Legislature(2017 - 2018)GRUENBERG 120
10/23/2017 01:00 PM House JUDICIARY
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| Audio | Topic |
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| Start | |
| SB54 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 54 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
October 23, 2017
3:50 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Zach Fansler, Vice Chair
Representative Jonathan Kreiss-Tomkins
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
Representative Charisse Millett (alternate)
Representative Louise Stutes (alternate)
MEMBERS ABSENT
Representative Lora Reinbold
OTHER MEMBERS
Representative Andy Josephson
Representative Geran Tarr
Representative Justin Parrish
Representative George Rauscher
Representative Dan Ortiz
Representative Dan Saddler
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 54(FIN)
"An Act relating to crime and criminal law; relating to
violation of condition of release; relating to sex trafficking;
relating to sentencing; relating to imprisonment; relating to
parole; relating to probation; relating to driving without a
license; relating to the pretrial services program; and
providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 54
SHORT TITLE: CRIME AND SENTENCING
SPONSOR(s): SENATOR(s) COGHILL
02/10/17 (S) READ THE FIRST TIME - REFERRALS
02/10/17 (S) JUD, FIN
02/17/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/17/17 (S) Heard & Held
02/17/17 (S) MINUTE(JUD)
02/24/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/24/17 (S) -- MEETING CANCELED --
03/01/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/01/17 (S) Heard & Held
03/01/17 (S) MINUTE(JUD)
03/03/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/03/17 (S) Heard & Held
03/03/17 (S) MINUTE(JUD)
03/06/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/06/17 (S) -- MEETING CANCELED --
03/08/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/08/17 (S) Heard & Held
03/08/17 (S) MINUTE(JUD)
03/10/17 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/10/17 (S) Moved CSSB 54(JUD) Out of Committee
03/10/17 (S) MINUTE(JUD)
03/13/17 (S) JUD RPT CS 3DP 1NR NEW TITLE
03/13/17 (S) DP: COGHILL, COSTELLO, KELLY
03/13/17 (S) NR: MEYER
03/28/17 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/28/17 (S) Heard & Held
03/28/17 (S) MINUTE(FIN)
03/28/17 (S) FIN AT 1:30 PM SENATE FINANCE 532
03/28/17 (S) Heard & Held
03/28/17 (S) MINUTE(FIN)
03/31/17 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/31/17 (S) Heard & Held
03/31/17 (S) MINUTE(FIN)
03/31/17 (S) FIN AT 1:30 PM SENATE FINANCE 532
03/31/17 (S) -- MEETING CANCELED --
04/03/17 (S) FIN RPT CS 1DP 4NR 2AM NEW TITLE
04/03/17 (S) NR: MACKINNON, BISHOP, DUNLEAVY,
MICCICHE
04/03/17 (S) AM: HOFFMAN, OLSON
04/03/17 (S) DP: VON IMHOF
04/03/17 (S) FIN AT 9:00 AM SENATE FINANCE 532
04/03/17 (S) Moved CSSB 54(FIN) Out of Committee
04/03/17 (S) MINUTE(FIN)
04/07/17 (S) TRANSMITTED TO (H)
04/07/17 (S) VERSION: CSSB 54(FIN)
04/08/17 (H) READ THE FIRST TIME - REFERRALS
04/08/17 (H) STA, JUD, FIN
05/04/17 (H) STA AT 3:00 PM GRUENBERG 120
05/04/17 (H) <Bill Hearing Canceled>
10/23/17 (H) STA AT 12:30 AM GRUENBERG 120
10/23/17 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
BYRON CHARLES
Ketchikan, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified.
JEFFERY TEMPLE, Director
Corporate Affairs
Fred Meyer
Portland, Oregon
POSITION STATEMENT: During the hearing of SB 54, offered
support for the legislation.
BUTCH MOORE
Big Lake, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified.
ADAM LEGG
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified.
BONNIE LILLEY
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, offered
support for the legislation.
CHRISTINA LOVE
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified.
JORDAN SHILLING, Staff
Senator John Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, presented a
PowerPoint titled, "Senate Bill 54, An Overview" of the
legislation, and answered questions.
GREGORY RAZO, Chair
Alaska Criminal Justice Commission
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, presented a
PowerPoint titled, "Alaska Criminal Justice Commission, and
answered questions.
SUSANNE DIPIETRO, Executive Director
Alaska Judicial Council
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
NICOLE BORROMEO, Executive Vice President/General Council
Alaska Federation of Natives
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, offered AFN's
support for the legislation.
BEN MALLOTT, Vice President
Alaska Federation of Natives
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, offered AFN's
support for the legislation.
MIKE COONS
Palmer, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified.
JAHNA LINDEMUTH
Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified and
answered questions.
KACI SCHROEDER, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
TARA RICH, Legal and Policy Director
American Civil Liberties Union of Alaska
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, testified in
support of the legislation.
ACTION NARRATIVE
3:50:23 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 3:50 p.m. Representatives Claman, Kopp,
LeDoux, Fansler, and Millett (alternate) for Representative
Reinbold were present at the call to order. Representatives
Eastman, Stutes (alternate) and Kreiss-Tomkins arrived as the
meeting was in progress.
SB 54-CRIME AND SENTENCING
3:51:06 PM
CHAIR CLAMAN announced that the only order of business would be
CS FOR SENATE BILL NO. 54(FIN), "An Act relating to crime and
criminal law; relating to violation of condition of release;
relating to sex trafficking; relating to sentencing; relating to
imprisonment; relating to parole; relating to probation;
relating to driving without a license; relating to the pretrial
services program; and providing for an effective date."
CHAIR CLAMAN opened public testimony on SB 54.
3:51:59 PM
BYRON CHARLES advised that he has been part of the state system
for quite a few years and that he recently submitted a document
to Representative Scott Kawasaki depicting primary examples of
the types of programs that could be implemented in the state,
especially as to management of all property, waters, and more.
He explained that this particular training program would be
provided by the federal government for incarcerated young people
who were ready to return to society. He said, "I know for a
fact that the State of Alaska is using one person to make a
decision on all those that are incarcerated when it comes to
programs, and that's the state Mental Health Commission." He
related that he had witnessed two qualified psychologists who
were forced to leave their jobs and they were willing to work
with incarcerated individuals who desired to do something with
their lives. Currently, the federal government wants to be part
of this and he sincerely hopes they get (indisc.) because strict
sanctions can be imposed on those falling under the federal
policy that was applied to the state when it was a territory.
He said he would like to see more qualified psychologists
working with those incarcerated individuals who are willing to
do something with their lives and are willing to accept
responsibility for their actions.
3:55:13 PM
JEFFERY TEMPLE, Director, Corporate Affairs, Fred Meyer, advised
that Fred Meyer is a Northwest retailer with many stores located
in Alaska, it employs over 3,300 associates in the state, and it
supports SB 54. On behalf of Fred Meyer, he advised that during
the period, January 1, 2016 through September 24, 2016, theft
dollars recovered were approximately $1.2 million, and during
the same time period in 2017, it increased to $1.7 million;
theft dollars lost are calculated at $942,000 in the prior
period, and it increased to $1.1 million during the same period
for 2017. He explained that when this data is tallied and
aggregated, it creates a change of approximately $700,000 during
that time frame, and he asserted "this would be addressed
favorably" for Fred Meyer, and other businesses throughout the
State of Alaska, by passing SB 54.
CHAIR CLAMAN asked that Mr. Temple forward Fred Myer's data and
information to his office and will share it with the committee.
3:57:45 PM
BUTCH MOORE advised that he had previously forwarded suggestions
for SB 54, and referred to violations of conditions of release
prior to Senate Bill 91 [passed in the Twenty-Ninth Alaska State
Legislature], wherein a person could be sentenced to up to one
year, and that SB 54 changes it from zero to five days. For
example, in the event a violent offender violated the condition
of release of bail by being caught with a firearm, the state
should be able to give them more time. Also, he said, first-
time Class B felony convictions, prior to Senate Bill 91, were
one to three years minimum mandatory, and under Senate Bill 91,
it is zero to two years with a potential suspended imposition of
the sentence (SIS), and no jailtime. He stated that Attorney
General Jahna Lindemuth wrote a letter regarding SB 54, and
advised that 90 to 95 percent of all convictions were reached by
a plea deal. Therefore, he pointed out, in the event someone is
charged with a Class A felony and they plead to a Class B
felony, conceivably, they could receive no jailtime, and if they
were charged with a Class B felony and prosecuted, they could
potentially receive no jailtime. Significant changes need to be
made to SB 54 because the prosecution lost its ability to
bargain and an offender believes they will receive no jailtime,
he said.
4:00:26 PM
ADAM LEGG referred specifically to the sex trafficking language
in Secs. 3 and 4, and advised that in January, the Alaska
Criminal Justice Commission included a recommendation to the
legislature regarding potential loopholes created for sex
traffickers by the passage of SB 91. At that time, he said that
the commission said as follows:
The provisions of SB 91 that altered the sex
trafficking statutes were not based on any
recommendation from the commission. A legislative
history suggesting these provisions were intended to
ensure that sex workers simply working together, not
exploiting one another, could not be prosecuted for
trafficking each other, or trafficking themselves.
However, as passed, the provision could be read so
that a person who might otherwise be found guilty of
sex trafficking, i.e., someone receiving money for sex
work performed by others, could avoid prosecution if
that person engaged in sex work personally.
MR. LEGG stated that he agrees with the Alaska Criminal Justice
Commission, and other organizations working first-hand with
survivors of this heinous crime, and he urged the passage of SB
54 with its current sex trafficking language intact.
4:02:17 PM
BONNIE LILLEY advised she is a 58-year old single woman, and
since the passage of Senate Bill 91, her life has changed due to
the active drug dealers on her street, with many shootings and
thefts. She said she encourages the passage of SB 54; however,
she asked that it be strengthened and described that SB 54 is
like putting a band-aid on a cut to the jugular because it is
not enough to stop the rampant crime taking place in Alaska.
Rampant crime has been blamed on drugs and the economy, which is
true; however, due to these lenient laws with no repercussions
for theft and criminal activity, many people have started
businesses dealing in stolen goods. She asked that the
committee look at a possible means to finance a taskforce to
look into the professional criminal rings actively working in
Alaska because it is starting to take a toll on its citizens.
She stressed that she personally hates guns, but she now conceal
carries and she will not go to the local Fred Meyer without a
gun in her pocket due to the crime that has taken over Alaska.
She asked that the committee take this issue seriously, and
aggressively and rapidly work to solve the problem.
4:05:15 PM
CHRISTINA LOVE related that she is a single mother, a resident
of Juneau, and a survivor of domestic violence and sexual
assault. Ms. Love advised that when she was 12 years old, her
father was put in jail for crimes against her 12 siblings and
herself. She explained that she is a formerly incarcerated
person in long-term recovery for IV use of opioids and other
mind-altering substances, and described herself as a survivor
and overcomer. She said, "That's important because when we
first started this journey of Senate Bill 91, we really just
wanted an even playing field" because when she was released from
jail she did not have the same services or access to services
that her father received when released from jail as a convicted
pedophilia, such as access to food stamps, housing, and such.
She was not eligible for those services and, as such, her child
also did not have access to those services. She stated that the
bill is so important, especially when looking at her journey,
where she is now as a productive member of society in working
with people struggling with substance use, mental illness,
formerly incarcerated individuals, and those with hidden
disabilities. Previously, she advised, she was Juneau's
Disability Abuse Response Team Coordinator and her primary
purpose was working with people with disabilities to be sure
they had their services and; therefore, she has a good knowledge
of the state's systems of care and how to get people into
accessing those systems. She said that in speaking from her
experience, this bill has the opportunity to address those core
causes of what brings people into jail. Currently, the numbers
and evidence show that 90 percent of incarcerated people suffer
from disabilities, whether substance abuse, mental illness, or
fetal alcohol syndrome, of which Alaska has an enormously high
rate. She stressed that she knows the reason she is not in jail
is because she was embraced by her community, and had access to
those services offering a continuum of care that continues to
support her in being successful, and supports her child and
community.
4:08:01 PM
REPRESENTATIVE LEDOUX asked why her father, a convicted
pedophilia, had access to services and she did not have access
to services.
MS. LOVE answered that her crimes were drug related and, at that
time, anyone with a drug offense did not have access to food
stamps.
4:09:04 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, turned to PowerPoint titled, "Senate Bill 54, An
Overview" slide 2, table of contents, and said the slides
include the following: violation of conditions of release
(VCOR); sex trafficking in the third and fourth degrees; first-
time C-felony presumptive sentencing; sex offender probation;
Class A misdemeanor sentencing; Class B misdemeanor sentencing,
specifically theft in the fourth degree; no valid operator's
license (NVOL); pretrial risk assessments; and the Alcohol
Safety Action Program (ASAP).
4:10:03 PM
MR. SHILLING turned to slide 3, "Violation of Conditions of
Release (VCOR)," Sections 1, 2, 9, and advised that violation of
conditions of release is a pretrial offense where a defendant
has violated the conditions applied by the court. In 2015, the
Alaska Criminal Justice Commission recommended downgrading
violations of conditions of release (VCOR) to an arrestable,
jailable violation, enacted through Senate Bill 91, but it was
not implemented exactly as intended. Therefore, he explained,
early on, some people arrested on VCOR were not being held in
jail pending a bail review, and judges and magistrates did not
feel they had the legal authority to detain someone on a
violation. He remarked that while some jurisdictions found a
solution to this issue, the commission did recommend that this
be returned to a misdemeanor punishable by up to five days of
active imprisonment to ensure defenders are held in jail
awaiting a bail review hearing in front of a judicial officer in
their underlying case.
4:11:22 PM
MR. SHILLING turned to slide 4, "Sex Trafficking," Sections 3,
4, 5, 13, 14, 20, 22, and advised that as to sex trafficking in
the third and fourth degree, basically the changes put into
Senate Bill 91 were not recommended by the Alaska Criminal
Justice Commission. However, he said, those provisions were
vetted by the Department of Law (DOL) prior to being included in
Senate Bill 91 and the language did not pose any problems at the
time. He explained the intent of the provision was to ensure
that sex workers who are working together, and not exploiting
each other, would not be prosecuted for trafficking each other
or trafficking themselves. Later, he advised, the Department of
La (DOL) claimed the language was problem in that it
inadvertently created a loophole allowing a sex trafficker to
avoid prosecution for the lower degrees of sex trafficking.
Therefore, SB 54 repeals those provisions and attempts to
address some of the original issues with the state's sex
trafficking statutes, he explained.
4:12:18 PM
MR. SHILLING turned to slide 5, "C-Felony," Class C felony
sentencing, Section 6, and advised that under current law, an
individual, with no prior felonies, convicted of a Class C
felony receives a presumptive sentence of up to 18-months of
suspended imprisonment, and up to five-years of supervised
probation. Of course, he offered, the way presumptive ranges
work is if an aggravator were proven up, this individual could
spend up to five-years in prison, and the presumptive range is
up to 18-months of suspended imprisonment. He advised that the
commission heard numerous concerns about this provision in
particular, prosecutors felt that some of these felonies
warranted jailtime, and members of the community felt that it
did not express community condemnation, which is an important
principle in the Constitution of the State of Alaska when
considering sentencing. This legislation establishes a
presumptive sentence of up to one-year of active imprisonment
for first-time FC felonies, he said.
4:13:25 PM
MR. SHILLING turned to slide 6, "Sex Offender Probation" Section
7, and explained that as Senate Bill 91 moved through the five
committees, at one point the bill evolved in such a manner that
the maximum probation term lengths actually conflicted with the
minimum probation term lengths for felony sex offenders. In
that regard, he explained, a decision was made in one of the
committees to eliminate the conflicting minimums, and as the
bill continued to evolve, the maximums and minimums no longer
conflicted, but the minimums for sex offender probation were not
reinstated at that point. It is not that a judge cannot impose
probation, he explained, it is that there are not any minimums
to ensure it, and even though it is incredibly unlikely a felony
sex offender would not receive probation, the commission felt
strongly there ought to be minimums in place. The sponsor
worked with the Department of Law (DOL) to determine the
appropriate minimums, and DOL suggested returning to the
previous minimums, which is exactly what happened. He offered
that the legislation is 15-years for an unclassified felony, 10-
years for a Class A or Class B felony, and 5-years for a Class C
felony.
4:14:33 PM
MR. SHILLING turned to slide 7, "Class A Misdemeanors," Sections
8, 11, 12, and offered that Senate Bill 91 enacted a presumptive
sentencing range of zero to 30-days for many First and Second
Class A misdemeanors. However, he pointed out, even first-time
offenders could receive a sentence of up to one-year for certain
offenses, and cases where the defendant has more than two
criminal convictions for similar conduct. Prosecutors voiced
concern about the increase in penalty occurring after the second
conviction, rather than starting the gradual increase after the
first conviction. Therefore, he said, these sections of the
bill provide an additional aggravating factor whereby an
individual with one prior conviction for that conduct could be
sentenced up to 60-days. Also, he pointed out, there is another
section of the bill that establishes a five-year "look back
period" for the purposes of counting priors when sentencing an
individual for a Class A misdemeanor.
4:14:36 PM
MR. SHILLING turned to slide 8, "Theft 4," Section 10, and
advised this is the act of stealing something under $250, and it
is not robbery or burglary which are felonies. Research has
shown that most of the thefts in this category average
approximately $50. Senate Bill 91 reduced first and second time
fourth degree theft to be non-jailable with probation only,
although, possibly restitution and fines, but no jailtime; and
zero to five-days suspended imprisonment for third or subsequent
offenses. He advised that the commission received a lot of
feedback from businesses, law enforcement officers, and
prosecutors, who felt that it had emboldened some offenders, and
argued that possible jailtime acts as a deterrent and reflects
community condemnation. As a result, he said, the commission
recommended that third-time theft in the fourth degree should be
punishable up to ten-days in jail. That being said, he offered,
this bill goes much further than what the commission actually
recommended this year because not only does it provide for that
10-days in jail for third and subsequent offenses, it actually
moves jailtime up to the second offense, and jailtime can be
utilized for the first offense if that offender violates their
conditions of probation.
4:16:59 PM
MR. SHILLING turned to slide 9, "No Valid Operator's License
(NVOL)," Section 15, and advised that this was an oversight
being corrected in that Senate Bill 91 made driving with a
suspended license into an infraction if the reason for the
license suspension was something other than a DUI. For example,
non-payment of child support or something similar, he suggested.
However, by not similarly reducing this offense to an infraction
caused a disparity in the law wherein someone committing a less
serious offense of simply not having a license, would
potentially be punished more severely than someone who had their
license taken away for non-payment of child support, or a number
of moving violations. He reiterated that this provision
resolves an inequity in the statute.
4:17:50 PM
MR. SHILLING turned to slide 10, "Pretrial Risk Assessments"
Section 17, and advised that the provisions of Senate Bill 91 go
into effect in a few weeks and the law will require the court to
consider a risk score prior to making a release decision, which
is risk to public safety and risk of not appearing in court.
However, he said, the law requires the Department of Corrections
(DOC) to conduct this assessment on every defendant, but not all
defendants will actually be in custody pre-arraignment due to
being released under the bail schedule, or a law enforcement
officer may have used their discretion to issue a citation. He
described that it is impractical to conduct an assessment on
folks not in custody and it does not make a lot of sense when a
release decision had already been made without a risk score, he
said. The commission recommended limiting pretrial risk
assessments to only those defendants in custody, or any
defendant out of custody if the prosecution so requests, he
offered.
4:18:55 PM
MR. SHILLING turned to slide 11, "Alcohol Safety Action Program"
Section 21, and advised that Senate Bill 91 limited referrals to
the Alcohol Safety Action Program (ASAP) to DUI and refusal
offenders only. The other body made a change to this, it was
not recommended by the commission, but it expands the use of
ASAP for drug possession offenders, he explained.
4:19:30 PM
REPRESENTATIVE MILLETT referred to inflation-proofing on theft
and asked why that was not changed in SB 54, because in
reviewing some of the notes from the Department of Law (DOL), it
believed it may not be constitutional to have inflation-proofing
on the theft threshold.
MR. SHILLING advised that it is not in the bill because the
commission did not recommend it, and noted that he had not read
that legal advice and did not know whether that provision had
been challenged and found unconstitutional.
4:20:14 PM
REPRESENTATIVE KREISS-TOMKINS referred to violations of
conditions of release wherein Mr. Shilling stated that some
jurisdictions found a solution even under the current law, and
asked him to explain those solutions.
MR. SHILLING answered that the court system may be better
situated to respond, but he heard that the jurisdictions added a
special page to a form, or a box to check on a form, that
ameliorated the situation. He related that the First Judicial
District arrived at this solution quickly, and the commission's
recommendation stated that the problem is not universal. He
related that the commission recommended it in January 2017, and
it may be interesting to follow up to determine whether that
problem still exists.
CHAIR CLAMAN advised the Alaska Criminal Justice Commission has
already released its report to the legislature, due November 1,
2017, which is contained within the committee packet.
REPRESENTATIVE KREISS-TOMKINS commented that a take away from
various committee deliberations last year was that when non-
violent offenders are incarcerated for certain periods of time
there is a criminogenic effect. Also, non-violent offenders
after being incarcerated can become violent offenders in the
future. He asked whether there is a threshold period of time
wherein the data indicates that that effect takes place after a
certain period of incarceration.
MR. SHILLING referred to the 2015 Alaska Criminal Justice
Commission report, and noted that with respect to specific
durations of time, research shows that low-risk pretrial
defendants held longer than 24-hours could have a criminogenic
effect, and it is specific to low-risk individuals. There is
also research showing that low-level drug offenders have a
higher risk of recidivating when incarcerated for long periods
of time, he advised.
4:23:18 PM
REPRESENTATIVE LEDOUX noted her understanding that when Senate
Bill 91 was originally passed, there was the idea that rather
than incarcerating people, to invest the money that was saved
from not building a new prison, into alcohol and drug
rehabilitation programs. She asked the status of the
reinvestment currently, noting there are still a limited number
of beds for opioid addiction, and such, statewide.
MR. SHILLING responded that Senate Bill 91 created a framework
for a six-year reinvestment plan, the first two fiscal years of
that plan have been completed, and the full plan entails
reinvesting $99 million over those six-years. To date, he
advised, $22 million has been reinvested, and by following the
plan for just one more year, $40 million will have been
reinvested. The money is there, he said, and it has hit the
streets in a number of areas, such as pretrial supervision
wherein 60 new law enforcement officers will begin on January 1.
These officers can make warrantless arrests, carry firearms, and
ensure that defendants are following the conditions of their
release. This reinvestment money includes, as follows:
substance abuse treatment; reentry services; and new money going
into the Council on Domestic Violence and Sexual Assault that
had dried up over the years, and now Senate Bill 91 reinstated
that money. He remarked that "reinvestment's a real thing and
we're just two years in now."
4:25:38 PM
REPRESENTATIVE LEDOUX offered that clearly not all of the crime
being experienced in Anchorage is the result of Senate Bill 91
as there are a myriad of reasons, but it does appear that Senate
Bill 91 may have exacerbated certain things. She asked why the
commission's research did not indicate that the crime being
experienced would happen.
MR. SHILLING acknowledged there are a number of complex reasons
crime moves up and down, and he referred to the many discussions
about the opioid crises, budget cuts, economic recession, and
the truth is that crime began increasing long before Senate Bill
91 was enacted. Violent crimes have slowly increased over the
last 30-years with big spikes in 2015, property crime began
increasing in 2011 with big spikes in 2015, and these are all
are prior to the introduction of Senate Bill 91. He stressed
that the commission considered a lot of research and data and
made a set of 21 evidence based recommendations with the goal of
reducing crime and holding offenders accountable by investing in
programs that actually reduce the crime rate.
REPRESENTATIVE LEDOUX asked whether Mr. Shilling was saying that
none of the crime being experienced in Anchorage is a result of
Senate Bill 91.
MR. SHILLING replied that he does not know the answer to that
question, but Brad Myrstol, Ph.D., University of Alaska made
many presentations to the legislature on crime rates and what is
happening in Alaska. Mr. Shilling said he could not
definitively say that passing a bill, such as Senate Bill 91 or
SB 54, makes crimes go up and down, and it certainly cannot be
proven out with data.
4:27:49 PM
REPRESENTATIVE MILLETT offered that when reviewing the State of
Texas and timing, Texas passed its criminal justice reform and
"we use that kind of a standup model," although it did not have
a fiscal crisis, opioid crisis, or a recession. She asked
whether the Alaska Criminal Justice Commission took into
consideration any of the outward pressures Alaska was facing,
and whether the timing was wrong because it exacerbated the
uptick in crime. She commented that phase one was probably the
wrong time to perform that portion of Senate Bill 91, although
phases two and three "are pretty great." Moving forward, she
asked, whether the commission will take into consideration those
outward pressures happening in Alaska before it recommends going
forward, because timing is an issue.
MR. SHILLING answered, "I don't think I fully understand and I
need to be real careful about not getting outside of the scope
of my expertise." He stated that he knows what is in Senate
Bill 54, but as to these complex questions about the causes of
crime and timing, he is not the correct person to answer.
4:29:25 PM
CHAIR CLAMAN pointed out that, statutorily, the legislature
directed certain instructions to the commission about its
responsibility, and it did not include assessing the health of
the overall economy.
REPRESENTATIVE MILLETT said that possibly, those statewide
outward pressures should be part of the discussion when passing
a justice reform crime bill.
4:30:08 PM
REPRESENTATIVE FANSLER referred to slide 5, Section 6 of the
Class C felonies, wherein Mr. Shilling had mentioned that this
was pretty much for a straight up first-time felony offender
without any aggravators or such. He asked that Mr. Shilling
define an aggravator, and breakdown how typically an aggravator
is attached to a crime, for the public's information.
MR. SHILLING noted that the Department of Law (DOL) may best
speak to how common aggravating and mitigating factors are in
practice. He explained that there are at least 20 aggravating
factors, and aggravating and mitigating factors allow the court
to sentence someone above or below the presumptive range. He
suggested that the members think about these ranges as default
ranges, except that they can be departed from, and each class of
felony has a hard maximum that cannot be exceeded even with an
aggravator. For example, in the case of a Class C felony, the
maximum is five-years, and if the individual has one prior
felony, the sentencing range is one- to three-years under this
statute, and if they have two or more, it is three- to five-
years.
4:31:35 PM
REPRESENTATIVE EASTMAN referred to the upcoming 60 new officers
on the streets in January, and requested an explanation of the
parameters on those warrantless arrest situations.
MR. SHILLING answered that the legal standard for making an
arrest for a pretrial service officer is probable cause, as with
any law enforcement officer. These officers, he explained, will
make warrantless arrests if needed on defendants violating the
conditions of their release and breaking the court established
rules.
CHAIR CLAMAN pointed out that officers cannot arrest anyone on
the street without a warrant, they can only arrest someone on
pretrial release subject to their supervision as a pretrial
service officer.
MR. SHILLING answered in the affirmative.
4:32:43 PM
REPRESENTATIVE LEDOUX asked whether social media was as alive as
it is currently when the commission considered the amount of
jailtime for first and second time theft offenses, and when it
considered issues in other states. Five years ago, she said, a
person would not have expected the kind of folks robbing or
shoplifting from a convenience store to actually realize there
was a "get out of jail free card," and now everyone knows,
probably through social media, that with first and second time
offenses "you'd get nothing, absolutely nothing." She pointed
out that even with the corrections SB 54 provides, there is one
get out of jail free card, and asked whether anyone has
researched or analyzed the effect of social media.
MR. SHILLING described the question as complex and that he does
not have the answer to social media's effect on the heightened
awareness of the state's criminal justice statutes. In the
event SB 54 passes, the first-time theft offender is non-
jailable; however, he pointed out that there is suspended time
imposed that can be applied to the individual if they violate
the conditions of their probation. Also, beyond the life-time
criminal record, there is a period of probation, restitution,
and fines, that could be imposed which is how he would describe
a first-time offender being treated under SB 54, he said.
CHAIR CLAMAN opined that he has seen research that prior to the
justice reform efforts, typically a first-time Class B
misdemeanor theft offender would rarely receive jailtime.
MR. SHILLING responded that, pre-Senate Bill 91, petty theft
offenders spent on average of 23-days in prison post-conviction.
4:36:04 PM
REPRESENTATIVE EASTMAN noted that under SB 54, it is zero to
five-days, and zero to ten-days, and asked whether that was
actual time spent in jail, or whether it included good time, and
how much time those people would actually serve in a jail cell.
MR. SHILLING responded that he does not recall whether it
applies to sentences this short, although, he knows that to be
eligible for parole, a person must be sentenced in excess of 181
days. He said his hunch is that good time does not apply in
this case, but DOL was available to answer.
REPRESENTATIVE EASTMAN asked that Mr. Shilling take a look at
that issue because when the military sentences people to one-
month, good time would apply.
CHAIR CLAMAN advised that DOL will be presenting later and he
encouraged Representative Eastman to pose the same question to
that department.
4:37:16 PM
REPRESENTATIVE KOPP said he wanted to be sure he understood
correctly that the Alcohol Safety Action Program (ASAP) was
expanding screening to any alcohol or drug related offense, and
not solely to DUIs. He opined that this would restore the
court's ability to monitor treatment of all drug and alcohol
offenders, and not solely DUI offenders.
MR. SHILLING agreed, and he explained that this expands the
types of offenders that can be referred to, and accepted by, the
ASAP. He related that he does not have the strongest grasp on
everything ASAP does, but he does know that it conducts
screenings, refers people to treatment, and monitors those
people going through treatment.
4:38:10 PM
REPRESENTATIVE KOPP commented that this change is significant in
light of Alaska's current opioid crisis. Representative Kopp
then referred to the misdemeanor Class C felony assault changes
and noted that it appears to reconcile the problem where a
prosecutor may be forced to plead down a Class C felony, if a
person strangled a household member to a misdemeanor, wherein
they could receive up to one year in jail for just hitting a
household member, and now, for more severe behavior a person can
get more severe penalty.
MR. SHILLING answered in the affirmative.
4:39:55 PM
GREGORY RAZO, Chair, Alaska Criminal Justice Commission, turned
to slide 2, "Commission Process," and explained that the
recommendations are fundamentally and foundationally based upon
research. In the case of criminal justice reform, the
foundational research was meant to look at recidivism and the
return to jail within three years of being released.
MR. RAZO stated that prior to criminal justice reform, two out
of every three people returned to prison within three years of
being released, an approximate 66 percent recidivism rate. He
noted that part of the commission's process includes stakeholder
outreach, and that every meeting is a public meeting subject to
notice and subject to the meeting process. In addition, as the
commission developed its criminal justice reform efforts, it
performed specific stakeholder outreach, it spoke with victims
of crimes, and traveled to rural Alaska to understand the
problems confronting the people living in that area The
commission performed a fact based system assessment to
understand how the system was currently operating by reviewing
data from the University of Alaska, Department of Public Safety
(DPS), Department of Corrections (DOC), and Department of Health
and Social Services (DHSS). These facts and figures obtained
supported exactly where Alaska stood at the time, and it had a
good sense of where the state was before recommending where the
state might be with some changes to the system. Mr. Razo
explained that because the commission was looking at such a
large criminal justice system with many aspects to it, the
commission broke its research into work groups, such as [victims
of crimes], pretrial, sentencing, and post-conviction.
4:44:00 PM
MR. RAZO turned to slide 3, "Goals of Criminal Justice Reform"
and advised that the directive was to look into what sort of
programs to use that could be proven to result in reduced
recidivism, and what programs would enhance public safety if the
state performed the reinvestment piece. The commission also
looked into implementing evidence based pretrial practices;
focusing prison beds on serious and violent offenders;
strengthening probation and parole supervision; improve reentry
programming; and ensuring oversight and accountability.
4:46:59 PM
MR. RAZO turned to slide 4, "Reinvest in Programs Proven to
Reduce Recidivism & Protect Public Safety - Reinvestment in FY17
& FY18" and noted that approximately $25.5 million was set aside
for reinvestment, and of that amount, $2.5 million was for
substance abuse treatment; $3 million for reentry support
coalitions around the state; enhancing violence prevention
programs for victims; and giving the legislation a tool to use
to have some notion of what a return on investment for any of
these programs was. He said, that over this two-year period,
there has been $8.5 million of reinvestment money.
4:48:36 PM
MR. RAZO turned to slide 5, "Reinvest in Programs Proven to
Reduce Recidivism & Protect Public Safety - Future Reinvestment
2019-2022" noting the $4 million for treatment in community
resource centers (CRC) "half-way house." He explained that
previously, no treatment took place in a half-way house, a
person entered a half-way house on their path to return to
society, and in many cases, it was an avenue to return a person
to their prior criminal conduct. He continued explaining
reinvestments, as follows: treatment can occur in half-way
houses and it is part of the continuum of care and treatment
that begins when initially put in jail; $4 million for treatment
in prison; $8 million for treatment in the community and reentry
services. He advised that some money comes from Medicaid reform
and appropriations, with the focus on supervised probation by
probation officers wherein the person is held immediately
accountable; and $8 million for violence prevention program in
the community aimed at supporting victims and victims' rights.
4:50:06 PM
MR. RAZO turned to slide 6, "Invest in Evidence-Based Pretrial
Practices" and advised that $13.5 million was spent by the
Department of Corrections (DOC) to establish a pretrial unit and
train a new group of probation officers. Released individuals
will be monitored to be certain they appear in court or they do
not drink, and if the person does violate the conditions, they
are back in jail. He explained that the methodology to impose
risk based pretrial enforcement is an extensive and deliberative
mechanism that is also tracked by the commission.
4:51:34 PM
MR. RAZO turned to slide 7, "Evidence-Based Pretrial Practices"
and explained that the slide depicts pretrial before and after
the enactment of Senate Bill 91.
4:52:02 PM
MR. RAZO turned to slide 8, "Focus Prison Beds on Serious &
Violent Offenders - Prison Population Composition - Snapshot"
and advised that the legislature asked the commission to focus
on prison beds and on serious and violent offenders. He noted
that from FY15 through FY17, the number of non-violent
misdemeanor offenders taking up prison beds has gone down, which
was the expected result, violent misdemeanors have stayed the
same, non-violent felonies have gone down, and violent felonies
have risen. He related that a factor to be determined from this
small non-statistically relevant slice of evidence is that when
looking at this graph, the violent felony offenders are in jail
and, he advised that there are more violent felony offenders in
jail than prior to starting the whole process.
4:52:56 PM
MR. RAZO turned to slide 9, "Strengthen Probation & Parole
Supervision" and explained that the idea behind probation
supervision is that there be swift consequences if probation is
violated, and not that the person waits for six-months to get
into court and in the meantime, stacks up probation violations
until there is a hearing that takes days of court time. The
idea is that the probation officer should be able to determine
whether or not the person violated their conditions, and if so,
there would be a swift consequence. The violations being filed
for violation of probations have increased substantially which
means that even more people are being violated today than
previously, which was the expected outcome.
4:54:05 PM
MR. RAZO turned to slide 10, "Strengthen Probation & Parole
Supervision" and noted that the percentage of people actually in
prison for violations of probation have gone down because the
people are not sitting in jail waiting for their probation
hearing. These people are going into jail for three, five, or
ten days for violation of probation time, and when they are
released they still have a job, a place to live, and are still
subject to the strong conditions the court placed upon them in
the first place, but their lives have not been disrupted to send
them back into criminality.
4:54:53 PM
MR. RAZO turned to slide 11, "Reduce Prison Expenses While
Preserving Public Safety" and explained that the average daily
prison population has gone down since criminal justice reform,
which was asked of the commission by the legislature, and it is
predicted to continue.
4:55:13 PM
MR. RAZO turned to slide 12, "Prison Population Decreased 437
Beds Since Implementation" and pointed out that $3.8 million has
been avoided since criminal justice reform was implemented, such
that the operational costs were reduced with the closure of the
Palmer Correctional Center, and $5.6 million was saved at
approximately $42 per day to house a prisoner.
4:55:56 PM
MR. RAZO turned to slide 13, "Alaska Criminal Justice Commission
Recommended Changes to Sentences - for first-time Class C
felonies" that resulted in SB 54, and advised that the
commission's recommendation for Class C felonies was a jail term
of zero to 90 days, which was not unanimous, and it would still
retain the suspended time of up to 18-months. Currently, he
said, SB 54 has the potential of up to one-year of jailtime for
Class C felonies. He offered that as the commission was
considering changes to Senate Bill 91, the recommendations that
came out of the commission in January 2017 were fundamentally
different than the recommendations the commission first made.
He explained that "they were recommendations" based upon two
days of public hearing testimonies that included constituents,
law enforcement, the average citizen, and the victims of crimes,
who "were screaming that this is not working for us." At the
end of the day, he commented, that anecdotal testimony is not
statistical data and it is not the same sort of data the
commission originally relied upon, but it was data that could
not be ignored. Consequently, he advised, the commission
decided to change its methodology going forward with respect to
criminal justice reform and take into consideration the sorts of
things Representative LeDoux had questioned.
4:58:10 PM
MR. RAZO turned to slide 14, "Alaska Criminal Justice Commission
Recommended Changes to Sentences" referred to violations of
conditions of release and the increase in penalties for theft,
and advised that he realizes theft in the fourth degree is
plaguing Alaska's communities and that he understands the
outrage.
4:58:49 PM
MR. RAZO turned to slide 15, "New Project for the Commission"
and offered that there still remains a number of things on
commission's plate such as, how to handle people charged with
crimes who are chronically intoxicated, which is different from
the folks detoxing. Prior to the changes to Title 47, these
people were "stored in prisons" until they became sober, and
they are creating a problem in hospitals and law enforcement
because police officers have no idea what to do with these
folks. Unfortunately, these folks are so intoxicated they are
unable to take care of themselves, but they have not broken the
law and being drunk in public is not a violation of the law. It
is only violations of the law, in general, that will allow law
enforcement to deprive someone of their liberty, and to do that
without a judge and a due process proceeding is problematic and
unconstitutional in many people's regard. He noted that the
commission is struggling with this problem and is considering a
possible voluntary agreement to sleep it off until they are no
longer a danger to self or others.
MR. RAZO referred to the 10/22/17 Alaska Criminal Justice
Commission Annual Report and explained that it goes through a
number of issues the commission has worked on over the last few
years.
5:02:32 PM
REPRESENTATIVE MILLETT referred to Title 47, and someone being
drunk, and commented that currently Class C felonies are
considered a misdemeanor and are not jailable offenses, except
that the person has the fundamental problem of drugs and/or
alcohol. Currently, she said, the state is not able to address
the underlying issues because it is a misdemeanor.
MR. RAZO opined that the state has gotten comfortable about
using criminal justice to deal with mental health, which he
described as a slippery slope. Mr. Razo remarked that in his
opinion, it is important there are facilities available so folks
"can sleep it off," and have a safe and secure spot where they
would not be victimized, and someone could intervene medically,
if necessary, and those sorts of things cost money. He said,
"For us to complain about crime when we've reduced the amount of
spending, fundamentally, by a third we spend on our entire
criminal system and expect that crime isn't going to act
accordingly, I think is magical thinking."
5:04:22 PM
REPRESENTATIVE MILLETT noted that the legislature created the
commission to focus on recidivism and reduction of costs, but it
did not focus equally as to public safety, which is where the
legislature failed the commission. Currently, she noted, the
state is witnessing a response from the public in not feeling
safe. She asked whether Mr. Razo would be open to an amendment
directing the Alaska Criminal Justice Commission to move forward
with public safety at the top, then recidivism, then costs, and
redefining the commission's mission, or whether it could be
performed internally "without the legislature dictating to you
what to look at?"
MR. RAZO responded that each commissioner believes that reducing
recidivism increases public safety, it is not a mission
statement issue because reducing recidivism enhances public
safety and it is the "flip side of the same coin. He noted that
with regard to the low-level offenses that were either changed
to violations, or Class C felonies that resulted in supervised
probation, the thinking and resources behind those changes was
that those sorts of changes could result in increased public
safety through reduced recidivism.
CHAIR CLAMAN, speaking as a member of the Alaska Criminal
Justice Commission, commented that if there is one overwhelming
sentiment he has received by sitting in on the commission's
meetings, it is that public safety is its highest priority.
5:07:32 PM
REPRESENTATIVE MILLETT referred to the risk assessment, which
she opined was solely a function of DOC, and asked whether the
commission had contracted for a risk assessment and whether a
draft risk assessment was available. She asked whether the
Alaska Court System, Department of Public Safety (DPS), and
Department of Law (DOL) should be an intricate part of that risk
assessment rather than just laying it on the hands of DOC
because she would like more input from outside of DOC as it is
just one touch to a criminal. Whereby, she further asked
whether there was a contract and whether the state would be
better served with more folks taking the initiative and having
input.
MR. RAZO answered that in looking at the development of the
pretrial risk assessment division and the tools it will use, it
included every one of those stakeholders Representative Millett
named. The function of the pretrial risk assessment is within
the DOC, except in order to comprehensively develop an entire
new unit within the Department of Corrections, the Department of
Public Safety (DPS), the Department of Law (DOL), [and the
Alaska Court System] have been intimately involved. This
system, he offered, involves such things as the law
enforcement's initial encounter, the booking process, and the
person's involvement in the court system, and he described it as
all intimately related. The stakeholder list of people invited
to every meeting the DOC holds on updates regarding the risk
assessment and procedures includes one hundred people, and he
described a strong participation from DOL, DPS, and all of the
folks in DOC that are trying to learn this new methodology and
tool.
5:10:10 PM
MR. RAZO advised that in terms of contracting it out, DOC hired
a person to be in charge of the pretrial program and it also
relied upon the same sorts of empirical evidence the commission
relies on in determining what might work in Alaska. As it turns
out, he explained, the factors determining whether a person is
at risk for failure to appear are different than the factors
determining whether that person is at risk for committing a new
criminal act. It is a sophisticated tool, he described, and
tools are never perfect and are subject to change with oversight
and regular review by the commission. Other states implementing
these sorts of tools found unintended consequences in that the
tool was discriminatory for certain classes of people, and DOC
is trying to avoid those sorts of mistakes. He advised, "No,
they did not go out to contract" with some outside risk
assessment provider to develop the tool, "they took the best and
worked with that to determine" that there are two factors in
Alaska to consider. Possibly, he opined, because Alaska is such
a large state, failure to appear in Alaska would not be
considered the same factor in another state.
5:12:22 PM
REPRESENTATIVE MILLETT asked whether the whole approval process
is on DOC, and that the criminal justice commission does not get
to approve it or disapprove it, neither does DPS, the court
system, or the Department of Law. She commented that
stakeholder engagement is great, and asked whether there should
be a better approval process.
5:13:01 PM
SUSANNE DIPIETRO, Executive Director, Alaska Judicial Council,
Alaska Court System, clarified that the tool is one bit of
information the pretrial enforcement officers use. The officers
consider a number of objective factors, come up with a risk
score, and make a recommendation to the judge and the parties.
The actual decision is made in court on bail, she clarified, and
it is not made within DOC.
REPRESENTATIVE MILLETT said she was talking about the risk
assessment tool.
MS. DIPIETRO noted that Representative Millett was talking about
the actual tool itself and explained that it is actually just an
actuarial tool, similar to something an insurance company may
use to predict whether the person would get into an accident.
She explained that the tool was developed by a researcher at CJI
Research Corporation (CJI).
CHAIR CLAMAN pointed out that the tool itself has been the
subject of tremendous discussion on the Alaska Criminal Justice
Commission and the commission made recommendations about how to
proceed and directions were given to DOC. In the event someone
is released under certain conditions based on the assessment
tool, he opined that the prosecution has a right to ask for a
quick hearing to reconsider if the prosecution believes the
judge's decision on pretrial release was flawed.
MR. RAZO remarked that in the event the scores for failure to
appear and the likelihood of committing a new crime are very
low, there is a presumption of release. The entire process
happens quickly because a person has a right to a speedy
arraignment and must be brought before a judge within 48-hours.
Consequently, he said, an interview does not take place to
determine whether a person is risky, it is basically an analysis
of their background.
5:16:22 PM
REPRESENTATIVE EASTMAN referred to violations of probation, and
noted that Mr. Razo had stated that in some instances,
violations had increase but that was a good thing because it is
what he expected to see ...
MR. RIZO (indisc.) probation violations, not new criminal
offenses.
REPRESENTATIVE EASTMAN clarified that it is probations being
violated, and Mr. Razo had expected to see that because these
people have been taken out of prison ....
5:16:52 PM
MR. RAZO advised that, generally speaking, when a person has
completed their sentence they are almost always released on a
supervised felony probation with a probation officer. Under
certain circumstances, he advised, a person can be released on
parole after the Parole Board decided that this person met the
criteria and should be released from jail. Subsequent to their
release, he explained, they have a probation or parole officer
monitoring them to make sure they follow the judge's conditions
as to what they can and cannot do while on probation or parole.
Previously, he explained, when a person violated their probation
by drinking, for instance, the person would have a probation
violation filed against them, and they could be incarcerated
immediately with a right to a hearing and representation. At
that time, he offered, the district attorneys, public defenders,
and court would gear up, and there would be a hearing which was
usually a lengthy period of time later. These folks were
accused of violating a condition of probation, they were not
judged on it, but they were doing a lengthy period of time in
jail on what is essentially a technical violation of probation.
He pointed out that this person had not committed another crime,
they had had a drink. Currently, he explained, if the probation
officer has probable cause to believe that person has had a
drink because he walked in with alcohol on his breath, he goes
to jail for three days for the first time. The intent, he
offered, is to let that person realize there is a consequence to
violating orders from the judge, and if they violate again it
will be five days. It empowers that person, he described, and
at the same time the criminal justice reform allows the
probation officer to give incentives to people who do not
violate their probation by decreasing the amount of time that
person is on probation.
5:19:46 PM
MS. DIPIETRO explained that when DOC measures technical
violations of parole and probation, it does not have a way to
count the number of times people have violated because DOC only
has a way to count the number of times the probation officers
have filed on a violation. She referred to the graph of the
increases, and explained that it is the number of times the
officers had filed on violations, and it does not necessarily
mean that because there are more people out on supervised
probation, it is driving the increase. It is believed, she
pointed out, that officers are more likely to file quickly the
first time rather than giving the person a pass because,
previously, the procedure involving a technical violation was
onerous, it took a long time, and a few would stack up before it
could get around to being adjudicated. The current thinking, as
to the increase in violations of probation, is that officers
have this new swift and certain process and they are more likely
to address that first violation with a filing, as opposed to
"sort of just a wait and see" whether the person does it again.
The point of swift, certain, and proportionate, is filing the
first time, and the fact that "in that second slide" there are
fewer supervision violators taking up beds, it shows more
violations being filed but they are coming in for shorter
amounts of times, she said.
5:21:40 PM
REPRESENTATIVE EASTMAN referred to Mr. Razo's statement as to
the offenders in prison due to violent offenses being the focus,
and Mr. Razo also mentioned that the emphasis was, not having
anyone in prison that was not in that category of violent
offenses, and asked the amount of weight that was given [to that
focus]. He related that if he was next on the list to be a
victim of a violent offense, he would prefer the person was
already in prison before they committed violence against him.
To what extent is weight given to the victims or future victims
of situations, he quiered.
MR. RAZO replied that the idea behind criminal justice reform is
that the protection of victims is given great weight, and that a
person who has committed a violent offense be in prison for a
long time and serve a long sentence. He offered that possibly
the person had a mental health disorder that was unsuccessfully
treated or was not treated, and while they were in prison they
actually received the sorts of services that would make it less
likely they would commit a violent felony. Interventions are
taking place that reduce crime, which is the mechanism and a
pillar supporting criminal justice reform in that there are
alternatives to prison that can work to reduce crime, and there
is proof of that, he said.
5:23:52 PM
CHAIR CLAMAN advised that the commission was shown a statistic
wherein many violations occur within the first three to six
months. He related that the swift and certain short-term fix
has a positive impact because offenders figure out how to behave
in society better without spending a long time on short
technical violations.
MR. RAZO agreed, and he stated that it is less disruptive goal
is to not be disruptive and the person has to start all over
again.
5:24:58 PM
REPRESENTATIVE LEDOUX related that she was a proponent of Senate
Bill 91 in 2016, but in view of all of the crime in Anchorage,
she has started to re-evaluate. The Anchorage 2014 through
9/2017 crime statistics for vehicle theft appear to have
experienced a huge rise subsequent to the enactment of Senate
Bill 91. She said that while she realizes all sorts of crimes
have been on the rise for a number of years, in Anchorage there
has been a large spike in vehicle theft which she suspects is a
result of Senate Bill 91 as a possible unintended consequence.
It gives her pause, she noted, that after the testimonies and
all of the research, that the spike in crime was not anticipated
by the research, and asked why she should believe in the
research when it comes to other matters.
MR. RAZO responded that he completely understands Representative
LeDoux's thinking, and the same question could be asked that if
the previous mayor of Anchorage had decided not to send new
police officers to the police academy and diminishing the police
force by a couple hundred people, would that have resulted in
more or less crime. He related that there is no way to prove
that, it is not the sort of evidence one could say that there
was a statistical correlation between this to that, they just
happened at the same time. He said that he agrees that when
looking at vehicle theft, this "hockey stick rise" in vehicle
theft is definitely something that has to be contended with, and
he argued that contending with it means hiring more prosecutors,
more police officers, and task forces devoted to vehicle theft.
Although, he said, he would find it difficult to believe that 14
months of criminal justice reform implementation, which had
little to do with vehicle theft, resulted in the vehicle theft
increase. The future will show whether statistics actually
support the increase because it is a mathematical statistical
correlation that is being discussed. Those, he pointed out,
were what the commission wanted the legislature to decide as to
whether or not this might be a good idea for Alaska. For
example, he said, the way one legislator might go about dealing
with the crime in Alaska could be different from another
legislator, and these things happened about the same time and
they relate to each other, except that other things happened
just about the same time.
5:29:26 PM
REPRESENTATIVE FANSLER referred to the reinvestment programs on
slides 4, 5, and 6, and asked Mr. Razo to describe how the money
is being used, whether it is for people or facilities.
MR. RAZO responded that the money DOC spent on its portion is
easy to track, understand, and is accountable. The Department
of Health and Social Services (DHSS) spent a great deal on
developing community reentry and supporting existing programs
that support reentry, which leverages both state and federal
money to build up these community coalitions. He said he did
not know the number of people that were put to work as a result.
He related that there is still a long way to go as to what
happens in half-way houses and whether half-way houses are the
best way to deal with folks coming out of prison. He offered
that a nice thing that happened at the same time as criminal
justice reform is the "Results First Initiative." He explained
that the University of Alaska collaborated with all of the
agencies to express in real numbers the sorts of programs, their
cost, and the return on investment on those programs. Many of
the results are what a person would expect, and he pointed out
that first of all, it costs more money to provide programs in
rural Alaska, although, they have good effects. It costs more
to spend money on therapeutic courts because it employs a
judicial officer, court system staff, and there are the folks
that go to the hearings, so a hearing is expensive, except that
they get pretty good results, he expressed. The cost/benefit
breakdown is from the Results First Initiative process, for
example, the batterer's programs have been a popular tool to use
to educate folks involved in domestic violence sorts of crimes.
Although, he noted, the return on investment for those programs
have been less than he would have expected. Those are the
mechanisms being used to help the legislature judge whether it
is spending its money in the correct places. He advised that
even with all of that, the money the state is spending on
prevention and treatment of substance abuse and alcohol abuse is
completely insufficient, particularly with regard to detox in
this pervasive age of heroin and opioid addiction. He stressed
that the state has a long way to go until it can spend money on
places for these folks, such as determining who can help them,
and the rules and regulations.
5:33:58 PM
MS. DIPIETRO added that the commission researched how the money
had been spent and it is included in the 10/22/17 commission
report. She explained that the Council on Domestic Violence and
Sexual Assault has been investing its funds, such as $1 million
in 2017, and $2 million in 2018, and in community based violence
prevention and bystander programs, including Green Dot; the
COMPASS project, and a lot of programs that encourage healthy
relationships for youth, girls, and boys; and adult mentorship
programs in the communities. She opined that this is some of
the money the committee may find most impactful.
5:34:53 PM
REPRESENTATIVE FANSLER asked for a yes or no answer, in that
when Mr. Razo looks at the system assessment, whether it is
under the purview of this commission to look at things like the
lack of ability to retain or hire folks in these systems.
Currently in Bethel, he pointed out, there are two probation
officers and that will not get the job done when switching to a
major pretrial system that puts a much larger onerous on
probation and parole.
MR. RAZO responded that under Senate Bill 64, [passed in the
Twenty-Eighth Alaska State Legislature] the commission has a
broad mandate with the additional requirements that were placed
on the commission, and said he did not have an opinion as to
whether it was something in its statutory purview.
5:35:50 PM
REPRESENTATIVE FANSLER referred to the "hockey stick spike" and
asked the proper window, sample size, or ideal world for the
legislature to look back and determine whether the state made
progress with Senate Bill 91 reforms.
MS. DIPIETRO answered that the statute requires the commission
to report the recidivism rate within three years, and in terms
of any connection between crime rates and criminal justice
reform, it is important to understand that crime rates fluctuate
radically over time. She related that the commission will
continue to track crime rates and continue to break it down by
property crimes versus violent crimes of which is difficult to
correlate. She said she does not know of any research
suggesting there is much of a correlation between these things,
but the commission will track it and present the information to
the legislature.
5:37:46 PM
REPRESENTATIVE FANSLER surmised that he is hearing that more
time is needed, and asked Mr. Razo, in speaking on behalf of the
commission, whether SB 54 is a proper vehicle for the
legislature to address these issues. For example, he said, if
vehicle theft is spiking, would it be smarter to reclassify that
as a different type of crime so there is more surgical scoping
when it comes to this, rather than changing entire
classifications for one or two crimes that may be spiking.
MR. RAZO replied that as the chair of the commission he does not
have a good answer, but in his personal opinion, the best way to
deal with vehicle theft is to have more police officers on the
street.
CHAIR CLAMAN commented that a current proposal before the
commission is whether to take vehicular homicide and create a
separate group of offenses relating to vehicular homicide
because there are a number of ways in which it is different, as
a legal matter, than all of the other homicides. He predicted
that within the next six months the legislature would receive a
recommendation as to vehicular homicide.
5:39:45 PM
REPRESENTATIVE KOPP noted appreciation for Mr. Razo's work on
the commission, and also for his comment that the visible
presence of law enforcement has a deterring effect on crime, of
which he wholeheartedly agrees. He referred to slide 12, and
noted that the statistical data point read the cost of
incarceration was $42 per day, except in other presentations he
has heard an amount more than three times that amount. He asked
whether this was a community residential center cost per day.
MS. DIPIETRO responded that the $42 per day is called a
"marginal cost," which is the amount it costs DOC to add one
more person, and the $159 a day figure is larger because it
includes "fixed costs." She explained that whether DOC has five
prisoners or 5,000 prisoners, a commissioner of DOC is
necessary, buildings are needed, and there still are some fixed
costs, but if there are five prisoners and it moves to six
prisoners in the same building with the same commissioner and
the same number of correctional officers, the cost is $42 per
day.
5:41:41 PM
REPRESENTATIVE KOPP referred to criminal justice reforms
encompassing the probation accountability with enforcement, and
asked whether the more targeted supervision based on the risk
assessment of higher risk offenders is resulting in the higher
petition to revoke probation violations because people are not
being supervised equally and are more focused on those more
likely to offend.
MR. RAZO advised that he does not know the answer to the
question, but he "guessed that is what is happening" as that was
the desired result.
MS. DIPIETRO added that the figures on probation revocations do
not include Probation Accountability and Certain Enforcement
(PACE) because they were trying to give the legislature an idea
of the situation with the new probation supervision reforms.
The commission has the figure with PACE and they are similar
trends, but the PACE program has been in place for a long time
and it did not seem appropriate to add that into the figures
related to Senate Bill 91.
5:43:18 PM
REPRESENTATIVE KOPP referred to an earlier question as to the
commission's seemingly slow responsiveness to spikes in crime or
justice trends, and asked whether about one year ago these
recommendations were put forward in this bill so the legislature
could take action.
MR. RAZO related that the commission prefers that as many people
as possible attend its public hearings and testify and when the
commission first heard from a room full of police officers who
had come to listen to the commission, he said he wanted to hear
from them even if they did not necessarily want to testify. He
related that he reached out into the audience and asked for
input from these folks who had taken the time to attend the
meeting because police officers have valuable input. These men
and women work on the ground every day in a most dangerous job,
and he said he believed it would be a waste of a valuable
opportunity to not hear from law enforcement.
5:44:34 PM
REPRESENTATIVE MILLETT asked how Senate Bill 91 helps a heroin
user charged with a first-time misdemeanor.
MR. RAZO replied that if a person is convicted of possession of
heroin, formerly a Class C felony, under criminal justice reform
they face up to 18-months of supervised felony probation.
(Indisc.) reduction of misdemeanor, that situation.
REPRESENTATIVE MILLETT referred to a mere drug possession heroin
user's first-time misdemeanor, and asked how Senate Bill 91
helps that person.
MS. DiPIETRO responded that prior to the system assessment, many
of these convicted first-time Class C felony drug possessors
were going to prison for periods of time, and for low-level
possessors, not dealer, prison can be criminogenic, as has been
discussed. In response to the question, she suggested it may
help that first-time heroin user to not go to prison for a
length of time. However, she pointed out, that is still a
criminal justice intervention, it is still a misdemeanor crime,
and the idea is that the arrest, charging, pleading, or going to
trial, is an intervention in a person's life that could lead
them to consider whether their life was moving in the right
direction or whether they might consider the possibility of
treatment. The idea behind the escalation of the penalties, she
explained, is that the possessor who is not addicted does not
come back, but the people who do have a problem will be arrested
again and again, and as they prove through their behavior that
they do have a big problem, the grasp of the criminal justice
system on them increases. She advised, that is the way the
structure is designed to intervene with low-level drug
possessors.
5:47:24 PM
REPRESENTATIVE MILLETT noted that the amount of mere possession
was changed to a new structure of possession of narcotics, and
when reviewing what the statute was changed to, it could be a
dealer.
MS. DIPIETRO answered that Representative Millett was correct in
that there is that murky category of what is called user/dealer,
people who deal a little bit in order to serve their own
addiction.
5:48:16 PM
REPRESENTATIVE MILLETT asked whether the committee should take
the time to review the commission's new recommendations and try
to get it right. She said she does not want these
recommendations falling on deaf ears because some are valuable.
MR. RAZO advised that that is entirely up to the legislature,
the recommendations made by the Alaska Criminal Justice
Commission were all of the recommendations shown in the report.
Although, he pointed out, some of the recommendations were made
over one-year ago and have not yet had action, but all of the
recommendations in the report are solid and sound
recommendations. He related that the commission would not have
made recommendations for changes in criminal law, policy, or
procedure, without going through the process that each
commissioner demands.
REPRESENTATIVE MILLETT thanked Mr. Razo for the timeliness of
the report, and asked whether he had read the "op-ed piece from
the Nome police commissioner in yesterday's paper?"
MR. RAZO answered, "No."
5:50:55 PM
REPRESENTATIVE EASTMAN referred to Mr. Razo's previous response
to vehicle thefts and that criminals are not behaving in the
manner expected and "we're not sure why." He asked whether the
commission had considered that with the reduction of 437 inmate
beds, that perhaps it is due to these individuals not being in
prison and it is easier to steal a car out of prison.
MS. DIPIETRO pointed out that the directive for the commission
was to consider recidivism reduction, and recidivism means
people who have already been touched by the system. Therefore,
she explained, some crime has been committed by people who have
already been through the system, and some crime is committed by
people who have not been through the system and she did not
exactly know the proportion. The commission's recommendations
are designed to reduce recidivism which is why she is reluctant
to try to link crime rates to changes in laws because the crime
rate is different from reducing recidivism. The system can only
reduce recidivism for people it affects, those that have come to
its attention. Personally, she said, she wonders whether these
are people who have already been through the system and who have
this high recidivism rate and can the state try to reduce that;
or whether it is new people who have never been in the system
before and are just now starting their criminal justice journey.
These are questions the commission is interested in, but it is
difficult for her to draw conclusions at this stage, knowing so
little, she commented.
MR. RAZO responded that his answer was not different because,
essentially, there is no way to link the two concepts together
at this point based upon what is known.
5:53:38 PM
REPRESENTATIVE EASTMAN referred to the process of someone being
brought in as a heroin user who now has a misdemeanor and the
person is then arrested and released, and arrested and released
again, and at some point, the person actually receives jailtime.
He described that Mr. Razo was expecting law enforcement to be
patient individuals and more akin to caseworkers because "an
awful lot of time" is spent with a single person. He asked
whether that was a realistic expectation of law enforcement when
considering all of the paperwork involved, and the police
officer not really receiving any reward in the short term
because the bad guys are still out doing bad things.
MR. RAZO replied that what has been done, at this point, is only
a fraction of what needs to be done to confront the problems
facing the state. He pointed out that the City of Seattle has
diversion programs in place wherein a law enforcement officer
has the opportunity to tell a person with a "needle sticking out
of their arm" that they have a choice right now, either go to
treatment with the police officer now who will get them enrolled
and will meet the case worker, or, they can go to jail. That,
he explained, is a type of discretionary and diversionary
program that can exist in a full-bodied system of justice and it
is the type of intervention a police officer can use to give
someone a clear choice on what they want to do with their lives.
He remarked that Alaska is not anywhere close to that point, and
criminal justice reform looks forward to the possibility of
creating diversion programs and alternatives offering clear
paths for addicts caught for the first-time in their lives and
not having their lives ruined with a felony conviction. Those
types of programs have worked in other jurisdictions, and not
just for caseworkers but for law enforcement also because law
enforcement enjoys having the discretion to do something besides
hauling someone off to jail, he said.
5:57:41 PM
REPRESENTATIVE LEDOUX referred to the first-time heroin user
arrested for their first misdemeanor and the idea of intervening
in their lives to attempt to get them off the track they are on,
and asked whether there is currently anyplace for them to go for
substance abuse treatment in Anchorage.
MR. RAZO responded that there are not enough places.
REPRESENTATIVE LEDOUX asked how many beds are available in
Anchorage for opioid treatment.
MR. RAZO answered there are 15 beds for detox.
REPRESENTATIVE LEDOUX clarified, for heroin and alcohol detox,
or "for everything detox."
MR. RAZO advised that he does not know the answer but there are
not enough beds, and said detox is described as the most needed
portion of treatment.
5:58:54 PM
REPRESENTATIVE LEDOUX asked whether the cart was put before the
horse because possibly the detox/treatment places should be up
and running before letting that first-time misdemeanant heroin
user back out on the street where, in order to support their
habit, will steal someone's car. She suggested that it makes
more sense to have detox/treatment places available, and opined
that some of the jurisdictions pursuing criminal justice reform
do have those facilities up and running before changing the
sentencing rules.
MR. RAZO opined that the various states offering criminal
justice reform are all unique and individual. Except, he
pointed out, the fundamental idea is that it is better for an
individual with an addiction problem facing their first-time
arrest to be afforded the opportunity to deal with their
problem, and not their crime.
6:00:43 PM
REPRESENTATIVE LEDOUX asked whether it was realistic that the
person deal with their problem without treatment facilities by
putting them back out on the street while still experiencing
their addiction problem and breaking into cars.
CHAIR CLAMAN added that there is a shortage of treatment beds
but when putting someone in jail for heroin possession for three
months, three years, or thirty years, the likelihood is that
they will be released from jail with a heroin problem that has
not been treated.
MR. RAZO pointed out that the policy question is what the best
use of the people's money and if it is better to spend the
people's money on providing treatment beds, prevention programs,
and all of the sorts of things known to be fundamentally needed
by Alaskans, or to spend it on prisons.
6:01:55 PM
REPRESENTATIVE MILLETT noted that Senate Bill 91 included three
phases that were in the wrong order. Wherein, she said, phase
one should have been put to the bottom, and after phases two and
three were completed, to then discuss the reclassification of
the criminal code and sentencing.
MR. RAZO, in his purely personal opinion, answered there were
roughly 55 public hearings for those choosing to spend their
time with the commission in trying to understand the concepts
being discussed today. Ideally, he remarked, he would have
enjoyed having at least a year to try to explain the same
concepts to law enforcement, the courts, the prosecutors, the
defense bar, and everyone involved in the system. He stressed
that these concepts are important to comprehend in appreciating
why the commission would change the criminal justice system so
dramatically, and it would have been well worth the time and
effort to first educate people as to what the changes in the law
would mean. Then, ideally, within that period of time, spend
the money with upfront spending in order to have the programs in
place. That process, he stressed, would have brought about a
better result, although it would not have dealt with any of the
other potential factors that may be impacting crime today.
6:03:56 PM
REPRESENTATIVE MILLETT commented that she appreciated his
response because there was zero frontend loading, which was
needed. Phase one changes all of the sentencing requirements
and allows people with problems to go free to recommit crimes,
which is why the public is upset, although the public is not
upset about phases two or three, she offered. Implementing
phases two and three first would have made phase one successful
and people want to repeal Senate Bill 91, she advised.
MR. RIZO said he would take Representative Millett's comment as
a rhetorical statement.
[Chair Claman moved the committee back to public testimony.]
6:06:10 PM
NICOLE BORROMEO, Executive Vice President/General Council,
Alaska Federation of Natives, was available to testify.
6:06:26 PM
BEN MALLOTT, Vice President, Alaska Federation of Natives, was
available to testify.
MS. BORROMEO advised that the Alaska Federation of Natives (AFN)
was "intensely supportive" of Senate Bill 91 in 2016, and is
"fiercely opposed" to SB 54 because the criminal justice reforms
in Senate Bill 91 are the right thing to do for Alaska, and the
contemplated adjustments are premature. However, she said, the
annual convention wrapped last week and through the course of
those three days, the delegates and members of AFN redirected
its position. The AFN now favors the swift passage of SB 54,
and would like the committee to work with members across the
aisle and the other body to see this passed during this fourth
special session. The Federation of Native is committed to
seeing this bill passed this session and is happy to work with
other stakeholders, she said.
MR. MALLOTT reiterated that the Federation of Natives (AFN)
passed a resolution in support of SB 54, and it looks forward to
working with the committee.
MS. BORROMEO stressed that the AFN does not want to see a
complete repeal of Senate Bill 91.
6:08:06 PM
REPRESENTATIVE FANSLER asked whether it is AFN's position that
it wishes to see SB 54 passed in its exact form at this time, or
whether it advocates for any changes. He said he was aware the
time period of incarceration for Class C felonies was an issue.
MS. BORROMEO clarified that AFN advocates for the "speediest
passage possible," and there are aspects of the bill that no one
is particularly happy about, but in the interest of moving
Alaska forward, it would like to see SB 54 passed this special
session. Therefore, she said, whatever that looks like is what
the AFN would like to see passed, she said.
6:09:02 PM
REPRESENTATIVE MILLETT referred to the three phases of Senate
Bill 91, and the public's backlash and frustration with phase
one, and asked that if phase one was repealed and everything
else went through, would AFN be comfortable with that
legislation.
MS. BORROMEO responded that she was uncomfortable offering AFN's
position. To the question of whether the phases are out-of-
order, she said that the AFN does not necessarily believe the
phases were out-of-order because a lot of data suggested this
was the correct order. She opined that all could agree there
was not a proper educational campaign and many folks across
Alaska do not understand the bail schedule and where it ties in
[with the legislation]. She suggested better informational and
educational sessions on the bail schedule and how it impacts
Senate Bill 91.
6:11:16 PM
MIKE COONS related that the "process is a farce, pure and
simple." Senate Bill 91 went through deliberations and public
input, it passed regular session, and the Senate had more
hearings than the House of Representatives (audio difficulties)
taking time to hear from Alaskans (audio difficulties) Senate
Bill 91. Senate Bill 91, flawed as it is, (audio difficulties)
knee jerk action of indecision. Prosecute shoplifting, car
theft was (audio difficulties) level that all (audio
difficulties) deliberative review of the law affecting all
Alaskans. Yet, (audio difficulties) crimes with the (audio
difficulties) attorney general all were in (audio difficulties)
noticed in the earlier testimony (audio difficulties) Attorney
General Sessions now (audio difficulties) federal attorney
general (audio difficulties). [The audio difficulties made Mr.
Coons's testimony extremely difficult to decipher.
6:14:26 PM
The committee took an at-ease from 6:14 p.m. to 6:31 p.m.
6:31:52 PM
JAHNA LINDEMUTH, Attorney General, Department of Law, advised
she that has been in the role of attorney general for
approximately 15 months, and other than the state's fiscal
crisis, opined that the largest issues facing the State of
Alaska are of public safety. She stressed that the budget
crisis and the opioid crisis hit Alaska at exactly the worst
time in that DOL lost over 20 percent of its general fund
budget, the criminal division was cut at approximately 12
percent, and the state's crime statistics for 2015 and 2016 went
through the roof in all areas. At the time of the budget cuts,
it was not known that 2015 and 2016 crime statistics "were what
we were" when those cuts were made. Last year she reviewed
DOL's budget and recommended that the department stay flat and
not make further cuts, which is where DOL ended up last year
other than the small tweak of adding a prosecutor. She related
that all of the cuts to DOL took place prior to her becoming
attorney general.
ATTORNEY GENERAL LINDEMUTH advised that Senate Bill 91 has been
blamed for a lot of things that could be further blamed on the
state's fiscal crisis and the budget cuts to the public safety
system. She explained that as the attorney general she sits on
the Alaska Criminal Justice Commission, and although she does
not have a criminal law background, said that she has completely
steeped herself in criminal law during the last 15 months. She
explained there are regular Alaska Criminal Justice Commission
meetings, and subcommittee meetings associated with issues, and
quite a few meetings on criminal justice policy issues. Public
safety is the department's top priority, aside from the state's
fiscal crisis, she pointed out.
6:35:20 PM
ATTORNEY GENERAL LINDEMUTH, in explaining the origin of SB 54,
advised that the commission heard public testimony, testimony
from prosecutors and law enforcement, and she spoke with the
Department of Public Safety (DPS), and her employees regarding
the implementation and unintended consequences in Senate Bill
91, and where to make changes. Subsequent to those discussions,
Commissioner Walt Monegan and Attorney General Lindemuth drafted
most of the recommendations that became SB 54, and the key
issues seen in the legislation that passed the Senate are
recommendations from Department of Law (DOL) and Department of
Public Safety (DPS). As a matter of process, she explained,
they took those recommendations to the commission and had them
vetted and voted on before bringing them to the legislature, and
commented that that was a good policy means of getting to good
substance on criminal justice legislation. The issues seen in
SB 54 are the adjustments to criminal justice reform that the
department believes should be changed now, she explained.
ATTORNEY GENERAL LINDEMUTH advised that in the future,
additional ideas the department would like to see addressed may
come forward. For instance, the Title 47 issues, intoxication
and incapacitation issues that existed prior to Senate Bill 91.
The commission is currently grappling with what long-term fixes
could be made to improve the system, but it is not yet ready to
bring forward a policy recommendation, she said.
6:37:26 PM
ATTORNEY GENERAL LINDEMUTH related that the department would be
satisfied if SB 54 was passed at this time, and then starting
the dialogue of what more can be accomplished. Her personal
recommendation, she offered, is that beyond SB 54, as currently
passed by the Senate, the next best thing to be done is to
better fund public safety. Attorney General Lindemuth advised
that during the next session, her recommendation will be to add
more money for prosecutors with targeted adds to the public
safety system, which could include adds to DPS, and most
importantly the social services pieces and treatment pieces. As
Representative LeDoux noted, there are not enough treatment
options, especially with the opioid epidemic taking off the way
it has with the demand for those services even greater than two
years ago, more resources must be added at that level, she
stressed.
CHAIR CLAMAN noted that many of the recommendations in the
Alaska Criminal Justice Commission's report are located in SB
54, and asked that tomorrow she explain the recommendations not
listed in SB 54, why she was not asking the committee to amend
SB 54, and what her timeline would be for the committee to look
at any additional recommendations.
6:39:40 PM
REPRESENTATIVE LEDOUX noted there was a [letter] "with a bunch
of recommendations" the Department of Law (DOL) had made when
initially discussing Senate Bill 91.
ATTORNEY GENERAL LINDEMUTH opined that Representative LeDoux was
referring to the memorandum directed to the Alaska Criminal
Justice Commission from the Departments of Law and Public Safety
that resulted in SB 54.
6:40:20 PM
REPRESENTATIVE MILLETT clarified that Representative LeDoux was
referring to the 6/17/2017, [letter] directed to Governor Bill
Walker from John Skidmore, Department of Law referencing "SB 91,
Omnibus Criminal Law and Procedure; Corrections."
CHAIR CLAMAN reminded the committee that this [letter] was
previously emailed to each member.
REPRESENTATIVE MILLETT advised that contained within the
[letter] are recommendations and questions posed by Mr. Skidmore
that the legislators should have read that "came out so close to
while we were debating it on the floor." She requested an
updated memorandum on Senate Bill 91 now that phase one had been
implemented, and asked whether DOL had the same concerns, such
as, the inflation proofing and separation of powers issue.
6:42:00 PM
ATTORNEY GENERAL LINDEMUTH responded that Representative Millett
was discussing the "bill review [letter]" for Senate Bill 91,
and explained that a bill review is prepared for the governor on
every bill that passes the legislature, and it describes the
provisions of a bill. She clarified that it is not meant to be
a recommendation one way or the other, it is meant to "tell the
governor what the legislature is proposing that he sign."
6:42:27 PM
ATTORNEY GENERAL LINDEMUTH advised that tomorrow she will submit
three documents DOL prepared for SB 54, as follows: FAQ on SB
54; list of all Class C felonies in Title 11 as one of the main
fixes being addressed in SB 54 is giving courts the discretion
for jailtime for Class C felonies because many things fall
within Class C felonies, some are non-violent but many are
violent offenses that deserve giving judges the discretion for
jailtime; and the 5/19/17, memorandum from John Skidmore and
addressed to Senator Coghill that discusses where Alaska falls
as a state on Class C felonies vis-a-vie other states that have
undertaken criminal justice reform. She pointed out that the
evidence behind Senate Bill 91 was that longer jail sentences
were not any better than shorter jail sentences, and what the
department is doing in proposing zero to one-year Class C
felonies still fits within that evidence submitted to the
commission from the PEW Foundation, and it is still consistent
with criminal justice reform. She said that contained within
the evidence submitted to the commission that lead to Senate
Bill 91, it did not see evidence that zero jailtime would be
appropriate for Class C felonies. It was one of those things,
she described, where those in the trenches putting together the
package, "we think just kind of dialed it back a little too
far." The department's recommendation is dialing it up and
giving a little more discretion to judges for Class C felonies.
Previously, she explained, it was zero to two-years, and DOL is
recommending zero to one-year because it believes that
accomplishes the issues DOL and law enforcement were seeing with
these Class C felonies, but it is still consistent with the
principles behind criminal justice reform.
CHAIR CLAMAN asked whether there was a memorandum from DOL in
roughly January 2017 that made the more narrowed recommendations
related to SB 54.
ATTORNEY GENERAL LINDEMUTH replied that the January memorandum
is the memorandum to the commission itself [with the
recommendations from DOL and DPS], the commission then
considered those recommendations and the recommendations that
came out of the commission are not exactly the same as what was
recommended by the departments, but DOL is fine with where SB 54
is now, as passed by the Senate.
6:45:43 PM
REPRESENTATIVE MILLETT referred to Senate Bill 91, and offered
concern that the legislature lessened the penalty for a police
officer injured in the line of duty.
ATTORNEY GENERAL LINDEMUTH deferred to Kaci Schroeder, DOL.
6:47:09 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, opined that
Representative Millett was referring to the overall sentencing
and explained that sentences were reduced overall, except the
most serious offenses, such as homicide. However, she said,
Representative Millett was referring to crimes committed against
law enforcement and there is an aggravator present wherein the
sentence could be enhanced if a crime was directed at a law
enforcement officer.
REPRESENTATIVE MILLETT commented that the legislature lowered it
in Senate Bill 91.
MS. SCHROEDER reiterated that the sentences were lowered across
the board.
6:47:59 PM
REPRESENTATIVE EASTMAN offered his understanding that in some
instances, aggravators are not allowed to be used as far
increasing this penalty.
MS. SCHROEDER asked that he repeat the question.
REPRESENTATIVE EASTMAN referred to a previous discussion as to
how aggravators can sometimes be used, and sometimes cannot be
used. He opined that with Senate Bill 91, there are additional
instances where the judge cannot consider aggravators.
MS. SCHROEDER answered that she is unaware of any language in
Senate Bill 91 preventing the use of an aggravator. She
explained that in the event there is an element of the offense,
DOL cannot use that element to aggravate the sentence. For
example, she offered, if the element of the offense requires a
dangerous instrument or a deadly weapon, DOL cannot then use
that instance to aggravate the offense. Senate Bill 91 did not
affect that, it has been law for a long time, and the same
aggravators are present as prior to Senate Bill 91, she said.
6:49:01 PM
REPRESENTATIVE EASTMAN said he understands that to be the case,
except now that the penalty has been reduced, that cap is
lowered and there could or could not be an aggravator. He
commented that it would not raise that cap one inch.
MS. SCHROEDER responded that the maximum sentences for each
offense, such as a Class C felony and a Class B felony, are the
same as prior to Senate Bill 91. She explained that the
presumptive ranges within those offenses have been adjusted and
once an aggravator is proved, it is within the judge's
discretion to sentence up to the maximum.
6:49:40 PM
REPRESENTATIVE MILLETT commented that she thinks criminal
justice reform is a good idea, although its implementation has
caused some issues. She noted the question had been raised
about inflation proofing and separation of powers, and asked
whether Attorney General Lindemuth still believes the "inflation
proofing has the issue of separation of powers within changing
the inflation proofing."
CHAIR CLAMAN clarified that Senate Bill 91 includes an inflation
proofing mechanism on theft offenses that would be adjusted
every five-years, and Representative Millett is raising the
question about whether that decision by the legislature ...
REPRESENTATIVE MILLETT interjected that the question was raised
by DOL.
CHAIR CLAMAN agreed, and he said that Representative Millett was
raising the question of whether DOL thinks that "we shouldn't
have done that."
ATTORNEY GENERAL LINDEMUTH explained that the purpose of the
bill review is to identify issues that may exist in the future,
and DOL identified some legal uncertainty as to what a judge
would do with that particular issue in the future. She pointed
out that it is not something DOL was saying the legislature
needs to fix.
6:51:04 PM
REPRESENTATIVE MILLETT paraphrased a portion of the memorandum
as follows: "No other state in the country has a similar
provision of the law that adjusts the value of threshold or
property crimes for inflation. So, having the jud -- judicial
branch adjust the property crime thresholds may also raise two
separation of powers issue," and it goes into the first and
second issue. She related that the issue was raised in the
memorandum, and asked whether it should be clarified now so
inflation proofing is not part of the question or part of a
problem going out into the future.
ATTORNEY GENERAL LINDEMUTH opined that the idea of inflation
proofing is a good policy idea, and DOL identified that there
were some potential legal challenges. She related that "since
we're already here and we're already doing that" to wait and see
whether there is a court challenge on that particular issue.
She explained that when the Department of Law (DOL) prepares a
bill review, it tries to identify legal issues for the governor.
She pointed out that within a bill's legislative process, DOL is
involved along the way, and in the event DOL sees any
constitutional issues it works with the legislators to try to
resolve the issue during that process, and this issue did not
rise to the legislative level of something that needed to be
fixed, she advised.
6:53:07 PM
REPRESENTATIVE EASTMAN offered that at five-years out, in the
event there is a legal challenge and the court finds it was a
problem, approximately how many cases might be impacted.
ATTORNEY GENERAL LINDEMUTH replied that she does not have that
number as that would be on a case-by-case basis. In the event
there was situation such as that, any change to the law would
have to come back to the legislature, other than being inflation
proofed at the front-end, she explained.
6:53:54 PM
REPRESENTATIVE LEDOUX asked exactly who would challenge the law,
because the person being prosecuted would not challenge the
inflation proofing as that person would benefit by the inflation
proofing, presumably.
REPRESENTATIVE MILLETT commented, the guy who is charged the day
before with the lower, lower ...
REPRESENTATIVE LEDOUX advised Representative Millett that she
was asking Attorney General Lindemuth.
CHAIR CLAMAN pointed out that the legislature raised the
misdemeanor theft level to $1,000, and say inflation bumped it
up to $1,100, and someone was charged with a Class A misdemeanor
for $900 in property theft, and one-year later the level is
$1,100, that person is charged with a misdemeanor for stealing
$1,050.
REPRESENTATIVE LEDOUX asked whether that person would have
standing to ...
ATTORNEY GENERAL LINDEMUTH responded that it is difficult to
speculate about a potential legal challenge, and she could not
think of a party that may challenge this, but that does not mean
it would not be challenged in the future, possibly Fred Meyer
who believes ...
CHAIR CLAMAN interjected that because victims of crimes have
rights here, the challenge would come from a victim of crime.
6:56:38 PM
REPRESENTATIVE MILLETT opined that under administrative parole,
a person could have their sentence reduced by 75 percent based
on the use of administrative parole in the sentencing and not
going before the Parole Board.
ATTORNEY GENERAL LINDEMUTH deferred to Kaci Schroeder.
MS. SCHROEDER answered that for certain types of offenders with
certain classes of offenses who meet the criteria must have
served one-fourth of their sentence, or the mandatory minimum
required under law, or the term of imprisonment imposed by the
judge subject to discretionary limitations. She advised that it
is generally for property-type of offenses because there are
many exclusions, such as crimes against a person, Class C
felonies, sex offenses, and more. She offered that she does not
know how this is working on the ground as that would be a
question for the Department of Corrections (DOC) as to how many
people it has seen who are eligible and released under this
provision.
6:58:11 PM
REPRESENTATIVE MILLETT described that it is a policy question as
to whether the legislature wants a prisoner to have one-fourth
of their sentence to serve or ... it is a big reduction in
sentencing based on some of the circumstances being discussed.
She asked the logical reason the legislature should reduce
someone's sentence by 75 percent.
ATTORNEY GENERAL LINDEMUTH opined that the commission may have
more insight as to that recommendation, and added that it is a
carrot/stick issue because many provisions in Senate Bill 91 are
trying to incentivize good behavior, together with the idea of
putting the most egregious and violent people in prison. She
commented that using flexible consequence-type issues for those
non-violent lesser offenses fits within the parameter of
criminal justice reform.
7:00:06 PM
CHAIR CLAMAN offered a scenario of an assault in the third
degree against a firefighter absent an aggravator, and under
this amendment, if it is a first offense that person would face
a sentence of zero to one-year. He asked what happens to the
sentencing range if the prosecution proves up the aggravator
that it is a uniformed firefighter.
MS. SCHROEDER answered that if the prosecution is able to prove
the aggravator, the judge could sentence up to the five-year
maximum for a Class C felony.
7:00:54 PM
REPRESENTATIVE KOPP pointed out that for decades there have been
provisions, such as AS 12.55.078, suspending entry of judgment,
which read as follows:
(a) Except as provided in (f) of this section, if
a person is found guilty or pleads guilty to a crime,
the court may, with the consent of the defendant and
the prosecution and without imposing or entering a
judgment of guilt, defer further proceedings and place
the person on probation. The period of probation may
not exceed the applicable terms set out in AS
12.55.090(c).
REPRESENTATIVE KOPP offered that certain offenses are
disqualified from that, but Alaska law has recognized for 50-
years that there are certain cases where the interest of justice
is served. Representative Millett brought up good questions as
to structuring sentences where people have an opportunity to be
out on probation or parole earlier, and Mr. Razo would be the
person to ask. He pointed out that "we've had things like this
in the statute book" that had nothing to do with any recent
reform wherein legislatures long-ago set up these types of
opportunities in several different [statutes].
CHAIR CLAMAN offered that the suspended imposition of sentence
has been on the books for a long time, and there have been
awkward issues involving the suspended imposition of sentence
because technically a person is found guilty with a suspended
imposition of sentence and they do not technically impose a
sentence. The criminal justice reform, he offered, adds a new
process called the suspended entry of judgment which essentially
happens before a finding of guilt, with the consent of all
parties, in addressing the issue of someone with good
rehabilitation potential. The thought was that for that person
to have an opportunity to successfully complete their
rehabilitation and be able to say they have a clear record,
which is "murky" on the suspended imposition of sentence. The
principle of trying to make it possible to clear a person's
record has been part of Alaska's criminal justice for decades.
7:03:24 PM
REPRESENTATIVE MILLETT referred to the three phases of Senate
Bill 91, and asked whether the state would have been better
served to implement phase one after phases two and three. She
asked Attorney General Lindemuth's thoughts about repealing the
revisions of the classification of the criminal code, and
stopping provisions such as, the reclassifications and
sentencing reductions, administrative parole, the redefinition
of a mere drug possession, and the recidivist amendment wherein
the misdemeanors continue on and on, and never get to a felony.
ATTORNEY GENERAL LINDEMUTH responded that the classification and
sentencing is a critical component because it is how criminal
justice reform programs are paid. The pretrial services office
and the adding of 16 new police officers has not yet come into
effect, but it is an expensive piece being paid by reducing
sentences and having certain people not in jail so much of the
time. There is a whole cost component with sentencing and
classification. Secondly, she pointed out, as far as the
timing, it is a little too late. She offered that in a perfect
world, it would have been better to have the pretrial services
piece in place before moving forward and interacting with the
folks not spending as much time incarcerated pretrial. Also,
she stressed, the bail schedule was not part of Senate Bill 91,
and its timing exacerbated the issues. As of January 2018,
those pretrial officers will be on the ground and things should
start getting better on that front, she said.
7:05:46 PM
ATTORNEY GENERAL LINDEMUTH referred to vehicle theft, especially
in Anchorage, and offered that it is a Class C felony and the
fixes in SB 54 will largely address that particular issue. She
advised that her former Anchorage district attorney advised her,
as far as resources go, that the Anchorage office must
prioritize the violent felonies. She said that given the
limited resources in Anchorage and the record number of
homicides over the last two-years, let alone all of the other
violent crimes, [vehicle theft] type cases are not receiving as
much attention as they should if DOL was better funded, she
said.
7:06:58 PM
REPRESENTATIVE MILLETT referred to Attorney General Lindemuth's
statement regarding reinvestment and cost to the state, and
asked about the costs to society in letting these people out of
jail by lowering sentencing. She related that constituents are
upset about people frequently breaking in and stealing cars, and
that societal costs must be balanced with the cost of
government.
ATTORNEY GENERAL LINDEMUTH reiterated that pretrial services
will begin in January, and the pieces believed to be misses in
Senate Bill 91 are addressed in SB 54, such as Class C felonies,
recidivist theft, and violations of conditions of release. The
big thing that had been seen from law enforcement on the ground
was its lack of the ability to put someone in jail pending the
next bail hearing with the judge. Those issues are addressed in
SB 54, she reiterated. She stressed that the recommendations in
Senate Bill 91 are based on science, including evidence from a
number of other jurisdictions undertaking these types of
reforms, that it works. There are small tweaks to be taken in
SB 54, she acknowledged, but the big picture is the evidence
supporting it in the longer run. Once the state gets up and
running, this actually should improve public safety, and she
related that "right now, we have to go with what the best
evidence is, and that's where we're at."
7:09:51 PM
REPRESENTATIVE LEDOUX noted Attorney General Lindemuth's
scenario of a perfect world wherein phases two and three would
have come before phase one. She asked, why not implement phase
one after phases two and three are fully implemented.
ATTORNEY GENERAL LINDEMUTH reiterated that this October 2017,
and everything begins as of January 1, 2018. She referred to
the cost of the system and educating all of the prosecutors and
law enforcement, and said that putting a pause on it at this
particular juncture, the timing is that "we're there and we'll
see what -- what this does when we have those pretrial officers
on the ground in January."
7:10:44 PM
REPRESENTATIVE LEDOUX commented that alcohol and drug abuse
treatment services are still not available.
ATTORNEY GENERAL LINDEMUTH clarified that within the last 18-
months, additional resources have been put into the system and
more needs to be done. In the event there was a fiscal plan,
her recommendation would be to put a significant amount of more
money into those treatment options, more than what has been
planned under the $99 million over a six-year type of
investments. Put more money in there now, she expressed,
especially given the opioid epidemic and the demands being
experienced on those issues, and accelerate that piece of the
reinvestment. That does not mean the state should pause
everything else, she pointed out.
7:11:41 PM
REPRESENTATIVE LEDOUX noted that the bottom line is that there
is not a fiscal plan currently, it is what it is. She asked
whether the [legislature] should want those services in place
before letting people out of jail knowing they cannot receive
the anticipated treatment.
ATTORNEY GENERAL LINDEMUTH responded that it is all a matter of
degree, and "we just have to keep working toward this." At the
same time, she pointed out, that does not mean the whole package
is flawed or that the state cannot move forward with criminal
justice reform. The Departments of Law and Public Safety have
looked at this and believe the tweaks that needed to be made are
in SB 54, she reiterated. The commission will continue
discussing these issues and additional evidence will come
forward, especially with the additional reinvestment that is
needed for substance abuse treatment and getting those resources
online. At this juncture, she advised, until there are further
issues vetted at the commission level, no further legislative
recommendations are being made to the legislature.
7:13:07 PM
REPRESENTATIVE LEDOUX asked whether SB 54 incorporates all of
DOL's recommendations to the commission, and if not, what is
left.
ATTORNEY GENERAL LINDEMUTH explained that in looking at the
January 2017, memorandum directed to the Alaska Criminal
Commission from the Departments of Law and Public Safety,
everything listed in the memorandum is addressed somewhere in SB
54, but it may not be in the exact form as the recommendation.
7:13:59 PM
The committee took an at-ease from 7:13 p.m. to 7:17 p.m.
7:17:24 PM
ATTORNEY GENERAL LINDEMUTH referred to the above-mentioned
memorandum and reiterated that everything in the memorandum was
addressed in some manner in SB 54, but possibly not in the same
form as offered in the memorandum. Except, Number 7 at the
bottom of page 4, "Align Discretion of Bail and Pretrial
Services Officers to make Recommendations with Judge Discretion
to Impose Bail." She then turned to page 5, and pointed to the
two-colored charts, one is pretrial service officers and the
other is the courts. She advised that the discussion at the
commission level was that this part of the statute had not yet
gone into effect, and to wait and see how it works in practice
as to whether a fix is necessary. The thought of some of the
commissioners was that judges are smart enough to figure this
out, so a fix may not be necessary. Number 7 was the only thing
hanging out there and it is really for future consideration
after it goes into effect, she said.
7:19:02 PM
REPRESENTATIVE FANSLER referred to first-time Class C felonies
and aggravators, and asked the attorney general to walk the
committee through typical aggravators, and whether aggravators
are typically attached to crimes, or whether aggravators are
rare.
MS. SCHROEDER responded that aggravators are not run of the
mill; however, there are many aggravators in statute. She said
she could not say that there is always an aggravator that will
apply, but when they do apply they can be pursued, and the
person can be sentenced above the presumptive range. For
example, a crime directed at a law enforcement officer has an
aggravator, and many aggravators are located at AS 12.55.155, as
follows: a crime committed in a domestic violence situation; a
person commits another felony while on bail release for a
felony; and those types of crimes.
7:20:39 PM
REPRESENTATIVE FANSLER noted that the pretrial services office
begins January 2018, but in some districts, the post-trial
probation is nowhere close to sufficient. He asked how DOL is
looking to address this issue, and why are there only two
probation officers in Bethel for "seven spots?"
ATTORNEY GENERAL LINDEMUTH commented that the Department of
Corrections (DOC) could better address that question because
probation runs through DOC. In looking at the big picture,
there is more that should, and can, be done with probation and
she is working with other departments to put together a Public
Safety Action Plan for Governor Walker to take concrete steps
and increase resources for probation. She advised that putting
them in the community and having more community involvement
makes better sense than having the state provide those
(coughing).
7:22:14 PM
REPRESENTATIVE FANSLER noted the focus has been on many specific
crimes, and asked why not reclassify certain crimes and move
them out of a Class C felony up to a Class B felony, or move
them to a more appropriate location to get the sentence. He
also asked whether that would be a more tactical and surgical
manner to accomplish what "we're trying to accomplish" rather
than changing the whole Class of felonies.
ATTORNEY GENERAL LINDEMUTH answered that that is not a
recommendation the Department of Law (DOL) is currently making,
but it is certainly a legislative prerogative. The legislature
can always look at offenses and decide the appropriate sentence,
putting aside the whole Senate Bill 91 issue, she said.
7:23:34 PM
REPRESENTATIVE FANSLER related that there is a chicken and the
egg situation here where these services need to be paid and the
choice was made to take money from the state's prison system and
turn it into rehabilitation. He surmised that if the state
wants these programs to be successful, it needs money to do it
and it needs to figure out a way. Under Senate Bill 91, the
legislature chose to take the money out of the Department of
Corrections (DOC), which is why this certain order was chosen,
and at this point the [state] is committed, he stated.
ATTORNEY GENERAL LINDEMUTH agreed with Representative Fansler,
and she said that was a critical piece, and also stopping the
projection of where the state was headed and adding new prisons
in the future. She offered that a lot of the cost savings was
just avoiding those additional costs that the projection was
moving toward. Also, she added, being smart about how the state
uses its corrections in putting certain people in jail, and that
sometimes if folks can stay out of prison, keep their job and
their life in order, they may have a better success in the long
run. Reinvesting the saving and is not enough, she stressed,
the state really does need to front-load the treatment options
and put more money in upfront to have the successes anticipated.
7:26:38 PM
REPRESENTATIVE KOPP reiterated the issues raised by constituents
over vehicle theft, the presumptive range for first offenders
being just probation, low-level thefts, and the seeming lack of
law enforcement ability to issue any repercussion, and asked
whether SB 54 fixes those problems.
ATTORNEY GENERAL LINDEMUTH answered that as far as the
sentencing and legal structures that need to be tweaked by the
legislature, all are addressed by SB 54. The other piece is
resources and making sure there are enough prosecutors on the
ground to actually prosecute the crimes being referred to DOL,
and those two issues go hand-on-hand. As far as Anchorage, the
police department added 40 new positions over the last two years
generally, and it expects to add more people throughout the next
year. As more Anchorage law enforcement is added on the ground,
she pointed out that more crimes are referred to DOL, and in
Anchorage, DOL handles the felonies and the Municipality of
Anchorage attorney handles the misdemeanors. Although, she
advised, as far as the felonies go, DOL will have to prioritize
those because it does not have enough prosecutors on the ground.
After the passage of SB 54, funding and resources issues are the
second piece that needs to be addressed, she advised.
7:28:29 PM
REPRESENTATIVE MILLETT referred to misconduct involving a
controlled substance and mere drug possession, and asked whether
the legislature got it right and how it helps the first-time
misdemeanant heroin user.
ATTORNEY GENERAL LINDEMUTH responded that she does not know if
the legislature got it right, time will tell whether this
experiment works. The fundamental question is whether the state
wants to criminalize and institutionalize the people in
corrections who have substance abuse treatment issues, or try to
get those people into treatment. Statewide, she said, DOL deals
with misdemeanors, other than the Juneau and Anchorage
municipalities, and the state needs to have resources to put
toward misdemeanors, noting that the department will have to
prioritize felonies, especially violent felonies. The
department does not have enough people on the ground to do the
type of misdemeanor prosecution that is needed to effectuate
that piece of the puzzle, she expressed, and simply changing the
consequence by making the sentence longer will not fix the
issue. Resources are needed in order to have those cases run
through the system regardless of whatever the sentence is that
is being imposed, she said.
7:31:46 PM
CHAIR CLAMAN noted that Representative Millett had asked what
this legislation is doing for the heroin user, and a heroin user
having the choice between being convicted of a misdemeanor
versus convicted of a felony would probably choose a misdemeanor
because their odds of a decent life, after treatment, is better
without a felony on their record. Representative Millett's
question was whether it was a societal matter, he asked whether
the state will get more people into treatment if they are
convicted of felonies with the state spending a bunch more money
to put them in prison.
7:32:43 PM
REPRESENTATIVE MILLETT commented that her point was that the
state is releasing people with mere drug possession and hoping
they get into treatment, while the legislature knows that
treatment is not available. Again, she remarked, it is a
representation of putting the cart before the horse, and the
state is lessening sentences, lessening opportunity, and sending
people out into the world with a false hope that somehow this
bill will save them when it actually impacts society in an
adverse manner.
CHAIR CLAMAN noted that Representative Millett did not ask a
question.
7:33:15 PM
REPRESENTATIVE KREISS-TOMKINS noted that an Anchorage Police
Officer shared that 440 officers have been cut to 340 officers
over the last five-years and the Anchorage Police Department
(APD) is currently looking to increase that amount, but those
officers are not yet on the street. He asked whether he
approximately understood the level of the Anchorage Police
Department's resources, and to what degree law enforcement
refers crimes for prosecution to DOL, and whether she was seeing
a prosecutorial resource shortfall, particularly if these new
officers come onto the street and more crimes are referred to
DOL.
ATTORNEY GENERAL LINDEMUTH commented that as far as the APD
officer level, she did not know where it was previously and
opined that Representative Kreiss-Tomkins was approximately
correct wherein they had a high in the 400s and now are in the
300s.
CHAIR CLAMAN offered that in 2009 the count was 414, in 2014 it
was approximately 328, and currently approximately 408
currently.
7:35:34 PM
ATTORNEY GENERAL LINDEMUTH noted that there had been a
significant amount of people on the street in the last 1.5 to 2
years, and that those officers on the ground are making
referrals to the DOL. She reminded Representative Kreiss-
Tomkins that she began her testimony today advising that DOL
does not have sufficient prosecutorial resources, and she
reiterated that if anything, the department has been cut too
deeply which impacts its ability to provide core services,
including prosecuting crime. She remarked that while the number
of crimes the department is pushing through have not changed
much, the type of level the department is prosecuting has gone
up, homicides are up, violent assaults are up considerably which
requires DOL to prioritize. The most serious crimes receive
attention, which means the lesser offenses of misdemeanors and
non-violent vehicle thefts do not receive the attention they
need. She expressed that if DOL had more resources she was sure
more crimes would be prosecuted.
7:36:48 PM
REPRESENTATIVE KREISS-TOMKINS offered that when the state had
surpluses, the department had more resources and asked whether
vehicle thefts were being prosecuted.
ATTORNEY GENERAL LINDEMUTH responded that certainly more vehicle
thefts were prosecuted than the current amount.
7:37:06 PM
REPRESENTATIVE LEDOUX reiterated the public's outrage and
society's condemnation, noting that Attorney General Lindemuth
said SB 54 fixes the problem with respect to low-level
misdemeanors so that people can no longer think they are going
to simply get away with this without any punishment. She asked
whether it actually fixes it for first-time misdemeanor
shoplifting, for example, or if those folks still have a get out
of jail free card.
ATTORNEY GENERAL LINDEMUTH answered that Representative LeDoux
was correct, those repeat offenders were the problem complained
about from Fred Meyer, and other folks who testified at the
commission and legislative levels. She asked whether the
legislature was going to put a first-time shoplifting teen-age
offender in jail, and opined that this was not happening prior
to the enactment of Senate Bill 91, even with the ability for
jailtime. She said she does not look at it as a get out of jail
free card, it is prosecutors and courts using discretion to deal
with someone who may have made one small mistake, and does not
have a life of crime behind them. The issue, she remarked, is
the recidivist issue and those with repeat offenses.
7:39:03 PM
REPRESENTATIVE LEDOUX noted that in reality, prior to Senate
Bill 91, the first-time shoplifter probably would not have
received jailtime, but with jail hanging over their heads, the
state had more ability to "scare the hell out" of the teen-ager
when they thought about committing a shoplifting offense.
Currently, that does not exist, she comments.
CHAIR CLAMAN asked, under present statute or under SB 54.
REPRESENTATIVE LEDOUX answered under both.
ATTORNEY GENERAL LINDEMUTH responded that the state no longer
has the tool of scaring someone with jailtime for a low-level
theft.
REPRESENTATIVE LEDOUX commented that if the tool was not being
used to incarcerate the teen-age who had made a mistake, the
parents or judge could use it to scare that person, so why not
keep the tool.
ATTORNEY GENERAL LINDEMUTH answered that it is important to
return to the evidence presented to the commission resulting in
the passage of Senate Bill 91. There is good evidence to show
that jailtime in those kinds of situations can actually create a
problem versus solve a problem, and it is important to review
the evidence in those types of issues, especially a low-level
theft of less than $250, she said.
7:41:19 PM
REPRESENTATIVE LEDOUX argued that Attorney General Lindemuth had
said that, in reality, the first-time offender for the low-level
petty crime did not actually end up in jail. She asked why the
legislature had to fix a problem that did not exist and remove
the tool that could scare someone.
CHAIR CLAMAN related that during recent conversations with
police officers, he asked what happened with low-level theft
offenses prior to criminal justice reform, and the answer was
that they looked at the offender and the circumstance. In the
event they had some 18-year old student in college and if it was
their first shoplifting offense, they would write a citation,
send them home, and never take them down to the station. By the
same token, he said, if it was a 26-year old with a long string
of other crimes but never arrested for a theft offense, they
would take them to the station. Generally, he commented, when
they had people with no prior record, the people were not
threatened with jail at any point in time.
REPRESENTATIVE LEDOUX said that Chair Claman proved her point.
7:42:52 PM
REPRESENTATIVE LEDOUX commented that, generally there are
decent, fair-minded people on both sides of issues, and she had
noticed, "in this hearing, at least" all of the folks supporting
SB 54 do not want to see it strengthened, and certainly do not
want a repeal of Senate Bill 91. Representative LeDoux said
that in speaking as the attorney general of this state "you
probably know lots of attorneys, lots of folks" and asked the
name of a bright and articulate person who would disagree with
her analysis.
ATTORNEY GENERAL LINDEMUTH answered that she does not know
anyone who has really looked at this issue and come out strong
in repealing Senate Bill 91, or criminal justice reform. Those
folks who have looked at this issue, including all of the
commissioners on the commission representing criminal justice
agencies, judges at every level, mental health authorities, and
everyone involved, believe the state should continue on and make
these changes that the commission recommends, but not go further
and not do a complete reverse and end up with something
completely different.
7:44:52 PM
REPRESENTATIVE LEDOUX questioned, "So, you know nobody in the
entire legal community that you have any respect for. I mean,
what about Mr. Campion [former Anchorage District Attorney,
Clint Campion] who might have a different opinion."
ATTORNEY GENERAL LINDEMUTH advised that she spoke with Mr.
Campion about this very issue, and his view is aligned with the
Department of Law's view. She stated that he believes SB 54
should pass and that there may be future tweaks needed in the
future, but he is ... "I mean I see you shaking your head, but
I've had that discussion with him, and you are welcome to call
him and ask him to testify." She related that she does not
believe Mr. Campion was arguing for something that goes much
further than what has been put forth, and Mr. Campion's biggest
concern is to give DOL the resources it needs to prosecute
crimes.
7:45:46 PM
REPRESENTATIVE LEDOUX said she thought one of the reasons he
resigned was that he said how difficult it was in light of both
the lack of resources and Senate Bill 91.
CHAIR CLAMAN said that rather than arguing about hearsay
statements reported in the newspaper, he would endeavor to see
whether Mr. Campion was available.
ATTORNEY GENERAL LINDEMUTH commented that that is not her
understanding of why Mr. Campion left, and opined that he had
another opportunity he wished to pursue.
7:46:53 PM
REPRESENTATIVE EASTMAN referred to how the state calculates
recidivism, and offered a scenario of someone committing two
crimes, wherein they shoplifted to the point they received some
jailtime, and they are then released and do it again. He opined
that would count against the state's recidivism goals. He said
that post Senate Bill 91, if that same individual commits those
same crimes but not put in jail, whether they count against the
state's recidivism, or has recidivism been reduced "and we can
declare victory."
ATTORNEY GENERAL LINDEMUTH surmised that a recidivist is a
person who has a conviction and receives another conviction
within a certain period of time. It does not depend upon
whether there was actual jailtime served, it depends upon
whether there was another conviction, she explained.
7:48:10 PM
REPRESENTATIVE EASTMAN noted that legislators have been
encouraged to let the process work with regard to Senate Bill
91, and absent public support for these reforms, he asked
whether it can work.
ATTORNEY GENERAL LINDEMUTH commented that obviously the public
needs to generally buy into the system and feel that the system
works, and part of that system is an education piece to
understand how the system works. She pointed out that a lot of
blame has been put upon Senate Bill 91 that had nothing to do
with Senate Bill 91. She suggested educating the public as to
what is being fixed in SB 54 versus resource issues, and that
DOL is not prosecuting certain types of offenses because it does
not have enough prosecutors. The State of Alaska had an
unworkable system, it was not functional and would have cost a
lot of money going forward as a state, and the state needed
better outcomes, she said.
7:50:00 PM
REPRESENTATIVE EASTMAN surmised that a degree of buy-in from the
public is necessary in order for it to work, and "those of us on
the ground" are sensing that the buy-in may not be present, and
asked whether the department has a plan as to how that could be
secured.
ATTORNEY GENERAL LINDEMUTH reiterated that a lot of it is
education and outreach, having these types of hearings available
to the public is helpful, and she said she has been on radio
show programs, as have others, discussing these issues, such as
what are criminal reform issues, what is a resource issue, how
those things fit together, and how is the opioid crisis
generally impacting society. Governor Walker tasked her with
putting together a Public Safety Action Plan where the state
could take concrete steps to improve public safety, and she
pointed out that SB 54 is just the first fix, the public is owed
a plan as to how the state is going to tackle public safety
moving forward. Rolling back Senate Bill 91 altogether is not
what she is recommending. There are many other things to do as
a state and she hopes to roll that plan out shortly, so the
public may buy-in and know that something is happening. She
referred to her press conference with the United States
Attorney's Office last week, and advised that the Department of
Law (DOL) is partnering with its federal law enforcement agency
partners to take on violent crime, do more with better
corroboration and cooperation, and super-charge those efforts
focused on the most violent criminals in Alaska. She advised
that things are taking place to improve public safety, but it is
a matter of educating all of Alaska about where the state is
going, what is being done, and not being reactive to a public's
opinion that may be uninformed.
7:52:14 PM
REPRESENTATIVE KOPP noted that for 23-years he took people to
jail almost every day and have arrested "many thousands," and he
has seen multi-generations of family members repeating the same
particular offense patterns. He said he would like DOL to
review the issue of, how to keep a tail over people who have had
a drug possession offense, how to keep them honest, clean, and
in treatment doing what they should do, and not make a felon out
of them because that question, literally, has not been
discussed. He asked whether the state has to "make someone a
felon before we can help them." Thanks to CourtView, that
arrest, even if it is dismissed and goes away can keep people
unemployable for the rest of their lives for even a first-time
offense, he said. It is true, he commented, police officers are
frustrated when they do not see a good result come out of their
work effort and risk, there is a saying, "You can beat the rap,
but you can't beat the ride." Although, he acknowledged that
may make a police officer feel good for the moment, ultimately
everyone wants to see a long-term change in someone's behavior,
and to especially not pass it on to the next generation. He
suggested finding a way to allow DOL prosecution to have a hold
on someone without that hold turning into a showing that they
were arrested for a first-time felony, even if it was pled down
to a misdemeanor. The focus is not allowing youthful first-time
offenders to become felons for life, even when they were never
convicted because it will be on CourtView for the rest of their
lives. That is a real challenge, he expressed. There have been
discussions about the huge cost to all Alaskans around
unemployability and public assistance, and for every person out
there who becomes a felon, "we carry that as a society for the
rest of their lives." In the event a person deserves a felony,
they should receive a felony, he pointed out, but "for our
first-time, in particular, our youthful offenders, to be able to
prevent that, we are literally saving the next generation" by
keeping them in the work pool, keeping them alive, and keeping
them successful.
7:56:04 PM
REPRESENTATIVE MILLETT countered that accountability is an
established belief with prison time as a deterrent, and more
people will commit crimes when lessening the penalties. She
asked whether Attorney General Lindemuth had read an article
from a group of police chiefs who believe the cart was put
before the horse, and asked whether the legislature should not
listen to the experts and people on the ground who are trying to
protect the public yet taking away their tools.
ATTORNEY GENERAL LINDEMUTH responded that she had read the
article and pointed out that the first recommendation in the
article was to pass SB 54, which would be her starting point.
The testimonies of law enforcement and prosecutors lead to the
recommendations, and then the vote by the commission, and those
recommendations lead to SB 54. She acknowledged frustration at
the law enforcement level that may go further than SB 54, and
she invited law enforcement to testify before the commission, so
it can continue vetting these issues. She explained that
whatever is passed now is not written in stone, and it does not
mean the various entities cannot continue considering where to
move forward. For example, she advised, law enforcement is
struggling with the Title 47 holds and intoxicated folks, noting
there is a line between intoxication and incapacitation and how
that plays out will be further vetted by the commission. She
said she disagrees if what is being recommended is to walk away
from what has taken place because the commission is committed to
the process and hearing from law enforcement.
8:00:08 PM
REPRESENTATIVE KOPP stressed that he wanted to let
Representative Millett know that she misunderstood what he had
stated. He explained to her that he had asked DOL to look at
just first-time drug possession offenses for youthful offenders,
and he did not speak to any other felonies. He said, "I am not
about to advocate lightening felony sentencing for all those
other categories. I want to look at what are we doing with kids
on the first-time drug offense, how do we keep them accountable,
and get that first felony rap."
CHAIR CLAMAN advised that his point was well taken.
[Chair Claman returned the committee to public testimony.]
8:01:31 PM
TARA RICH, Legal and Policy Director, American Civil Liberties
Union of Alaska, advised that the American Civil Liberties Union
of Alaska (ACLU) is calling on the legislature to take quick
action on SB 54, and opined that the committee has absolutely
identified that there has been a confluence of circumstances.
Originally, she explained, ACLU's perspective was that it is too
early to start picking apart Senate Bill 91 and making changes,
except with the state's economic crisis, an opioid epidemic
exploding in the state, and vehicle theft exploding, the ACLU
understands that this may be a needed a change. She responded
to a couple of suggestions made during this hearing as to the
danger in basing further substantive changes to Senate Bill 91
on fear or anecdotal testimony and not research and data, while
pointing out that DOL had mentioned last week that a full repeal
of Senate Bill 91 would be dangerous. She referred to the
suggestion of pausing phase one, and remarked that it is
important to think about what that means, such that, when
advising to either repeal or put a pause on phase one of Senate
Bill 91, the discussion is about sending more people back to
jail or incarcerating further people. She pointed out that it
comes back to the question, "How should we spend the money," and
Alaska does not have infinite resources and the legislature has
to choose. She said it reminds her of the adage, "Don't tell me
what your values are, show me your budgets and I'll tell you
what your values are." She asked whether the legislature wants
to take action and go through the continuum of care that Mr.
Razo had discussed, such as preparing for release before someone
is released, assisting in reentry, reinvestment, and diverting
people away from the criminal justice system versus continuing
to use jails as warehouses for the mentally ill as a catch-all.
8:04:09 PM
CHAIR CLAMAN advised public testimony would continue during the
October 24, 2017 meeting, at 6:00 p.m.
8:06:21 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 8:06 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB54 ver N 10.23.17.PDF |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Sponsor Statement ver N 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Sectional Summary ver N 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Summary of Changes (ver. A to ver. N) 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Bill Contents ver N 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 ACJC Recommendations 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Alaska Criminal Justice Commission Annual Report 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Supporting Document-Letters of Support 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Supporting Document-Letter ACLU 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Opposing Document-Letter CUSP 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Bill Presentation 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 ACJC Presentation 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note DPS-DET 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note LAW-CRIM 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note DHSS-PS 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note JUD-ACS 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note DOC-IDO 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |