is intent to actually act upon that representation. She
then stated her concern with Section 23, which is to conform to
pre-2007 law in allowing jail credit for time spent in
residential treatment. She noted that substantial time was
spent on this provision while SB 64 was in Senate Judiciary
Standing Committee. The Public Defender's Office spoke with the
Department of Law and the sponsor's office about this provision.
The provision was modified to accurately reflect that the credit
should hinge on whether the particular person is under
conditions approximating incarceration, rather than hinging on
whether the program allowed other residents to go out with
recreational passes. Her concern relates to subsection
(c)(2)(D), page 12, lines 29-31, as the wording is ambiguous and
may unintentionally cause credit to hinge on whether the
residents are generally eligible for a certain type of pass,
rather than credit hinging on whether the person is constrained
under conditions of confinement or conditions approximating
incarceration. She offered that the language could read
"periods during which the resident is permitted to leave the
facility for rehabilitative purposes directly related to the
person's treatment, so long as the periods during which the
resident is permitted to leave ...." In that manner, the credit
really ties into whether the person is under the conditions the
legislature envisions in order to qualify for credit, she
opined.
2:55:11 PM
REPRESENTATIVE GRUENBERG verified that conceptually the language
should say "during which the resident is" or "the defendant is."
MS. WOLLENBERG answered in the affirmative.
2:55:39 PM
REPRESENTATIVE GRUENBERG, referring to Ms. Wollenberg's
custodial interference language, asked if the language on [page
2], line 19, should be "the person intentionally represents
...." He added that the language currently says a person now
must know that he or she has no legal right "to do so," which he
thinks would carry the general mental intent to do the act and
reckless as to the effect. He asked if she felt it should be
that the person actually intends to misrepresent.... "You want
it so that it's not just a reckless intent, but an actual
specific intent to misrepresent. Am I right?"
MS. WOLLENBERG remarked that as written it criminalizes a
representation. In light of the default provision regarding
mens rea, the mental state for that would be "knowingly
represents to a lawful custodian that the person has a legal
right to take or keep the child or an incompetent person."
Conceivably, she said, that would criminalize someone from
saying to another person, "I have a right to take this child,"
if he or she knowingly makes that statement without necessarily
requiring proof of any corresponding intent to actually act on
that statement. The concept is building in an additional mens
rea that would require the state to prove that the person who
knowingly made the statement also had the intent to act on that
statement or intent to take the child.
CHAIR KELLER asked Ms. Wollenberg to work on the issue with the
sponsor.
2:58:34 PM
REPRESENTATIVE LEDOUX reiterated that if the intent is to take
the child, why it would not be attempted kidnapping instead of
custodial interference.
2:59:03 PM
CHAIR KELLER closed public testimony.
2:59:12 PM
REPRESENTATIVE GRUENBERG noted the [the act] would be an attempt
to interfere with the lawful custodian because the person
entitled to the child is the custodian so it is interference
with the parental right.
CHAIR KELLER said deliberation will continue on Wednesday.
3:01:26 PM
REPRESENTATIVE GRUENBERG noted that Representative LeDoux
brought up an issue that he has never fully thought about, and
that is the difference between custodial interference and
kidnapping.
3:02:12 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:02 P.M.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 127 (JUD) Proposed Amendments D.1 and D.2.pdf |
HJUD 3/24/2014 1:00:00 PM |
HB 127 |
| SB 64 - Bill Versions.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 - Fiscal Notes.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 - Support Documents.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 - Letters of Support-Opposition.zip |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |
| SB 64 Letter of Opposition~Fred Meyer.pdf |
HJUD 3/24/2014 1:00:00 PM |
SB 64 |