Legislature(2017 - 2018)GRUENBERG 120
10/26/2017 09:00 AM House JUDICIARY
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| Audio | Topic |
|---|---|
| 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 26, 2017
9:01 a.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 Lora Reinbold
MEMBERS ABSENT
Representative Charisse Millett (alternate)
OTHER LEGISLATORS
Representative Louise Stutes (alternate)
Representative Andy Josephson
Representative Geran Tarr
Representative Adam Wool
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."
- MOVED HCS CSSB 54(JUD) OUT OF COMMITTEE
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 (S) FOURTH SPECIAL SESSION BILL - SCR 401
10/23/17 (H) FOURTH SPECIAL SESSION BILL - SCR 401
10/23/17 (H) STA REFERRAL WAIVED Y25 N12 E2 A1
10/23/17 (H) STA AT 12:30 AM GRUENBERG 120
10/23/17 (H) -- MEETING CANCELED --
10/23/17 (H) JUD AT 1:00 PM GRUENBERG 120
10/23/17 (H) Heard & Held
10/23/17 (H) MINUTE(JUD)
10/24/17 (H) JUD AT 9:00 AM GRUENBERG 120
10/24/17 (H) Heard & Held
10/24/17 (H) MINUTE(JUD)
10/24/17 (H) JUD AT 6:00 PM GRUENBERG 120
10/24/17 (H) Heard & Held
10/24/17 (H) MINUTE(JUD)
10/25/17 (H) JUD AT 8:00 AM GRUENBERG 120
10/25/17 (H) Heard & Held
10/25/17 (H) MINUTE(JUD)
10/26/17 (H) JUD AT 9:00 AM GRUENBERG 120
WITNESS REGISTER
SUSANNE DiPIETRO, Executive Director
Alaska Judicial Council
Alaska Court System
Alaska Criminal Justice Commission staff
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
JOHN SKIDMORE, Division Director
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
CARRIE BELDEN, Director
Division of Probation and Parole
Department of Corrections (DOC)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
NANCY MEADE, General Counsel
Administrative Staff
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
DEAN WILLIAMS, Commissioner
Department of Corrections (DOC)
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, 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 a
question.
TONY PIPER, Program Manager
Alaska Safety Action Program
Boney Memorial Courthouse
Department of Health and Social Services (DHSS)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of SB 54, answered
questions.
ATTORNEY GENERAL JAHNA LINDEMUTH
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, offered
testimony and answered questions.
GREG SMITH, Staff
Representative Gabrielle LeDoux
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During the hearing of SB 54, presented
Amendment 7 and answered questions.
ACTION NARRATIVE
9:01:31 AM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 9:01 a.m. Representatives Claman, Fansler,
Kreiss-Tomkins, LeDoux, Eastman, and Kopp, were present at the
call to order. Representative Reinbold arrived as the meeting
was in progress.
SB 54-CRIME AND SENTENCING
9:02:16 AM
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."
[Due to their length, some of the amendments discussed or
adopted during the meeting are found at the end of the minutes
of SB 54. Shorter minutes are included in the main text.]
CHAIR CLAMAN advised that the committee would begin with
Amendment 43.
9:03:19 AM
REPRESENTATIVE LEDOUX asked whether any amendments, other than
Amendment 37, would be allowed to be tabled.
9:03:57 AM
The committee took an at ease from 9:03 a.m. to 9:04 a.m.
9:04:45 PM
CHAIR CLAMAN, in response to Representative LeDoux's question,
advised that as to Amendment 37, the committee was trying to "do
editing by comma" of which became unproductive of the
committee's time. In the event the committee finds itself
attempting similar editing, tabling may be appropriate in order
to work on the amendment during a lunch break. The intent is to
steadily move through these amendments and not table an
amendment unless extra time is required, he advised.
9:05:36 AM
REPRESENTATIVE EASTMAN moved to adopt Amendment 43, Version 30-
LS0461\N.13. Bruce/Martin, 10/19/17, which read as follows:
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 11.56.730(d) is amended to read:
(d) Failure to appear is a
(1) class C felony if the person was
released in connection with a charge of a felony or
while awaiting sentence or appeal after conviction of
a felony [AND THE PERSON
(A) DOES NOT MAKE CONTACT WITH THE COURT OR
A JUDICIAL OFFICER WITHIN 30 DAYS AFTER THE PERSON
DOES NOT APPEAR AT THE TIME AND PLACE OF A SCHEDULED
HEARING; OR
(B) DOES NOT APPEAR AT THE TIME AND PLACE
OF A SCHEDULED HEARING TO AVOID PROSECUTION];
(2) class A misdemeanor if the person was
released in connection with a charge of a misdemeanor,
while awaiting sentence or appeal after conviction of
a misdemeanor, or in connection with a requirement to
appear as a material witness in a criminal proceeding
[, AND THE PERSON
(A) DOES NOT MAKE CONTACT WITH THE COURT OR
A JUDICIAL OFFICER WITHIN 30 DAYS AFTER THE PERSON
DOES NOT APPEAR AT THE TIME AND PLACE OF A SCHEDULED
HEARING; OR
(B) DOES NOT APPEAR AT THE TIME AND PLACE
OF A SCHEDULED HEARING TO AVOID PROSECUTION; OR
(3) VIOLATION PUNISHABLE BY A FINE OF UP TO
$1,000]."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 15, line 13:
Delete "sec. 1"
Insert "sec. 2"
Page 15, line 14:
Delete "sec. 2"
Insert "sec. 3"
Page 15, line 15:
Delete "sec. 3"
Insert "sec. 4"
Page 15, line 16:
Delete "sec. 4"
Insert "sec. 5"
Page 15, line 17:
Delete "sec. 5"
Insert "sec. 6"
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 8"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 9"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 10"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 11"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 12"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 13"
Page 15, following line 27:
Insert a new subsection to read:
"(c) AS 11.56.730(d), as amended by sec. 1 of
this Act, applies to sentences imposed on or after the
effective date of sec. 1 of this Act for offenses
committed on or after the effective date of sec. 1 of
this Act."
Reletter the following subsection accordingly.
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 30:
Delete "Section 17"
Insert "Section 18"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
9:05:42 AM
REPRESENTATIVE EASTMAN advised that Amendment 43 addresses the
manner in which to sanction failures to appear. Prior to the
passage of Senate Bill 91 [Passed in the Twenty-Ninth Alaska
State Legislature] the manner was a common sense and reasonable
approach rather than under current law. It is important to
recognize that failures to appear for court hearings come with
costs, although mitigating factors should be considered.
Needless delays impact the entire judicial system and judicial
system's resources are limited. He noted that those delays have
been a driver of what brought the state to Senate Bill 91 in the
first place. He commented that, for a variety of reasons, the
state had defendants in pretrial confinement for a "very, very
long period of time." In some of those cases, he said, it was
because the law had created incentives for the defense counsel
to push for delays, and the longer the delays, the less likely
the prosecution's witnesses would remember the specific details
about an event. The legislature, he opined, created a situation
that weighs in the defense's favor and; therefore, the defense
attorneys were not properly incentivized to keep the trials
progressing in a timely manner. Failure to appear has a
significant impact on the victims, families, the entire system,
and it deprives those who need the limited resources. He
pointed out that the state has limited resources, which is the
reason for sanctioning things such as, failure to appear. He
opined that he does not believe that laxing those sanctions is
in the public's interest.
9:08:51 AM
REPRESENTATIVE FANSLER asked whether Amendment 43 returns the
law to the exact law on the books prior to Senate Bill 91.
REPRESENTATIVE EASTMAN advised that his conversation with the
Legislative Legal and Research Services drafter was to return to
the law exactly as it had existed prior to Senate Bill 91.
9:10:13 AM
SUSANNE DiPIETRO, Executive Director, Alaska Judicial Council,
Alaska Court System, Alaska Criminal Justice Commission staff,
advised she was available to answer questions.
REPRESENTATIVE FANSLER requested background information as to
why this language was included in Senate Bill 91, and the
rationale for providing an extra 30 days.
MS. DiPIETRO responded that the Alaska Criminal Judicial
Commission had three ideas when it originally made the
recommendations to revise the manner in which the system handled
failure to appear, as follows: making failure to appear a crime
and how that potential incarceration would be assessed was not
necessary because judges can, and do, issue warrants when they
believe a defendant needs to be arrested and brought to court;
under the current statute, the defendant actively trying to
avoid prosecution by "forgetting" about multiple court dates can
still be handled through the current criminal process; and,
research found that prison beds are expensive, that prison is
not a good place for low-level low-risk offenders, and to
reserve prison beds for the violent and serious offenders.
MS. DiPIETRO advised that another important piece the commission
looked into is, what actually works to decrease failure to
appear. The answer is to set up simple court date reminders.
It is the same principal dentist offices uses to remind its
patients of their appointments and, she described that this
process has been shown to increase the number of people who
appear at their court appointments. She reminded the committee
that the Alaska Department of Corrections' Pretrial Enforcement
Division begins January 1, 2018, and it has an application to
load onto a smart phone that reminds people of their court date.
After testing the program on her smart phone yesterday, she
described that it "works very well."
9:13:57 AM
REPRESENTATIVE FANSLER offered his belief that the text reminder
was a good system to remind defendants of their court dates.
Statistically, are folks suddenly abusing this system and using
the ability "to do this" to openly flaunt the criminal justice
system, he asked.
MS. DiPIETRO answered that, as part of the development of the
pretrial assessment tool, consultants reviewed approximately
20,000 defendants who were released on pretrial status in 2014
and 2015 to look at the failure to appear rates, of which those
were approximately 14 percent of the people released, which is
not a large number. In fact, she said, the statistician who
performed most of the work was quite surprised because Alaska
had one of the lowest failure to appear rates she has
encountered in her research, and she had worked in a number of
other jurisdictions.
9:15:44 AM
REPRESENTATIVE REINBOLD commented that 14 percent sounds like a
high number, and that she does not believe it is the state's
responsibility to send emails and texts to defendants because
liability may be involved. She asked whether this failure to
appear includes pretrial, jury trial, and sentencing, or does it
apply to a specific hearing.
MS. DiPIETRO advised that the failure to appear rates would be
for any court date. She reminded the committee that fewer than
5 percent of the criminal cases actually go to trial; however,
preliminary hearings and scheduling hearings are common
hearings.
9:17:21 AM
REPRESENTATIVE REINBOLD related that giving defendants 30 days
because they forgot to appear sounds like an undermining of the
judges, victims, and the costs involved. In the event the
courtroom was reserved for a hearing, would there be a fiscal
impact if the defendant decided not to appear, she asked.
MS. DiPIETRO related that she agrees that when a defendant fails
to appear it is an annoyance to all parties, and it is
potentially a resource issue for the court system. She advised
that it is common place for hearings to be continued, such that
certain things may have not been completed in the case, and so
forth. Therefore, the failure to appear issue is not
necessarily a large reason the hearings must be continued. As
to the 30-day issue, she pointed out that members of the
commission include: judges, trial attorneys, and a victims'
advocate. The within the discussions of this issue, the
presiding judges and the victims' advocate were very involved
and agreed on the 30-day number because it felt right for them.
9:19:09 AM
REPRESENTATIVE KREISS-TOMKINS referred to the 14 percent failure
to appear rate and the cases reviewed by the statistician for
2014 and 2015, and asked how the 14 percent compares to other
types of appointments in the medical or dental industry.
MS. DiPIETRO advised that she does not know the answer to that
question.
9:19:59 AM
REPRESENTATIVE KOPP asked whether Ms. DiPietro had said that
this recommendation was supported by the Office of Victims'
Rights and the members of the judiciary system who are on the
commission.
MS. DiPIETRO clarified that the victims' rights advocate seat on
the Alaska Criminal Justice Commission is held by Brenda
Stanfill who works with domestic violence victims in Fairbanks.
Ms. Stanfill is the commission member who worked with the two
trial court judges to determine this recommendation.
REPRESENTATIVE KOPP referred to the 30-day provision and
commented that it is easy to think about failure to appear
within an urban context and living within the confines of a
city, but then there are the folks living in rural Alaska. He
asked her to comment on the work life and subsistence issues in
rural Alaska this 30-day provision may address.
MS. DiPIETRO responded that in rural Alaska it is common for
people to be gone for extended periods of time for subsistence
activities and they may forget about a court date, or miss a
court date, or may not be able to get back into town in time for
the court date. It was thought by the commission that the
number must make sense in terms of all Alaskans, she explained.
9:22:13 AM
CHAIR CLAMAN asked whether the change to the failure to appear
law is an important piece to the whole change in pretrial
supervision and pretrial management, which is part of the
criminal justice reform process.
MS. DiPIETRO answered that the change around pretrial practice
is one of the three fundamental tools that the commission is
offering to the state to improve the criminal justice system.
She explained that a significant percentage of Alaskan prison
beds are taken up by pretrial defendants, and in 2014, when the
commission reviewed the research and made its recommendations,
it was approximately 28 percent. Research showed that many of
these people would be considered low-risk and could be released
with the appropriate supervision or with court date reminders
and would be expected to appear at their hearings and not commit
any new offenses while on pretrial release.
9:23:45 AM
CHAIR CLAMAN offered that he is familiar the State of Kentucky's
research on a similar program regarding compliance with pretrial
release conditions, and it has a 92 percent success rate. He
explained that 92 percent of the State of Kentucky's defendants
appear for their court dates and they do not commit new criminal
violations. He referred to Alaska's 14 percent rate and asked
whether Ms. DiPietro had information as to new arrests while on
pretrial release under the current law in Alaska.
MS. DiPIETRO responded that the research of the 20,000 people
who were released in 2014 and 2015, also measured which
individuals were arrested for new criminal activity (NCA), and
that number was approximately 37 percent.
CHAIR CLAMAN surmised that when adding the 14 percent rate and
the 37 percent rate the answer is roughly 50 percent. He asked
whether roughly 50 percent of the people under the current
program on pretrial release are either not appearing or being
arrested for new violations, or whether those numbers do not add
together perfectly.
MS. DiPIETRO replied that she did not believe those numbers
could be added perfectly because some of those people may have
had failure to appear and a new criminal activity. She said her
strong suspicion is that most of those people will have had a
failure to appear or a new criminal activity, but not both, and
she would research the issue.
9:25:22 AM
CHAIR CLAMAN asked whether it would be fair to say that Alaska
has at least 40 percent non-compliance with all pretrial
conditions under the current system.
MS. DiPIETRO opined that that calculation would be fair.
CHAIR CLAMAN commented that in contrast, it is known that the
State of Kentucky is experiencing an 8 percent non-compliance of
defendants with a pretrial system similar to what Alaska will
begin this January.
MS. DiPIETRO said that Chair Claman was correct, the State of
Kentucky outcomes are not unusual because many jurisdictions
achieve similarly good results with a pretrial system similar to
the system Alaska is about to begin.
9:26:05 AM
CHAIR CLAMAN asked whether Amendment 43 would undermine the
pretrial program the state is fully taking on this January.
MS. DiPIETRO answered that Amendment 43 would be a significant
course change from the approach and the specific provisions that
everyone has been planning to implement in January.
9:26:37 AM
CHAIR CLAMAN asked for confirmation that a number of pretrial
officers had been hired, as well as judges trained in the use of
the new system.
MS. DiPIETRO confirmed that yesterday, the judges were educated
as to the new Pretrial Enforcement Division and the changes to
the bail schedule that go into effect in January.
9:27:29 AM
JOHN SKIDMORE, Division Director, Criminal Division, Department
of Law (DOL), advised that he was available for questions.
REPRESENTATIVE KOPP referred to failure to appear and Amendment
43 and offered that in his experience in hundreds of criminal
trials, he was trying to remember instances where failure to
appear actually held up a trial. He asked whether, currently,
there is a problem of trials being held up due to defendants'
failure to appear.
MR. SKIDMORE responded that he was unaware of any issues that
resulted from defendants failing to appear for trial since
Senate Bill 91 was enacted. He clarified that it is certainly
true there are people who fail to appear for trial and other
types of hearings, but it is a very low number and possibly the
14 percent number. The amount of folks telling him about
problems with defendants failing to appear is not any different
than what was taking place prior to Senate Bill 91, he offered.
9:29:26 AM
REPRESENTATIVE KOPP asked whether that state differentiates
between an individual who flees Alaska to avoid appearing for
trial, and someone stuck in a fish camp and are delayed due to
bad weather.
MR. SKIDMORE replied that the state would absolutely
differentiate between those two situations. In his experience,
for the vast majority of those cases, the prosecution would
request a bench warrant, and frequently the judges would issue
the bench warrant and hold the bench warrant in abeyance for a
day or two in the event the defendant contacted the court.
Oftentimes, he noted, the defendant would contact the court
advising the reason they failed to appear, and the case would go
back on the court calendar. However, it is not uncommon that
when a defendant does not appear and cannot be located for
several days, the bench warrant does get issued. As far as the
prosecution filing the charge of failure to appear, the state
does not file that charge frequently, and that practice probably
differs from one area in the state to another area in the state.
In the Southeast, he advised, there has been a more aggressive
use of a failure to appear than in other parts of the state, but
he does not see that on someone's record regularly. He
explained that issuing a bench warrant and having someone show
up is different than the prosecutor filing a new criminal charge
against a person. The bench warrant is the most common way in
which it is resolved, and the filing of the new charge is much
rarer.
9:32:09 AM
REPRESENTATIVE KOPP referred to Amendment 43, page 1, lines 8-
13, and commented that subparagraphs (A) and (B) are being
amended out. It appears that the language amended out
subparagraph (A) which is a 30-day window wherein if the
defendant does not appear, the presumption is that the defendant
does not intend to appear. He commented, "But, then there's a
critical 'or' there" and his reading is, as follows:
If at any point, you can show that someone does not
appear at the time and place of a scheduled hearing to
avoid prosecution. At any point, you know that they
are not appearing to avoid prosecution, that that 30-
day window is 'out the window.'
The way I read it, it's 30-days as a time-bar, or, if
you can show they are not appearing simply to avoid
prosecution, that they are immediately graveled in, so
to speak.
MR. SKIDMORE offered that Representative Kopp's interpretation
of the law is correct. Although, he opined, the state has not
had the opportunity to prosecute someone who attempted to avoid
prosecution. That issue will be one of the things the
prosecutors will have to look at, and how they put together that
sort of a case, he said.
9:33:38 AM
REPRESENTATIVE KOPP referred to the 30-days and noted that there
may be a sense among some people that a defendant is out
"fluttering around 30 days scot-free" while on release. Except,
he pointed out, the defendant's probation officer has immediate
authority over their life, and if at any point they get the
sense the defendant is trying to avoid prosecution, the
probation officer can simply place them in custody.
MR. SKIDMORE explained that currently, these individuals would
not have a probation officer supervising their movements. He
explained that for those people on pretrial release in Alaska,
no officers monitor those defendants. However, he pointed out,
under criminal justice reform, a Department of Corrections
Pretrial Enforcement Division was created for which officers
monitor the defendants with the authority to pick them up when
deemed necessary. While that division does not exist today,
what Representative Kopp had described is precisely what
criminal justice reform is trying to achieve, and the DOL is
hopeful it has a positive impact.
9:35:06 AM
REPRESENTATIVE KOPP asked whether this division would be
implemented on January 1, 2018.
CHAIR CLAMAN noted that Representative Kopp was correct, and it
includes the pretrial assessment tool.
9:35:19 AM
REPRESENTATIVE LEDOUX asked for clarification that if the law
goes back to pre-Senate Bill 91 law and a defendant fails to
appear on a felony, it is classified as a class C felony.
Whereas, if a defendant fails to appear for a misdemeanor it is
classified as a class A misdemeanor.
MR. SKIDMORE advised that she was correct.
REPRESENTATIVE LEDOUX asked that pre-Senate Bill 91 law, in the
event a defendant was weathered out, whether these individuals
would actually be prosecuted for failure to appear, or whether
it was "kind of" written in the law that there are justifiable
excuses.
MR. SKIDMORE commented that in his experiences, prior to any
[criminal justice reform] changes, courts would potentially
issue a bench warrant, except that he saw many bench warrants
quashed within Representative LeDoux's scenario. He asked the
committee to remember that he separates bench warrants from the
filing of a new criminal charge. He opined that a defendant
would not be charged with [the new crime of] failure to appear
if they did not appear due to the weather. He explained that
all crimes require two components: mens rea - the mental state;
and actus reus - the actual event itself. With regard to a
failure to appear, the actus reus is not showing up in court,
and the mens rea is the mental state of a defendant being
weathered out. The state would not suddenly prosecute in that
situation because it would look for the reason the defendant did
not appear. He pointed out that that is what the law said prior
to Senate Bill 91, and what the law says currently, that law has
not changed.
9:37:40 AM
REPRESENTATIVE LEDOUX asked whether the system was broken pre-
Senate Bill 91.
MR. SKIDMORE commented that he could not say that that
particular aspect of the system was necessarily broken. The
commission looked at failure to appear and decided that the
approach developed in the recommendations better reflected
practices as they existed in the system.
9:38:25 AM
REPRESENTATIVE LEDOUX asked how the system will work currently,
in the event someone fails to appear and contacts the judicial
officer within 30 days. The court then sets another appearance
date and the defendant fails to appear a second time.
MR. SKIDMORE replied that he had not previously pondered that
question and he was not prepared to offer an answer off the top
of his head.
9:39:23 AM
REPRESENTATIVE REINBOLD asked the exact date the failure to
appear provision went into effect.
MR. SKIDMORE answered that the change would have gone into
effect at the time the bill was signed by Governor Walker, which
was sometime in July 2016.
REPRESENTATIVE REINBOLD asked Mr. Skidmore to explain phases
one, two, and three, of Senate Bill 91.
MR. SKIDMORE described that phase one dealt with sentencing and
the classification of crimes; phase two dealt with probation and
parole beginning in January 2017; and phase three deals with
pretrial release which is scheduled to go into effect January
2018.
9:40:53 AM
REPRESENTATIVE REINBOLD said that phase one went into effect
July 2016.
MR. SKIDMORE said that she was correct.
REPRESENTATIVE REINBOLD asked whether the probation and parole
phase was the next phase.
MR. SKIDMORE responded, January 2017.
REPRESENTATIVE REINBOLD referred to the statistics Ms. DiPietro
had offered and stated that they years were 2014, 2015, and
2016, to get to this 14 percent figure. During the vast
majority of that time, she asked whether it was a crime to not
appear in court.
MR. SKIDMORE responded that he did not know the timing of the
statistics that Ms. DiPietro had provided. He said the second
part of his answer is that failure to appear is a crime before
and after the criminal justice reform efforts. He explained
that it is the elements of the crimes and what a person would
have to do, is what has changed between the two.
9:42:08 AM
REPRESENTATIVE REINBOLD said, "This, by the way, 30 days is a
new -- is a new provision." Representative Reinbold said that
she was listening closely to Ms. DiPietro's testimony and she
said that the 14 percent figure was between 2014 through 2016,
yet, this did not go into effect until July 2016. [Ms. DiPietro
clarified that the 14 percent figure was during 2014 and 2015,
found at timestamp 9:49:32.] Therefore, there is only a tiny
window where failure to appear was, "Oh, by the way, you just
have to notify the courts if you don't show up." She described
it as extraordinarily troubling based on the testimony she heard
from Ms. DiPietro that, "it just seems right so we decided to do
this." She said that these are the positions of the governor
because the governor appoints these commissioners to the
commission. There was no resolution from a body of victims'
rights people, it just happened to be a person who sits on the
commission from Fairbanks that decided that this seemed right,
so failure to appear for 30 days was just something they felt
good about. She asked whether part of rehabilitation is taking
responsibility for a person's actions.
MR. SKIDMORE replied that there is certainly case law that
suggests that taking responsibility is an important component of
rehabilitation, but to what degree taking responsibility plays
in that role he could not answer.
9:43:40 AM
REPRESENTATIVE REINBOLD asked whether prosecutors would be
frustrated if a defendant intentionally or "unintentionally
decided not" to appear when probation officers, parole officers,
policemen, witnesses, prosecutors, defendants, and judges [were
waiting for the defendant to appear].
MR. SKIDMORE said that someone who unintentionally fails to
appear ...
REPRESENTATIVE REINBOLD interrupted Mr. Skidmore and said, "I
never said unintentional. I said intentional or unintentional,
so it could be either one."
CHAIR CLAMAN directed Representative Reinbold to let Mr.
Skidmore finish his answer because no doubt he would address an
intentional and unintentional failures to appear.
MR. SKIDMORE said that, as he was saying, an unintentional
failure to appear is frustrating; however, it is not an issue
that, prior to criminal justice reform or after criminal justice
reform, would result in a prosecution. An unintentional failure
to appear is frustrating, but it is not criminal in its nature,
he said. Whereas, an intentional failure to appear does lend
itself to a prosecution, and he pointed to page 1, lines 12-13,
subparagraph (B), "does not appear to avoid prosecution". Mr.
Skidmore explained that the manner in which the prosecution
proves someone was attempting to avoid that intentional aspect
is something with which the prosecution must wrestle. He added
that intentional was not the mens rea associated with the
failure to appear previously mentioned, it would be under AS
11.56.730(d)(1)(A), lines 8-11. In the event the defendant
fails to make contact with the court longer than 30 days, the
prosecution does not have to [prove] the intentional aspect. He
commented that there are some nuances yet to work out, and he
does not know whether the DOL has had enough time to determine
how all of the fairly recent changes will work, and "there have
not been many cases to test these things out."
9:46:01 AM
REPRESENTATIVE FANSLER asked whether Mr. Skidmore would say
that, within the Alaska legal system, there is a presumption of
guilt or innocence prior to trial.
MR. SKIDMORE answered that there is a presumption of innocence.
REPRESENTATIVE FANSLER surmised that rehabilitation is not part
of the equation until guilt is found through a court trial, a
jury of peers, a plea deal, or any number of avenues.
MR. SKIDMORE answered that the sentencing goals, of which
rehabilitation is one, are not part of the focus until guilt is
determined.
REPRESENTATIVE FANSLER commented that fitting rehabilitation
into a pretrial situation is an unfair comparison.
9:47:24 AM
REPRESENTATIVE FANSLER noted to Ms. DiPietro that a couple of
comments had been made that the commission randomly pulled 30
days out of the air. Whereas in actuality, the commission
worked together as a group to look at the statistics and
research. He then asked Ms. DiPietro to repeat her explanation.
9:47:53 AM
MS. DiPIETRO responded that she has a firm memory of active
engagement around this issue, particularly by the trial court
judges on the commission. She clarified for Representative
Reinbold that the commissioners are not appointed by the
governor and that the commissioners are appointed by the Chief
Justice of the Alaska Supreme Court, and that Brenda Stanfill
holds the victims' rights advocate seat. She said that she
could not remember exactly how the 30 days was determined, but
that Mr. Skidmore's comment that it probably took into account
the state's current practice is probably right on the mark.
9:49:04 AM
REPRESENTATIVE FANSLER commented that he had heard a comment by
Representative Reinbold that might have been more appropriately
answered by Ms. DiPietro.
REPRESENTATIVE REINBOLD said that the statistics [for 14
percent] were from 2014 to 2016, and it was still a crime up
until July 2016.
REPRESENTATIVE FANSLER requested that Ms. DiPietro repeat the
date ranges for the [14 percent] statistics, and any pre-Senate
Bill 91 and post-Senate Bill 91 statistics.
9:49:32 AM
MS. DiPIETRO clarified for Representative Reinbold that the
dates were actually 2014 through 2015, the range did not include
2016, and 20,000 people released on pretrial release were
studied. She offered that an important piece of information is
that the researchers counted a failure to appear if a bench
warrant had been issued. She said that she wanted to be clear
that these were not convictions for failure to appear, these
were included only if a bench warrant for failure to appear was
issued. The issue of whether it was a crime is not relative in
this particular statistic because everyone recognizes that
failure to appear is not often charged as a crime. The Alaska
practitioner determined that when someone fails to appear, the
issuance of a bench warrant would count as a failure to appear.
She explained that within that sample of 20,000 people, 14
percent of the people had bench warrants issued against them.
She added that once a bench warrant was issued, the person was
arrested and brought to court.
9:51:12 AM
REPRESENTATIVE FANSLER asked whether statistics are available to
compare the 14 percent pre-Senate Bill 91 numbers to the current
numbers, or whether those statistics are still pending at this
time.
MR. SKIDMORE answered that he does not believe those statistics
are available as of yet as it is too early to make judgment
calls about some of the changes that have occurred. He pointed
out that this change was not sought out by the prosecution or
law enforcement because there is no evidence that told the
prosecution this was necessarily a problem. Although, he
commented, it is something the prosecution is watching and is
interested in receiving the data. He advised that he sits on
one of the subcommittees for the commission that gathers data,
and this is one of those data pieces that folks are interested
in receiving. He then deferred to Ms. DiPietro.
MS. DiPIETRO responded that those statistics have not been re-
measured because it is expensive and a time-consuming effort.
However, starting in January, the software used by the Pretrial
Enforcement Division will record these types of outcomes, and
track how many people are released pretrial, and how many of
those released had a pretrial failure event. After a certain
number of months or one year, she said that she would expect
there would be enough data to analyze, representative, and fair.
9:53:59 AM
REPRESENTATIVE LEDOUX asked whether it would be fair to say that
prior to Senate Bill 91, the actual prosecution for failure to
appear was probably rarely used and only in the most egregious
cases of failure to appear.
MR. SKIDMORE answered in the affirmative.
9:54:34 AM
REPRESENTATIVE KOPP asked whether the DOL had seen any anecdotal
evidence in the last year that the new failure to appear law has
raised issues or problems.
MR. SKIDMORE responded that he is not aware of any issues or
problems, but he could not say that there had not been any
individuals who failed to appear for a trial or for some other
instance. Although, he offered, he has not talked to every
single prosecutor in his division about this particular topic,
but he has not heard that has been an issue.
REPRESENTATIVE KOPP referred to the editing out of the language
in Amendment 43, page 1, lines 11-13, and asked whether the
language being edited out is basically what the DOL does now, or
pre-Senate Bill 91, as far as actually following through on a
prosecution. It appears, he offered, that in Mr. Skidmore's
discretion, he was looking for people who were intentionally
avoiding appearing in court, and he would then prosecute those
defendants. He was asked whether Mr. Skidmore saw similarities
there between that standard and the standard he was using when
prosecuting.
MR. SKIDMORE described that Alaska's legal system is designed on
law enforcement, prosecutors, and judges having discretion. The
prosecutors always use discretion when evaluating charges, that
they believe should be filed, and that discretion would be used
in looking at a failure to appear as to whether someone was
trying to avoid prosecution. However, he pointed out, having
"avoiding" [appearing in court] written directly into the
statute now makes it an element, and it is now not about the
prosecution's discretion, it is about the prosecution's ability
to prove the avoidance beyond a reasonable doubt. He could not
say that those two things are always the same, although there
are similarities, he said.
9:57:31 AM
REPRESENTATIVE REINBOLD noted that Ms. DiPietro had advised that
statistics for the 14 percent were from 2014 through 2015, but
this failure to appear law did not go into effect ... "it's just
kind of a slap on the hand of 30 days, by the way if you don't
show up." She noted that Ms. DiPietro had said that 14 percent
of the people "when they did have the potential of being
prosecuted for an additional crime didn't show up," and Ms.
DiPietro defined it by actually having a [bench] warrant. She
said she found it amazing that 14 percent of the people with a
warrant do not show up. She asked whether Ms. DiPietro has the
statistics, and to step back to "just people in general" who do
not show up with or without the warrant.
CHAIR CLAMAN clarified to Representative Reinbold that a warrant
is issued because the defendant did not appear, and "that
reflects when a warrant was issued," a person may well then show
up after the warrant is issued. Everyone on pretrial release
does not have a warrant for their arrest, the warrant is issued
the first time they do not appear.
MS. DiPIETRO answered that she did not fully understand the
question and asked whether the question was whether there were
people who missed a court appointment and a warrant was not
issued for their arrest.
9:59:07 AM
REPRESENTATIVE REINBOLD re-asked her question by saying that she
was trying to determine, by Ms. DiPietro's statistics, whether
the 14 percent was everyone who did not appear.
MS. DiPIETRO commented that she was unsure she could the answer
the question. All she could advise, she said, was that when the
study was performed, it was designed with the input of Alaska
practitioners. Ms. DiPietro said that she sat in on those
meetings, which were lengthy and hotly debated about the best
way to measure Alaska's failure to appear rates. The first idea
was to measure by convictions or charges of failure to appear,
and for the reasons Mr. Skidmore discussed, that was discarded
as an approach. The other idea from the practitioners was that
when people fail to appear, warrants are issued, and that is how
the system responds to that situation. The practitioners
advised the researchers to count each time a warrant was issued,
and that is what the study offered.
REPRESENTATIVE REINBOLD requested the name of the study, a copy
of the study, and who funded this study.
MS. DiPIETRO said that she will provide the study to the
committee, and the study was funded by the Bureau of Justice
Assistance from a federal grant fund.
10:01:12 AM
REPRESENTATIVE KREISS-TOMKINS asked Ms. DiPietro about pre-
Senate Bill 91 when failure to appear was a crime and noted that
Mr. Skidmore had advised that prosecutors exercised extreme
discretion in charging, so it happened rarely. He asked, what
would be the problem with this tool being in the toolbox. He
pointed out that Mr. Skidmore also stated that since the
enactment of Senate Bill 91, there have not been any problems
and on the other side of the coin these reforms have been made
and the sky has not fallen. He referred to Representative
LeDoux's question as to whether the system was broken before,
and asked Ms. DiPietro what stakes were being discussed with
this particular forum, how was the system working, and how was
the system not working for Senate Bill 91, vis a vis Amendment
43.
MS. DiPIETRO reiterated that the researcher who crunched the
numbers for Alaska has worked in a number of other
jurisdictions, and she advised the commission that a 14 percent
failure to appear rate is actually fairly low. Having said
that, she opined that every commissioner believes Alaska can do
better than 14 percent. The reforms it recommended for the
pretrial system are designed to improve that 14 percent failure
to appear rate. As to the question of whether the system was
previously broken, she answered that she supposed if looking at
other jurisdictions Alaska was doing pretty well on its failure
to appear rate, but the commission thought Alaska can and should
do better, which is why the commission recommended these
changes.
10:03:37 AM
REPRESENTATIVE LEDOUX asked that if Amendment 43 is passed,
whether there is anything to preclude text messages, apps, or
reminders, and further asked whether the amendment eliminates
that function.
MR. SKIDMORE answered that he believes that requirement was
placed in other parts of Senate Bill 91, and the amendment does
not appear to alter that function. He opined that everything
else in Amendment 43 is simply re-numbering and he did not see
anything else repealing that particular provision, so he did not
believe that function would be eliminated by the amendment.
REPRESENTATIVE LEDOUX asked Ms. DiPietro whether she believes
that as long as the text messaging portion of Senate Bill 91
remains, the state is likely to have the same good results being
anticipated through apps and text messaging people, without
eliminating the prosecutorial discretion that Senate Bill 91
eliminated.
MS. DiPIETRO acknowledged that she was unsure she knew the
answer to her question and she would not want to make such a
prediction. Although, she said, the research shows that court
reminders are the most important element in improving failure to
appear rates.
REPRESENTATIVE LEDOUX noted that it is not being changed by this
amendment, and asked Mr. Skidmore whether she was correct.
MR. SKIDMORE responded that that requirement is found in the
pretrial services unit, which is not impacted by this amendment.
10:06:24 AM
CHAIR CLAMAN related that the criminal justice reform pretrial
service actually gives more tools for failure to appear than
prior law. Within this statute there is a third category which
is a violation for failure to appear, and a fine of up to
$1,000. Therefore, he pointed out, the defendant who fails to
appear causing a bench warrant to be issued would also be
subjected to a violation of $1,000 for that failure to appear.
He asked whether that is part of the criminal justice reform
statute.
MS. DiPIETRO answered that she believes Chair Claman was
correct. She reminded the committee that the Pretrial
Enforcement Division officers have remand authority and can take
a defendant to prison any time they violate the conditions of
their release. She said she has not yet grasped what Alaska
could gain by re-criminalizing failure to appear, and a
potential complication could be when a defendant commits a new
crime and the officer is involved with the defendant. She asked
whether the officer would then be called as a witness in any
prosecution for failure to appear, and what complications might
that entail. She asked whether a defendant on pretrial release
charged with a new crime would have different rights than if
they were just remanded administratively by the pretrial
services officer without the problem of the new charge being
injected into the equation. Ms. DiPietro commented that she has
those questions and she has spoken with the director of the
Pretrial Enforcement Division who also has those questions.
10:08:38 AM
CHAIR CLAMAN offered a scenario of situations wherein someone is
stuck in a fish camp, their car breaks down, there is a
calendaring mistake, a transportation issue, or any number of
issues that would cause a defendant to fail to appear and are
treated differently than avoiding prosecution. He then offered
a real-life example about avoiding prosecution. He said that he
was in trial and during the third day of trial the defendant was
nowhere to be found. The defendant's third-party custodian
advised the court that when he woke up that morning the
defendant was not in his bed, his suitcase and wallet were gone,
and the defendant was gone. Approximately five years later, he
said that he was called as a witness in that defendant's failure
to appear trial, and he assumed that under current law, there
would be no problem prosecuting that defendant for failure to
appear under the avoiding prosecution provisions.
MR. SKIDMORE said that Chair Claman was absolutely correct in
that prosecution would have no problem with that particular fact
pattern showing avoidance of prosecution. Senate Bill 91 did
create a $1,000 fine and a violation for someone within that 30-
day provision, he commented.
10:10:24 AM
CHAIR CLAMAN remarked that in fact, unlike the case before,
there is an additional tool for a prosecutor when a defendant
advised that they were stuck in a fish camp and were 15-days
late. The prosecution may not choose to exercise that tool, but
that violation would be available, in addition to forfeiting
their bail, and there could also be a $1,000 fine for those that
are poorly calendaring their court dates. The defendant may not
have to go to jail, but they would have to pay the fine, he
added.
MR. SKIDMORE related that the fine is at the court's discretion
up $1,000, and that tool is found in statute.
CHAIR CLAMAN asked whether that tool existed prior to Senate
Bill 91.
MR. SKIDMORE explained that prior to criminal justice reform
efforts, the court had the authority to impose a fine or
jailtime, but it was a criminal offense that required a jury
trial. A violation does not require a jury trial, he explained.
10:11:25 AM
CHAIR CLAMAN noted that the prosecution would have to actually
bring the charges, whereas a violation might not require the
involvement of prosecution.
MR. SKIDMORE clarified that there would be a requirement of
someone filing that violation, which could be a prosecutor or a
law enforcement officer. The legal system in the State of
Alaska is not the French system in which judges file charges, in
Alaska someone would have to file the charge. Although, it
would not require a jury trial or the same sort of steps and
procedures a criminal trial would require, he reiterated.
10:11:58 AM
REPRESENTATIVE REINBOLD asked whether there are any fiscal
impacts to the DOL when a defendant chooses not to appear in
court.
MR. SKIDMORE answered that there are fiscal impacts when
defendants fail to appear, particularly for trial. Although, it
would depend on the type of hearing for which the defendant
failed to appear, and he explained that if it is an arraignment
or a similar type of hearing wherein witnesses are not called to
testify there is no fiscal impact, but when some sort of
preparation is required, such that the defendant was the only
reason "we were there," that would have a fiscal impact. In the
event the defendant failed to appear in "a larger mass hearing"
where there are many other cases, there is not much of a fiscal
impact.
10:13:19 AM
REPRESENTATIVE REINBOLD reiterated her previous testimony as to
how failure to appear is a slap in the face and demoralizing to
the judicial system. She referred to the $1,000 fine for
failure to appear and said that, at some point, she would like
to know the amount of money that has been collected under this
provision.
10:14:59 AM
REPRESENTATIVE KREISS-TOMKINS asked whether, under current law,
it is still a felony for failure to appear on a felony case
after 30 days.
MR. SKIDMORE answered that Representative Kreiss-Tomkins was
correct.
10:15:19 AM
REPRESENTATIVE LEDOUX said she wanted to make clear that, under
the previous system, if someone was charged with failure to
appear, it could be settled out with a fine.
MR. SKIDMORE answered in the affirmative.
10:15:44 AM
REPRESENTATIVE REINBOLD suggested that under [current law]
criminal defendants may see this as a loophole. In the event a
person chose not to appear, "it really does pay to not appear,"
because if 37 percent of defendants decide to reoffend, then
crime does pay in Alaska. Wherein, if a defendant does not
appear, they will not be convicted or sentenced, so it is a
motivator for people charged with crimes to "hurry up and go do
more." She pointed out that if the person does not have a
previous class C felony conviction they will receive a much
lighter sentence. She asked that if there is a 50 percent
increase in failure to appear, would this have an impact on a
defendant if they committed several other crimes.
CHAIR CLAMAN clarified Representative Reinbold's question and
asked that if there is a 50 percent increase in failure to
appear, would that have an impact on other crimes.
MR. SKIDMORE responded that he was unsure how a 50 percent
increase in failure to appear has an effect on other crimes.
After a defendant fails to appear, that does not automatically
equate with the fact that they are committing some other crime
than the failure to appear. He explained that the two most
important aspects of failure to appear for a prosecutor is: to
make sure people show up for their court dates because as time
passes it becomes more difficult to prosecute a case. The
concept of failure to appear is if a defendant has disappeared
in order to avoid prosecution, by the time the defendant shows
back up in the system, the prosecutors may not be able to
prosecute that original crime. Except, he pointed out, the
failure to appear still allows prosecutors to hold the defendant
responsible for that, and prior to criminal justice reform and
under current law, that tool is still available to the
prosecution for the precise reason. He expressed that he
remembers when the 30-day timeframe came up, and that the 30
days was not the Alaska Criminal Justice Commission's
recommendation. That 30-day timeframe is an agreement between
Quinlan Steiner, Public Defender Agency, and himself. The 30-
day timeframe needed to exist in the law for the law to still
work, and without that agreement, this law would be toothless,
and it would not help. He stressed that this is the compromise
that was reached by opposing parties to achieve the reform
efforts desired that still left the prosecution with the tools.
10:19:21 AM
REPRESENTATIVE REINBOLD referred to the discussion regarding
"14, you know, plus 37," and whether those numbers could be
added together. She asked that "if you add a 50 percent,
because now they just get a slap on the hand if they don't --
don't get a criminal conviction. Just a slap on the hand, a
violation potentially." Under current law, the defendant does
not have the potential of receiving a criminal conviction, and
then add those number together, there is more motivation to not
appear. With regard to the 37 percent of reoccurring crimes, it
appears that it pays for the defendant and that it will increase
the state's pretrial numbers. Prior to Senate Bill 91, that is
exactly what the state was trying to avoid, which makes it
important to be tough on failure to appear. She asked whether
this would increase the pretrial cases if a significant number
of people, over 14 percent, decided [not to appear] and whether
that would increase the pretrial status.
10:20:50 AM
MR. SKIDMORE answered that if failure to appear percentages
increased, that would create more pretrial delay. He pointed
out that the problem is that the DOL has not seen those
increases at this time, and it is waiting to get those numbers.
He related that he is a prosecutor by trade and relies on the
evidence, and currently he does not have the evidence to lead
him in one direction or another. Therefore, until he has the
evidence he will not say whether this is a good or bad thing, he
remarked.
10:21:29 AM
REPRESENTATIVE LEDOUX asked what the Alaska Criminal Justice
Commission had originally recommended, and what did the
prosecution want because the 30-day timeframe is a compromise
between Mr. Steiner and Mr. Skidmore.
10:23:43 AM
CHAIR CLAMAN asked Ms. DiPietro to locate the original
recommendation relating to the failure to appear.
MS. DiPIETRO responded that the failure to appear recommendation
is located in the December 2015 Alaska Criminal Justice
Commission Report, page 18. Ms. DiPietro paraphrased the
recommendation as follows:
Violations of conditions of release and failure to
appear offenses with certain exclusions. For these
pretrial violations law enforcement will be authorized
to arrest the defendant and the DOC will be authorized
to detain the defendant until the court schedules a
bail review hearing.
10:24:22 AM
REPRESENTATIVE LEDOUX surmised that the commission recommended
that basically nothing happened with the defendants. She asked
whether defendants would just be held until they received a new
court schedule.
MS. DiPIETRO answered that the defendant is arrested, and
perhaps people would differ with this view, but many people
would feel that being arrested is something unpleasant that they
wish to avoid.
10:25:24 AM
MR. SKIDMORE noted that Ms. DiPietro had pointed to the December
2015 Alaska Criminal Justice Commission Report, page 18, and he
pointed to certain exclusions under Recommendation 5(a)(iii),
which read as follows:
(iii). Violations of conditions of release
("VCOR") and failure to appear ("FTA") offenses, with
36
certain exclusions.
FN FTA with intent to avoid prosecution and FTR for
more than 30 days; and for violations of a protective
order or no-contact order.
MR. SKIMORE noted that the 30 days is in the commission's
recommendations. He clarified that he had previously described
to the committee a conversation between Mr. Steiner and himself
wherein they came to this conclusion, which is why the
commission ended up adopting the 30 days.
REPRESENTATIVE LEDOUX surmised that that was a compromise and
asked what [recommendation] was desired by the prosecution.
MR. SKIDMORE responded that the prosecution was concerned about
continuing to have failure to appear as a tool, and this
agreement allowed it to remain as a tool. He said he could not
remember precisely where it started or the discussion at the
time because it was two-years ago.
10:26:53 AM
REPRESENTATIVE LEDOUX related that she was trying to figure out
that, if this was a compromise, where was the commission
originally. She asked whether the DOL viewed the original ideas
of the commission "as kind of 'pie in the sky' academics" who
possibly were not in touch with the real world.
CHAIR CLAMAN noted that during his experience in serving on the
commission, the process is much more about how to improve things
and whether a consensus could be reach on how to improve things.
Rather than the notion that the consultants come in and say,
"Here is the recommendation" and then the commission debates the
recommendation. He stressed that the overwhelming majority of
the time, the commissioners actually reached the recommendations
by consensus, other than the class C felony recommendation. The
commissioners discuss how to improve public safety and improve
results in order that less offenses take place, particularly in
a pretrial sense, he advised. The goal to reach consensus
highlights the fact that there was no recommendation until the
recommendation was placed in the report, he stressed.
REPRESENTATIVE LEDOUX said that she is trying to determine, if
Mr. Skidmore had his druthers prior to Senate Bill 91 being
enacted, whether he would have recommended, unless he saw the
writing on the wall, that nothing needed to be done with failure
to appear.
MR. SKIDMORE answered that his role in testifying in the House
Judiciary Standing Committee today and his role in any process
with the Alaska Criminal Justice Commission, has been to
advocate on behalf of the prosecution, in consultation with the
DOL. He stressed that "none of this is just my opinion or my
thoughts," the commission's effort was an effort because there
were concerns that the criminal justice system could improve,
and that certain things needed to change. Failure to appear is
an area that was discussed, the recommendations the commission
made, and what was adopted in Senate Bill 91, is precisely what
the DOL supported, he said.
10:29:56 AM
REPRESENTATIVE LEDOUX surmised that it was the commission's
recommendation that folks be arrested, and she asked when, how,
and with what resources would they be arrested.
CHAIR CLAMAN acknowledged that there was talk about arrest, but
the committee went through the recommendation with the footnotes
that Mr. Skidmore presented. The recommendation was arrest, as
well as continuing to have it a criminal charge, the
commission's recommendation was not just arrest, he offered.
MR. SKIDMORE, in response to Representative LeDoux as to
resources, answered that it would be the same resources there
were before, which is that a warrant is issued for a defendant
who fails to appear, and law enforcement executes those
warrants.
10:30:58 AM
REPRESENTATIVE KREISS-TOMKINS stated that given that the
committee had deliberated Amendment 43 for 90 minutes, he
proposed that the committee move on to discussion of the
amendment, and vote.
CHAIR CLAMAN noted that a repetition of questions was taking
place and agreed to move to discussion. In response to
Representative Eastman's comment that he had a new question, he
advised that as the maker of the amendment who had not asked a
question the entire time, he would allow him to ask a question.
CHAIR CLAMAN advised Representative Reinbold that she had asked
a number of questions as had everyone else.
10:31:36 AM
REPRESENTATIVE EASTMAN noted to Ms. DiPietro that the committee
had heard that the failure to appear change is important to the
criminal justice reform effort, and that if the committee
decided to walk back on this there was the potential to
undermine the entire project. The committee also heard
testimony from Mr. Skidmore that there was not much of a problem
with the prior statute, and it was only prosecuted under extreme
or egregious cases. Therefore, relaxing the requirements for
failure to appear has not had much of an effect and it did not
solve a big problem. He asked how it is that this is so
fundamentally important to the criminal justice effort to not
walk it back.
MS. DiPIETRO answered that the testimony she had intended to
convey was that the entire pretrial reform package is
fundamentally important to the reform effort in each aspect.
Every change that was recommended by the commission and placed
in Senate Bill 91, works together to create the most effective
pretrial practice that the commission knew how to make. She
pointed out the importance of remembering that the Pretrial
Enforcement Division will make a huge difference in Alaska's
pretrial practice. The fact that pretrial enforcement officers
have remand authority is critical because that is a big change.
She said that "throwing a new criminal charge in there at this
stage," has the potential to confuse things or cause problems
for the implementation of pretrial services because it was
carefully structured.
10:34:39 AM
REPRESENTATIVE EASTMAN asked how making it easier for the
prosecution to prosecute failure to appear would have that
effect on the Pretrial Enforcement Division, and how it would be
problematic going forward.
MS. DiPIETRO remarked that it was not her understanding that
Amendment 43 would make it easier for prosecutors to prosecute
because she understood the amendment to re-criminalize failure
to appear.
10:35:19 AM
REPRESENTATIVE REINBOLD stated a point of order. Representative
Reinbold said that the person who wants to rush and call the
question right now, she finds completely inappropriate. She
said, "He sat on the bill for roughly six months. We are in
this special session for 30 days, just because someone wants to
rush it, I find that absolutely unacceptable. He sat on this
bill, it was so unimportant in his committee, he waived this
bill out of committee. I think we deserve the opportunity to
ask as many questions as needed. This is "gonna have dramatic
impacts" to Alaskans, and I'd like the opportunity to ask
questions so I under -- fully understand the amendment and who
is influencing this 'so called justice commission.' And, I do
have more questions."
CHAIR CLAMAN ruled that her point of order was noted, but the
rules allow the chair of committees to manage debate and move
the process forward. He pointed out that the committee members
have had more than enough opportunities to ask a number of
questions, and noted that more often than once, Representative
Reinbold was unable to complete a question within the time
allotted for asking questions. He said, "I think you,
particularly, have had substantial opportunities to ask
questions," and advised that the committee would now move into
debate.
10:36:51 AM
REPRESENTATIVE LEDOUX commented that during her first review of
Amendment 43, she was not going to vote for it. Except that the
three things that have changed her mind are as follows: Mr.
Skidmore said that prior to Senate Bill 91, charging someone
with failure to appear was used only in the most egregious
circumstances; and she asked Mr. Skidmore how the process would
work if a defendant repeatedly failed to appear, and Mr.
Skidmore did not have an answer; and, the good things, such as
the reminders that will continue to try to cut down on the
instances of failure to appear. Therefore, she offered, there
actually was no reason to change the law prior to Senate Bill
91, and that she is comfortable going back the previous law.
10:38:09 AM
REPRESENTATIVE KREISS-TOMKINS commented that in the big scheme
of things, this is not a "big potatoes change" because it is not
currently a problem, and it was not a big issue prior to Senate
Bill 91. He related that the big difference here is that, prior
to Senate Bill 91, there was not a Pretrial Enforcement Division
of which changes the context of the status quo prior to Senate
Bill 91. As Ms. DiPietro had noted, he said, this policy is
integrated and complimentary of the Pretrial Enforcement
Division; therefore, it is not an "apples to apples comparison"
when looking at what happened prior to, and after, Senate Bill
91. In his mind, he offered, this is not a fire that needs to
be extinguished as there have not been problems since its
implementation. Thus, it makes a lot of sense to hold tight and
see how things unfold to possibly further lower the 14 percent
failure to appear rate and make changes only with the benefit of
evidence and data, he said.
10:39:42 AM
REPRESENTATIVE REINBOLD said that failure to appear is critical
to address properly and reiterated that it is an insult to the
state's judges, courts, victims, and prosecutors. Re-
criminalizing failure to appear is a critical tool in the
toolbox and without this amendment a loophole is created that
says that crime pays, and she passionately supports Amendment
43.
10:40:51 AM
CHAIR CLAMAN stressed that being tough on crime is of the
highest importance in criminal justice reform, and this
particular feature of the pretrial services program is a tough
on crime measure. It is one of the best ways that the state can
be smart on spending and improving public safety. The most
important feature of that, he stressed, is that it is known from
the statistics in the pretrial setting, within in the 2014
through 2015 range, that the state had a new arrest rate of 37
percent. He pointed out that more than one-third of the people
on pretrial release commit a new criminal offense, and there is
a 14 percent rate of failure to appear. While a 14 percent rate
is good, he related that in the State of Kentucky, the
combination of new arrests and failure to appear is at 8
percent, and the goal is to improve public safety with better
compliance. The pretrial services program is in phase three of
criminal justice reform and those results are critical because
that will do more to improve public safety than the status quo,
he stressed. He commented that the quick and certain result is
one of the strongest parts as to why this particular feature of
criminal justice reform is tougher on crime than the prior
structure. He said that for those reasons he will be a no-vote
on Amendment 43.
10:42:38 AM
REPRESENTATIVE EASTMAN commented that if he was a member of the
public and listening to this discussion over the last 90
minutes, he would think the Alaska criminal justice system was a
splendid model for a nation to follow. The reason being is that
"we have created and designed a system to tell us through
statistics exactly what we already want to hear." However, he
related, it is known from our constituents that that is not what
is taking place in Alaska today. He said that the legislature
is focused on a 14 percent reduction and the legislature has
already tried to close its eyes to the fact that the conditions
of release "and others" are not actually being enforced and are
not being followed. In any other committee, he advised, the
members would be talking about the fact that more resources are
needed for the Alaska Court System because 7,000 cases are not
being prosecuted. But, he remarked, that is not a problem in
this situation because things are working perfectly and if
people are failing to appear "it's a small problem." In the
event those cases were actually being prosecuted, it would be
noticed that the 14 percent of people failing to appear were
having a significant effect on Alaska's justice system and the
court system, he offered.
REPRESENTATIVE FANSLER maintained his objection.
10:43:50 AM
A roll call vote was taken. Representatives Eastman, Reinbold,
and LeDoux voted in favor of the adoption of Amendment 43.
Representatives Kopp, Kreiss-Tomkins, Fansler, and Claman voted
against it. Therefore, Amendment 43 failed to be adopted by a
vote of 3-4.
10:44:25 AM
REPRESENTATIVE EASTMAN moved to adopt Amendment 44, Version 30-
LS0461\N.14, Bruce/Martin, 10/19/17, which read as follows:
Page 5, following line 25:
Insert a new bill section to read:
"* Sec. 11. AS 12.55.135(n) is amended to read:
(n) A court sentencing a person convicted of
misconduct involving a controlled substance in the
fourth degree under AS 11.71.050(a)(4) or misconduct
involving a controlled substance in the fifth degree
under AS 11.71.060(a)(2) may not impose
(1) a sentence of active imprisonment,
unless the person has previously been convicted more
than once of an offense under AS 11.71 or a law of
this or another jurisdiction with elements
substantially similar to an offense under AS 11.71; or
(2) a sentence of [SUSPENDED IMPRISONMENT
GREATER THAN]
(A) suspended imprisonment greater than 30
days, if the defendant has not been previously
convicted of an offense under AS 11.71 or a law of
this or another jurisdiction with elements
substantially similar to an offense under AS 11.71; or
(B) active imprisonment greater than 180
days, if the person has been previously convicted of
an offense under AS 11.71 or a law of this or another
jurisdiction with elements substantially similar to an
offense under AS 11.71."
Renumber the following bill sections accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 12"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 13"
Page 15, following line 27:
Insert a new subsection to read:
"(c) AS 12.55.135(n), as amended by sec. 11 of
this Act, applies to sentences imposed on or after the
effective date of sec. 11 of this Act, for offenses
committed on or after the effective date of sec. 11 of
this Act."
Reletter the following subsection accordingly.
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 30:
Delete "Section 17"
Insert "Section 18"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
10:44:33 AM
REPRESENTATIVE EASTMAN explained that Amendment 44 returns to
the law prior to Senate Bill 91. He explained that the previous
amendment dealt with making it more difficult to prosecute for
failure to appear, and this amendment deals with how jailtime
has been reduced, and other consequences, for first-time drug
convictions. Also addressed in this amendment, he further
explained, is the fact that there is suspended jailtime, which
practically speaking means no jailtime for second-time
convictions in these types of situations. Amendment 44
recognizes that the leniency currently offered sends the wrong
message to criminals in Alaska and the public has also received
that message. He related that the message should be swift and
certain prosecution when violating the law, but that message is
not getting through to the criminals. He said that the law
needs to go back to pre-Senate Bill 91 law, which while it may
not have been perfect, certainly was closer to sending the
appropriate message.
REPRESENTATIVE FANSLER referred to Representative Eastman's
statement that the state needs to get back to swift and faster
prosecutions, and he asked whether it was his understanding that
a suspended sentence no longer allowed the state to have a swift
push for prosecution.
REPRESENTATIVE EASTMAN answered that he does not believe a
suspended sentence has much to do with whether the prosecution
is swift.
10:46:39 AM
REPRESENTATIVE FANSLER surmised from Representative Eastman's
response that a suspended sentence still provides for swift
prosecution.
REPRESENTATIVE EASTMAN responded that swift prosecution is
handled by other factors and a suspended sentence will come into
play after those factors.
REPRESENTATIVE FANSLER surmised that the state will not get back
to swift prosecutions because the state is still there by having
suspended sentences.
REPRESENTATIVE EASTMAN advised that the state is not there
currently, and he would like to get back there. This amendment
is part of getting back to swift and certain, and it "focuses on
the certain of swift and certain."
10:47:13 AM
REPRESENTATIVE FANSLER asked Ms. DiPietro to walk the committee
through why this provision was changed in Senate Bill 91.
MS. DiPIETRO responded that the Alaska Criminal Justice
Commission spent quite a while discussing what to do about drug
offenses in Alaska. The first piece of information the
commission received was the status of Alaska's current situation
and found that a significant amount of prison resources devoted
to non-violent drug possession offenders suffering from the
medical condition of addiction. During the decade prior to
criminal justice reform, admissions to prisons for drug offenses
increased 35 percent, and the length of stay for felony drug
offenders had increased 16 percent. She reminded the committee
that prior to criminal justice reform, simple possession of
drugs was a class C felony and many of those individuals would
have been simple possession felony offenders, their length of
stay increased 16 percent. The commission looked at what really
works for drug offenders, and the research showed that long
prison terms for drug offenders had a low deterrent value. The
research also showed that the detection chances of a typical
street level drug transaction are at approximately one in
15,000, and with such a low risk of detection, the drug
offenders were not likely to be dissuaded by the remote
possibility of a longer stay in prison, she explained. It is
well known that as to the deterrence effect, offenders do not
think so much about what will happen if they are caught, they
mostly just think about whether they will be caught. The
approach supported by the research de-emphasizes the use of
prison for drug offenders with the idea that rather than prison,
the offenders would receive treatment. Clearly treatment
resources are not sufficient in Alaska, and she offered that 9
out of 10 people in the nation seeking treatment for drug
addiction cannot find treatment. She advised that Medicaid
assisted treatment for opioid disorders is "pretty effective,"
which is found in Alaska, but more is needed. The commission's
approach to this serious problem in Alaska, she explained, is to
emphasize the use of prison beds for the large buyers and
dealers, and instead use treatment in the communities for the
"addict dealers," those who possess small amounts of drugs and
are possibly selling it to their friends to support their habit.
She advised that that was the basis for the commission's
recommendation.
10:51:05 AM
REPRESENTATIVE FANSLER asked whether statistics show that there
are quantities of drugs in prison and that prison is not a place
where people can dry out.
MS. DiPIETRO answered that she believes Representative Fansler's
understanding was correct, but she deferred to Commissioner Dean
Williams.
10:52:24 AM
REPRESENTATIVE FANSLER requested confirmation that as much as
the state tries, Alaska's penal system is not void of drugs.
Typically, he noted, putting folks convicted of a drug offense
in jail is not the proper manner in which "they dry out" and
receive their desired recovery treatment.
10:52:58 AM
CARRIE BELDEN, Director, Division of Probation and Parole,
Department of Corrections (DOC) advised that while she does not
specialize on the institutional side, the Department of
Corrections (DOC) prefers that people not detox within the walls
of the state's prisons and, if at all possible, stay in the
community to receive treatment and detoxing. Prison is not
always the best solution for people who require medical
assistance or help through detoxing, the DOC would like to
reserve prison for dangerous people and those who are a public
safety threat.
10:54:09 AM
REPRESENTATIVE REINBOLD requested current statistics that
depicts the number of violent crimes involving some sort of a
substance, such as drugs or alcohol.
MS. BELDEN asked that Representative Reinbold repeat her
question because if it was a DOC question, she did not have the
answer now, but she could get it to the committee.
REPRESENTATIVE REINBOLD asked, nationally and for the State of
Alaska, what percentage of violent crimes involve drugs,
alcohol, or some sort of substance.
MS. BELDEN suggested that the Alaska Criminal Justice Commission
may have researched that issue.
CHAIR CLAMAN explained that the question was not necessarily
directed to Ms. Belden and possibly Ms. DiPietro or the
prosecutor's office could provide information as to the
relationship between people convicted of a violent crime and
those convicted of a violent crime with substance abuse issues.
10:55:59 AM
MS. DiPIETRO responded that that is a surprisingly difficult
question to answer due to manner in which charges are filed and
police reports are prepared, so it is difficult to pinpoint. As
far as she knows, no one has been able to calculate what
percentage of violent crimes are related to drugs or alcohol.
Although, she said she could offer two pieces of information:
practitioners will say that alcohol, in general, decreases
inhibitions and is often seen in connection with violent crimes;
and the Mental Health Trust Authority has shown that about 65
percent of the people in prison have either a mental illness or
a substance abuse problem. She added that of that 65 percent,
approximately 70 percent have problems with substance abuse.
She pointed out that that number is a significant proportion of
the prison population with substance abuse problems.
10:57:38 AM
REPRESENTATIVE REINBOLD noted that when people are charged,
there are breathalyzers or blood tests, and she offered surprise
that the statistics were not available. She asked for
confirmation that Ms. DiPietro does not have the data
correlating the number of violent crimes committed by people
with a mind-altering substance in their body.
MS. DiPIETRO explained that breathalyzer tests are usually used
in DUI situations, which normally is not considered a violent
crime unless there was injury to another party, possibly. She
advised that it is not at all common for people to have
breathalyzer tests performed when charged and convicted of
crimes. The Alaska Criminal Justice Commission looked carefully
for all available data in Alaska and the data is just not there,
at least that the commission could find, but Ms. DiPietro
related that it would be terrific if someone would come forward
with that information. The commission asked itself, "What are
the important things to research," and she commented that there
is no disagreement that alcohol, particularly, is a problem in
Alaska and it is correlated with criminal activity. The
commission did not research that data because it would be very
difficult and expensive to research for an outcome that would
not add much to the discussion. Clearly, most people agree that
alcohol in Alaska is a problem and that it is correlated with
criminal activity, she said.
11:00:04 AM
REPRESENTATIVE REINBOLD commented that this information is
critical, and it would be another tool for law enforcement to
see whether there was anything in the system when charging
someone. Amendment 44 is important, she said, because if there
is a correlation between drugs/alcohol and violent crimes every
tool in the toolbox is necessary possible. The correlation
between violent crimes and drugs is critical "because a lot of
people are not defining DUIs and other things as violent
crimes." She asked whether Ms. DiPietro could get that
information to the committee.
MS. DiPIETRO asked for clarification as to whether
Representative Reinbold's research question was, whether people
convicted of violent crimes had alcohol or drugs in their
system.
11:01:36 AM
REPRESENTATIVE REINBOLD requested research regarding the
correlation between someone who committed a violent crime and at
the time of the crime, had any type of illicit substance in
their body. She clarified that her question was not whether
they had been convicted and requested the definition of a
violent crime.
CHAIR CLAMAN asked Ms. DiPietro what it would take to research
the question Representative Reinbold requested, the cost of that
research, and where Ms. DiPietro would go to collect that
information.
MS. DiPIETRO offered her understanding that the research request
is, for all of the people who abuse substances, how many are
involved with violent crimes. Initially, she said, she would
determine all of the people in Alaska abusing substances, and
then determine whether they had ever been charged with a
[violent] crime, and not a conviction.
MS. DiPIETRO then corrected herself because Representative
Reinbold had actually said "committed a violent crime," and not
charged with a crime. Except, she pointed out, it would be
impossible to determine whether a person committed a crime if
they were not charged with a crime. There could possibly be a
determination if they had been arrested with a crime, but she
said, "You can see already, from how I'm describing this study,
that it would be a very expensive and time-consuming study to
do."
REPRESENTATIVE REINBOLD said, "We have our mental health, we
have lots and lots of money, that was established so long ago."
She commented that it is unacceptable that Ms. DiPietro does not
have data on the linkage between "violent crimes and that,"
while noting that she lacks confidence in the criminal justice
commission.
11:04:22 AM
REPRESENTATIVE EASTMAN referred to the crimes being discussed in
Amendment 44 and asked whether the discussion was about drug
use.
MS. DiPIETRO opined that the Amendment 44 is for persons charged
and convicted of drug possession. Although, she said, she has
not had a chance to closely review the amendment.
CHAIR CLAMAN said that there is nothing in this amendment having
to do with violent crimes, it is strictly regarding drug
possession.
REPRESENTATIVE EASTMAN added, "Or, drug use."
CHAIR CLAMAN clarified for Representative Eastman that it is
about drug possession and drug use.
REPRESENTATIVE EASTMAN commented that he had not found "anything
here" about drug use, and that he is actually sympathetic to not
identifying drug addicts and putting them in prison simply
because they are drug addicts. In the event this had to do with
drug use, it would be an entirely different conversation. Since
the time these more relaxed statutes dealing with drug
possession have gone into effect, how small is the prison
population based on these drug laws under current law, he asked.
MS. DiPIETRO replied that the changes under Senate Bill 91, in
general, would not have caused release for those people serving
sentences for, what used to be, class C felony drug possession.
The question then becomes, who is currently going to prison.
Ms. DiPietro referred to the October 22, 1917, Alaska Criminal
Judicial Commission Annual Report, page [14, Figure 10: Drug
Admissions] and noted that between FY16 and FY17, drug
admissions for a class C felony fell by 68 percent because drug
possession is no longer a class C felony. The question then is,
how many people are going to prison for misdemeanor drug
possession crimes, and she noted that the percentage is quite
small.
MS. DiPIETRO, in response to Representative Eastman's question
as to how it has affected prison beds, answered that the
admissions for class A misdemeanor drug offenses rose from "97
to 181," which is a small number. The net effect would be that
less prison beds are being used for drug possessors, post-
criminal justice reform, she offered.
11:08:46 AM
REPRESENTATIVE LEDOUX asked the definition of drug possession in
the fourth degree.
MR. SKIDMORE answered that misconduct involving a controlled
substance in the fourth degree is currently classified as a
class A misdemeanor. He explained it is possession of almost
all illegal narcotics or drugs, unless at the time of possession
the person had the intent to distribute, which would make it a
felony.
REPRESENTATIVE LEDOUX asked the definition of drug possession in
the fifth degree.
MR. SKIDMORE responded that misconduct involving a controlled
substance in the fifth degree talks about possession of schedule
VIA controlled substances, which is generally understood to be
marijuana. He explained that it can also be possession of one
or more preparations, compounds, mixtures, or substances of an
aggregate weight. At the time of the marijuana initiative, that
statute was not repealed, it is still on the books, but is not
necessarily enforced, he added.
11:10:52 AM
REPRESENTATIVE LEDOUX surmised that the issue is actually drug
possession in the fourth degree, which is just about everything
other than marijuana.
MR. SKIDMORE opined that the only other substance not listed
under fourth degree is "GHB, which was otherwise known as the
date rape drug," which is still a felony.
CHAIR CLAMAN asked about [schedule] IIIA controlled substances,
because the fifth degree includes reference to possession of
[schedule] IIIA controlled substances.
MR. SKIDMORE opined that Chair Claman was looking at a statute
book published in the beginning of 2016, which would not include
the changes to the schedule after Senate Bill 91. Schedule IIIA
substances should be found as a misdemeanor crime and possession
of those substances would be a misdemeanor crime, he said.
11:12:10 AM
REPRESENTATIVE LEDOUX noted that after thoroughly reviewing
Amendment 44, she could not determine its purpose, and asked
what the law was prior to Senate Bill 91, the law currently, and
the law under Amendment 44.
MR. SKIDMORE explained that prior to criminal justice reform
there was a fairly detailed framework of how to address
controlled substances. Under current law, much of that framework
has changed and shifted. He offered that it would be difficult
for him to explain the differences succinctly, so he would focus
his answer on Amendment 44.
REPRESENTATIVE LEDOUX surmised that this amendment does not take
the law back to the law prior to Senate Bill 91.
MR. SKIDMORE agreed, and he explained that the amendment does
not reorganize the structure of how conduct is criminalized,
this amendment is focused solely on sentencing.
11:13:46 AM
REPRESENTATIVE LEDOUX explained that her confusion related to AS
12.55.135(n)(2)(A)(B), Amendment 44, page 1, lines 12-21.
(2) a sentence of [SUSPENDED IMPRISONMENT
GREATER THAN]
(A) suspended imprisonment greater than
30 days,if the defendant has not been previously
convicted of an offense under AS 11.71 or a law of
this or another jurisdiction with elements
substantially similar to an offense under AS 11.71; or
(b) active imprisonment greater than
180 days, if the person has been previously convicted
of an offense under AS 11.71 or a law of this or
another jurisdiction with elements substantially
similar to an offense under AS 11.71.
CHAIR CLAMAN offered that under current law, under misconduct
involving a first offense for a controlled substance in the
fourth degree, the eligible sentence is zero to 30 days of
suspended time, and that does not change under Amendment 44.
CHAIR CLAMAN explained that it is zero to 30 days for drug
possession, which is essentially a drug user, and the zero to 30
days means a strictly probation misdemeanor sentence for the
first offense. He added that under current law for the second
offense, the eligible sentence is zero to 180 days of suspended
time with no active jailtime for the second offense for someone
solely charged with drug possession and one prior conviction for
possession of drugs.
11:15:02 AM
MR. SKIDMORE advised that he agreed with the first part of Chair
Claman's explanation; except, he was unsure he agreed with the
second part of his answer.
CHAIR CLAMAN clarified that he was not asking about the
amendment, he was asking about the current law.
REPRESENTATIVE LEDOUX surmised that under current law, the first
time ...
CHAIR CLAMAN explained that the first-time offense is zero to 30
days suspended, and for second offense, for possession only, is
zero to 180 days suspended. He added that Amendment 44 does not
make a change to the first-offense because it is still zero to
30 days suspended. As to the second offense, the amendment
changes the law so that the court "may, but is not required" to
impose jailtime, and the range of permissible jailtime on the
second offense would be zero to 180 days. He pointed out that
the court could still impose suspended time and zero active
jailtime, but under the amendment the court would have the
option of sentencing up to 180 days of jailtime.
11:16:27 AM
REPRESENTATIVE LEDOUX surmised that currently, the court does
not have the option of imposing any jailtime for a second
offense.
MR. SKIDMORE noted that there are two categories, active
jailtime and suspended jailtime. Active jailtime is that the
person is going to jail now; and suspended jailtime places the
person on probation with the possibility of going to jail if
they violate their conditions of probation. Under current law
and for the second offense, the person would be on probation
under a certain amount of suspended time, and Amendment 44
shifts it to the possibility of active jailtime. He noted that
the court could do either one under Amendment 44.
11:17:17 AM
REPRESENTATIVE LEDOUX commented that one of the ideas behind
criminal justice reform is treatment rather than jail.
MR. SKIDMORE responded that treatment is absolutely one of the
primary goals of the criminal justice reform efforts, getting
individuals into treatment rather than simply locking addicts up
in prison.
REPRESENTATIVE LEDOUX asked, assuming treatment beds were
actually available, whether a more potent tool would be to
advise the person that they could either go to treatment or go
to jail.
MR. SKIDMORE commented that there is a greater incentive for a
person to engage in treatment when there is the risk of
jailtime. In offering the counter-point, he remarked that it
could be argued that the person could be told that they have to
go to treatment or go to jail; or, advise the person that they
they will be put on probation and they must go to treatment, and
if they violate their conditions of probation, they will go to
jail. The distinction, he described, is that it depends on
whether that treatment requires residential treatment versus
out-patient treatment. The reason for the distinction, he
explained, is that the court's ability to order someone into
residential treatment is based upon its ability to order someone
to go to jail in the first place.
REPRESENTATIVE LEDOUX surmised that the person is more likely to
end up in residential treatment if the court has the authority
to put them in jail.
MR. SKIMORE explained that if residential treatment is what is
required, the possibility of jail under Nygren v. State of
Alaska, [658 P.2d 141 (1983)] is the legal analysis.
11:20:31 AM
REPRESENTATIVE REINBOLD asked Mr. Skidmore whether he was aware
of any correlation between substance abuse and violent crimes.
MR. SKIDMORE responded that it is accurate that many of the
crimes being prosecuted involve people under the influence of
substances. Except, he pointed out, Representative Reinbold's
specific questions have been about statistics, and he does not
have statistics from his own experience as to the amount of
cases that involve substance abuse. The Department of Law's
case management system and data base does not include the number
of people who have been under the influence of controlled
substances at the time they committed a violent crime, he
remarked.
11:22:43 AM
REPRESENTATIVE REINBOLD asked whether there is any correlation
between substance abuse and violent crime.
MR. SKIDMORE responded that he recognizes that Representative
Reinbold would like a yes or no answer, but he does not know of
a correlation. Correlation, he pointed out, says that there is
a strong connection, and he is unaware of the number of people
abusing substances that never engage in violent crimes, so he
could not say that that correlation exists. While he is aware
that a number of violent crimes occur as a result of someone
being under the influence of a controlled substance or alcohol,
he could not say that that results in some sort of correlation
or causation.
REPRESENTATIVE REINBOLD commented that news casters appear to
know whether methamphetamines were involved, and she is
"appalled" by Mr. Skidmore's "answer that is complete "loopty
doopty, we have no idea." She asked whether "hanging longer
times" over the abuser's head would be a good tool to motivate
them to get into treatment.
MR. SKIDMORE responded that she had spoken about class B
misdemeanors, and clarified that drugs are not class B
misdemeanors - they are class A misdemeanors; therefore, the 10
days is not associated. The concept of whether or not the
possibility of jailtime provides assistance is certainly a
theory, wherein the threat of jailtime seems to make sense, he
said.
11:26:22 AM
REPRESENTATIVE REINBOLD asked whether the tool of a longer jail
sentence would help prosecutors motivate these defendants into
treatment. She further asked whether a class A misdemeanor is
30 days.
MR. SKIDMORE answered that a generic class A misdemeanor
currently has 30 days, but exceptions are carved out for crimes
against persons for domestic violence that can be up to one
year. Except, he pointed out, drugs do not fall under that same
classification of 30 days, it has a separate sentencing
provision wherein it is currently 30 days suspended for a first-
offense, and up to 180 days suspended for a second or subsequent
offense. Amendment 44 read that for the second or subsequent
offense, a court has the discretion of zero to 180 days, and he
remarked that he believes that tool would be helpful.
11:27:52 AM
REPRESENTATIVE KOPP surmised that Amendment 44 read that the
court would not impose active imprisonment greater than 180 days
if the person was previously convicted of a drug offense. He
asked whether he was correct.
MR. SKIDMORE advised that the way he read the amendment, it is a
six-month cap.
REPRESENTATIVE KOPP referred to an earlier question as to why
the state does not do drug test every violent offender. He
explained that as the arrests occur, for any offense or violent
crime, there is always anecdotal evidence, such as smelling
alcohol wherein a breath test would take place. A intoximeter
would be involved in the event of an injury or crime against a
person, and a crime against a person would involve a blood test.
Now, he said, the only way to really know what is in a person's
system is to perform a blood test, and if the goal is a
quantitative analysis verses qualitative analysis, the costs are
in in the area of sometimes thousands of dollars, and a
qualitative test was $500 for a single test. He asked how
expensive it was to definitively identify a drug in the system
of someone who had committed a violent crime, and whether it is
still as difficult to perform the test currently as it was in
the past, as to the cost and ability to perform the tests.
MR. SKIDMORE answered in the affirmative.
11:31:02 AM
REPRESENTATIVE EASTMAN noted that Amendment 44 is focused simply
on the penalties imposed under the state's current laws,
Amendment 44 looks back to the penalties in existence prior to
SB 91 and looks to return to some of those penalties. Under
current law and "these penalty changes," he asked the effect on
law enforcement and prosecutors in not having this jailtime as
an option, and the impact that law enforcement and prosecutors
have seen on the street.
MR. SKIDMORE responded that his question was difficult to answer
because the referrals that come to the Criminal Division for
this type of crime, at the moment are "not very large." He said
he does not know the precise reason for that, although, one
could argue that it is due to the budget cuts and the lack of
resources to handle every case that comes into the division.
MR. SKIDMORE added that the lack of resources has an impact on
the crimes his office is able to prosecute, he remarked, and it
has an impact on what offenses officers refer to his office.
The department carefully reviews drug prosecutions and drug
crimes while recognizing the current opioid epidemic in Alaska.
In addressing the problems with opioids in the state, the
department has been working aggressively on a public safety
action plan, and "this is a tool." He said that he does not
know whether it is the right tool, but those issues are being
reviewed carefully. From his standpoint, he said, he looks at
the whole process and appreciates the desire of folks to give
prosecutors the right tools. Except, he pointed out that the
tools the prosecution identified in SB 54 are the tools it needs
right now. He said he does not know what impact the changes
have had, and that there are not a lot of prosecutions for
possession of drugs currently.
11:35:00 AM
REPRESENTATIVE EASTMAN commented that if Mr. Skidmore could not
tell the committee the impacts, then to walk the committee
through how he determines how to allocate the finite resources
that the DOL does have available. He referred to the referrals
the DOL receives for potential convictions that have no
opportunity for jailtime attached and asked whether his office
is actively pursuing the referrals that it does receive.
MR. SKIDMORE clarified that when the DOL distributes resources
and evaluates cases as prosecutors, it is not necessarily
looking at the amount of jailtime someone might receive for a
crime to decide whether it is a priority. The DOL does look
at, "what is it that is on our plate right now," and in the
Anchorage office there are 29 prosecutors with 40 plus active
homicides currently on their places. He advised that the
Anchorage office will focus on those biggest cases, the
homicides, sexual assaults, and focus on what they need to do
for those sorts of cases. The Bethel office has seen increases
in violent crimes and property crimes, which is where he will
initially focus those resources. Whenever the DOL decides to
prosecute a possession of drugs case, it has nothing to do with
the penalty associated with it, it is due to these other
significant crimes and where the DOL must focus its priorities.
Those cases have a direct correlation to public safety because
someone was harmed, which is not to say that drug crimes do not
end up with people being harmed. Currently, he pointed out, the
DOL is "beyond its max" trying to deal with those felony crimes
and the focus on domestic violence, sexual assault, homicides,
and other felony crimes. The referrals to the DOL have been
dramatically reduced, and he reiterated that the department is
currently focused on felonies, but some drug possession cases
may be pursued.
11:38:01 AM
REPRESENTATIVE EASTMAN referred to the DOL focusing on these
felonies and core priorities and asked whether he sees the trend
of those felonies staying the same, increasing, or whether there
is light at the end of the tunnel. When the DOL might have the
opportunity to shift its attention back to these less directly
related to public safety types of offenses and pursuing those
convictions.
MR. SKIDMORE commented that he does not know what the future
holds in terms of the types of crimes referred to the DOL.
Currently, he reiterated, the trend is moving up and that he
does not know what will cause that trend to shift, but the DOL
is working on that issue of making the trend shift.
11:39:12 AM
CHAIR CLAMAN referred to the current version of AS 12.55.135(n),
providing suspended sentences for the first and second offenses,
and asked whether those are all of the tools the DOL needs right
now to do its job effectively. He further asked whether the DOL
is seeking any change to AS 12.55.135(n).
MR. SKIDMORE responded that the DOL is not seeking any changes
to AS 12.55.135(n) at this time.
CHAIR CLAMAN asked Ms. DiPietro whether she had located any
national statistics depicting a relationship between violent
crimes and substance abuse.
[MS. DiPIETRO was offline.]
11:40:27 AM
REPRESENTATIVE REINBOLD commented that Mr. Skidmore is in a
"tough situation because I recognize that you're here on behalf
of the attorney general representing the Department of Law. Not
necessarily fighting for the prosecutors. But, I'm really happy
that -- that the trend that you stated -- that the trend is
going up for violent crimes and -- and drug activity, it
appears." She asked whether Mr. Skidmore would say that drug
activity is increasing or decreasing under current law.
MR. SKIDMORE expressed that first and foremost he would correct
Representative Reinbold's misrepresentation of his testimony.
Mr. Skidmore stressed that he is sitting here fighting for
prosecutors and trying to make sure that the prosecutors receive
the right tools. He further stressed that he had indicated
previously that, currently the DOL has not reached any
conclusions about what tools are the right tools when it comes
to dealing with controlled substances. He suspects, he said,
that the DOL will be before the committee at some point to talk
about tools. He stated that he is not testifying today asking
for any such tools because the DOL has not reached those
conclusions at this time.
MR. SKIMOPRE further expressed that when he testifies on behalf
of the Department of Law (DOL) and on behalf of Attorney General
Jahna Lindemuth, that means he is testifying on behalf of the
prosecutors. Attorney General Lindemuth is, without a doubt,
fighting for prosecutors each and every day. "And, I will not
tolerate anyone who suggests otherwise." As to the trends and
the uses of substances, he reiterated that he does not have the
data as to what is happening with the uses of substances. He
further reiterated that he is seeking that information himself
and he has asked for the information in any number of different
places. He pointed out that that is one of the factors in
helping the DOL determine its next correct steps.
11:42:27 AM
REPRESENTATIVE REINBOLD advised that it was "not a
misrepresentation in my mind. It's not about you tolerating my
positions and the 18,000 people that I represent. It's not
about that. I am bringing very important positions to the
table." She requested a resolution from all of the DOL's
prosecutors offering their support for all the recommendations
from the Justice Commission. Representative Reinbold asked
whether Mr. Skidmore has seen an increase or decrease in drug
activity in Alaska under current law.
CHAIR CLAMAN pointed out that Mr. Skidmore had answered the
question previously, but he would give him a chance to answer
the question a second time.
MR. SKIDMORE reiterated that he does not know whether there is
an increase in drug use all across the state, it is well known
that an opioid epidemic is causing problems. He does not have
the statistics to say precisely what is happening in that area,
he reiterated, and the statistics he has deal with the crimes
the DOL prosecutes. Mr. Skidmore emphasized that he could not
say precisely that there was an increase, or in what amount, or
for any particular drug. The opioid crises plagues Alaska and
the nation, there has been an increase in deaths as a result of
opioid abuse, but his focus is on the prosecution and he could
not say how much of the increase in crime is related to opioid
abuse.
11:44:22 AM
REPRESENTATIVE REINBOLD questioned whether he knew the trends.
MR. SKIDMORE reiterated that the trends of crimes are up, and
they have been up for the last several years.
11:44:52 AM
CHAIR CLAMAN asked whether Ms. DiPietro was able to locate any
federal statistics regarding the connection between substance
abuse and violent crimes.
MS. DiPIETRO responded that she looked around the internet and
found a study by the Bureau of Statistics wherein in it
interviewed inmates in state and federal prisons and asked
whether the inmates committed their crimes to get money for
drugs. Interestingly, she commented, only about 8-9 percent of
violent offenders in state prisons and local jails said they had
committed their violent crimes to secure money for drugs. There
is evidence within the study that drug related homicides were
about 4 percent in 2007, she noted that the statistics only
applied to homicides for which the circumstances were known, so
that would exclude some instances where the circumstances were
unknown. Within the study, she said, victims of violent crimes
were interviewed as to whether they believed the offender was
using drugs or alcohol at the time of the crime. Approximately
6 percent of the victims believed that the offender was under
the influence of drugs, and a significant percentage of victims
responded that they did not know. She advised that she had
offered this information to the committee as the little bit of
information that is out there.
11:46:46 AM
CHAIR CLAMAN asked the date of the study and the time period it
reflects.
MS. DiPIETRO answered that, unfortunately the study is a little
old in that the victims' survey was performed in 2007, and the
interviews of the inmates in prison and jail were performed
between 2002 and 2004.
CHAIR CLAMAN remarked that all of the data is more than 10 years
old.
11:47:17 AM
REPRESENTATIVE REINBOLD described this information as "baloney
research" because to survey inmates and ask them a question,
"did you beat the crap out of someone to secure money for drugs"
is a ridiculous piece of information to bring forth to this
committee. She said that her question was clear, do drugs
influence criminal violent behavior.
11:47:57 AM
REPRESENTATIVE EASTMAN noted that Ms. DiPietro mentioned a
concern of the commission as to drug users being held in prison,
and that possibly jail was not the best place for these people.
He asked that Ms. DiPietro explain the data the Alaska Criminal
Justice Commission has on drug use in Alaska's prisons.
MS. DiPIETRO responded that the commission does not have
information about drug use in prisons, and the commission's
recommendation was not necessarily based on the idea that people
convicted of drug possession could get drugs in prison, the
recommendation was more based on research that it is best for
low-level possessors to receive treatment in the community
because putting them in prison could actually make them worse.
11:49:20 AM
REPRESENTATIVE EASTMAN asked Ms. DiPietro to speak generally as
to whether an inmate is more or less likely to be addicted to
drugs upon their release from prison.
MS. DiPIETRO answered that the commission does not have those
statistics. She then reminded the committee that the commission
looked at recidivism reduction and studied whether people coming
out of prison were more or less likely to commit new offenses.
11:50:42 AM
REPRESENTATIVE EASTMAN commented to Nancy Meade, Alaska Court
System, that Amendment 44 is confusing to understand because it
includes language that is addressed to the courts, wherein "a
court may not impose," and the committee is then dealing with
what happens after that portion of the language. He asked what
the impact has been to judges and the court system, under
current statute, that directs courts not to impose these
sentences, and in some cases not permitting the courts to impose
active imprisonment after a defendant's conviction.
11:51:29 AM
NANCY MEADE, General Council, Alaska Court System opined that
she does not have a satisfactory answer to that question. The
judges were trained as to the new laws in effect after Senate
Bill 91, they were given checklists as to the penalties, and the
maximums and minimums for certain crimes. The judges simply
apply the law as written, she offered.
11:52:10 AM
REPRESENTATIVE EASTMAN asked, during the period of time since
these laws went into effect, whether the number of convictions
for these two offenses stayed the same, increased, or decreased.
MS. MEADE advised that the court system has not collected data
on all of the changes pre-Senate Bill 91 and post-Senate Bill
91, so she does not have the answer to that question. Although,
she said, there could be a huge data collection effort. The
court system has been carefully prioritizing requests for its
sole data collector/report writer. The request as to what were
the convictions before and after has not been done.
11:53:02 AM
REPRESENTATIVE EASTMAN asked Ms. DiPietro to go back to the time
that Senate Bill 91 was being debated, and he requested the
court's position, in this specific instance, where the
legislation made limitations on what the court could provide.
MS. MEADE stated that, as always, the Alaska Court System is
neutral on what penalties can be for certain crimes. and she
reiterated that the judges simply apply exactly what the
legislature says the maximums and minimums can be for any
offense.
11:53:59 AM
REPRESENTATIVE REINBOLD commented that Alaska has horrific
statistics and it is known there is a correlation between
substance abuse and violent crimes. She said that she believes
SB 54 is a step in the right direction, but it is imperative to
get tougher drug laws on the books in Alaska. This is a baby
step, she described, and it only addresses a sentencing tool for
judges to allow for jailtime for second offenders. It is
important to have another small tool in the toolbox to help get
the drug epidemic under control, she related.
11:55:26 AM
REPRESENTATIVE LEDOUX commented that she was uncertain as to the
correlation between drug use and violent crimes. Although, she
related, it is clear from the spike in the use of opioids and in
shoplifting that there is at least a correlation between people
shoplifting and committing crimes of that nature due to
substance abuse. In the event the goal is treatment rather than
prison, it appears more likely that someone would go into
treatment if given the option of treatment or jail. Therefore,
she pointed out that it makes more sense to give the judge the
option of offering the two options, and currently the judges do
not have that option. She said that she supports Amendment 44.
11:56:56 AM
REPRESENTATIVE FANSLER related that he appreciates serving on
this committee with its diverse points of view, and he re-
emphasized Representative Kopp's point that it is frustrating to
not have the data on crimes involving drug and alcohol use. He
explained that during his time on the Bethel City Council he
discovered that the City of Bethel was not tracking that
information either. Knowing that that information could not be
tracked in the City of Bethel and how it would work in a
village, puts [the difficulty] into perspective. He said that
that that information is not available as it is difficult to
gather, and there are no tests in the villages. Alaska does not
have the ability to perform tests everywhere, and sometimes it
takes several days for troopers to arrive in a village to
possibly arrest someone. The ability to track that information
is not possible, he expressed. He then reminded the committee
that Alaska is a diverse state with very different regions and
very different aspects to its different issues. He thanked
Representative Eastman for continually dwelling on an issue for
which he would like to dwell, in that the major reason for
Alaska's crime epidemic is not due to Senate Bill 91, it is due
to Alaska's lack of resources to make Senate Bill 91 work.
Alaska does not have resources to keep the public safe and
prosecute crimes due to the "budget cuts, cuts, cuts, cuts," for
the last three years from the state's budget, he stated.
REPRESENTATIVE FANSLER commented that this is a rare time
wherein everyone agrees that the lack of resources is an issue,
and that he is hopeful the next time the decision will be for
more revenue, thereby allowing the legislature can act because
that is what is needed. He stressed that this is not the time
to throw out Senate Bill 91, but rather it is time to obtain the
resources needed to properly implement Senate Bill 91. Everyone
wants these rehabilitation centers, he pointed out. He said
that he that would not vote for Amendment 44 at this time
because the amendment is actually a repeal, together with being
part of a process to strip away something that has not yet been
given a chance.
12:00:04 PM
REPRESENTATIVE KOPP advised that not all members agree on the
fiscal picture, and he was glad to see the "new 10-year revenue
forecast was up." The legislature's highest priority is
protecting the public, and he pointed out that the Department of
Law (DOL) specifically stated that it did not request Amendment
44, and that it is not a tool the department recognizes as
needed. He pointed out that Mr. Skidmore advised that the
department would come back to the legislature each year and
present its recommendations. Representative Kopp reminded the
committee that for any delivery of state services, there is not
a point in time wherein the legislature would finally arrive in
its efforts to reform and build a better system for delivering
all state services. The path to success is one of constant
renewal and constantly "coming back and looking at what we did."
He advised that he has supported several strong amendments that
"do make this tougher," SB 54 is leading in the right direction
and it will continue to be amended to make it a bill that better
protects Alaskans.
12:01:48 PM
REPRESENTATIVE KOPP advised that in various times of his life,
he sometimes spent up to six weeks of his life living in small
shacks in small areas of Alaska because he was involved in major
trials with state prosecutors. He pointed out that prosecutors
suffer their own blood, sweat, and tears to bring some cases to
resolution while managing witnesses, managing testimony, and
managing discovery because that is what it took. He expressed
that there is exceeding stress on the state prosecutors simply
in doing their job than the committee members could imagine.
Unless, he pointed out, the members have worked with prosecutors
during these stressful times, the members have no capacity to
appreciate the fact that it leaves scars on the souls of those
prosecutors protecting Alaskans.
Therefore, he remarked, when the DOL in comes here and tells the
legislature what it believes is right, he defers to its
judgment. These people have suffered to get to the wisdom they
have in order to advise the legislature as to what is needed,
and he stressed that it is to the legislature's detriment that
some members ignore and mock these people.
12:0305 PM
CHAIR CLAMAN commented that Amendment 44 is specific to the
issue of how the state manages people with drug problems. This
amendment, he advised, is not about dealers or people charged
with violent felonies, this is simply about how the state treats
people with addiction problems. He said that he is reminded of
the people he knows who have had alcohol problems over many
years wherein some get their problem figured out the first time
they go to Alcoholics Anonymous(AA), but others may have not
figured it out so well. He is struck by the prosecution and the
attorney general advising that, "What we have today, the tools
we need is a recognition that people with drug addiction ... we
all want them to get it right the first time, but we know
realistically that sometimes they don't." Therefore, keeping
the statute in the form the prosecution desires, it recognizes
that it is tough on crime, smart on spending, improving public
safety, and that it is right for Alaska. For all of those
reasons he will be a no-vote on Amendment 44., he said.
12:04:38 PM
REPRESENTATIVE EASTMAN offered that this aspect of Senate Bill
91 deals with an assumption there will be access to a greater
amount of resources, which "there never will be in this state.
There never will be economically, politically." He offered that
taxes cannot be raised enough to create the resources to give
the opportunity for police officers to arrest, re-arrest, and
re-arrest the same person, including traveling, gas, and all of
the various things that keep the state from actually treating
this process. No one will receive a second conviction because
they never receive a first conviction, because they never get
that chance, he said. Alaskans can no longer wait for Governor
Walker, who directs the Department of Law, to develop the
intestinal fortitude to recognize that if Senate Bill 91 did not
work, it needs to be changed to match the level of resources the
legislature can reasonably expect the Alaskan people to put
toward the criminal justice system in the next few years.
Currently, he said, that match is not accurate because the state
is "totally off the reservation."
REPRESENTATIVE FANSLER maintained his objection.
12:05:47 PM
A roll call vote was taken. Representatives Eastman, Reinbold,
and LeDoux voted in favor of the adoption of Amendment 44.
Representatives Fansler, Kopp, Kreiss-Tomkins, and Claman voted
against it. Therefore, Amendment 44 failed to be adopted by a
vote of 3-4.
12:06:32 PM
REPRESENTATIVE FANSLER offered a statement as follows:
I just wanted to clarify something, and it didn't seem
proper to do it during our amendment process because
it wasn't the basis of amendments.
But, we've been continually hearing this idea that
this is a rushed process, and that this is trying to
be pushed through, and the people are not being given
adequate time. And, I just want to clear that up for
the folks that are watching. To date, we started this
process back on October 5th with this committee, by
hearing about this bill with our subcommittees. We've
spent over 35 hours hearing this bill now. We spent 4
hours on the 5th, we spent 2 hours on the 16th, we've
spent 8 hours on the 23rd, we spent 10 hours on the
24th, we spent 9 hours yesterday. So, there is a
massive fallacy to say that this is being rushed
through, or to say that people haven't been given
adequate opportunity in which to comment, or in which
to probe. We're doing that, we've continued to do
that, we're still doing that. We have 23 more
amendments on our docket, we don't know how many all
of those will be offered, but at the pace we're going,
that would be approximately 30 more hours. So, I
think we need to stop pretending that we're not giving
this its due or the people are not getting an
opportunity to be heard. Thank you.
12:08:16 PM
REPRESENTATIVE REINBOLD offered a statement as follows:
First of all, as stated, Senate Bill 91 is the most
dramatic criminal reform in the history of Alaska.
It's having unprecedented effects on the State of
Alaska, on victims, on perpetrators, on businesses, on
our resources. It is a tremendous drain on our
resources and it is transforming Alaska. I believe
this process is being rushed and I want the people to
judge for themselves if we are being cut off. We're
being forced to ask questions in a minute, very
complicated. This bill, I think was 130 pages long,
originally Senate Bill 91, that have had dramatic -- a
word or two can dramatically change the impact of the
lives of Alaskans. I think to undermine members on
the committee and make false accusations that
completely defy the 10 Commandments that are behind
them, is outrageous. In regard to the time we're
spending right now, let's say 40 hours or so, I think
that is absolutely a drop in the bucket. A trial may
take hundreds if not thousands of hours. I think it
is absolutely critical, these changes are going to
impact between 700,000 and 800,00 Alaskans
potentially. I think taking a thoughtful process and
being able to completely understand and have not this
baloney research or recommendations from a commission,
that many of us haven't even met all of the members.
We do not know where, we do not know if there's PEW
Foundation influence, we do not know if there's lobby
influence, we do not know if they've been traveling
and being entitled to many benefits of being on a
board. We don't know. We don't know -- they do not
seem to have research that I need in order to make
informed decisions that are gonna impact. Asking a
little survey in a prison, did you beat somebody up to
get drug money? I just think that was a lunacy to
bring that forward. So, I guess my bottom line is I
want good, sound, solid research, not just little
surveys committed in a -- in a prison. So, I think it
is just critical that we take our time, that we go
slow, and I do respect your opinion, I really do.
And, I can see that this is a frustrating, long
process, but knowing that the bill has been in play,
it was waved out of committee, was it yesterday, or
the day before, after sitting on it for six months? I
have an identical bill, and in addition, we had most
of these probably a good -- probably 15 of these
amendments on the House floor. You guys decided to
table them on June 14th. I think it is critical that
we get this right and that we take every moment
necessary.
12:11:21 PM
REPRESENTATIVE EASTMAN offered a statement as follows:
I'll -- I'll simply say that we can spend any number
of hours, days, or weeks, in a process and we will
have spent that time, but we may well never have
gotten to any of the "actual core issues need to be
got to." I think not having the opportunity to
interact with fellow committee members after I've
presented an amendment. I can hear the conversation,
that's fine, but having only 60 seconds to respond to
any of those things, that's not even a response,
that's just a -- I don't know, whatever I get to say
at the end. That doesn't permit us to delve to the
level of detail that we need to for my constituents to
have their concerns heard. I know that for sure.
And, I would -- I would say that Representative
Reinbold's statement about this being a large reform
effort in Alaska is probably an understatement. You
know, the Department of Law itself looked at all 50
states and compared our reform efforts to the reform
efforts in those other states. Alaska was far and
away a much more radical departure, a much more
comprehensive reform, if you want to call it a reform,
than any other state in the nation. And, it's been
very clear that the administration simply wants SB 54
to pass without amendments. That is something that we
hear, and we see that reflected in the Department of
Law, we see that reflected in the attorney general's
office, we see that reflected from the justice
commission. Certainly, those who were in favor of SB
91 have countless ways of testifying to the fact that
they like what they did, and they want to keep it with
very, very few exceptions. But, there is very little
opportunity for my constituents, who are not of that
opinion, to have their voice heard through this
process. So, we could be here for weeks, but unless
we do the process right, we're never actually going to
reach consensus, we're never going to be able to hear
both sides and find the solutions to some very
difficult problems that face our state right now.
12:13:36 PM
CHAIR CLAMAN offered his appreciation for the ongoing
discussions and debate the committee has been engaged in with
regard to SB 54. He noted that some of the upcoming amendments
contain issues that the committee had touched on previously and
he will begin shortening the discussion on some of these
upcoming amendments to get through this process in a careful and
methodical, but efficient manner.
12:14:15 PM
CHAIR CLAMAN announced that the meeting of the House Judiciary
Standing Committee was recessed until 1:45 p.m.
1:49:30 PM
CHAIR CLAMAN called the House Judiciary Standing Committee
meeting back to order at 1:49 p.m. Representatives Claman,
Fansler, Kreiss-Tomkins, Eastman, Reinbold and Kopp, were
present at the call to order. Representative LeDoux arrived as
the meeting was in progress.
1:49:47 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 45, Version 30-
LS0461\N.15, Bruce/Martin, 10/20/17, which read as follows: [The
text of Amendment 45 is listed at the end of the 10/26/17
minutes of SB 54.]
REPRESENTATIVE FANSLER objected.
1:49:53 PM
REPRESENTATIVE EASTMAN explained that Amendment 45 deals
specifically with drug crimes and it reverts to the
classification of drug crimes pre-Senate Bill 91. He said that
he offered this amendment as a way to turn back the clock and
return to a better state of affairs prior to the passage of
Senate Bill 91.
1:51:22 PM
REPRESENTATIVE FANSLER asked whether the amendment makes any
possession of drugs a felony.
REPRESENTATIVE EASTMAN responded that the drug offenses that
were a felony crime prior to the passage of Senate Bill 91,
would be classified as a felony.
1:52:09 PM
REPRESENTATIVE FANSLER surmised that since all of the classes
were a felony, that all possessions of drugs would now qualify
as a felony.
REPRESENTATIVE EASTMAN explained that only the actual crimes
that were felonies prior to Senate Bill 91 would be felonies,
and he does not have a breakdown of that percentage.
1:52:42 PM
REPRESENTATIVE FANSLER asked Ms. DiPietro to explain what
Amendment 45 would do when compared to current law, and the law
prior to Senate Bill 91, including the thoughts behind the "91
roll back."
MS. DiPIETRO responded that Amendment 45 would take the law back
to the pre-criminal justice reform situation. She reiterated
from her previous testimony that simple possession of drugs
without the intent to distribute was a class C felony. The
Alaska Criminal Justice Commission received information that
admissions to prison for drug offenses had increased 35 percent
during the decade prior to criminal justice reform; and the
length of stay for felony drug offenders had increased 16
percent. The other part of the amendment, she explained,
applies to situations where the offense is a "commercial
offense," an offense that involves an intent to distribute. She
reminded the committee that the recommendations from the Alaska
Criminal Justice Commission were to create a tiered commercial
drug statute with the recommendations of amounts of drugs that
could be a class B felony or class C felony. She commented that
she could not recall the details of exactly which commercial
distribution offenses were a class B felony versus the other
types of felonies, and the exact amounts. In other words, she
reiterated, the main change would be that this is taking that
simple possession without the intent to distribute and putting
it up to the felony level. As to the commission's reasoning,
she further reiterated that research has shown that long prison
terms for drug offenders have a low deterrent value, and the
chances of a typical street level drug transaction being
detected are approximately 1 in 15,000. Therefore, drug
offenders are not dissuaded by the remote possibility of a
longer stay in prison. Also, she said, research has shown that
putting low-risk offenders in prison can actually cause them to
recidivate more after their release. Whereas, she explained,
these individuals are potentially a greater threat to public
safety when they are released than when they went into prison.
1:56:09 PM
REPRESENTATIVE FANSLER surmised that many of the policy
arguments and the lines of questioning for Amendment 45, are
"incredibly similar" to Amendment 44.
MS. DiPIETRO answered that that is the way she would analyze the
amendments.
1:56:45 PM
REPRESENTATIVE REINBOLD asked Ms. DiPietro whether she is paid
witness or a volunteer because she was not sure who this
testifier ...
CHAIR CLAMAN advised that Ms. DiPietro is the executive director
of the Alaska Judicial Council and is a salaried employee.
MS. DiPIETRO advised that she has been the director of the
Alaska Judicial Council for approximately four-years. She
explained that she is testifying here because the legislature
directed the Alaska Judicial Council to staff the Alaska
Criminal Justice Commission, and she has been part of the staff
and has worked to the best of her ability.
1:57:43 PM
REPRESENTATIVE REINBOLD asked Ms. DiPietro whether she fully
stands behind the recommendations of the Alaska Criminal Justice
Commission, asked whether she is representing the commission.
MS. DiPIETRO answered that she does not have decision-making
authority over the recommendations and that all of the
recommendations in all of the reports come from the
commissioners. Her role, she explained, is to serve as staff to
the commissioners and perform the research the commissioners
request that helps them to make their recommendations. She said
that she stands behind the research that has been performed, and
she supports the commission in any manner the commissioners
request.
1:58:47 PM
REPRESENTATIVE REINBOLD commented that she was unsure whether
Ms. DiPietro had provided the committee with the research and
asked whether the commissioners had asked her to prepare
research as to any correlation between substance abuse and
violent crimes.
CHAIR CLAMAN interrupted and reminded Representative Reinbold
that she had asked that question three or four times of this
particular witness prior to the lunch break. Ms. DiPietro had
answered as best as she could, and later found statistical
information from a federal study. Subsequently, Representative
Reinbold stated that she did not find that research credible and
rejected the findings of that research. He asked that
Representative Reinbold ask a new question.
1:59:35 PM
REPRESENTATIVE REINBOLD argued that she asked Ms. DiPietro
whether she had been asked to perform research on the
correlation between violence "and she doesn't have the answer,"
it was a survey, a little questionnaire and she did not consider
that highly dependable research.
CHAIR CLAMAN instructed Representative Reinbold to ask a new
question.
1:59:53 PM
REPRESENTATIVE REINBOLD said she would like Mr. Skidmore to
specifically review the classes of drugs as to the law prior to
Senate Bill 91, and under current law.
MR. SKIDMORE responded that misconduct involving a controlled
substance is in four primary degrees, although there were six
degrees, he will focus on the four degrees at the felony level
because those were generally altered. He explained as follows:
misconduct involving a controlled substance in the first degree
dealt with providing drugs to minors, or running a criminal
enterprise which was a large drug distribution; the next two are
misconduct involving a controlled substance in the second degree
which deals with methamphetamine, or the making of
methamphetamine; misconduct involving a controlled substance in
the third degree dealt with the delivery of schedule IIA or IIIA
drugs to anyone, providing lower scheduled drugs to minors, or
being in possession of higher scheduled IA and IIA when close to
a school or youth center; and misconduct involving a controlled
substance in the fourth degree, otherwise known as a mix-IV, was
really about the possession of drugs that ranged from schedule
IA and IIA to various amounts of schedules IIIA, IVA, VA, and
VIA drugs. He offered a number of changes, post criminal
justice reform, as follows: primarily, the law changed to
create classifications of distribution based on the amount that
was to be distributed; and possession of most drugs was changed
to a class A misdemeanor.
2:02:30 PM
CHAIR CLAMAN noted that during the discussions on Amendment 44,
Representative Eastman had articulated a lack of interest in
putting people in jail who were basically drug users charged
with possession and were not distributing drugs. He noted that
Representative Eastman appeared to be receptive to the notion
that folks with substance use issues, and not dealing issues,
should be treated differently than those individuals dealing
drugs. He asked Representative Eastman, in light of Amendment
44, why he was now offering an amendment that would raise
possession of drugs back into the felony level as opposed to
keeping it at the misdemeanor level.
REPRESENTATIVE EASTMAN offered that within his earlier
distinction, there was talk about drug users and that amendment
did not deal with drug use as a crime, it dealt with possession
as a crime. He commented that if the committee is simply
talking about someone who is a drug addict, he did not believe
that was reason enough to put them into confinement. Although,
he noted, it may be that a certain part of the person being an
addict deals directly with public safety, and in that case,
there may be a reason for that person and the public to be
protected. He related that his earlier point was that just the
fact someone had a dependency issue was not sufficient reason to
put them in jail.
2:04:05 PM
CHAIR CLAMAN asked whether that would be a reason to charge them
with a felony.
REPRESENTATIVE EASTMAN responded that just by virtue of using a
drug, he does not have anything that he would say specifically.
He explained that what he is doing with Amendment 45 is
understanding that there have been some significant impacts in
moving from the "old regime to the new regime," and those
impacts have not served the public's interests. While, he said,
he does not know whether there is the opportunity to reconstruct
a better solution, the "old solution" was probably preferable.
As a starting point, he would like to go back to the previous
law because it worked better.
2:05:12 PM
CHAIR CLAMAN surmised that Representative Eastman was not
interested in putting people with drug abuse issues, but are not
dealing drugs, in jail.
REPRESENTATIVE EASTMAN explained that the distinction he drew
earlier was the fact that someone was using drugs, as reason for
putting them in jail. Again, he said, there is a distinction
between using, possessing, and distributing, so his earlier
focus was to speak strictly on drug use, which was not at all
part of that amendment, which is why he drew that distinction.
2:05:52 PM
REPRESENTATIVE KOPP related that he agrees with Representative
Eastman's take in these situations, and he is sympathetic with
drug addicts and not being put in prison simply because they are
drug addicts. Under current law, a person possessing any
amount, meaning there "was no dosage limitation, there was no
felony threshold, it was any amount." Wherein possession of one
grain of hydrocodone, without a prescription, was a class C
felony. He said, "Just like pointing a gun at somebody's head
and saying, 'I'm going to blow your brains out' was a C felony,"
just like stalking someone and threatening them with a firearm
was a class C felony, or sexually abusing someone who was
mentally incapable, is a class C felony. The issue of
proportionality in the law has been under and the offense should
always fit the crime, meaning justice in proportionality. He
asked Representative Eastman whether he could reconcile what he
had said earlier to what this amendment does, which is turning
this type of an offense into proportional as to those same
levels of felonies he had described.
REPRESENTATIVE EASTMAN opined that there is a false dilemma
wherein there is option 1, which existed prior to Senate Bill
91; and in option 2 there is a situation where those who are
addicts are not being put into prison any longer and receive the
treatment they need, plus they are not committing additional
crimes against the public. He commented that he has not seen
option 2 materialize so he does not believe that that is really
on the table, even though that is what was intended with Senate
Bill 91. Therefore, he offered, short of finding a way of
actually achieving that in real life, he would like to go back
to the previous law, "all be it imperfect" because it is better
than the current law. He related that that is what he is
hearing from his constituents.
2:09:27 PM
REPRESENTATIVE REINBOLD asked Mr. Skidmore whether Senate Bill
91 reduce possession of less than one gram of heroin, or any
schedule IA drugs, from a class B felony to a class C felony.
MR. SKIMORE explained that criminal justice reform reduced
possession crimes from class C felonies down to class A
misdemeanors. Other crimes wherein possession with the intent
to distribute was attached and considered drug trafficking or
drug dealing of which were felonies that may have been altered.
No distribution was reduced to a misdemeanor under the criminal
justice reform efforts, he said.
2:10:26 PM
REPRESENTATIVE REINBOLD surmised that Senate Bill 91 does not
reduce possession of less than one gram of heroin or any
schedule IA drugs from a class B felony to a class C felony.
She asked whether that was "a no?"
CHAIR CLAMAN advised that Mr. Skidmore did answer that
possession of quantities [audio difficulties] from quantities of
heroin are reduced to a misdemeanor.
MR. SKIDMORE responded that his answer to her question was about
quantities and quantities were not generally found in the
statutes, as it related to mere possession. Quantities, he
explained, generally dealt with distribution in prior law. He
said he was trying to unpack her question because there are two
pieces there and they do not make sense to him. In the event
the question was whether possession was reduced, the answer is
yes, but it started as a class C felony and not a class B
felony.
2:11:27 PM
REPRESENTATIVE REINBOLD advised that the question was whether it
reduced possession of less than one gram of heroin or any
schedule IA drugs and prior to Senate Bill 91, what was
possession or [audio difficulties] "class IA drugs?".
CHAIR CLAMAN interrupted and directed that Mr. Skidmore had
answered the question, simple possession of heroin was a class C
felony. He instructed her to ask a new question.
2:11:50 PM
REPRESENTATIVE REINBOLD asked whether Senate Bill 91 reduced
misconduct involving controlled substances, generally, by a
class and resulting in lower penalties.
MR. SKIDMORE answered that criminal justice reform did reduce a
number of classifications of drug offenses, and as a general
statement, they were reduced by one level.
2:12:21 PM
REPRESENTATIVE REINBOLD asked whether Senate Bill 91 requires
reinvestment to go directly toward recidivism.
MR. SKIDMORE responded that it was not an easy question to
answer, and he was unsure he could offer all of the details
related to the question.
MS. DiPIETRO replied that reinvestment and recidivism reduction
programs and a recidivism fund are part of Senate Bill 91,
There is also language in Senate Bill 91 that a portion of the
marijuana tax will go into the recidivism reinvestment fund to
be directed toward the Department of Corrections (DOC),
Department of Health and Social Services (DHSS), and one other
department, for the recidivism reduction activities.
2:14:10 PM
REPRESENTATIVE REINBOLD re-stated her question by referring to
the savings that Commission Dean Williams had claimed yesterday
and asked whether Senate Bill 91 mandated that all of the money
that is saved by letting people out of jail is to be
appropriated into recidivism reduction programs.
MS. DiPIETRO noted that she was unsure what Representative
Reinbold meant by mandated, but fiscal notes were submitted by
the DOC with Senate Bill 91 depicting reductions to its
institutions budget of approximately $3 million in FY17, and
approximately $18 million in FY18. Those savings were used for
reinvestment, she offered.
CHAIR CLAMAN surmised that Representative Reinbold was asking
whether there are earmarked funds coming from the savings. He
noted that that would be inconsistent with the legislature's
whole budget process such that, when money is saved in one place
that money basically goes back, and the legislature has the
authority to re-appropriate those funds. He opined that there
is not anything in Senate Bill 91 that earmarks funds in a broad
term, in terms of savings. There is some indication about funds
raised from the marijuana tax directed toward certain things,
but the answer, in broad terms, is that they are not earmarked.
2:16:03 PM
REPRESENTATIVE REINBOLD asked whether Senate Bill 91 deleted the
requirement for those persons on probation or parole to have
"sober living" as a part of the programs for rehabilitation and
recidivism reduction.
MR. SKIDMORE replied that he did not know the answer to that
question.
REPRESENTATIVE REINBOLD recalled that Commissioner Williams had
stated that the DOC "released 10,000 to 11,000 people back out
on the streets, and that even with an increase of crime there is
500 less people in jail." She commented that one of her "beefs
with Commissioner Williams is that he just let 32 male prisoners
in a jail that is about a half a mile from a high school, from a
campground, from trails, and from a neighborhood." The jail is
a minimum-security women's prison that now has 32 males
incarcerated, including the murderer who killed the sister of a
person living in Eagle River. She asked that by releasing so
many inmates and having so many more people out on the streets,
whether this poses any additional risk to police officers,
prosecutors, public safety, or to the public.
MR. SKIDMORE answered that as a prosecutor, he knows that almost
everyone sentenced to prison will be released from prison
because few people stay in jail for the rest of their lives.
The question is not one of, are they going to come back out, but
rather, when they are released what efforts the state can take
to protect the community. He said that state entities, such as
the parole board, assess whether a person should be released
earlier than not, based on risk. A person released on parole
has a parole officer, and a person released on probation has a
probation officer. The question is that when a person is
released, what can the state do to reduce the risk to public
safety, which is where the criminal justice reform has focused.
CHAIR CLAMAN reminded Representative Reinbold that he had
advised the committee that he would make a real effort to narrow
the questions. As to the question Representative Reinbold just
asked, this amendment deals with the specific question of
whether the state should be returning a large number of
possession only drug offenses from a misdemeanor level to a
felony level. Representative Reinbold's question had nothing to
do with whether to return misdemeanor drug crimes to felony drug
crimes. He warned Representative Reinbold that if she was not
asking questions focused on the specifics of Amendment 45, he
would not allow the question to be answered because the
committee needs to focus on the issues that are here, and not
the broader issues with which the committee had been discussing
literally for hours.
2:19:51 PM
REPRESENTATIVE REINBOLD declared a point of order. She advised
that the Alaska State Legislature Uniform Rules state that Chair
Claman cannot deny to her what Chair Claman does not deny to
himself. She noted that police officers brought this question
to her with the belief that with these changes in Senate Bill
91, they are at a greater risk. Amendment 45 has everything to
do "with that. He did not answer my question in any way. He
completely regurgitated and promoted the 'criminal justice
center.'" She advised that Mr. Skidmore did not answer her
question as to whether police officers, the public, and
businesses are at a greater risk by releasing this dramatic
number of prisoners causing havoc in the communities, she
commented.
CHAIR CLAMAN ruled that, as chair, he has the authority to
direct the conversation to the issues before the committee on
this particular amendment. He pointed out that it is reasonable
for him to exercise his authority in that manner and he thanked
Representative Reinbold for making that point.
2:21:02 PM
REPRESENTATIVE EASTMAN referred to the discussion that Amendment
45 deals primarily with the simple use of illicit substances,
and further referred to Amendment 45, page 7, [lines 19-22], and
asked whether it falls within the use category or something a
bit higher than use there.
MR. SKIDMORE pointed out that he had not stated that this
amendment only deals with possession. He advised that the
language on page 7, lines 19-22, "are returning delivery or
manufacturing," essentially known as drug trafficking or drug
dealing. In his view, there is a complete reversal in the
amendment of all of the changes made in Senate Bill 91 and
returns to the law prior to Senate Bill 91. Mr. Skidmore
stressed that his testimony has been that there were two types
of changes, possession and delivery, and Representative Eastman
pointed out one of the areas in which delivery was impacted.
2:22:31 PM
REPRESENTATIVE EASTMAN said there is "a parallel here" as to
what was accomplished in Senate Bill 91 in reducing penalties
and sanctions as to certain drug offenses across the board and
during the time in the 1920s wherein certain prohibitions
against alcohol were repealed. He opined that, overall, the
crime rates went down when the prohibitions were repealed, and
whether that had been observed in this situation.
MR. SKIDMORE acknowledged that he remembers prohibition, but he
is not familiar with the crime rates that existed before,
during, or after that timeframe, and he could not speak to any
comparisons or whether the changes had any negative impacts on
the crime rates that are being seen today. That, he explained,
is one of the things "we are trying to monitor" and figure out
because crime was on the rise before any criminal justice reform
efforts were implemented. Those trends, for many categories,
have remained consistent so it does not appear as though the
criminal justice reform efforts impacted those rates, he
advised. Although, he added, there are other rates that seem to
have changed a bit, but it is still too early to determine the
outcome.
2:24:56 PM
REPRESENTATIVE EASTMAN noted that Skidmore did not yet know the
impacts these changes to the drug laws have had on crime and
requested a rough estimate as to how long before that
information is available.
MR. SKIDMORE reiterated that the DOL is actively determining
what actions can be taken to improve public safety in addressing
the crime rates currently in effect. He said that expected some
of those things will be discussed in the next regular session,
but the question as to whether these changes in drug laws have
impacted crime rates, he does not have an exact timeframe in
which he will know that information. He stated that he does not
know whether the changes in crime rates would be evident to him
when the next set of statistic come out.
REPRESENTATIVE EASTMAN asked whether it would be years or
decades.
MR. SKIDMORE pointed out that the next set of criminal justice
statistics, published at the same time every year annually, is
offered around September or October of 2018. He said that "we
will try to monitor it beyond just those."
2:26:57 PM
REPRESENTATIVE LEDOUX noted that Mr. Skidmore had remarked that
some of these issues might be dealt with during the next
session.
MR. SKIDMORE clarified that he had said there was the
possibility that within the action plan, there would be things
the DOL would propose, but he did not yet know.
2:27:14 PM
REPRESENTATIVE LEDOUX surmised that Mr. Skidmore did not have
any idea right now what he might propose, but what were his
druthers.
MR. SKIDMORE explained that it was not about his druthers, the
Department of Law (DOL) is looking into various issues and those
conversations have not yet reached a conclusion. The DOL is
trying to get there quickly and when it does, that information
would be shared with everyone, he promised.
REPRESENTATIVE LEDOUX surmised that Mr. Skidmore does not have
the authority to advise the committee as to any of the issues
being reviewed.
MR. SKIDMORE advised that it was not that he did not have the
authority, but rather that it would be premature for him to
comment on issues while they were still being discussed
internally.
2:27:54 PM
REPRESENTATIVE LEDOUX noted that since the committee is
available and working on a crime bill, whether the things the
DOL is looking into could be fixed at this time.
MR. SKIDMORE answered that while he greatly appreciates
Representative LeDoux's invitation, when the DOL is ready, it
will talk about it with folks.
2:28:21 PM
REPRESENTATIVE REINBOLD declared a point of personal privilege.
She said she would like to put some research down because she
has done research and the questions ...
CHAIR CLAMAN ruled that he would not grant a point of personal
privilege because the committee is considering Amendment 45,
after the discussion of this amendment he would allow her to put
her research on the record.
2:28:43 PM
REPRESENTATIVE EASTMAN asked when the changes to the state's
drug laws go into effect.
MR. SKIDMORE replied that these changes went into effect 7/2016.
REPRESENTATIVE EASTMAN asked Mr. Skidmore that, as a prosecutor
and based upon these new laws, to share his greatest success
story coming out of these newly changed laws, how they have
helped the public, the DOL, and the justice system.
CHAIR CLAMAN stated that for the same reasons as above, that
question is much broader than Amendment 45 and he would not
allow the witness to answer that question.
2:29:49 PM
REPRESENTATIVE EASTMAN referred to the changes being made in
Amendment 45, noting that he does not want to undo things that
are working well, and requested an example of successes coming
out of these changes.
MR. SKIDMORE pointed out that for the last four-to-five years he
has not personally handled cases because he manages people and
reviews policy, so he does not have an example of a particular
success or failure.
2:31:15 PM
REPRESENTATIVE KOPP said he would speak to the issue of
arresting drug offenders and offered that a challenge is the
supervision of offenders. He noted that "We only had
supervision if you were a felon, and then we could -- you know,
we could get them under supervision and treatment." That,
commented, was one of the problems the state had in the system,
no misdemeanant supervision. He asked whether, currently, there
is anything in the law or with the Pretrial Enforcement Division
that is coming on line January 1st, that would allow the state
to actively supervise drug misdemeanant offenders and help keep
them in recovery.
MR. SKIDMORE noted that the Pretrial Enforcement Division
evaluates and monitors people prior to trial and files
conditions of release. It is not about whether the person is in
treatment or whether they have a job, he explained, it is just
conditions of release. The type of supervision Representative
Kopp was referring to is post-conviction, and he advised that
there is not anything that helps the state with supervision for
misdemeanors that it had before, or it has currently.
2:32:27 PM
REPRESENTATIVE KOPP surmised that "that is a hole," in that the
state still cannot supervise misdemeanant drug possession
offenders "either if you are arrested" for such an offense up to
trial, or post-conviction under probation after trial.
MR. SKIDMORE explained that the state does not have supervision
by an officer in the manner in which Representative Kopp
described with felonies. He related that Senate Bill 54 expands
the Alcohol Safety Action Program (ASAP) to include monitoring
of treatment for those misdemeanor drug offenses. He explained
that it is not a probation officer such that Representative Kopp
had originally described, but he did not want to leave the
committee with the impression that there was nothing that would
be looking at that issue. One of the issues identified by both
law enforcement and prosecution was the need to be able to
monitor those people, he pointed out, and that is why this is
included in SB 54.
CHAIR CLAMAN noted that the Pretrial Enforcement Division covers
people charged with misdemeanors and felonies. For example,
someone who elected to go into drug court, or even as a
condition of their release was that they go to ASAP, the
pretrial supervision would track whether the person attended
their ASAP appointments. That, he offered, would be something
for which the Pretrial Enforcement Division would provide
services in terms of monitoring the person's compliance with the
pretrial conditions of release.
2:34:26 PM
REPRESENTATIVE REINBOLD said that she would offer information
with regard to the Manhattan Institute, particularly directed to
Representative Eastman for bringing forth Amendment 45. Alaska
did the most radical criminal justice reforms in the nation with
some of the "softest crime laws and drug sentencing laws on the
table." California ...
CHAIR CLAMAN interrupted Representative Reinbold and pointed out
that her information does not have anything to do with Amendment
45 and the issue of lowering the penalties for drug possession
and other offenses. While he understands that, in her view,
everything relates to everything else, he needs a specific
question about these drug offenses.
2:35:20 PM
REPRESENTATIVE REINBOLD declared a point of order.
CHAIR CLAMAN stressed to Representative Reinbold that the
committee must be orderly in its process and she could make her
point of order. In the event the committee is unable to keep
questions focused on this amendment, and because no members were
in the que, the committee would move to discussion.
REPRESENTATIVE REINBOLD declared a point of order. She said
that Chair Claman cannot deny to her what he allows for everyone
else because everything is based on equality. She said that she
wants the opportunity to answer her colleagues' question having
everything to do with his concern with the impacts of the law.
She said that she has statistics from the Manhattan Institute as
to what happened in California and she should have the right to
give him this information during the debate. If not, she said
she would like to call an at ease and print this information,
and Chair Claman could allow time to read this information from
the Manhattan Institute. She noted these "goofy reforms" that
the Pew Foundation put forth, which were tried in the 1960s and
1970s with "massive failure of 353 percent increase in crimes."
CHAIR CLAMAN pointed out that Representative Reinbold had made
her point of order, and Chair Claman ruled that it is
appropriate to keep the committee focused on Amendment 45. He
reminded her that as he had told her earlier, after the
committee finishes the deliberation of Amendment 45, she could
make her point of personal privilege, present her information,
and that he looks forward to hearing the information.
2:37:09 PM
REPRESENTATIVE EASTMAN commented that he would have preferred to
have specific information from the Department of Law (DOL)
because these reforms have been in effect for 16 months and the
committee has not been advised as to when that specific
information would be available. Although, he noted, there may
be good things in the criminal justice reform, the manner of
putting the expansiveness and the radical nature of the reform
all together in a single bill has become toxic to his
constituents and the state. The legislature must go back and be
more surgical in identifying the appropriate reforms that the
public can "come along with and get on board with and
understand," he said.
2:38:19 PM
REPRESENTATIVE REINBOLD declared a point of order. She said
that Mason's Manual of Legislative Procedure, Section 126,
Complaints against the presiding officer, read as follows:
1. The presiding officer is subject to the same
rules regarding disorderly words as members.
2. Complaint of conduct of the presiding officer
should be presented directly for action by the house,
in which case the presiding officer should vacate the
chair and call a member to preside until the matter is
settled.
2:38:47 PM
REPRESENTATIVE REINBOLD offered the following:
I believe we need to go before the House and decide if
you are the right person to preside over this meeting
because you are not fairly representing Mason's Manual
of Order or keeping good decorum in this meeting.
2:39:02 PM
CHAIR CLAMAN ruled that he rejected Representative Reinbold's
perspective that he was not equally administering the rules, and
that he does not believe the claim that he has been unfair to
her or anyone else is well placed. He advised that
Representative Reinbold was welcome to bring whatever she likes
to the House of Representative's Speaker's office, but the
committee will proceed.
REPRESENTATIVE FANSLER maintained his objection.
2:39:29 PM
[CHAIR CLAMAN and Representative discussed closing comments and
her research.]
2:40:08 PM
A roll call vote was taken. Representatives Eastman and
Reinbold voted in favor of the adoption of Amendment 45.
Representatives Kopp, Kreiss-Tomkins, LeDoux, Fansler, and
Claman voted against it. Therefore, Amendment 45 failed to be
adopted by a vote of 2-5.
2:40:35 PM
CHAIR CLAMAN offered Representative Reinbold five minutes to
present her information.
REPRESENTATIVE REINBOLD then read research from the Manhattan
Institute.
2:44:48 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 46, Version 30-
LS0461\N.69, Glover/Martin, 10/24/17, which read as follows:
[The text of Amendment 46 is listed at the end of the 10/26/17
minutes of SB 54.]
REPRESENTATIVE FANSLER objected.
2:44:56 PM
REPRESENTATIVE EASTMAN noted the previous discussion regarding
"how to properly deal with inflation" as to certain offenses
such as theft. The value of theft is important because the
current threshold is under $250, and there are little
repercussions if an offender is caught, arrested, and convicted.
Inflation adjusts that amount and affects all levels of theft.
Current law has a mechanism by which the calculations are
automatically changed based on inflation, and the Alaska
Judicial Council and the Department of Labor & Workforce
Development (DLWD) have a part to play in that there are a
number of different parts. His concern, he noted, is that when
the legislature gives non-legislative agencies the ability to
make calculations that directly impact offenses and penalties
for criminal offense, the legislature is abrogating its
responsibility as the state's legislature, the legislature
should be making those determinations. He opined that he
understands that it would be more convenient for the legislature
to let it go onto auto-pilot, except that decision should be
maintained in the legislature and addressed in legislation.
This amendment removes the auto-pilot setting, and the automatic
adjustment of inflation for these criminal offenses, he
explained.
2:46:55 PM
CHAIR CLAMAN noted that this is a subject that began during the
discussions of Amendment 39, and he encouraged the committee to
truly focus on whether there should be inflation adjustment.
REPRESENTATIVE FANSLER asked Ms. DiPietro to provide her
understanding as to the rationale behind inflation adjustment,
and why the state would have inflation proofing when it has the
different class levels of crimes.
MS. DiPIETRO responded that this issue came into the
commission's recommendations due to the fact that the original
felony theft threshold was set at $500 in 1978, and it was
changed to $750 in approximately 2014. The felony theft
threshold was raised from $750 to $1,000 with the passage of
Senate Bill 91, in 2016. During the time the felony theft
threshold was $500, the equivalent value in today's dollars
would have been more than $1,800 with inflation. The idea was
simply that as inflation increases the costs of items, there
could be a situation where in 1978, $500 "was an awful lot of
money." In 2014, it was not that much money, certainly compared
to 1978, which effectively funneled more theft offenders into
the felony range by virtue of the operation of inflation. The
idea was that this might be a more automatic mechanism to
correct that problem, she said.
2:49:59 PM
REPRESENTATIVE KOPP commented that inflation adjustment protects
the assets in Alaskan's personal and financial lives, whether as
an employee, savings accounts, municipalities, and the state.
Savings accounts are constantly reviewed, not only as to what
inflation is but the rate of savings and making sure the state
wants to actually build its account and stay ahead of
[inflation]. He opined that this is a little different because
inflation adjustment is generally meant to protect an
individual's assets and grow the assets into perpetuity. He
related that he sees this differently in that inflation
adjustment here is meant to actually keep a dollar value the
same as it was "going on down the line historically," but for
the purpose of not making a felony charge easier or more
difficult. That concerns him a bit because those two things are
not equivalent.
REPRESENTATIVE KOPP advised that the second issue is with regard
to law enforcement training. It is important to have fixed
numbers in the law as much as possible, and to allow law
enforcement to know when something is, or is not, a felony. In
this case, he pointed out, having a schedule revisited fairly
often causes law enforcement to have one number firmly fixed in
their minds and then the statute changes to a new number. Also,
he opined, it sends a message to Alaska businesses that the
legislature is more concerned about the inflation adjustment
than the dollar value of a business's loss and being consistent
year after year to equal a felony. He said that he supports
Amendment 46 and agrees that inflation does change the value of
money, and that the legislature can revisit this issue. Leaving
a fixed amount in the law, he reiterated, makes it easier for
law enforcement to train and implement, and it sends a better
message to Alaska's businesses that the state supports a firm
felony standard and that businesses can rely on that standard.
2:53:00 PM
REPRESENTATIVE EASTMAN commented that the appropriate manner in
which to deal with inflation troubles would be for the
legislature to address the issue in a bill form, and perhaps
that may be on a frequent basis. A situation could be created
wherein one day a person is found guilty of theft and receives
one penalty, except the next day the change takes effect and
basically the same theft is given different sanctions, he
pointed out. Clearly, he related, that is problematic from a
moral standpoint if nothing else, and it is important that the
legislature maintains its hand on the lever here rather than
delegating it to some outside agency, he said.
REPRESENTATIVE FANSLER maintained his objection.
2:54:06 PM
A roll call vote was taken. Representatives Reinbold, Kopp, and
Eastman voted in favor of adopting Amendment 46.
Representatives Kreiss-Tomkins, LeDoux, Fansler, and Claman
voted against it. Therefore, Amendment 46 failed to be adopted
by a vote of 3-4.
2:54:42 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 47, Version 30-
LS0461\N.73, Bruce/Martin, 10/24/17, which read as follows:
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 11.46.460 is amended to read:
Sec. 11.46.460. Disregard of a highway
obstruction. (a) A person commits the crime [OFFENSE]
of disregard of a highway obstruction if, without the
right to do so or a reasonable ground to believe the
person has the right, the person
(1) drives a vehicle through, over, or
around an obstruction erected on a highway under
authority of AS 19.10.100; or
(2) opens an obstruction erected on a
highway under authority of AS 19.10.100.
(b) Violation of this section is a class B
misdemeanor [VIOLATION PUNISHABLE BY A FINE OF NOT
MORE THAN $1,000]."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 15, following line 12:
Insert a new paragraph to read:
"(1) AS 11.46.460, as amended by sec. 1 of
this Act;"
Renumber the following paragraphs accordingly.
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Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
2:54:48 PM
REPRESENTATIVE EASTMAN advised that similar to previous
amendments, Amendment 47 looks at the penalty for a class B
misdemeanor. This amendment reverses the changes that took
place in Senate Bill 91 to the law prior to the passage of
Senate Bill 91. In this case, as in many others, the penalty
was initially more severe, and the penalty was reduced as a
consequence of Senate Bill 91, he explained.
2:55:29 PM
REPRESENTATIVE FANSLER surmised that Amendment 47 only relates
to highway obstructions.
REPRESENTATIVE EASTMAN answered no, and he explained that the
drafter had to deal with that specific portion because it is
specifically spelled out in that statute. The request to the
drafter was to revert the penalty more generally, and he
commented that he does not know anything particularly unique and
special about highway obstruction because that was not the focus
of his drafting request.
REPRESENTATIVE FANSLER surmised that Amendment 47 just focuses
on highway obstructions.
REPRESENTATIVE EASTMAN advised that it impacts highway
obstructions, but the amendment references a number of different
portions of the statute that are changed there.
2:56:31 PM
CHAIR CLAMAN asked whether the amendment affects anything other
than AS 11.46.460, disregard of a highway obstruction, or
whether some other penalty provision was changed.
REPRESENTATIVE EASTMAN offered his belief that this is where it
was spelled out, so this is where it was changed. There are
other amendments that deal with other portions of statute.
CHAIR CLAMAN surmised that Amendment 47 is limited to highway
obstruction.
REPRESENTATIVE EASTMAN answered, "Effectively, yes."
2:57:08 PM
REPRESENTATIVE KOPP asked Representative Eastman whether a
situation had come forward where the Department of
Transportation & Public Facilities (DOTPF) or the Department of
Public Safety(DPS) had requested this amendment, because
Amendment 47 talks about official signs.
REPRESENTATIVE EASTMAN explained that for purposes of putting
together an amendment, his request to the drafter was to pare
things down into bite size pieces. Obviously, he said, Senate
Bill 91 impacted many different issues, and this bite size piece
of highway obstruction was not specifically brought to his
attention by the department or anyone else. Although, he said,
the fact that by changing a class B misdemeanor to a violation
punishable by a fine of not more than $1,000 was brought to his
attention because "we are now" trying to use fines, in this case
$1,000, to do the work of what a misdemeanor historically has
done. He opined that the evidence he has received, since the
passage of Senate Bill 91, shows that fines are not sufficient
because someone cannot be compelled to pay a fine in the same
manner as compelling someone with a stiffer penalty. The
feedback he has received from constituents and others is that
the fines are next to worthless because they are not acting as
intended, he said.
2:58:49 PM
REPRESENTATIVE KREISS-TOMKINS asked that Representative Eastman
confirm that the intent behind Amendment 47 is representative of
a broader concern, but there is nothing specific to highway
obstruction offenses that is of concern.
REPRESENTATIVE EASTMAN answered in the affirmative.
2:59:14 PM
CHAIR CLAMAN asked Mr. Skidmore whether he was familiar with any
prosecutions under AS 11.46.460 for misdemeanor disregard of a
highway obstruction.
MR. SKIDMORE answered, "No."
CHAIR CLAMAN advised that prior to Senate Bill 91, he was
driving home from a family trip, it started to get dark, a
portion of the Glen Highway was closed with orange cones, he he
became a bit disoriented and ran over a couple of the cones. He
asked whether he had committed a class B misdemeanor, under the
prior statute, by running over the highway obstructions.
MR. SKIDMORE responded that his question would require him to
look up the definition of a highway obstruction.
CHAIR CLAMAN offered that it is under AS 19.10.100 Closing
Highways, which read as follows:
When it is necessary to exclude traffic from any
portion of a highway, the department may close that
portion of the highway by posting in a conspicuous
manner, at each end of the portion closed, suitable
signs warning the public that the road is closed under
authority of law, and by erecting suitable
obstructions.
3:01:44 PM
MR. SKIDMORE commented that that provision talks about closing
highways, and he asked whether Chair Claman's question was if he
had committed a class B misdemeanor under those circumstances.
CHAIR CLAMAN asked whether it is arguable that he committed a
class B misdemeanor.
MR. SKIDMORE said that he does not mean to be nitpicky, "but I
am a lawyer."
CHAIR CLAMAN said that Mr. Skidmore did not need to answer the
question.
3:02:20 PM
REPRESENTATIVE LEDOUX offered a scenario of someone committing
the crime of disregard of a highway obstruction and seriously
injured or killed a workman. She asked whether there are any
other crimes the person could be charged, and what charges.
MR. SKIDMORE answered, "Absolutely," and he said that in the
event someone was injured, there are various levels of assault
that could be utilized, and if someone was killed there are
various crimes that involve the death of a person. The
disregard of highway signals would be the sort of thing the DOL
would take into consideration as to whether there was criminal
negligence, criminal recklessness. He opined that he did not
believe any of the situations described thus gets to
intentional, but there are certainly a whole host of crimes that
could potentially apply.
3:03:27 PM
REPRESENTATIVE LEDOUX offered a scenario of someone running a
stop sign could be charged with running a stop sign, similar to
an infraction or an offense; or, depending upon the
circumstances they may be charged with negligent driving; or,
they may also be charged with reckless driving. She said that
all of those sorts of options would be available in the event
that the driving over the highway obstruction showed extreme
disregard for life or property.
MR. SKIDMORE answered in the affirmative.
3:04:21 PM
CHAIR CLAMAN reminded the committee that last year a change was
made to the criminal code specific to events wherein
Representative Kopp's personal friend was helping someone on the
highway and someone drove through the barriers and the gentleman
was killed. That statute was changed to provide additional
protections, he said.
REPRESENTATIVE KOPP advised that the gentleman was not a
personal friend, he was a Department of Transportation & Public
Facilities (DOTPF) employee who responded in his work truck
during an icy day on the Seward Highway due to a significant
accident just south of Girdwood. He related that in the process
of helping people at the scene, someone struck and killed this
gentleman even though his lights were activated, and he did
everything he could to keep himself safe. The legislation
passed last year read that if a person did not yield to DOTPF
personnel or marked DOTPF trucks, they could be charged with a
misdemeanor; a felony if the person actually injured a DOTPF
employee or manslaughter if the DOTPF worker was killed.
3:05:46 PM
REPRESENTATIVE EASTMAN commented that he did not know whether
there was a great deal of interest in protecting highway cones,
but of interest is that it is difficult to run someone over if
there is a cone between "you and them and you don't run over the
cone." In committing the crime of running over that cone, a
person definitely comes closer to being able to hit someone, and
law enforcement measures cases where people have been injured,
or killed, or close calls, and uses that as a way of making sure
it does not happen in the future. He asked Mr. Skidmore to
speak to how a prosecution might unfold when a DOTPF worker was
almost injured or killed but jumped out of the way at the last
minute, after a driver had committed the offense of disregard of
a highway obstruction. He asked whether the fact that this
offense is on the books would be something helpful to the
prosecution, or would it really not matter.
MR. SKIDMORE offered that the scenario described is that someone
else is placed in danger. The immediate crimes he could think
of are either reckless endangerment, assault in the fourth
degree. It would be in the neighborhood of AS 11.41.240 or
11.41.250, and a reckless driving statute found under Title 28,
either statute would likely apply. He noted that having this as
a violation on the books, as a prosecutor, is the sort of thing
he would ask the court to take judicial notice. It would be
taken into consideration in the case wherein the person
disobeyed the traffic laws, and whether that law amounted to an
additional crime in and of itself. He explained that he used
the crime to mean something that is punishable by jail.
3:08:50 PM
REPRESENTATIVE EASTMAN said that, absent the fact that someone
was almost injured, what is the likelihood this would be
prosecuted.
MR. SKIDMORE responded that he has difficulty fathoming the set
of circumstances that would bring such a situation to his desk.
He could not envision who would investigate, report, and be the
witness for the prosecution because he could not call the driver
to testify against themselves. Absent someone physically
observing the incident, he could not imagine prosecution would
happen, and if it was brought to the DOL he could not imagine
that its resources would allow the prosecution at the moment, he
offered.
3:10:02 PM
REPRESENTATIVE EASTMAN commented that when the legislature sets
penalties for crimes, it communicates to the public and law
enforcement that the legislature is assessing a priority. The
legislature is also assessing and communicating to someone who
would potentially be in violation as to whether or not this is a
serious offense. He remarked that by making it a violation and
attaching the maximum penalty of a fine, "that may never be
paid," the legislature comes dangerously close to simply
deleting the offense entirely because the legislature is saying
that it really is not that high of a priority, "and maybe it
isn't." He said that the communication to the public is that
there is a statute on the books that will probably not have a
direct impact.
REPRESENTATIVE FANSLER maintained his objection.
3:11:10 PM
A roll call vote was taken. Representatives Reinbold and
Eastman voted in favor of the adoption of Amendment 47.
Representatives Kopp, Kreiss-Tomkins, LeDoux, Fansler, and
Claman voted against it. Therefore, Amendment 47 failed to be
adopted by a vote of 2-5.
3:11:45 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 48, Version 30-
LS0461\N.80, Bruce/Martin, 10/24/17, which read as follows:
Page 2, following line 29:
Insert new bill sections to read:
"* Sec. 6. AS 12.30.006(b), as amended by sec. 55,
Ch. 36, SLA 2016, is amended to read:
(b) At the first appearance before a judicial
officer, a person who is charged with a felony [,
OTHER THAN A CLASS C FELONY AND THE PERSON HAS BEEN
ASSESSED AS LOW RISK UNDER AS 12.30.011(c)(1),] may be
detained up to 48 hours for the prosecuting authority
to demonstrate that release of the person under
AS 12.30.011(a) [AS 12.30.011] would not reasonably
ensure the appearance of the person or will pose a
danger to the victim, other persons, or the community.
* Sec. 7. AS 12.30.006(c), as amended by sec. 56,
Ch. 36, SLA 2016, is amended to read:
(c) A person who remains in custody 48 hours
after appearing before a judicial officer because of
inability to meet the conditions of release shall,
upon application, be entitled to have the conditions
reviewed by the judicial officer who imposed them. If
the judicial officer who imposed the conditions of
release is not available, any judicial officer in the
judicial district may review the conditions. [UPON
REVIEW OF THE CONDITIONS, THE JUDICIAL OFFICER SHALL
REVISE ANY CONDITIONS OF RELEASE THAT HAVE PREVENTED
THE DEFENDANT FROM BEING RELEASED UNLESS THE JUDICIAL
OFFICER FINDS ON THE RECORD THAT THERE IS CLEAR AND
CONVINCING EVIDENCE THAT LESS RESTRICTIVE RELEASE
CONDITIONS CANNOT REASONABLY ENSURE THE
(1) APPEARANCE OF THE PERSON IN COURT; AND
(2) SAFETY OF THE VICTIM, OTHER PERSONS,
AND THE COMMUNITY.]"
Renumber the following bill sections accordingly.
Page 15, line 17:
Delete "and"
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Insert new paragraphs to read:
"(6) AS 12.30.006(b), as amended by sec. 6
of this Act;
(7) AS 12.30.006(c), as amended by sec. 7
of this Act; and"
Renumber the following paragraph accordingly.
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Insert "Sections 6, 7, and 19 of this Act take"
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Insert "sec. 26"
REPRESENTATIVE FANSLER objected.
3:12:00 PM
REPRESENTATIVE EASTMAN offered that in keeping with the spirit
of his previous amendments, Amendment 48 reverses the change
made in Senate Bill 91. He explained that the legislature is
giving those people convicted of a crime many options and
opportunities for bail, and the changes made have been excessive
and have sent the wrong message to the people committing crimes
and to the public. It is his goal, he said, to bring the public
back into the process because without the public's active
participation, support, and ownership of the state's criminal
justice system, the legislature cannot accomplish the lofty
goals set forth. Rather than focusing simply on an academic
study of changing statutes and trying to find the perfect
combination of words, the clock needs to return to the law prior
to Senate Bill 91, and then revisit some of these issues, he
said.
3:14:13 PM
REPRESENTATIVE FANSLER pointed out that Amendment 48 deals with
pretrial, which was extensively discussed in Amendment 43. He
asked Ms. DiPietro what the Alaska Criminal Justice Commission
recommended, why the changes were made, and what Amendment 48
would do to those changes.
MS. DiPIETRO responded that Amendment 48 would make changes to
the process the judges use to review the release conditions of
individuals who have been detained pretrial, and not yet
convicted. The Alaska Criminal Justice Commission performed the
original file review research in Alaska and focused on a file
review of court cases for people who had been charged. The
review showed that only approximately one-half of all detained
people charged with a crime in Alaska were actually released
before their case was resolved. In other words, she explained,
approximately one-half of the people arrested and charged with a
crime stayed in jail until they either pled guilty, were found
guilty at trial, or were acquitted before their case was
dismissed, and that research had never been previously
performed. The commission found that somewhat troubling because
that is a large percentage of people who never got out on bail
during the pretrial period. She explained that that research
was behind the recommendations for the creation of the Pretrial
Enforcement Division, the creation of the risk assessment tool,
and the revisions to the bail procedures, contained in Senate
Bill 91. It was all a package and it all goes together with the
idea to be careful about whether the state is really detaining
people pretrial that need to be detained, she explained.
MS. DiPIETRO related that his research was performed on
approximately 20,000 records of people released in 2014 and
2015, and the researchers also took a sample of the people
detained. In other words, she said, for people not released
during that same time period, researchers applied the risk
assessment factors to what is called, "detained sample" and the
results were quite interesting, she commented. The bottom line
is that over one-third of the detained review sample of people
were comprised of very low to low-risk of having a new criminal
arrest. She restated that in this study of Alaskans detained
pretrial, if over one-third of those Alaskans had had the
benefit of the risk assessment tool, they would have scored very
low to low risk. By the same token, she said, 54.8 percent of
those detained defendants were at very low risk of failure to
appear, and 27 percent were at low risk of failure to appear.
These statistics mean, she explained, that before the revision
to the pretrial procedures and the creation of the Pretrial
Enforcement Division, there is good evidence to suggest that
those people who were safe to be released probably were being
detained. That is the basis of all of the recommendations, she
remarked, and these amendments would change some of the
procedures that have been put in place ensuring that the release
decision is based as much as possible upon a person's risk of
reoffending with a new criminal activity, or failure to appear.
3:19:27 PM
REPRESENTATIVE LEDOUX asked whether this study showed how many
people were detained because they could not meet the bail
requirements, and how many were actually convicted at the end of
the day.
MS. DiPIETRO answered that the study did not show that
information, but it is known from other information that a large
majority of people charged with crimes are convicted.
3:20:12 PM
REPRESENTATIVE LEDOUX noted that a person receives credit for
the amount of time they serve in jail, and as long as the person
is receiving credit for the time they are serving in jail
pretrial, why is this issue so important.
[The committee suddenly lost communication with Ms. DiPietro.]
CHAIR CLAMAN responded to Representative LeDoux's question and
advised that in his service on the Alaska Criminal Justice
Commission, the key distinction is that it found, particularly
with lower level non-violent offenders, that people were staying
for six-months and one-year in jail waiting for their court
hearing. Frequently, he pointed out, the person would have
served more time in jail waiting for their case to be resolved,
than they were actually ordered to serve when they were finally
sentenced. Therefore, it resulted in a lot of costs for
incarcerating people who, due to the offense they were involved
in, tended not to be ordered to serve anywhere near as much time
as they actually spent in jail waiting. At the same time, he
pointed out, the person is in jail and in the company of all of
the other folks who are bad influences. Plus, the person is
basically in jail for a long time because they cannot afford
bail, he remarked.
3:22:27 PM
REPRESENTATIVE LEDOUX commented that it is possible the person
is ordered to serve shorter sentences because the judge knows
they had already spent a significant amount of time in jail.
CHAIR CLAMAN responded that that gets into a lot more of the
details and he deferred to Ms. DiPietro.
REPRESENTATIVE LEDOUX said that she was also wondering that
since Alaska has a speedy trial rule of 120 days, "why they
haven't taken advantage of that rule."
CHAIR CLAMAN related that there has been a lot of testimony on
the speedy trial rule, and the speedy trial rule is routinely
waived, which is a function of resources.
3:23:28 PM
DEAN WILLIAMS, Commissioner, responded to Representative
LeDoux's questions and advised that what she reference earlier
is exactly right, the data showed that people end up spending
more time in jail than their eventual plead. In the event a
person sat in jail because they could not afford the monetary
bond to get out of jail, but Commissioner Williams, for example,
could afford the $500 to get out wherein he may do five days in
jail and the other person may do 50 days in jail for the same
exact offense and plead.
That, he described, is the problem with holding people in
pretrial under the old system. His second point, he offered is
that "in other states we talk about pretrial before, that you do
a better job" when there is an assessment based upon risk and
not based upon money [audio difficulties]. He explained that
many other states have adopted this similar model and it is more
likely that if the offender is assessed up front with a risk
assessment tool, the chances the person will show up for court
in the future increases, and the likelihood a person will get in
trouble or commit another offense before they get to court
decreases. Use of the tool is a tremendously important part of
the criminal justice efforts, he said.
3:26:23 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, advised that she was
available to testify.
REPRESENTATIVE LEDOUX noted to Ms. Schroeder that under current
law, all class C felonies are treated the same. She asked the
rationale for treating the person who bounced a check versus the
person who is stalking someone, the same. Both offenses are
class C felonies and while she may not mind the person getting
out of jail who bounced the check, she would be uncomfortable
about the person who is stalking someone, she said.
CHAIR CLAMAN surmised that the question was how the assessment
tool treats those two different crimes.
REPRESENTATIVE LEDOUX agreed that that is what she is asking.
3:27:45 PM
MS. SCHROEDER deferred to the DOC because it has intimate
knowledge of the assessment tool and how it may assess those two
different crimes.
CHAIR CLAMAN asked Commissioner Williams whether he could answer
Representative LeDoux's question about the pretrial assessment
tool in practical terms, and how the tool would treat a person
charged with felony bad check writing versus felony sexual abuse
of a minor.
COMMISSIONER WILLIAMS answered that the DOC director of the
Pretrial Enforcement Division could offer a comprehensive
answer, but he offered that the tool measures the charge of
which carries weight in terms of the risk factor. In the event
a person committed a violent crime versus a theft crime or bad
check writing crime, that is taken into account in terms of the
scoring. Also, he noted that the person's prior criminal
history, failure to appear, and approximately four to five other
data points are considered when scoring. The assessment tool
determines whether the person should be released back into the
public under some type of supervision [audio difficulties]. The
pretrial effort and the tool look at the differences, and the
risk assessment tool takes into account the very differences
Representative LeDoux had mentioned, and there is a distinction
made between what a person is charged with in terms of a risk to
the public, he said.
3:30:45 PM
CHAIR CLAMAN asked Ms. DiPietro to provide more detail in terms
of the assessment tool and how it distinguishes between, for
example, sexual abuse of a minor and bad check writing, both as
class C felonies.
MS. DiPIETRO responded that it is important to understand the
tool versus the recommendation of the Pretrial Enforcement
Division officer. She explained that the tool is simply a
mathematical tool, an actuarial tool based on statistics the
same way a 16-year old son's car insurance rates are set by the
insurance company. The insurance companies have data about
driver characteristics, such as the people involved in crashes
and the people who are not involved in crashes, and the
insurance company crunches that data and generates risk
profiles. This risk assessment tool assesses certain factors
for every defendant, for example, the person receives points for
previous failure to appear scale, if the person is currently
booked on a property charge or is booked on a non-DUI motor
vehicle charge. These are issues that have been statistically
shown to predict risk of failure to appear. The Pretrial
Enforcement Division officer takes all of these things into
account, assigns the points, and tallies the points on the
failure to appear scale and the new criminal arrest scale, which
is a low, medium, or high-risk assessment - it is just math.
The Pretrial Enforcement Division officer then takes that risk
assessment score, considers the current charge, looks at the
statute to see what it says about how that officer makes the
recommendation, and makes the recommendation to the judge about
whether the defendant should be released, and if so, under what
conditions. The judge then, with the argument of the parties,
takes the recommendation from the Pretrial Enforcement Division
officer and the parties review the score from the risk
assessment tool with the recommendation from the officer. The
parties argue about it in court, or not, and the judge makes the
final release decision. She stressed that it is important to
understand that the score on the risk assessment tool, although
some items on the tool are related to the currently booked
charge, the tool itself is simply an actuarial tool that puts
the person in the bucket of low, medium, or high risk.
3:33:54 PM
REPRESENTATIVE LEDOUX commented that if the risk assessment tool
is just like an actuarial tool wherein she is a woman, over 65
years of age, never had an accident, and she does not have any
points on her driver's license, she asked why she should buy
insurance. She said that she would answer her question by
stating that she buys insurance "just in case" because quite
often that actuarial tool is sort of a gamble. It does not make
her feel extremely comfortable, she stressed that the state
releases people on charges, such as sexual abuse of a minor,
just because the actuarial tool says that they are more likely
than not to show up in court. She asked Ms. DiPietro whether
she had a response.
MS. DiPIETRO answered that the risk assessment score is just one
piece of information that goes into the judge's release
decision. The other factors that go into the release decision
are as follows: the statutory structure, which does very much
depend upon the charge; there are different ways of handling
people who are charged with misdemeanors versus class C felonies
versus class C felonies offenses against the person. That is
the recommendation from the Pretrial Enforcement Division
officer and that information goes to the judge and the parties,
and the judge then makes the ultimate decision.
3:36:02 PM
REPRESENTATIVE LEDOUX asked whether Ms. DiPietro was saying that
someone charged with sexual abuse of a minor would never be
released right away under this actuarial tool.
MS. DiPIETRO replied that what she could say is that a person
charged with sexual abuse of a minor would be assessed as to
their actuarial risk of failure to appear or a new criminal
arrest if they were released. The person would be assessed as
low, medium, or high risk for those two scales, and then the
Pretrial Enforcement Division officer would look at the charge
and make a recommendation to the court based upon a combination
of the charge and the risk assessment. Then, the judge and the
parties take that recommendation as to the charge and any other
information that may come to light. Such that, something in a
police report or something else may be brought to the judge's
attention in court, and the judge makes the ultimate decision.
She stressed that she wanted to be clear that "the tool is not
the only thing, it's just not, it's a helpful piece of
information." Studies have shown over and over again that
providing this actuarial information to a professional decision
maker, such as a judge, causes the judge's predictions of who to
release and who not to release to be more accurate than if they
did not have this information.
CHAIR CLAMAN predicted that, as to class C felony sexual abuse
of a minor charges, people charged with that crime are out on
bail on pretrial release. In this structure, he said, the
information before the court in deciding bail includes: this
actuarial recommendation from a Pretrial Enforcement Division
officer, the opinion of the lawyer for the defense, the opinion
of the prosecutor. In the event the prosecutor believed a
$10,000 bail was adequate and the defense did not contest the
amount, the person would be out on bail under the supervision of
the Pretrial Enforcement Division. The actuarial tool does not
replace the court's independent judgment in determining bail on
felonies, and all felonies require a judge to make a decision on
bail, he offered.
3:39:33 PM
REPRESENTATIVE LEDOUX noted that she is confused by "this
language" because the statute currently read as follows:
(b) At the first appearance before a judicial
officer, a person who is charged with a felony [,
OTHER THAN A CLASS C FELONY AND THE PERSON HAS BEEN
ASSESSED AS LOW RISK UNDER AS 12.30.011(c)(1),] may be
detained up to 48 hours for the prosecuting authority
to demonstrate that release of the person under AS
12.30.011(a) [AS 12.30.011] would not reasonably
ensure the appearance of the person or will pose a
danger to the victim, other person, or the community.
REPRESENTATIVE LEDOUX commented that under current law, if a
person has been charged with a class C felony, and the person is
determined to be low risk under AS 12.30.011(a), the person
could not be detained for 48 hours for the purpose of enabling
the prosecutor time to demonstrate that the person's release
would pose a problem.
CHAIR CLAMAN offered that in his copy of the statute book at AS
12.30.006(b) and the language that appears in Amendment 48
relating to the class C felony does not appear in his version of
the statutes, and in looking at the notes, this version includes
the 2016 amendments.
MR. SKIDMORE explained that the statute books will not contain
the appropriate statutes because when looking at the amendment,
it does not actually amend the statute, it amends the session
law that does not take effect until January.
3:42:05 PM
REPRESENTATIVE LEDOUX noted her confusion and surmised that the
state holds people for 48 hours in order for the prosecutor to
demonstrate that there is a danger if they have been charged
with a class C felony, under current law. She asked whether,
currently, the prosecution holds the defendants.
MR. SKIDMORE answered that under current law, the state is
allowed up to 48 hours to file a charging document if necessary.
Generally, he advised, the prosecution tries to file the
charging document within 24 hours, and rarely would it hold
someone for 48 hours. The amendments in the criminal justice
reform change it to 24 hours, and not within 48 hours.
Amendment 48 specifically says that a person charged with a
class C felony could not be included in this group because two
things work in conjunction at the same time. He explained that
he was talking about the risk assessment tool, and AS
12.30.011(c)(1) because that sets out in language in a grid
form. The grid lays out "four different categories" of offenses
and then it talks about a low risk, medium risk, or high risk,
and depending upon where the person falls, the grid will dictate
what discretion the court has in addressing the person's
release. Amendment 48, Sec. 6, page 1, lines 3-9, specifically
carves out class C felonies that are assessed as a low risk when
they are a certain type of class C felony.
3:44:35 PM
REPRESENTATIVE LEDOUX asked Mr. Skidmore whether he was speaking
about the amendment to the law under Senate Bill 91, or about
Amendment 48.
MR. SKIDMORE responded that he was discussing both issues [and
he handed Representative LeDoux a page out of the bill review
letter dated June 16, 2016]. He asked Representative LeDoux to
look at the top of page 12, which depicts that grid. He
explained that the grid lays out his previous description of the
"four different categories" of crimes with the low, medium, and
high-risk groupings. Amendment 48 specifically carves out that
class C felony for a non-person offense that is a low-risk, he
offered that it is shaded in the darkest grey color on the
chart.
REPRESENTATIVE LEDOUX surmised that Amendment 48 carves-out and
says that those people can still be held.
MR. SKIDMORE clarified that the carve-out is saying that the
people that fall into that category are not held and they will
be released. He explained that that is why holding someone for
48 hours was carved out in Senate Bill 91, and if a person is
assessed as low-risk for a non-person class C felony, they will
be released under that grid.
3:46:08 PM
CHAIR CLAMAN requested clarification that for a non-person class
C felony, Mr. Skidmore was essentially speaking about the
assaultive offenses, such as sexual abuse offenses, or rape
offenses.
MR. SKIMORE said that Chair Claman was correct.
CHAIR CLAMAN surmised that all of the offenses against a person
will never fit under this low-risk assessment that would be
carved out, and if it is an offense against a person, that
person will always have the 48-hour hold available.
MR. SKIMORE advised that Chair Claman was correct. As to
Amendment 48, only those crimes that fall into that dark shaded
grey area for class C felonies are carved out. The type of
offenses Chair Claman spoke of will be on the far right-hand
side of the grid, upper right-hand corner. For those other
crimes, the court has discretion about setting bail and the
state would be able to hold those people for some period of time
to assess the filing of charging documents.
3:47:42 PM
CHAIR CLAMAN requested that Mr. Skidmore provide examples of
offenses that may qualify for low-risk that are not against a
person.
MR. SKIDMORE responded that here it carves out class C felony
non-person offenses, domestic violence offenses, and DUIs. He
then asked Chair Claman whether he had requested examples of
instances wherein someone could still be held or be released.
CHAIR CLAMAN said that he had requested the non-person class C
felony offenses where a person could be assessed low-risk and
the 48-hour hold would not apply.
MR. SKIDMORE answered that low-risk non-person offense, class C
felonies subject to release include: theft in the second degree
and criminal mischief, but not a domestic violence offense.
3:49:35 PM
REPRESENTATIVE LEDOUX asked whether it would include breaking
into someone's home.
MR. SKIDMORE responded that breaking into someone's home is
burglary in the first degree, a class B felony.
REPRESENTATIVE LEDOUX asked whether it would include breaking
into a store.
MR. SKIDMORE offered that breaking into a store would be a class
C felony and it would be "subject to this" if it was low-risk.
REPRESENTATIVE LEDOUX surmised that the low-risk is determined
by the actuarial tool.
MR. SKIDMORE answered in the affirmative.
3:50:22 PM
CHAIR CLAMAN asked Ms. DiPietro whether the tool was easier to
read in color and not black and white.
MS. DiPIETRO pointed to a document on the Alaska Criminal
Justice Commission's website " A Practitioner's Guide to
Criminal Justice Reform SB 91," and advised that the tool is in
color.
[CHAIR CLAMAN, Mr. Skidmore, and Representative LeDoux discussed
the documents to copy during the at ease.]
3:52:17 PM
The committee took an at-ease from 3:52 p.m. to 4:11 p.m.
4:11:52 PM
CHAIR CLAMAN advised that the committee had been provided a full
color document regarding the tool.
REPRESENTATIVE LEDOUX remarked that subsequent to this recent at
ease, she has a handle on this issue.
4:12:31 PM
REPRESENTATIVE REINBOLD commented that she would like the camera
to zoom in on the tools and explain them to the listening
public.
CHAIR CLAMAN stated that he would not tell the camera people
what to do, but she could hold it up and the camera people could
or not, film
REPRESENTATIVE REINBOLD asked Mr. Skidmore to explain the chart.
MR. SKIDMORE responded that the page in front of her lays out
two charts, and he would focus on the second chart because the
first chart talks about recommendations that come from the
Pretrial Enforcement Division. The second chart matters because
it discusses a judge's discretion, and this chart has a fifth
category for failure to appear in violations of conditions of
release. Mr. Skidmore referred to the five categories across
the top and read as follows: misdemeanors; class C felonies; DUI
refusal; failure to appear violations of conditions of release;
and other; and it then creates a grid with low-risk, moderate-
risk, and high-risk. This chart is in color, he noted, and
explained as follows: the darkest shade of blue talks about
mandatory own recognizance (OR); those that read "mandatory," if
someone is assessed a low-risk or a moderate-risk and charged
with a misdemeanor, it would be a mandatory OR release - it is
not domestic violence misdemeanors or person offenses; and to
the right of that, under class C felonies, note the caveat that
these class C felonies do not include domestic violence, person
crimes, failure to appear or DUIs. These, he explained, are
only the other types of class C felonies, and if it is a low-
risk there is a mandatory release on the class C felony. If
there is a moderate risk for the class C felony, it is a
presumptive OR, and that is the exact status quo today "where
our constitution" talks about a presumption of OR release where
judges will exercise discretion based on arguments made by both
parties about what should happen.
4:15:48 PM
REPRESENTATIVE REINBOLD asked whether Mr. Skidmore had any
concerns with this tool as the director of the criminal
division.
MR. SKIDMORE answered "No." He explained that this tool is
based upon the concept "provided to us" from the State of
Kentucky. He said that Alaska did not duplicate the same thing
as the State of Kentucky, but studies were utilized, and this
makes sense. It makes sense because during his 20 years as a
prosecutor, he has observed multiple bail hearings in which
different prosecutors show up and assess the defendant's
previous criminal history in a certain manner and another
prosecutor would assess the same criminal history differently,
resulting in disparate outcomes. This concept is to try to
unify [the assessment] and make it consistent, which is what the
tool does as by weighing each case in the same manner, and it is
the most objective manner in which to provide that information.
He related that that is not the end of the story because for all
of the areas in grey or light blue, the court continues to
exercise its discretion and prosecutors can and will continue to
make arguments as to what it believes to be the appropriate
conditions of release and bail.
4:17:33 PM
REPRESENTATIVE REINBOLD asked who was involved in designing this
tool for the State of Kentucky, the cost of the tool to develop,
and whether it had been tested and proved ...
CHAIR CLAMAN interjected that Ms. DiPietro is the best person to
answer her question as to the development of the tool.
MS. DiPIETRO responded that Kristin Bechtel, Ph.D., developed
the tool, who until recently worked at the Crime and Justice
Institute, a non-profit organization. She reiterated that the
tool was paid by a grant from the Bureau of Justice Assistance,
a federal agency that provides grants to states to improve their
justice systems. She added that Alaska's tool was developed
with Alaska data, and it was designed for Alaska's defendants
and the Alaska Criminal Justice System, not for the State of
Kentucky.
4:19:14 PM
REPRESENTATIVE REINBOLD asked whether the chart is the full tool
and whether this tool had been used in trials in Alaska to prove
its effectiveness, and whether it will increase public safety.
MS. DiPIETRO responded that the chart in front of the committee
is not the tool, that chart is a statutory decision-making grid
for judges. The risk assessment tool is a series of questions
about a defendant that are answered based upon the defendant's
criminal records. She offered to send the committee the
questions noting that there are six questions on the failure to
appear scale, and seven questions on the new criminal arrest
scale. She explained that a defendant is arrested, brought into
a DOC facility, fingerprinted, the Pretrial Enforcement Division
officer is alerted, reviews the defendant's criminal record, and
uses that information to answer the questions on the tool. For
example, she said, as to the new criminal arrest scale, question
1: What was the age of the defendant at the time of first arrest
and in the event the defendant was 22 or older, the defendant
would receive zero points; and the defendant receives one point
if they were 21 or younger at the time of the first arrest. The
officer continues through the mechanical and consistent process,
determines the score from zero and 10, which then translates
into a category of low, medium, or high risk. The best way to
think of the tool is that it is information the Pretrial
Enforcement Division officer uses to make the recommendation to
the judge, it is also information the judge and the parties will
use and argue about in court when the judge makes the decision
about release and the conditions of release.
4:22:40 PM
REPRESENTATIVE EASTMAN noted from previous testimony that these
tools do not override the discretion of judges, and that the
chart is a reflection of statute. Although, he offered, a
mandatory OR appears to preclude discretion from judges, and
asked how the low, medium, and high risk is determined.
MR. SKIDMORE reiterated Ms. DiPietro's testimony and advised
that low, medium, and high risk is evaluated through the use of
the risk assessment tool. That piece of information would be
plugged in to determine where the defendant fell on this grid,
the other piece is what crime the defendant had been charged
with committing.
REPRESENTATIVE EASTMAN surmised that the levels of risk is
determined by the risk assessment tool and not by the discretion
of the judge.
MR. SKIDMORE answered that the tool evaluates which of the three
rows would be used on the grid, and where the defendant falls on
the grid determines the amount of discretion given to the judge.
4:24:26 PM
REPRESENTATIVE LEDOUX noted that class C felonies might be
vehicle thefts and surmised that if the defendant is low-risk,
that is a mandatory OR.
MR. SKIDMORE clarified that it is a mandatory OR only if the
defendant is determined to be low-risk, it is not that the crime
was determined low-risk.
REPRESENTATIVE LEDOUX asked whether the criteria for the tool
was actually articulated in statute.
MR. SKIDMORE answered that it is not articulated in statute.
The requirement of the statute is the development of the risk
assessment tool, and at the time the statute was written, the
tool's criteria was unknown. The criteria of the risk
assessment tool was based on research that occurred after the
statute authorized the development of the tool.
4:25:46 PM
REPRESENTATIVE LEDOUX asked why someone who had committed a
class C felony would not be determined as a high risk to not
show up for a hearing. She further asked why it would be a
presumptive OR, if they were high-risk.
MR. SKIMORE explained that the presumptive OR comes from the
Constitution of the State of Alaska wherein everyone is presumed
entitled to OR and bail. As is known in practice, courts
regularly assess that and make the determination as to what is
most appropriate, and that will continue to happen.
CHAIR CLAMAN commented that judges override the presumption on a
routine basis.
MR. SKIDMORE answered in the affirmative.
4:26:46 PM
REPRESENTATIVE REINBOLD requested the complete tool and asked
whether there is a time limit for completing the score.
MR. SKIDMORE responded that the tool is utilized from the time a
person is arrested until they are arraigned the next day, and
the score is developed within 24-hours, essentially.
4:27:52 PM
REPRESENTATIVE REINBOLD surmised that the Pretrial Enforcement
Division officer has 24-hours, and she asked whether the officer
has a full opportunity to make a good judgement based on
witnesses, based on police reports, and possibly interviewing
witnesses to assess the risk.
MR. SKIDMORE explained that the tool is not based on witness
statements and the other sorts of information Representative
Reinbold had described, as that is information a prosecutor
would rely on to make arguments to the court as to how bail
should appropriately be set. He pointed out that her questions
describe a current challenge for prosecutors in obtaining that
information in a timely manner. The prosecution is required to
make recommendations about bail using whatever information was
at the prosecutor's disposal at that time. That process will
not change, and the tool does not rely on that same information,
he reiterated.
4:29:24 PM
REPRESENTATIVE REINBOLD surmised that currently the prosecution
is rushed to interview victims within 24-hours and asked whether
"this is just based on a tool," and whether this tool had been
tested.
MR. SKIDMORE advised that the Constitution of the United States
requires states to arraign people within a certain period of
time. The State of Alaska's practice follows the same practices
as in other states wherein the prosecutors rely on the police
reports and hope the reports are provided in a timely manner,
but the prosecutors do not interview the witnesses themselves.
4:30:23 PM
REPRESENTATIVE REINBOLD asked whether the tool was a tested and
true model and whether Mr. Skidmore would guarantee that the
tool is effective. She said, "If not, is there a warranty on
this tool?"
MR. SKIDMORE expressed that he had testified that the tool was a
better method than the previous method, that does not mean it is
a guarantee. As to whether the tool has been tested, it was
developed based upon Alaska data, and the Department of Law,
Public Defender Agency, Alaska Court System, and law enforcement
are all working together to make sure the tool is implemented
smoothly. He reiterated that he could not make promises or
guarantees about the tool, and stated that as he had said about
every aspect of criminal justice reform, it is the intent of
Department of Law (DOL) to monitor it, evaluate it, see how it
works, and when problems are found to bring them to the
legislature and ask that changes be made. He remarked that he
has confidence there are reasons to believe this will succeed,
and if he is wrong, he will be back before the legislature
asking to do something different.
4:31:39 PM
CHAIR CLAMAN asked why the department supports use of this
entire new pretrial process, including the pretrial assessment
tool.
MR. SKIDMORE responded that the department supports the use of
the assessment tool because it is an objective measure that
allows people to be treated in the same manner. The goal of
prosecutors is to always try to make things objective in a
manner that is fair to all of the citizens of this state, which
is one of the things the tool brings to the table. The
assessment tool causes the system to evaluate that defendant's
criminal history in exactly the same manner as every other
defendant, and it does not allow disparate opinions to alter the
system. He remarked that that evaluation is part of the tool
that makes sense.
CHAIR CLAMAN asked, in the department's view, whether the tool
will actually do a better job evaluating pretrial assessments
than what is being done today.
MR. SKIDMORE answered that he hopes the tool does not make it
that much better because that would suggest the prosecution was
"doing a really bad job initially." However, he added, he is
hopeful there is more consistency and some improvement, and that
any concerns people have had about disparate treatment are
resolved through the use of the tool. He advised that the
second aspect of all of this, and why the department has
supported it, is due to the use of the Pretrial Enforcement
Division officers that will monitor folks. The department
considers that to be an extremely valuable tool and it will be
an improvement for public safety for those individuals released
before trial, and there are always people released prior to
trial.
4:33:22 PM
CHAIR CLAMAN asked Mr. Skidmore how this total program worked in
the State of Kentucky, acknowledging that Alaska's tool was
designed specifically for Alaska.
MR. SKIDMORE clarified that the State of Kentucky tool includes
the use of an interview with the defendant, and Alaska's tool
does not because studies have shown that the interview questions
did not have an impact on the accuracy of the tool in Kentucky.
The State of Kentucky found that in releasing individuals, it
had a high rate of success in its ability to predict which
individuals were of low, medium, or high-risk, and which
individuals would likely show up in court. From that
standpoint, he advised, the crux of all of the questions is
determining who should be in jail and who does not need to be in
jail, and this tool should help the state get closer. During
the development of the tool, they were advised that they will
need to evaluate the tool and continue reviewing the tool after
it had been in place for one-year to determine whether it
performed as well as was hoped, and if not, "we will" adjust it.
That process is part and parcel of all of this, monitoring what
happens and making adjustments when necessary. That has been
understood from the beginning about this tool and it is part of
the reason for his support. Any reforms made in the criminal
justice process must be monitored and where there are problems
the department will bring it to the attention of the legislature
and the House Judiciary Standing Committee. He pointed out that
that has been the process with SB 54 and it is why the bill
should be passed. He stressed that he is not in a position to
make any changes to this because he does not have evidence to
say that it does not work, and he follows the evidence.
4:35:51 PM
CHAIR CLAMAN noted that the State of Kentucky is receiving 92
percent compliance with pretrial conditions, which is both
appearing in court and not committing new offenses. As to the
data in Alaska, 37 percent of the defendants commit a new crime
and have new charges come up while on bail. In the event the
state could improve to 92 percent, as has the State of Kentucky,
that would be a substantial improvement for public safety, he
offered.
MR. SKIDMORE replied that that is certainly the hope of what
will be achieved.
4:36:31 PM
CHAIR CLAMAN noted that questions were asked as to why the
details of the tool were not articulated in statute, and asked
Ms. DiPietro to provide information about the development of the
tool, how the tool is updated as time goes on, and then modified
in the future based on the data received.
MS. DiPIETRO answered that she had described a little bit about
the development of the tool with the records review of the
20,000-people who were released and the study Dr. Kristin
Bechtel, Ph.D. of the people detained. Dr. Bechtel, she
described, is a top researcher in the nation on pretrial risk
assessment and these tools cannot be set in stone. Dr. Bechtel
has been clear with Alaska that there must be continuous testing
and a validation process. She advised that the Pretrial
Enforcement Division built software into its case management
system to collect information as to how the tool is performing
and that information is then fed back to the analysts. Dr.
Bechtel has refused to reassess the validity of the tool
because, having developed the tool, has a stake in it and she
would not be able to be objective about assessing the validity
of the tool. Therefore, another researcher will be found to
assess the validity of Alaska's tool, one who can be completely
objective. As to the reassessment process, the data will be
reviewed after the first year to determine whether it is
performing as expected. These tools are actuarial tools so
there are no guarantees, in the same manner that an insurance
company may offer a person a low rate of insurance because they
were low-risk and then they get into an accident the next day.
There are always exceptions, and she said she does not want the
committee to think that this tool is some sort of magic bullet
because there are no magic bullets. This is good information
that will help the judges, prosecutors, and defense attorneys
make better judgements than if they did not have this
information, she reiterated.
MS. DiPIETRO related that after the first year there will be the
revalidation of the tool by a new independent researcher, and
then every three years it will be revalidated. These tools
evolve and get better and better as information is fed into the
tools about outcomes, she remarked.
4:40:18 PM
CHAIR CLAMAN asked whether passage of Amendment 48 would
undermine the implementation and use of, not only the pretrial
tool, but the entire new pretrial process that is set to begin
on January 1, 2018.
MS. DiPIETRO responded that the pretrial reforms all work
together as a package and they have not gone into effect yet.
She noted that everyone has been trained as to the pretrial
changes currently, and there is a risk that if making changes,
it would destabilize what the commission is trying to build.
4:41:13 PM
REPRESENTATIVE LEDOUX surmised that within the State of
Kentucky, 8 percent of the defendants fail to appear.
MS. DiPIETRO asked whether she was asking about the 8 percent
figure as to failure to appear, or failure to appear and a new
criminal arrest.
REPRESENTATIVE LEDOUX said that she did not know, which is why
she was asking the question.
MS. DiPIETRO advised that she does not have the State of
Kentucky's statistics in front of her.
4:41:43 PM
REPRESENTATIVE LEDOUX asked how the Alaska Criminal Justice
Commission received the State of Kentucky's statistics.
CHAIR CLAMAN advised that he had been talking about those
statistics and "I'd read it more than a week ago," but Ms.
DiPietro does not have the study available at the moment.
REPRESENTATIVE LEDOUX noted that she would like to determine the
level that the State of Kentucky began, as compared to where the
State of Alaska started.
CHAIR CLAMAN commented that the State of Kentucky has had a
substantial improvement, but he could advise as to the numbers.
4:42:18 PM
REPRESENTATIVE LEDOUX offered a scenario of someone attending a
bail hearing and not being released and asked what would have
been the next step prior to Senate Bill 91, and the next step
currently.
MR. SKIDMORE noted that the process has not changed at this
point, but it will change in January 2018. He explained that
after a person is arrested, they are taken to court, and the
bail is set. In the event they cannot make their bail, they are
entitled to a bail hearing to make a proposal to the court as to
why they should be released and why the bail should be altered.
That hearing is noticed, the defense attorney and prosecutor
attend wherein they will come to an agreement or a disagreement
on the proposal, and after both sides have made their case to
the court, the court will make the final decision as to whether
the bail stays the same or changes.
4:43:45 PM
REPRESENTATIVE LEDOUX asked, prior to the implementation of the
Senate Bill 91 changes, whose burden of proof is it to show that
the bail conditions should be changed in that the person will
make their appearance in court, and they pose no danger to the
safety of the victim. She asked whether that is an element of
the standard of proof.
MR. SKIDMORE answered that when the court initially sets bail,
the burden of proof is on the prosecution to establish the
reasonable bail initially, and it then depends upon the
requesting party. He explained that if the defendant is still
in custody and is asking to be let out of jail, the defendant
will have the burden of proof. In the event the defendant was
already out of jail and the state is asking them to be returned
to custody, it would be the state's burden. The quantity of
that burden is a preponderance of the evidence, he added.
4:45:11 PM
REPRESENTATIVE LEDOUX asked how the burden of proof changes
after the implementation of Senate Bill 91.
MR. SKIDMORE turned to the color chart previously discussed, and
noted that there is mandatory OR, a presumptive OR, and a
statutory bail (SB) authorized, meaning that it is presumed the
person should be released. Under the statute, the burden of
proof standard is clear and convincing that the person should
remain in jail.
4:46:24 PM
REPRESENTATIVE LEDOUX asked that Mr. Skidmore explain the
difference between preponderance of evidence and clear and
convincing burdens of proof.
MR. SKIDMORE explained that preponderance of the evidence is a
lower burden standard used in civil cases, some people think of
it as 50 percent. Clear and convincing is a higher standard
used for issues such as terminating parental rights, but he was
hesitant to ever put a percentage on that burden of proof. He
explained that the clear and convincing standard is a lower
standard than the beyond a reasonable doubt standard, of which
the prosecution must meet to convict someone.
4:47:03 PM
REPRESENTATIVE LEDOUX offered a scenario of someone, currently
not convicted, being in jail who requests to be released from
jail. She asked whether the defendant would bear the burden of
proof that they did not pose a risk to their victim and that
they would appear in court.
MR. SKIDMORE answered that if the determination of bail had
already been set and they are the requesting party, the answer
is yes.
REPRESENTATIVE LEDOUX asked, prior to the implementation of
Senate Bill 91, whether the defendant must show by a
preponderance of the evidence.
MR. SKIDMORE answered in the affirmative.
4:47:55 PM
REPRESENTATIVE LEDOUX surmised that after January 1, 2018, the
prosecution must meet the more difficult standard of clear and
convincing evidence that the defendant will fail to appear and
will pose a threat to the security of the victim.
CHAIR CLAMAN asked whether she was asking about a defendant who
is in jail trying to their bail lowered, or about the first time
the defendant appears in court to have their bail set. He noted
that her earlier question was about someone being in jail and
requesting that their bail be lowered.
REPRESENTATIVE LEDOUX referred to Amendment 48, Sec. 7, AS
12.30.006(c), [page 1, lines 10-23], and opined that
subparagraph (c) is "after the original conditions have been
set." She offered that it appears a defendant can go back to
court, and the prosecutor must show by clear and convincing
evidence that the conditions of release should not be changed.
She commented that it appears to be "an almost insurmountable
standard because it's like proving a negative."
MR. SKIDMORE referred to Amendment 48, AS 12.30.006(c), page 1,
lines 15-20, and advised that the amendments which will occur in
January read as follows:
(c) ... [UPON REVIEW OF THE CONDITIONS, THE
JUDICIAL OFFICER SHALL REVISE ANY CONDITIONS OF
RELEASE THAT HAVE PREVENTED THE DEFENDANT FROM BEING
RELEASED UNLESS THE JUDICIAL OFFICER FINDS ON THE
RECORD THAT THERE IS CLEAR AND CONVINCING EVIDENCE
THAT LESS RESTRICTIVE RELEASE CONDITIONS CANNOT
REASONABLY ENSURE THE
(1) APPEARANCE OF THE PERSON IN COURT; AND
(2) SAFETY OF THE VICTIM, OTHER PERSONS, AND
THE COMMUNITY.]
MR. SKIDMORE explained that the language refers to a defendant
who has been in jail for 48-hours after the initial bail had
been set. The idea is, he offered, when the defendant has not
been able to post the money, the court is supposed to review the
case and under the standard of clear and convincing evidence
determine whether the defendant is a risk not to show up or is a
risk to harm others. In the event there is a risk, the
defendant stays in jail, and if not, the presumption means the
court should adjust the bail.
4:50:27 PM
REPRESENTATIVE LEDOUX surmised that if the prosecution can only
prove by a 51 percent chance that the defendant is a risk to
others, meaning more likely than not is a risk to others.
Except, the prosecution does not show it by the roughly 75
percent clear and convincing evidence, she asked whether the
person is released from jail.
MR. SKIDMORE clarified that he could not say that the defendant
is necessarily released from jail, but the statute requires the
judge to "revise conditions that have prevented the defendant".
He said that he assumes that is what it results in, but in being
careful about the language he uses, explained that it is not an
automatic as the court is supposed to revise the conditions, and
depending upon how the court revises the conditions, it may have
an impact on whether the defendant is released.
REPRESENTATIVE LEDOUX commented that Mr. Skidmore's response
caused her to feel fairly uncomfortable because the prosecution
could prove that it is more likely, than not, that the defendant
will not appear for court, or that the defendant in jail will
harm others. She related that it is known that it is more
likely than not, that the defendant is released from jail. She
expressed that that caused her a degree of discomfort.
4:52:10 PM
REPRESENTATIVE REINBOLD advised that she was employed in
pharmaceuticals and it could take 17 years from the time of
conception and production and asked what phase this tool is in
currently.
MR. SKIDMORE advised that he could not tell her how to compare
where the development is as to any phases used in
pharmaceuticals
REPRESENTATIVE REINBOLD asked whether this tool has been
validated to reduce risks to Alaskans or whether it has
undergone any "mini-trials" in the state. "I don't do things on
faith," she commented.
MR. SKIDMORE answered that the development of the tool has
evolved through validated studies. He noted that Representative
Reinbold had asked him to show her where the tool has worked,
except he could not show her until the tool has actually been
used. Mr. Skidmore commented that he does not do things based
on faith either, and that he has made it clear in his
testimonies that he does things based on evidence. He pointed
out that evidence has been provided that suggests the tool, as
they develop it, will result in these outcomes. Based on that
evidence, the state is trying out the tool and if it does not
work, adjustments will be made, but he has every reason to
believe the tool will work, he stressed that his belief is based
on evidence, not faith.
4:55:46 PM
REPRESENTATIVE REINBOLD remarked that Mr. Skidmore had
contradicted himself because he said, "this is early, we're
still developing it" and trying to figure out how to implement
the tool. In her years of pharmaceutical work, each phase
became more rigid with double-blind peer-reviewed and validated
tests, she said.
CHAIR CLAMAN pointed out to Representative Reinbold that Mr.
Skidmore has advised that he knows nothing about pharmaceutical
trials.
REPRESENTATIVE REINBOLD commented that Alaskans want to know if
this is a good tool, since "we got it through grants or
whatever." She described the tool as currently being in phase
one of a trial and it is not ready for prime time. She said she
wants to know that this is a good tool and will give Alaskans
reductions in risk because victims have a guarantee for
protections in the constitution.
MR. SKIDMORE commented that he previously advised her, and he
would state the fact again that this tool was developed based
upon data from Alaska, and evidence shows that "this is what is"
going to work. The tool was developed by looking at the
questions [Ms. DiPietro previously stated] and the list of
information and apply it to the people released in the past.
The advice has been that if the state had asked these questions
and had this score at the time the people were assessed, "would
it have been right, would it have not been right? And, the
answer is, it worked." That is why the tool will be used, he
offered. The confusion Representative Reinbold appears to have
about the comments made today with regard to being in the
process of implementing the tool is incorrect. The tool is not
in the process of being developed because the tool is developed,
he said. This discussion has been about how everyone will use
the tool, how to be certain that everyone communicates smoothly
with one another, and how everyone will be trained for its use,
he clarified. Mr. Skidmore reiterated that the development of
the tool is finished, and the tool has been validated. The
discussion about why it is not implemented are pointed to all of
the other logistics involved with that implementation, he
stated.
4:58:42 PM
[CHAIR CLAMAN and Representative Reinbold discussed Chair
Claman's clarification of various questions.]
4:59:09 PM
REPRESENTATIVE REINBOLD characterized that [the tool] as more
like a theory because Mr. Skidmore does not have the evidence
because the tool has not yet been used and he does not have the
outcomes. She asked repeated a question from someone on her
iPhone, as follows: "The risk assessment will be in direct
opposite of what you were previously talking about. The statute
may say that they are medium to high, but the risk assessment
may say that they're low. Can you explain that?"
MR. SKIDMORE answered that he does not know who provided that
question to Representative Reinbold, but they have misunderstood
the testimonies, and repeated that the statutes do not label
someone as high or low risk. Again, he said, the statutes set
out the framework of where to look on the grid based on the low,
medium, or high-risk assessment provided by the risk assessment
tool. The statutes do not control whether a person is low,
medium, or high-risk, he further reiterated.
5:00:04 PM
REPRESENTATIVE REINBOLD advised that "this person" is seeking to
understand this tool
CHAIR CLAMAN advised Representative Reinbold that she needs to
ask her own questions, she is not here to ask someone's else's
questions.
REPRESENTATIVE REINBOLD advised that the person is "a colleague"
and that she feels it is appropriate to ask one of her
colleague's questions. It says ...
CHAIR CLAMAN instructed Representative Reinbold that if her
colleague is another legislator, that this is not the place for
other legislators to ask questions. He reminded Representative
Reinbold that legislators can ask questions as a member of
whichever committees they are on, and that legislator is out of
order asking another legislator to ask their questions on this
committee. He stated that Representative Reinbold is a member
of the House Judiciary Standing Committee and to ask her own
questions.
5:01:17 PM
REPRESENTATIVE EASTMAN noted that he is familiar with the
pharmaceutical industry, and that there are a lengthy series of
safeguards and firewalls between the implementation and
deployment of a product before it reaches the public. He asked
what sort of safeguards, firewalls, and pilot programs are
between the public in Alaska and the implementation of this
tool. He asked whether this tool is simply going off of the
social science and it will then reach the public in a trial and
error mode because it is not right the first time. He asked
whether Mr. Skidmore understood his question.
MR. SKIDMORE responded that he understood the question to be
more of a logistics question and his expertise is in the law.
The question asked is how the logistics are being developed and
noted that he has heard about the possibility of a pilot program
but, he advised, that question should be directed to the
Department of Corrections (DOC) as it is ultimately responsible
for the tool.
5:03:41 PM
COMMISSIONER WILLIAMS advised that he is aware a pilot is being
rolled out and deferred to Ms. DiPietro.
MS. DiPIETRO offered caution about the pharmaceutical analogy
because within the pharmaceutical industry a product must be
tested on a live person to determine the effects of the drug.
That is not the case here because, luckily, the risk assessment
tool can be tested on cases that have already taken place. She
explained that the test process included the following:
obtaining the names of previously arrested and released
defendants; run the tool and assess them with a low, medium, or
high-risk score; and determine their actions after their
release. She used a scenario that during the file review
testing, the tool assessed someone as a high-risk for new
criminal arrest and the file showed that the person did commit a
new offense after release; or someone had obtained a low-risk
score and that person did not re-offend, for example. She
attended a presentation by the DOC's director of the Pretrial
Enforcement Division, and the director is "doing a trial" in
advance of January and expects that trial to be completed in
advance of January 1, 2018.
5:06:21 PM
REPRESENTATIVE EASTMAN commented that it is good to be able to
use history and create benchmarks and test the tool. Although,
he said that if he is using the tool to assess someone making
decisions post-bail ten years ago, he would only get a good read
on that particular time period, which will be different than the
present time. He asked whether there are firewalls or
safeguards as the DOC tailors the tool to the changing present
time now that the state is in a post-Senate Bill 91 environment.
MS. DiPIETRO agreed, and she advised that that is not the data
being used in the trial program. The pretrial release period is
not that long of a period of time; therefore, information can be
used about people released within the last six months to one-
year and received good information.
5:08:30 PM
REPRESENTATIVE EASTMAN asked Ms. DiPietro to explain the
firewalls and safeguards as the tool is being used on recent
data, the pilot projects, and phases of deployment.
MS. DiPIETRO advised that she was not sure what Representative
Eastman meant by firewalls and safeguards, but currently, there
is a [pilot] trial going on, or soon to start, of people being
arrested now or arrested in the very recent past. That last
bit of information will be used to be as sure as possible that
the tool will "be as good as possible" going forward. In terms
of rolling it out in stages, she opined, that because this goes
into effect on January 1, 2018, that would not be possible, and
she did not believe that was the plan.
5:10:09 PM
REPRESENTATIVE EASTMAN remarked that clearly the Alaska Criminal
Justice Commission has passionately pursued the goal of reducing
the prison population to the extent possible. He asked how the
development of this tool has been insulated from that passion,
or whether this tool was inspired, at least in part, by that
passion.
MS. DiPIETRO reiterated that the tool was developed by Dr.
Kristin Bechtel, who does not work for Alaska or for the
commission, and she was not paid by Alaskan funds. She reminded
the committee that Dr. Bechtel has an extremely good reputation
as an ethical researcher, and that her reputation is on the
line. She advised that the DOC asked a large pretrial
stakeholder group of 50 - 75 practitioners to come in, with many
skeptical people involved in that group. The director advised
her that practitioners have thrown down roadblocks, barriers,
and challenges to the division, to which she welcomes because
the challenges only makes the product better, she offered.
5:12:09 PM
REPRESENTATIVE EASTMAN referred to Amendment 48, page 1, lines
15-20, previously discussed, and said that currently "the
judicial officer shall revise conditions of release unless they
find on the record there is clear and convincing evidence." He
asked that when it comes time to use this tool and someone is
scored at high-risk, whether that classification is sufficient
to meet the standard of clear and convincing evidence, or
whether some type of evidence must be made available in addition
to that classification from the tool.
MS. DiPIETRO offered that she was unsure she could answer the
question, but to some extent, it will depend on the judge and
how the judge analyzes the law. She said that she anticipates
that the attorneys, with all access to the pretrial services
officer's report, will make arguments to the judge. Under the
right circumstances, she said, she imagines that the parties
would point to the risk level the tool had assessed the
defendant. Except, she pointed out that it is more likely
information will be brought in, such as a police report or
information from a victim's statement.
5:14:44 PM
REPRESENTATIVE EASTMAN asked whether Ms. DiPietro was able to
find any additional information from the State of Kentucky as to
where the state started out prior to the implementation of the
tool.
MS. DiPIETRO said that she will provide that information to the
committee.
5:15:36 PM
REPRESENTATIVE EASTMAN referred to Amendment 48, page 1, lines
[15]-20, requiring a judicial officer to find clear and
convincing evidence, and asked that when the tool scores someone
at high-risk, whether that is sufficient to meet the standard of
clear and convincing evidence, or whether additional evidence
would be necessary.
MR. SKIDMORE commented that he did not know the answer right
now, but as a prosecutor, he would try to find a way to say that
the high-risk assessment was an important determination.
Mr. Skidmore offered that he would review the criminal history
and make arguments about the criminal history and the nature of
the offense, but he would also look at all of the other sorts of
arguments and sorts of evidence he would have used previously to
make that pitch to persuade the court of the prosecution's
position.
5:17:26 PM
REPRESENTATIVE REINBOLD related that she would have liked the
opportunity to comment as to Ms. DiPietro's statement about why
pharmaceutical research was not appropriate to bring forth. She
reiterated that this tool does not seem ready "for prime time,"
it is in the early phase, and it has not been "used anywhere in
the state," or that it works in Alaska. She said she has
probably 20 more questions for Mr. Skidmore and is disappointed
she is not given time to ask her questions, and hopes this bill
receives a full vetting in the House Finance Committee. Victims
have the right to be protected, and this tool will create
tremendous risk to Alaskans, and Amendment 48 must be passed,
she said.
5:20:29 PM
REPRESENTATIVE KOPP pointed out that as everyone knows, risk
analysis tools are used in every sector of society, project risk
assessments, security risk assessments, and so forth.
This risk assessment tool, by the measure of many well-informed
people, is the gold standard out there right now, and it has
been validated. In the event something about this tool proves
to signal that re-evaluation is needed, then the legislature is
here to make adjustments. This committee has heard testimony
from Mr. Skidmore, Director of the Criminal Division, Department
of Law (DOL) who, Representative Kopp related, is highly
motivated to make sure people are not inappropriately released
and that an appropriate bail is set addressing the risk factors
present. The committee needs to remember, he stressed, that the
authority for the right to bail for everyone is comes from the
Eighth Amendment. The discussions taking place here, he pointed
out, are that the members almost seem to be arguing to take that
right away, period, except it is in the constitution and
legislators are sworn to uphold that constitution. Therefore,
the members must make sure that the right is advocated for
everyone, and used wisely, and the risk assessment tool is there
to make sure that every decision to release or what conditions
are appropriate to release, are made with the best evidence
available, and legislators want evidence to drive this issue.
Representative Kopp stated that he does not support Amendment 48
because he firmly believes that Alaska will be headed for a
better public safety result as a result of using this tool.
Having worked in the system a long time without such a tool, he
said that Mr. Skidmore was correct, in the past there would be
radically different risk assessments. These assessments, he
noted, depending on who provided the information to a prosecutor
or a judge, which prosecutor pulled the information together,
which legal aid helped with making those risk assessments, and
sometimes the disparately could not be reconciled. He said that
he is all about consistency in the law, consistent application,
a fair and just application, and that he is willing to use a
tool that has a lot of promise. He reiterated previous
testimony in that this committee will be quick to make
adjustments if it finds the tool is not working as expected.
For every complex problem there is an answer that is clear,
simple, and wrong. This tool and the work that went into it,
shows the level of complexity in the thinking that Alaska needed
to produce a better public safety result, he said. It does not
fit on a bumper sticker, but the tool will help Alaska get to a
better public safety result, he stated.
5:24:10 PM
CHAIR CLAMAN offered his belief that Alaska must be tough on
crime, smart on spending, and that the legislature can do better
for public safety. He said that he has been consistently shown
that this pretrial services program, including the assessment
tool, does just that and he will not support Amendment 48.
5:24:30 PM
REPRESENTATIVE EASTMAN noted that the Eighth Amendment simply
states that "excessive bail shall not be imposed." He said that
a person charged with a crime does not have a right to bail
under any circumstances because the right to bail is balanced
against the interests of the safety of the public. He referred
to the tool and commented that rather than dealing with
statutory bail authorized for people categorized as high-risk,
instead for "DUI refusals, class C felonies misdemeanors," there
is a presumption they will be released on their own recognizance
(OR). That is concerning, and not because he does not like
concept of bail, but because bail needs to be appropriate and
the public safety interests need to be the primary interest when
worried about whether or not "to get it right," he said. There
is nothing in Amendment 48 that precludes the use of the tool,
he offered.
REPRESENTATIVE FANSLER maintained his objection.
5:25:44 PM
A roll call vote was taken. Representatives Eastman, Reinbold,
and LeDoux voted in favor of the adoption of Amendment 48.
Representatives Kopp, Kreiss-Tomkins, Fansler, and Claman voted
against it. Therefore, the adoption of Amendment 48 failed by a
vote of 3-4.
5:26:33 PM
CHAIR CLAMAN recessed the House Judiciary Standing Committee
until 7:30 p.m.
7:34:55 PM
CHAIR CLAMAN called the House Judiciary Standing Committee
meeting back to order at 7:34 p.m. Representatives Claman,
Fansler, LeDoux, Reinbold, Eastman, and Kopp, were present at
the call to order. Representative Kreiss-Tomkins arrived as the
meeting was in progress.
CHAIR CLAMAN advised that originally, he had planned to continue
moving through the amendments, noting that Amendment 37 had been
tabled, but Mr. Piper is now available for testimony.
7:35:56 PM
REPRESENTATIVE EASTMAN moved to take Amendment 37 off of the
table. There being no objection, Amendment 37 was before the
committee.
7:36:22 PM
TONY PIPER, Program Manager, Alaska Safety Action Program, Boney
Memorial Courthouse, said he was available for questions.
MR. PIPER, in response to Chair Claman, advised that he has had
a chance to review Amendment 37.
CHAIR CLAMAN asked whether he had reviewed the particular
provisions of SB 54, relating to the Alaska Safety Action
Program (ASPA).
MR. PIPER answered in the affirmative.
7:37:12 PM
CHAIR CLAMAN asked Mr. Piper to explain the impact on the ASAP
if Amendment 37 was adopted, in contrast to the provision in
Senate Bill 54.
MR. PIPER responded that it would require the ASAP to accept
more referrals from the Alaska Court System having to do with
cases that may not be a DUI, thereby giving the ASAP more cases
than it is currently accepting. As to the exact amount of
cases, he said he does not know at this time.
CHAIR CLAMAN asked whether the ASAP has the capacity to take on
those additional cases, in the event this amendment is adopted.
MR. PIPER answered that the way Amendment 37 is written, the
ASAP would have the capacity. He reminded the committee that as
Mr. Skidmore explained, prior to Senate Bill 91, the courts
referred individuals to the ASAP who were not authorized under
statute, thereby allowing the ASAP to take on almost anyone.
These statutes do not revert back to that [practice]. He said
that these statutes simply require the ASAP to take on a few
more cases than currently, he noted.
7:38:49 PM
CHAIR CLAMAN surmised that Amendment 37 adds a few cases, but in
Mr. Piper's view, not a lot of cases compared to the practice
prior to Senate Bill 91.
MR. PIPER answered in the affirmative.
7:39:02 PM
REPRESENTATIVE REINBOLD asked Mr. Piper the current client
capacity for the ASAP, and how many individuals are actually
moving through the ASAP.
[Due to the audio difficulties, Mr. Piper agreed to locate a
landline.}
7:41:33 PM
MS. MEADE noted the confusion and explained that, although,
Amendment 37 does bring the language back to the language prior
to Senate Bill 91. Except, she pointed out, prior to Senate
Bill 91 the language read, as it would with this Amendment 37,
"to really allow referrals only with charges or conviction of
misdemeanor DUIs." Nonetheless, she said, pre-Senate Bill 91,
the courts referred more people to the ASAP and the ASAP gladly
took them for all sorts of substance abuse related cases,
including assaults or alcohol related cases. Although,
Amendment 37 would bring the language back to pre-Senate Bill 91
language, it actually narrows the cases that would go to the
ASAP. She explained that SB 54 allows DUIs and DUI refusals,
but also simple drug possession cases. Therefore, this may not
accomplish exactly what someone may believe it accomplishes, she
explained.
7:42:47 PM
REPRESENTATIVE REINBOLD asked whether Ms. Meade knew the
statewide capacity for the number if people in the ASAP, noting
that she had attended therapeutic court and was able "see some
of the graduates" from the ASAP.
MS. MEADE clarified for Representative Reinbold that this does
not involve therapeutic courts, these are actually referrals the
court can make to the Alcohol Safety Action Program (ASAP). She
explained that the ASAP is a subdivision of the Department of
Health and Social Services (DHSS), and it has an office in many
courthouses, including the Anchorage Courthouse. In Anchorage,
she noted, when defendants with DUIs or previous other substance
abuse related charges are referred to the ASAP, they walk
downstairs, and Mr. Piper and his staff assists those people
find evaluation programs and treatment programs. The ASAP staff
pilots these people through the system, ensures they are
attending treatment, the defendants receive their paperwork
showing their successes in those programs, and then reports back
to the court, she explained.
REPRESENTATIVE REINBOLD asked what the client capacity is for
the ASAP, and it usage currently. She referred to pre-Senate
Bill 91 and post-Senate Bill 91 law, and whether the ASAP had
seen a decrease or increase in referrals.
MS. MEADE deferred to Tony Piper as she did not know the actual
capacity of the ASAP. She opined that the reason for the change
in Senate Bill 91 was to narrow the number of referrals because
courts were ordering many people to the ASAP because that was
the only place to send misdemeanants with alcohol and substance
abuse problems. The Alaska Criminal Justice Commission thought
that the ASAP's resources would be better spent focused more
narrowly on those with DUIs and DUI refusals who, then, could
receive more concentrated help. She said that "SB 54 thought"
that possibly the law went too far and added in those people
with drug possession charges because there did not appear to be
other things to do with those misdemeanants.
CHAIR CLAMAN asked Representative LeDoux to describe her
conceptual amendment to Amendment 37.
7:46:05 PM
REPRESENTATIVE LEDOUX moved to adopt Conceptual Amendment 1 to
Amendment 37, and explained that Conceptual Amendment 1 deletes
the words on page 1, beginning line 7, "a motor vehicle,
aircraft, or watercraft, and." Page 1, paragraph (21), lines 6-
8, would then read as follows:
... in connection with a charge or conviction of a
misdemeanor involving alcohol or a controlled
substance, referred by a court.
7:47:02 PM
REPRESENTATIVE LEDOUX explained that the purpose of Conceptual
Amendment 1 is to bring it back to pre-Senate Bill 91 practice
as opposed to the pre-Senate Bill 91 statute. Apparently, she
commented, the practice and the statute did not completely
align.
REPRESENTATIVE FANSLER objected.
7:47:37 PM
REPRESENTATIVE EASTMAN asked whether it was Representative
LeDoux's intent to eliminate the words "the use of?"
REPRESENTATIVE LEDOUX answered that that was not her intention.
She clarified that her understanding is that this brings it back
to pre-Senate Bill 91 practice, and not to the pre-Senate Bill
91 statute.
MS. MEADE remarked that Representative LeDoux was close, but to
get to where she wanted to be, she would want to delete "under
AS 28.35.028" because that is the DUI statute, and it would be a
modifier that Representative LeDoux would want in there, she
opined.
CHAIR CLAMAN surmised that Representative LeDoux keep the words
"the use of" on line 7; delete the word "under;" and on line 8,
delete "AS 28.35.028."
7:48:41 PM
REPRESENTATIVE LEDOUX noted that she would probably eliminate
all of the statute cites.
CHAIR CLAMAN explained that under Amendment 37, all of the
statutory references are deleted because they are in brackets.
REPRESENTATIVE LEDOUX agreed with Chair Claman, and she noted
that the committee does not have to delete anything.
CHAIR CLAMAN agreed, and he offered that the only statute being
deleted is AS 28.35.028. Therefore, paragraph (26), lines 6-10
would read as follows:
... in connection with a charge or conviction of a
misdemeanor involving the use of alcohol or a
controlled substance, referred by a court or referred
by an agency of the state ...
REPRESENTATIVE LEDOUX said to eliminate the word "under" also.
CHAIR CLAMAN agreed with Representative LeDoux.
7:49:32 PM
MS. MEADE asked to correct a statement she had made, noting
noted that AS 28.35.028 does comport with Representative
LeDoux's intent. She clarified that she had said that AS
28.35.028 was the DUI statute, and AS 28.35.028 is actually the
therapeutic court statute. Although, she pointed out, that
still needs to be eliminated "because that just doesn't happen."
CHAIR CLAMAN stated that the language of Conceptual Amendment 1
to Amendment 37 is before the committee.
7:50:04 PM
REPRESENTATIVE LEDOUX offered her thought that if Senate Bill 91
is an experiment in which one is supposed to eliminate jailtime
and substitute alcohol and drug abuse treatment, that the state
would want the most expansive reading of the ASAP.
7:51:02 PM
CHAIR CLAMAN asked whether Mr. Piper understands that Conceptual
Amendment 1 goes back to pre-Senate Bill 91 practices for the
ASAP and referrals.
MR. PIPER answered that he understood.
CHAIR CLAMAN asked whether the ASAP has the capacity today to
take on referrals at that level.
MR. PIPER responded that the ASAP would not have the capacity,
at this time, to pick up the amount of participation the ASAP
would receive from those referrals.
CHAIR CLAMAN asked Mr. Piper to repeat his answer because the
phone connection was less than perfect.
MR. PIPER explained that with this amendment, if the ASAP went
back to the referral amount it had received prior to Senate Bill
91 and continued to perform the same type of work for the
individuals as the ASAP is currently performing, the ASAP would
not have the capacity to accept those referrals at this time.
7:52:48 PM
REPRESENTATIVE FANSLER noted the audio difficulties during Mr.
Piper's testimony, but it sounded as though the ASAP does not
have the capacity to go back to pre-Senate Bill 91. Although,
the ASAP has the capacity to operate under SB 54 or Amendment 37
as once written by just limiting the ASAP, but to go back to the
all-inclusive ...
7:53:24 PM
REPRESENTATIVE EASTMAN referred to page 1, lines 16-17 of
Amendment 37, and asked whether Conceptual Amendment 1 would
have an impact on those two lines.
MS. MEADE answered that she has not verified whether the
conceptual amendment would have an impact on those two lines,
and she would have to review those statutes.
REPRESENTATIVE EASTMAN noted that he supports Conceptual
Amendment 1 as it accomplishes his intent.
7:54:17 PM
REPRESENTATIVE REINBOLD asked the client statewide capacity for
the ASAP, and what percentage was being utilized currently.
MR. PIPER answered that currently, the ASAP has the capacity for
approximately 6,000 people statewide performing the work it
currently performs, noting that some of the offices are part-
time. He explained that pre-Senate Bill 91, the ASAP had closer
to 9,000 people statewide each year, but the workload was
different.
7:55:17 PM
REPRESENTATIVE REINBOLD surmised, if she heard Mr. Piper
correctly, pre-Senate Bill 91 the program had 9,000 referrals.
The ASAP's was 6,000 for referrals and she asked whether the
program is at full capacity currently.
MR. PIPER replied that the ASAP is currently at full workload
capacity.
7:56:22 PM
REPRESENTATIVE FANSLER referred to SB 54, as it is currently
written and without Amendment 37, and asked whether the program
expands to include the alcohol crimes and also drug possession.
He further asked what the inclusion of drug possession offenders
would mean to the ASAP, capacity-wise.
MR. PIPER answered that ASAP would have to see how many people
it would include because the ASAP could handle a few more
people, but it is pretty much at full capacity.
7:57:18 PM
REPRESENTATIVE KREISS-TOMKINS referred to the question of
capacity, noting that everyone wants as many people into
treatment as possible, but it is a question of capacity. He
offered four different capacity scenarios: (1) pre-Senate Bill
91 practice and not how the law read, which was a caseload of
approximately 9,000 individuals per year; (2) pre-Senate Bill 91
law, and the envisioned caseload without Representative LeDoux's
Conceptual Amendment 1 to Amendment 37; (3) post-Senate Bill 91,
under current law offers a narrow focus, and the ASAP is
currently at full capacity with 6,000 cases; and (4) in the
event SB 54 passed without amendment 37, that caseload, and if
SB 54 passes without Amendment 37, where the resources will come
from to handle that slight augmentation of cases.
MR. PIPER referred to the four different scenarios, and advised
that with Senate Bill 91, the requirement and time spent with
each participant is much longer than the time spent prior to
Senate Bill 91 wherein it had the capacity to treat 9,000 people
per year. At this point, the ASAP is performing a risk needs
assessment for screenings on every participant and then monitors
those people closer at the higher risk level, which is what it
was tasked to perform. In the event ASAP was to perform that
same workload with an increased population, it would require
more [employees], and he reiterated that the ASAP is at full
capacity with its current workload. The other scenario is that
if the law goes back to pre-Senate Bill 91, to not have the pre-
Senate Bill 91 workload. Or, he commented to build more
capacity to be able to perform its current workload with the
pre-Senate Bill 91 amount of people. He said that he does not
know exactly how many people that would be, which may be a
question for the courts.
8:01:22 PM
REPRESENTATIVE EASTMAN noted that other states have similar
programs and if they do have a spike in misdemeanors and end up
with an unexpectedly high number of referrals, a shortage of
resources, and they tend to have people on waiting list until
additional resources can be found. He asked whether that is
something that has been considered because it would be nice to
always have resources lined up in advance for any unanticipated
situations, but Alaska's fiscal situation would not allow that
system currently. He further asked that, should the state ever
reach that type of situation, whether Mr. Piper is able to
identify weight listing, and if so, how he might go about doing
that.
MR. PIPER answered that at one-time the ASAP did have a waiting
list when there were "higher referrals," and it tries to
eliminate that as much as possible because that would cause the
ASAP to lose some people. He related that the ASAP could
operate in that mode if it was forced to do so, but that would
raise the possibility of people not coming to the ASAP at all
for treatment.
8:03:01 PM
CHAIR CLAMAN advised that the committee had not yet voted on
whether to adopt Conceptual Amendment 1, and the discussion has
been about the bill as though the amendment had been adopted.
REPRESENTATIVE KREISS-TOMKINS surmised that if the ASAP goes
beyond 6,000 cases currently, there would be a risk assessment
to triage who receives treatment and who does not receive
treatment.
MS. MEADE clarified that the statutory cite on Amendment 37,
page 1, line 17, AS 47.37.130(h)(3), prompted "this." Lines 16-
17 of Amendment 37 would add AS 47.37.130(h)(3) to the list of
repealed items out of Senate Bill 91. Those are the repealors,
and what Senate Bill 91 added in the 47.37.130(h)(3) was a
requirement that the ASAP adopt regulations relating to its
screening of individuals for risks and then monitoring those
individuals. She explained that Mr. Piper had said that Senate
Bill 91 effectively narrowed the individuals they would treat,
those will DUIs or DUI refusals, but expand its workload because
now they would be performing assessments and much more intensive
work with those individuals. She explained that even though
Senate Bill 91 narrowed the number of people, it changed it to
add more work with those people. In the event Amendment 37 is
adopted, which brings the wording back to what it was pre-Senate
Bill 91, then the literal wording of the statute, were it to be
adopted, would very much narrow the people sent to ASAP because
it would solely allow referrals under AS 28.35.028, "and that is
effectively zero." The reason people were not adhering to the
statute, pre-Senate Bill 91 and the practice had expanded, is
because it was not written in a manner that it could be
workable. She reiterated that AS 28.35.028 is the statute for
therapeutic court and therapeutic court individuals are not
referred to the ASAP. Therefore, there was a disconnect and the
agencies working together more or less filled in the blanks and
made it work for as many individuals as possible.
8:06:23 PM
CHAIR CLAMAN noted that Conceptual Amendment 1 does not include
AS 28.35.028, but rather the conceptual amendment tries to get
back to pre-Senate Bill 91 practices which is more expansive
than the initial language of Amendment 37.
REPRESENTATIVE KREISS-TOMKINS commented that in no scenario does
the committee want Amendment 37, absent Conceptual Amendment 1,
because it does not make sense. She related that her
understanding is that lines 16-17 would remove some of ASAP's
workload and perhaps give it additional capacity, but she did
not want to speak for Mr. Piper.
8:07:04 PM
REPRESENTATIVE EASTMAN referred to lines 16-17, and noted that
within Conceptual Amendment 1, those statutory cites have not
been touched. He asked Ms. Meade from she knows of how that
language operates will that accomplish the intent of the
conceptual amendment.
MS. MEADE explained that it would repeal the requirement that
the ASAP screen and monitor individuals and have regulations.
[Audio difficulties] was added to ASAP as its caseload would be
narrowed, but it would have more intensive monitoring of those
individuals, and this eliminates that monitoring.
8:08:14 PM
REPRESENTATIVE LEDOUX advised that she was considering a
conceptual amendment to Conceptual Amendment 1 to eliminate
lines 16-17 because she wanted to get back to where it was pre-
Senate Bill 91 in practice.
CHAIR CLAMAN offered that to get to pre-Senate Bill 91 practice,
she would want to keep lines 16-17 because it diminishes the
amount of work the ASAP performs per case, which may increase
its number of case capacity. He commented that Mr. Piper should
answer the question of whether the importance of essentially the
greater work per case.
REPRESENTATIVE LEDOUX commented that she wants the ASAP to do
both because this is supposed to be about treatment.
CHAIR CLAMAN surmised that Representative LeDoux wanted the more
intensive treatment.
REPRESENTATIVE LEDOUX said that she wants the more intensive
treatment and the expanded number of cases.
CHAIR CLAMAN advised that if Representative LeDoux wants the
more intensive treatment, she should delete lines 16-17.
REPRESENTATIVE LEDOUX asked about lines 13-14.
CHAIR CLAMAN said that he would just deal with lines 16-17.
8:09:49 PM
REPRESENTATIVE LEDOUX moved to amend Conceptual Amendment 1 to
Conceptual Amendment 1 to Amendment 37, by also deleting lines
16-17. There being no objection, Conceptual Amendment 1 to
Conceptual Amendment 1 to Amendment 37 was amended.
CHAIR CLAMAN explained that under Conceptual Amendment 1, as
amended, the number of cases would increase and the work per
case would stay as it was under Senate Bill 91, which was more
intensive work per case than pre-Senate Bill 91.
REPRESENTATIVE EASTMAN commented that the language in lines 16-
17 does not prescribe exactly how the ASAP will go about its
workload. Although, it does lay out that the ASAP has a
responsibility to create regulations, and so forth. He asked
Mr. Piper about any implications this would have on the program.
8:11:02 PM
MR. PIPER clarified that the current practice is not treatment
itself, it is a screening of risk needs and assessment with a
referral to treatment. This process allows the ASAP to look up
an individual's risk for reoffending, and other needs that go
along with that. It is the same risk assessment prepared in
therapeutic court on [audio difficulties]. It allows the ASAP
to see more of what a person needs, their risk, and then allows
the ASAP to monitor these people closely to make sure they
fulfill the requirements they had and refer them more
specifically to their needs for treatment. He emphasized that
it is not treatment in and of itself, and without that, the ASAP
would just refer people screened for alcohol or drug use, and
refer everyone to treatment accordingly, and it would not be
able to monitor the higher risk people as closely as it does
currently because it would have so many more people to look
after.
CHAIR CLAMAN explained to Representative Eastman that the
committee is under discussion on Conceptual Amendment 1, and not
under further questions.
8:12:52 PM
REPRESENTATIVE EASTMAN advised that he supports Conceptual
Amendment 1, as amended. He commented that it would be helpful
to him as a legislator if "we ever do come into a situation
where there is a shortage of resources" rather than people
simply getting lost in the cracks, it would be helpful to know
through a waiting list or some other means what the sources of
resources actually is, so the legislature can prioritize that
accordingly.
8:13:50 PM
REPRESENTATIVE FANSLER said that he would speak against
Conceptual Amendment 1, as amended, not because he does not like
the idea behind it because "I love the idea behind it," but the
committee has no idea of the fiscal impact. The committee has
no idea where that money will come from, and he is loath to
start handing out unfunded mandates. He advised that the
legislature will expand the program by 3,000 people and [expect
the ASAP to] perform the work it was doing with 6,000 people
with the same resources. He said that that is not fair, and
when it is operating budget time all of sudden the legislature
will forget about this Conceptual Amendment 1, as amended. He
related that he does not want to throw the proverbial brick to
the person swimming really well and all of a sudden decide to
"sink the 6,000 that are doing well because we are overloading
the program. The committee has heard sterling things about this
program and he wants it to be as expanded as possible, but it
requires money.
8:15:36 PM
REPRESENTATIVE REINBOLD commented that the ASAP was at 9,000
cases and it went down to 6,000 cases post-Senate Bill 91, and
something doesn't add up. She said the resources were
supposedly added, and that Senator John Coghill had recently
advised that $33 million had been reinvested. Commissioner
Williams advised the committee that "there was a bunch of
savings," and the intention of Senate Bill 91 was to reinvest
that money, and there was not a mandate. She said that this is
the people's only hope, maybe there is a flicker of hope in
Senate Bill 91 and people will receive treatment, so this is a
good amendment.
CHAIR CLAMAN, in reference to Representative Reinbold's comments
about "rumors in the hall," advised that the House Finance
Committee scheduled a hearing of this bill tomorrow afternoon.
Whatever the rumor is, the schedule suggests otherwise, he
pointed out.
8:17:55 PM
REPRESENTATIVE KOPP asked that the [conceptual amendment] be
clearly drawn out because he has not seen it drawn out exactly
on paper.
CHAIR CLAMAN advised that he will re-read Conceptual Amendment
1, as amended, prior to its vote.
8:18:14 PM
REPRESENTATIVE LEDOUX, in response to Representative Fansler's
comments about the fiscal note and noted that the bill is next
referred to the House Finance Committee and it will consider the
fiscal implications. She noted that Senate Bill 91 is supposed
to be about saving money from the prisons, applying it into drug
and alcohol treatment, and reinvesting the savings.
Representative LeDoux asked how the committee could conceivably
vote against Conceptual Amendment 1, as amended, of which does
just that.
8:19:01 PM
CHAIR CLAMAN noted that Conceptual Amendment 1, as amended, to
Amendment 37, page 1, lines 6-11, currently read as follows:
(21) ... in connection with a charge or
conviction of a misdemeanor involving the use of
alcohol or a controlled substance, referred by a court
or referred by an agency of the state with the
responsibility for administering motor vehicle laws in
connection with a driver's license action involving
the use of alcohol or a controlled substance;
lines 16-17 are deleted entirely.
8:19:44 PM
REPRESENTATIVE KOPP pointed out that just because the language
bracketed out those items on line 7, the DUI specific and they
are restated on lines 10-11. In other words, he explained, they
are referred by agencies with the responsibility for
administering motor vehicle laws in connection with driver's
license actions involving the use of alcohol or a controlled
substance. Therefore, even with this conceptual amendment, they
will still go there for the same offenses as it is now "pretty
much all inclusive."
CHAIR CLAMAN advised that the difference is that here, the court
can refer for any reason, and the only agency that could refer
would be a motor vehicle agency.
REPRESENTATIVE FANSLER maintained his objection.
8:20:30 PM
A roll call vote was taken. Representatives LeDoux, Eastman,
Reinbold, Kopp, and Kreiss-Tomkins voted in favor of the
adoption of Conceptual Amendment 1, as amended, to Amendment 37.
Representatives Fansler and Claman voted against it. Therefore,
Conceptual Amendment 1, as amended, to Amendment 37 was adopted
by a vote of 5-2.
8:21:28 PM
REPRESENTATIVE KREISS-TOMKINS offered two scenarios: one if
Amendment 37 was as conceptually amended, and one if it
continues with SB 54 as currently proposed. He said there are
two scenarios: one is a narrow but highly focused, highly
intensive approach; and the other is the much broader approach.
He asked whether "this new approach," given that it has been in
practice for some period of time, is more effective than the
perspective of practitioners or people working day-to-day in the
system.
MS. DiPIETRO responded that the commission's recommendation was
actually more nuanced than has been discussed. The commission
recommended a contraction of the number of cases referred to
ASAP because research has shown that it is better to focus
resources on the higher risk people rather than spend resources
on the lower risk people who will probably be fine without any
intervention. However, the commission actually said that in the
alternative, if the legislature wished to give more funding to
ASAP, that the commission would have supported a continued broad
mandate with the addition of the screening for high risk
individuals that ended up in Senate Bill 91. Mr. Piper could
speak to how the ASAP has been progressing in its work on the
screening process and working more intensively with the higher
risk people as opposed to the lower risk people. The program
appears to be working fine, but Mr. Piper could speak to the
ASAP results.
CHAIR CLAMAN asked Representative Kreiss-Tomkins whether Ms.
DiPietro had answered his question to his satisfaction.
8:24:03 PM
REPRESENTATIVE KREISS-TOMKINS asked whether there is any data or
evidence that speaks to whether the new approach is more
effective than the prior approach.
MR. PIPER answered that the ASAP has not prepared any
evaluations at this time because it is still working on
adjustments to the program, and it had to spend much more time
with people who ordinarily not make it through the program. He
offered that with more encouraging and more monitoring he
expects to see more of the higher risk people completing their
ASAP requirements. Although, he commented, he has not had a
chance to prepare an evaluation as to what has been accomplished
so far because he is still in the process of refining the
program.
8:25:31 PM
REPRESENTATIVE EASTMAN declared a point of order. He referenced
that since the committee had deleted lines 16-17, there was no
difference between this amendment and SB 54 as to the quality of
the program. There is nothing in Amendment 37, as conceptually
amended, that will direct the ASAP one way or the other, he
offered.
CHAIR CLAMAN stated that the point of order was well taken as it
was a good observation in terms of what the program would be
doing, and that it is no change.
8:26:12 PM
The committee took a brief at ease from 8:26 p.m. to 8:27 p.m.
8:27:36 PM
CHAIR CLAMAN asked Representative Fansler whether his objection
to Amendment 37, as conceptually amended, was maintained.
REPRESENTATIVE FANSLER withdrew his objection.
CHAIR CLAMAN advised that there being no objection, Amendment
37, as conceptually amended, was adopted.
8:28:24 PM
REPRESENTATIVE KOPP offered a note of encouragement and
commented that the committee does not like modeling tools but,
the UA Justice Center recently advised that these investments in
treatment have anywhere between a 4 to 1, to 23 to 1 ratio, in
reduced recidivism, reduced victimization costs, and better
public safety output. He related that there is a modeling tool
supporting what the legislature is doing, and that this was a
good call.
8:30:14 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 20, Version 30-
LS0461\N.38, Martin, 10/23/17, which read as follows:
Page 1, line 2:
Delete "relating to sex trafficking;"
Page 2, lines 2 - 29:
Delete all material.
Renumber the following bill sections accordingly.
Page 8, line 28, through page 10, line 25:
Delete all material.
Renumber the following bill sections accordingly.
Page 11, lines 28 - 31:
Delete all material.
Renumber the following bill sections accordingly.
Page 15, line 7:
Delete "AS 11.66.130(b), 11.66.135(b);"
Page 15, line 14, following "Act;":
Insert "and"
Page 15, lines 15 - 17:
Delete all material.
Renumber the following paragraph accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 10"
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 3"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 4"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 5"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 6"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 7"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 8"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 9"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 13"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 13"
Page 15, line 30:
Delete "Section 17"
Insert "Section 12"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 18"
REPRESENTATIVE FANSLER objected.
8:30:23 PM
REPRESENTATIVE LEDOUX explained that Amendment 20 puts back the
language that was in Senate Bill 91, involving sex trafficking.
She remarked that Senate Bill 91 simply says that if two
prostitutes, two sex workers, share the expenses for a room,
food, and so forth, that one of the sex workers cannot be
prosecuted for sex trafficking the other sex worker. Attorney
General Jahna Lindemuth said that this has caused problems with
the prosecution of sex trafficking. The other day when Mr.
Skidmore was asked specifically whether the changes from the
criminal law that were articulated in Senate Bill 91 had caused
the prosecution not to prosecute for things it would have
prosecuted previously. Mr. Skidmore said that there were no
changes in what they would have prosecuted. She said that she
does not understand where the Department of Law (DOL) came up
with the idea that Amendment 20, that was put into Senate Bill
91 needs to now be deleted.
REPRESENTATIVE FANSLER opined that this was originally taken out
of Senate Bill 91, and his understanding, when reading the
Alaska Criminal Justice Commission's report, is that it actually
encouraged and recommended fixing this in SB 54. He asked
Attorney General Lindemuth to speak to her thoughts as to why
the committee would be adding it in SB 54 the language we did,
or should the committee be taking this out as this amendment
does.
8:33:02 PM
ATTORNEY GENERAL JAHNA LINDEMUTH, Alaska Department of Law,
explained that the sex trafficking provisions in Senate Bill 91
did not originate from the Alaska Criminal Justice Commission.
They were ideas and concepts introduced at the legislative
level, and when Senate Bill 91 passed, the DOL noted that a
loophole that had been created in the language that was actually
in Senate Bill 91. She said that she recognizes that the
intent, as stated by Representative LeDoux, was to allow
cooperative arrangements between sex trafficker folks who were
working together, except the language went much farther and
created a loophole. She described that if sex trafficking was
happening at a place of prostitution with a pimp or a madam, the
DOL would not be able to prosecute that pimp or madam if they
were also practicing prostitution themselves. The way the
language worked out created a much broader scope of persons who
would not be prosecuted for sex trafficking, and the DOL did not
believe that was the intent or why that language was added. The
DOL worked with Quinlan Steiner, the Public Defender, for
language that would fix the issue the DOL identified and still
maintain the intent of cooperative relationships wherein one sex
worker looked out for another sex worker. That issue is still
not addressed by this, she offered, but Governor Bill Walker and
she feel strongly that sex trafficking, generally, is a bad
problem in Alaska, and the administration does not want to
create a loophole that does not allow the DOL to prosecute those
crimes. Obviously, she pointed out, there are people who are
victimized or vulnerable folks who were put into the sex
trafficking trade and the DOL wants this tool back. She
described it as an oversight and it was something that was not
intended by the legislature in creating this loophole. When
this issue was brought to the commission the commission voted to
recommend this fix to Senate Bill 91, which resulted in the
language contained in SB 54.
8:35:53 PM
REPRESENTATIVE LEDOUX asked Mr. Skidmore to identify any cases
the attorney general has been unable to prosecute due to the
"so-called loophole."
MR. SKIDMORE answered that when that change occurred, those
individuals in law enforcement that were investigating these
cases stopped investigating because they did not see a way the
DOL would be able to prosecute. Therefore, the DOL has not
received any referrals for cases at that level, but those cases
have been referred at a lower and higher level. The mid-level
cases have not been referred because law enforcement doesn't see
a way to present the DOL with an investigation and evidence to
show that someone had never offered themselves.
8:36:58 PM
REPRESENTATIVE LEDOUX referred to Senate Bill 91, Sec. 39, and
paraphrased as follows:
A person does not act with the intent to promote
prostitution under (a) of this section if the person
engages in prostitution in violation of "blankety
blank" in a location even if that location is shared
with another person. And (2) has not induced or
caused another person in that location to engage in
prostitution.
REPRESENTATIVE LEDOUX asked why law enforcement would have to
stop investigating as a result of section 39. She suggested
that possibly they stopped investigating those cases because
they do not have the resources to investigate. She said, "I --
I just don't get it. It's very clear that -- that if someone
has induced or caused another person in that location to engage
in prostitution that there is still a charge of sex
trafficking."
MR. SKIDMORE clarified that "if someone induces or causes, that
is still available," except he was describing a situation in
which, "without having induced or caused anyone," are simply
operating place of prostitution and they themselves offer
themselves up for prostitution, they cannot be charged with sex
trafficking. That was the concern, recognizing what the
amendments were attempting to do in Senate Bill 91, the DOL
worked with the public defender to craft language that still
provided the protections that were added in Senate Bill 91, but
that closed this loophole. Therefore, he remarked that it still
accomplishes the same goal that was originally set out, it just
closes the loophole in the process, and that is all that SB 54
does.
REPRESENTATIVE LEDOUX noted that Mr. Skidmore's explanation does
not really answer her question.
8:39:16 PM
REPRESENTATIVE REINBOLD inquired as to the intention that Mr.
Skidmore said was being protected.
MR. SKIDMORE responded that the intention was that when two sex
workers were working collaboratively and perhaps sharing an
apartment, that they would not be charged with sex trafficking
for having that apartment as a place of prostitution. As to
what sex trafficking was actually aimed at, he suggested
thinking of the elicit massage parlor and someone who runs a
massage parlor and allows individuals to engage in prostitution
at that massage parlor. That, he explained, is operating a
place of prostitution without inducing or causing someone to
engage in prostitution, which is the sort of thing that sex
trafficking in the third degree was designed to go after.
Except, he pointed out, the DOL was unable to do that because
the owner of the massage parlor was merely offering themselves.
He explained that they don't have to engage in prostitution and
"could just say, 'Hey, here's my ad on backpages.com or whatever
else it is,' so long as they have made an offer for themselves
to engage in prostitution, they cannot be charged with sex
trafficking because of the definition of the intent to promote
excluded that conduct." It read that that that conduct could
not qualify as intending to promote prostitution, which is what
created the issue.
8:40:55 PM
REPRESENTATIVE REINBOLD surmised that even though the intention
is of protecting two people engaging in prostitution, this law
won't do that and there are no protections for them, and it is
still illegal. She asked whether she was correct.
MR. SKIDMORE explained that prostitution remain illegal under
current law, and it would remain illegal under SB 54.
8:41:21 PM
REPRESENTATIVE REINBOLD noted that someone had mentioned that
"it's pretty bad up here," and she asked Attorney General
Lindemuth to explain how serious of an issue sex trafficking is
"up here."
ATTORNEY GENERAL LINDEMUTH advised that she does not personally
know the statistics, but she knows that it is a definite problem
and that Alaska has quite a few vulnerable individuals. She
offered that she had heard that women and young folks in the
villages are brought into Anchorage, or Alaska's hubs. Sex
trafficking is a rea issue and there are stories about children
or teen-agers at Covenant House being approached about sex
trafficking. It is something that is still an issue in Alaska,
the state still needs to have sex trafficking laws, but the
state does not need to create a loophole allowing sex
trafficking to happen in Alaska.
8:42:32 PM
REPRESENTATIVE REINBOLD noted that former House of
Representative Ben Nageak had passed a law creating a board.
She asked whether that was helping with this issue and it
oversees massage shops. She asked Mr. Skidmore whether he was
working collaboratively with the regulatory board on this issue.
MR. SKIDMORE answered that he does not specifically work with
the board, but he knows that the investigators who investigate
these types of crimes felt that a board was a good thing and he
imagined they are working collaboratively with that board.
8:43:39 PM
REPRESENTATIVE REINBOLD commented that there have been reports
around the city about "things happening" in the massage industry
and asked who created this loophole.
MR. SKIDMORE answered that the amendments to sex trafficking
were introduced in the House Judiciary Standing Committee.
8:44:23 PM
REPRESENTATIVE EASTMAN noted that the state has family-owned
businesses and employee-owned business, and after listening to
Mr. Skidmore, surmised that if a number of people decided to
form an employee-owned house of prostitution, as long as it was
jointly owned, and employee owned, no one would be legally
prosecuted for sex trafficking.
MR. SKIDMORE referred to sex trafficking in the third degree,
under SB 54, and paraphrased as follows:
A person commits the crime of sex trafficking in the
third degree if that person receives compensation for
prostitution services rendered by another,
MR. SKIDMORE explained that it cannot be that a person is merely
receiving compensation for the services rendered by them, it has
to be that someone else rendered the services and the other
person was being compensated for it. He continued paraphrasing
as follows:
With the intent to promote prostitution, a person is
managing, supervising, controlling, owning, either
alone or in association with others a place of
prostitution.
MR. SKIDMORE, in response to Representative Eastman's specific
question, answered that it depends on whether compensation was
received as the result of that prostitution as to whether or not
that person would have committed this crime.
8:46:36 PM
CHAIR CLAMAN advised that he was serving on the House Judiciary
Standing Committee at the time this particular amendment passed.
The current law that creates this exception was not about an
LLC, the purpose of this provision was that the House Judiciary
Standing Committee had heard from people in the sex worker
industry who related that there were instances for the need to
protect sex workers from their customers so there are times in
which two sex workers might get an apartment together and share
the expenses on that apartment. The concern being that in that
shared expense circumstance, they could both be charged with sex
trafficking each other because they were essentially sharing
expenses. Wherein, each worker is essentially getting money
from the other person when they are living together to protect
one another. The purpose of that provision was to provide those
protections when sex workers are essentially working
independently as sex workers but sharing expenses and sharing
rooms to provide mutual protection. The purpose of the proposed
amendment in SB 54 is to show that the sex workers reasonably
shared expenses, and if one person was paying 95 percent of the
expenses and the other was not, that would likely be sex
trafficking as they were not in a shared expense situation.
That is the focus of this change in SB 54 and the specific
instances it is targeting, and this is not a bigger business
enterprise circumstance. He noted that Attorney General
Lindemuth and Mr. Skidmore were nodding in agreement with his
statements.
8:49:07 PM
REPRESENTATIVE EASTMAN asked, from the prosecution's standpoint,
what is the legal difference between two roommates coming
together and using their joint apartment as a house of
prostitution, or six people coming together and buying a
property jointly and using that as a house of prostitution. He
said that he is trying to find the legal difference between why
that arrangement could be prosecuted, and that the two sex
workers coming together could not be prosecuted.
MR. SKIDMORE responded that that was one of the issue the DOL
and the Public Defender's Agency had to wrestle with, and it was
resolved by the definition of compensation. He referred to SB
54, page 2, lines 28-29, and advised that compensation is
defined to not include any payment for reasonably apportioned
shared expenses. He explained that that was designed to address
that very issue and wrestle through that [audio difficulties]
concept to continue providing protections, but at the same time
close the loophole so the prosecution could address sex
trafficking appropriately in Alaska.
8:50:33 PM
REPRESENTATIVE EASTMAN surmised that two people sharing the
earnings on the sex trafficking is when the compensation
triggers legal liability, but if earnings are not shared then
...
MR. SKIDMORE answered that he wanted to be certain they were
saying the same thing when discussing sharing earnings and
referred to the previous discussion about sharing expenses and
if everyone keeps their own earnings, there is no problem. The
problem becomes, he offered, when a person starts to pay someone
else to be able to use the place of prostitution, which is what
is targeted. He suggested thinking of it as the house's cut in
a poker game, wherein the house gets a cut of the bets that
night. When there is a place of prostitution, everyone who goes
there to engage in that sex work, gives a cut to the house.
That would be owning a place of prostitution, but if two people
simply have an apartment together, that is not, he advised.
8:51:51 PM
REPRESENTATIVE LEDOUX referred to the language in SB 54 and
offered that two people share an apartment together but one of
them pays quite a bit more for the apartment and allows the
other person to use the apartment. They are not necessarily
taking a cut of the earnings, and she "gets it" when a person is
taking a cut of the earnings for every trick. She offered the
scenario of the apartment belonging to one person who pays $800
per month for the apartment, but they let the other person have
the extra bedroom for $200 a month. Both people are sex workers
and those are not reasonably apportioned expenses, but at the
same time no one is taking a cut of the earnings. While she
understands the house cut in a poker game, what if two people
are not sharing expenses and one is letting another person use
the extra bedroom and not paying anything, she does not
understand how this provision does the trick here because it
read: "compensation does not include any payment for reasonably
apportioned shared expense."
MR. SKIDMORE advised that she needs to read subsection (a)(1) in
conjunction with the definition of compensation. He explained
that subsection (a)(1) talks about receiving compensation for
prostitution services rendered by another, meaning two people
are just splitting the rent, and not receiving compensation for
prostitution services.
8:54:45 PM
REPRESENTATIVE LEDOUX noted that Attorney General Lindemuth had
mentioned the problems with sex trafficking and girls being
brought in from the villages, and so forth. She described that
that is actually a situation wherein someone induced another
person into prostitution, which confused her. Both Secs. 39 and
40 discuss inducing or causing another person in that location
to engage in prostitution, and she asked whether the DOL was
saying that the current sex trafficking provision read "that,
you couldn't that somebody who is running a brothel had induced
or encouraged someone to commit prostitution." She said, "They
are bringing them in from the villages," but you couldn't show
"just because we have something to protect these gals that says
that if you share rooms together that you're not going to be
able to prove that there is inducing or causing another person
to engage in prostitution."
ATTORNEY GENERAL LINDEMUTH responded that the sex trafficking
element is inducing another to provide prostitution, but the
exception to that which says, "If a person is prostituting
themselves that is not part of sex trafficking." The language
the DOL is offering in SB 54 is meant to get to the intent of
what "you are" trying to do but not create an exception that
follows the rule.
8:57:11 PM
REPRESENTATIVE LEDOUX argued that the language of Secs. 39 or 40
does not carve out an exception, and she paraphrased as follows:
"a person does not institute aid or facilitate prostitution if
the person engages in prostitution in a location, even if that
location is shared with another person, and has not induced or
caused another person in that location to engage in
prostitution." There is no caveat, no exception there, she
pointed out and it specifically read that just because a person
is sharing a room does not mean that the person is inducing
prostitution. Except, if a person is inducing prostitution, the
person is still able to be prosecuted. This is the language.
that was vetted in the House Judiciary Standing Committee before
Senate Bill 91 went into effect, she advised.
ATTORNEY GENERAL LINDEMUTH answered that operating a place of
prostitution is different than inducing another person to commit
prostitution. There is still this exception that is following
the rule, a problem had been identified, and the DOL is offering
a fix to the problem in the form of SB 54. She reiterated that
this is language that was worked out with the Public Defender
Agency to be as narrowly written and to accomplish what the DOL
believes was intended in the language in Senate Bill 91, but it
does not create the problem that had been identified.
8:59:00 PM
REPRESENTATIVE LEDOUX asked how the prosecution deals with the
people who are sharing accommodations, but the expenses are not
reasonably apportioned.
ATTORNEY GENERAL LINDEMUTH advised that with the definition of
compensation, first someone has to actually receive compensation
for someone else's sex work. In the event they do, that person
could then say that that was their reasonable share of expense,
and that would take it back out. But, in the first instance, a
person has to actually receive compensation, so if compensation
is received and it is not for reasonably apportioned expenses,
then the person has violated the statute. She explained that
that is why the DOL is trying to offer a fix to accomplish what
Representative LeDoux is trying to accomplish.
8:59:57 PM
REPRESENTATIVE REINBOLD noted that Attorney General Lindemuth
had said that prostitution was rampant, or sex trafficking was
rampant in Alaska. She asked whether the DOL is prosecuting
this, prosecuting it successfully, and whether good laws are on
the books. She further asked whether Senate Bill 91 legalized
prostitution in any manner, and if so, does this amendment fix
that issue.
ATTORNEY GENERAL LINDEMUTH answered that, as Mr. Skidmore noted
earlier, prostitution was and still is illegal, and sex
trafficking is a higher offense than prostitution. The
department noted a problem with this particular sex trafficking
statute, as amended by Senate Bill 91. Therefore, she
reiterated, there has not been the type of prosecutions for this
level of sex trafficking that would be expected because it had
been a problem and those referrals were not been going to the
DOL from law enforcement. This is a fix the DOL believes will
allow those cases to go forward and be prosecuted, she noted.
9:01:25 PM
REPRESENTATIVE REINBOLD surmised that a couple of years ago in
the House Judiciary Standing Committee there was a loophole that
helped sex trafficking, and this is reversing that loophole.
CHAIR CLAMAN explained that when the members on the House
Judiciary Standing Committee approved those provisions
permitting sex trafficking. The committee had been trying to
provide reasonable protections to sex workers so that mere
prostitutes would not be charged with sex trafficking. After
Senate Bill 91 passed, the Department of Law (DOL), having had
no objection to the provision when it was discussed in
committee, determined that after further study, the DOL had
changed its opinion, came back to the legislature, and asked to
change this loophole. He said that he wanted to make clear that
as a member of the House Judiciary Standing Committee, the
suggestion that there was an intention to create a loophole is
not what happened.
9:02:27 PM
REPRESENTATIVE REINBOLD said that she was not impugning the
motives, she was simply asking whether a loophole was created
for sex trafficking and now it is being closed.
ATTORNEY GENERAL LINDEMUTH remarked that that is exactly what
the DOL is trying to do with this particular fix in SB 54, and
it was proposed by the DOL.
REPRESENTATIVE REINBOLD said "So it is closing the loophole?"
ATTORNEY GENERAL LINDEMUTH said, "Yes."
9:03:06 PM
REPRESENTATIVE EASTMAN opined that some members raised the issue
earlier this session about legalizing prostitution. He asked
the DOL to speak to the impact this amendment would have on the
prosecution of prostitution more generally.
CHAIR CLAMAN said that he is aware of the hour and is trying to
keep the committee moving forward. Amendment 20 is about sex
trafficking and he wants to focus on sex trafficking and not get
into prostitution, generally.
9:03:42 PM
REPRESENTATIVE EASTMAN said he is not prepared to vote until he
knows what the impacts will be on prostitution.
CHAIR CLAMAN advised that Representative Eastman could abstain
from voting, but he will not allow the question.
9:04:04 PM
REPRESENTATIVE KOPP asked Mr. Skidmore whether the passage of SB
54 will help survivors of sex trafficking.
MR. SKIDMORE responded, "Yes."
9:04:26 PM
REPRESENTATIVE REINBOLD declared a point of order. She said
that Chair Claman cannot deny one member what he allows for
another member, equality is absolutely the most important thing.
Another member was allowed to talk about prostitution and in all
fairness, another member should be allowed to be informed.
CHAIR CLAMAN ruled that it is appropriate for the chair to focus
the discussion and move the process forward, and the committee
will move forward.
REPRESENTATIVE FANSLER maintained his objection.
9:05:18 PM
REPRESENTATIVE KOPP noted that the committee had heard from Mr.
Skidmore, director of the state's criminal division, that
prosecutors and law enforcement are asking that this loophole be
closed, and he confirmed that it will help survivors of sex
trafficking, which is known to be a real issue in Alaska. He
stated that many non-profits and faith-based ministries who are
trying to get people out of sex trafficking identified this as a
real issue. He expressed that he is pleased to see the state
bring this forward and argue for it, and he supports SB 54 as
written.
9:06:05 PM
REPRESENTATIVE LEDOUX commented that she does not believe
Amendment 20 is needed and withdrew the amendment.
9:06:35 PM
REPRESENTATIVE LEDOUX moved Amendment 4, Version 30-LS0461\N.50,
Glover/Martin, 10/23/17, which read as follows:
Page 11, following line 3:
Insert a new bill section to read:
"* Sec. 17. AS 33.05.020(h) is amended to read:
(h) The commissioner shall establish by
regulation a program allowing probationers to earn
credits for complying with the conditions of
probation. The credits earned reduce the period of
probation. Nothing in this subsection prohibits the
department from recommending to the court the early
discharge of the probationer as provided in AS 33.30.
At a minimum, the regulations must
(1) require that a probationer earn a
credit of 10 [30] days for each 30-day period served
in which the defendant complied with the conditions of
probation;
(2) include policies and procedures for
(A) calculating and tracking credits earned
by probationers;
(B) reducing the probationer's period of
probation based on credits earned by the probationer;
and
(C) notifying a victim under AS 33.30.013."
Renumber the following bill sections accordingly.
Page 11, following line 21:
Insert a new bill section to read:
"* Sec. 20. AS 33.16.270 is amended to read:
Sec. 33.16.270. Earned compliance credits. The
commissioner shall establish by regulation a program
allowing parolees to earn credits for complying with
the conditions of parole. The earned compliance
credits reduce the period of parole. Nothing in this
section prohibits the department from recommending to
the board the early discharge of the parolee as
provided in this chapter. At a minimum, the
regulations must
(1) require that a parolee earn a credit of
10 [30] days for each 30-day period served in which
the parolee complied with the conditions of parole;
(2) include policies and procedures for
(A) calculating and tracking credits earned
by parolees;
(B) reducing the parolee's period of parole
based on credits earned by the parolee and notifying a
victim under AS 33.30.013."
Renumber the following bill sections accordingly.
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, following line 29:
Insert new subsections to read:
"(d) AS 33.05.020(h), as amended by sec. 17 of
this Act, applies to sentences imposed on or after the
effective date of sec. 17 of this Act for conduct
occurring on or after the effective date of sec. 17 of
this Act and to time served on probation on or after
the effective date of sec. 17 of this Act.
(e) AS 33.16.270, as amended by sec. 20 of this
Act, applies to parole granted on or after the
effective date of sec. 20 of this Act for conduct
occurring on or after the effective date of sec. 20 of
this Act."
Page 15, line 30:
Delete "Section 17"
Insert "Section 18"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 26"
REPRESENTATIVE FANSLER
9:06:44 PM
REPRESENTATIVE LEDOUX explained that Amendment 4 reduces the
ratio of earned credits from 30 days to 10 days for each 30-day
period in which the parolee or probationer complied with the
conditions of parole or probation.
9:07:35 PM
REPRESENTATIVE FANSLER asked Ms. DiPietro to explain the
relevance of the "so-called 30 to 30 provision" in the eyes of
the Alaska Criminal Justice Commission, and the distinction of
the "10 for 30" provision.
MS. DiPIETRO explained that the reasoning behind the earned
compliance credits is to encourage people on probation [to
change their behavior]. These are the people who have been
convicted, served their time, and are out on release with a
felony probation officer supervising their actions. It is known
from the research that sanctions can be effective, and credits
are even more effective for many people changing their behavior,
with the goal to be on the right path rather than the wrong path
they had been traveling. The credits are an incentive for
people to complete all of the things required by their probation
officer, including: paying restitution, going to meetings,
taking urinalysis tests, and looking for a job or working at a
job. She said that both 10 days of credit or 30 days of credit
are good because they both are evidence-based formulas. The
reason the commission recommended the current, more aggressive
approach of "30 for 30" is that people are most likely to
violate their conditions of probation in the first weeks and
months of supervision, and a large percentage of people violate
their conditions of probation within three months. In the event
a person is successful for a sustained period of approximately
one-year, the public safety value of continuing to supervise
these people is greatly diminished. Probation and parole
officers have high caseloads, and this earned compliance credit
policy was crafted as a way to thoughtfully reduce their
caseloads by focusing more of their time on "those who are
messing up" on supervision, and more quickly graduating off of
supervision those individuals who have been successful. Studies
of policies, such as Alaska's "30 for 30 earned compliance
credits" have shown that it can dramatically reduce caseloads
without impacting public safety.
9:10:41 PM
REPRESENTATIVE KREISS-TOMKINS asked Commissioner Williams what
the fiscal impact of Amendment 4 would be to the Department of
Corrections (DOC).
9:11:01 PM
COMMISSIONER WILLIAMS responded that it certainly would have an
impact, and that Ms. DiPietro had offered a good explanation as
to why this provision is in current law. He said, "We have a
lot of sticks in this system" and this provides a needed carrot
for people who are doing well [on parole or probation]. In the
event someone does well on probation and accomplishes everything
expects of them, there should a be a clear plan as to how that
person receives credit. This credit, he explained, helps reduce
probation counts in a safe and effective manner, and while he
realizes it still maintains 10 days for 30 days, he is very much
in favor of the original construct of the bill and supports
keeping the provision as written in current law.
9:12:09 PM
REPRESENTATIVE KREISS-TOMKINS asked what the cost would be of
Amendment 4 to the Department of Correction, at least in an
order of magnitude, if it passed.
COMMISSIONER WILLIAMS noted that he has a hard time answering
that question because the department's overall budget and
position were estimated on a whole picture, and he would have to
breakdown what the department expected to receive in terms of
reduced caseloads, and what was attributed to this piece. There
certainly would be an impact to the department, but he was
unsure of the scope at this time.
9:13:25 PM
REPRESENTATIVE EASTMAN commented that if parole officers and
probation officers have caseload that are too high, the proper
fix is to give them the resources they need to do the job. The
proper fix is not to get the people off probation more quickly,
although it does "kind of" fix the problem but not in a manner
that focuses on the most important issues. In the event this
amendment does not pass, the committee is making it that much
harder for the public to follow an already confusing process as
good time and credits. He suggested making it easier on the
public to follow what a sentence actually means because
currently a person must almost be an attorney to figure out how
many days in jail the person will serve. He offered that
Amendment 4 is reasonable.
9:16:06 PM
REPRESENTATIVE REINBOLD surmised that previously it was "30 for
30" and now it is "30 for 10."
CHAIR CLAMAN clarified that current law offered an incentive for
those people on probation who are doing well, in that for every
30 days that person does well, they receive 30 days credit
against the amount of time they have to stay on probation.
REPRESENTATIVE REINBOLD interjected that it is a 50 percent
reduction.
CHAIR CLAMAN said that it would be 50 percent reduction only if
the person continued doing well, and if they do not do well they
do not earn credits. The person could earn a 50 percent
reduction, but they do not receive it right away as it is in a
series of 30-day increments. Under Amendment 4, the person
would only earn 10 days for every 30 days they performed well.
REPRESENTATIVE REINBOLD noted that she was voting in favor of
Amendment 4.
9:17:26 PM
REPRESENTATIVE FANSLER commented that the state needs more
probation officers, public safety officers, prosecutors, public
defenders, with a robust court system, which requires revenue.
He said he does not support Amendment 4 because this is one of
cruxes of the entire Senate Bill 91, it is an imperative part of
the legislation. The intention is to try to put that carrot out
there and the legislature is attempting to transition into the
state's criminal justice system, rather than saying "it's a
stick, stick, stick."
9:18:35 PM
REPRESENTATIVE LEDOUX argued that every time an amendment is
offered, it is said that the amendment will destroy the crux of
Senate Bill 91. Amendment 4 eliminates the amount of credit a
person would receive, it simply substitutes "10 for 30" days,
she offered.
REPRESENTATIVE FANSLER maintained his objection.
9:19:12 PM
A roll call vote was taken. Representatives Eastman, Reinbold,
and LeDoux voted in favor of the adoption of Amendment 4.
Representatives Fansler, Kopp, Kreiss-Tomkins, and Claman voted
against it. Therefore, Amendment 4 failed to be adopted by a
vote of 3-4.
9:20:08 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 7, Version 30-
LS0461\N.40, which read as follows:
Page 2, following line 29:
Insert a new bill section to read:
"* Sec. 6. AS 12.30.011, as repealed and reenacted
by sec. 59, Ch. 36, SLA 2016, is amended by adding a
new subsection to read:
(l) Notwithstanding (c) of this section, a
pretrial services officer may not assess a person as
low risk if the person has been charged with a class C
felony under
(1) AS 11.46.310 or 11.46.360;
(2) AS 11.51.100(d)(2) or (f) or 11.51.200;
(3) AS 11.56.320, 11.56.335, 11.56.540,
11.56.590, 11.56.610, 11.56.770, or 11.56.835; or
(4) AS 11.61.123(f)(1), 11.61.140(h),
11.61.200, 11.61.240(b)(3), or 11.61.250."
Renumber the following bill sections accordingly.
Page 11, following line 12:
Insert a new bill section to read:
"* Sec. 19. AS 33.07.030, enacted by sec. 117, Ch.
36, SLA 2016, is amended by adding a new subsection to
read:
(h) Notwithstanding (c)(2) of this section, a
pretrial services officer may not assess a person as
low risk if the person has been charged with a class C
felony under
(1) AS 11.46.310, 11.46.360;
(2) AS 11.51.100(d)(2) or (f) or 11.51.200,
(3) AS 11.56.320, 11.56.335, 11.56.540,
11.56.590, 11.56.610, 11.56.770, or 11.56.835; or
(4) AS 11.61.123(f)(1), 11.61.140(h),
11.61.200, 11.61.240(b)(3), or 11.61.250."
Renumber the following bill sections accordingly.
Page 15, line 17:
Delete "and"
Page 15, following line 17:
Insert a new paragraph to read:
"(6) AS 12.30.011(l), enacted by sec. 6 of
this Act; and"
Renumber the following paragraph accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 8"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 9"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 10"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 11"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 12"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 13"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 20"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 20"
Page 15, line 30:
Delete all material and insert:
"* Sec. 26. Sections 6, 18, and 19 of this Act
take effect January 1, 2018."
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 26"
REPRESENTATIVE FANSLER objected.
9:20:16 PM
CHAIR CLAMAN noted that Amendment 7 deals with pretrial release
and it is similar to discussions on Amendments 35 and 43, and
especially Amendment 48 which dealt with changes the manner in
which to deal with bail. He asked Representative LeDoux to
explain how Amendment 7 differs specifically from Amendment 48
because that will help the committee to focus its discussion on
Amendment 7.
9:21:04 PM
The committee took an at-ease from 9:21 p.m. to 9:28 p.m.
9:28:37 PM
REPRESENTATIVE LEDOUX advised that her staffer, Greg Smith,
would answer Chair Claman's question and explain the amendment.
9:29:17 PM
GREG SMITH, Staff, Representative Gabrielle LeDoux, Alaska State
Legislature, explained that Amendment 7 seeks to prohibit
pretrial services officers from assessing a person as low-risk
if that person had been charged with certain class C felonies.
The amendment does impact the grid the committee had reviewed
earlier this evening, but it is considerably different than
Amendment 48 because that amendment dealt more with the length
of time the prosecutors had to demonstrate probable cause. He
explained that currently, for class C felonies that are not
crimes against a person, DUIs, DUI refusal, sex offenses, or
crimes involving domestic violence, if someone is charged with a
class C felony that are not those he just listed, and they are
also assessed as low-risk, to then review the grid.
CHAIR CLAMAN asked whether the crimes listed are all offenses
against a person.
MR. SMITH answered that they are not all offenses against a
person because when the person charged with those crimes has
been assessed as low-risk, that triggers that more discretion
given to the judge as to whether they can impose bail. Whereas,
the crimes listed in the amendment, and there are other crimes
of other class C felonies that are not listed in the amendment,
is when someone is charged with those crimes and are assessed
low-risk, and when this pretrial services program goes into
place on January 1, 2018, the [audio difficulties] mandatory own
recognizance (OR), and essentially released without bail.
Amendment 7, by listing these crimes, would then push them into
a different space on the grid where it is now presumptive OR;
therefore, more discretion is given to the judge whether to
impose bail, he said.
9:31:46 PM
CHAIR CLAMAN surmised that the difference between Amendment 7
and Amendment 48 is that Amendment 7 has a larger number of
offenses that could not be assessed as low-risk and is a large
number than was in Amendment 48. He asked whether there are any
other substantial differences other than the additional charges
that would not be able to be assessed as low-risk. [Audio
difficulties] other sentences are essentially the same concept,
just more offenses, he asked.
MR. SMITH opined that in Amendment 7 there are actually less
offenses, but his understanding of Amendment 48 was that it was
dealing more with the amount of time a prosecuting attorney had
to demonstrate probable cause.
CHAIR CLAMAN commented that it appears there are enough
differences in the amendment that the committee could move
forward, but he will exercise his discretion to limit questions
because most of the issues were previously addressed.
9:33:19 PM
MR. SMITH said that the healthy debate that took place on
Amendment 48, will assist in the understanding of what Amendment
7 is trying to accomplish. By prohibiting these pretrial
services officers from assessing a person as low-risk, it is
essentially requiring that persons charged with these class C
felonies are assessed at moderate-risk or high-risk, and then to
review the grid. The goal is to require more discretion by the
judge for people that have committed the crimes listed in
Amendment 7.
9:34:12 PM
REPRESENTATIVE LEDOUX asked Mr. Smith to articulate some of the
crimes, for example: escape in the third degree. She asked why
anyone would ever conceivably want to assess someone as low-risk
as to whether they will appear at trial if they have already
engaged in escaping in the third degree.
CHAIR CLAMAN asked Mr. Smith to tell the committee what AS
11.46.310, 11.46.360 deals with and to go through the list.
MR. SMITH offered to read the crimes, rather than the statute
numbers, as follows: beginning at subsection (l)(1) is burglary
in the second degree, vehicle theft, endangering the welfare of
a child in the first degree, endangering the welfare of a
vulnerable adult in the first degree, escape in the third
degree, unlawful evasion in the first degree, tampering with a
witness, jury tampering, evidence tampering, hindering
prosecution, failing to register as a sex offender or child
kidnapper in the first degree, indecent viewing of photography,
cruelty to animals, misconduct involving weapons in the third
degree, criminal possession of explosives, and unlawful
furnishing of explosives.
9:36:30 PM
REPRESENTATIVE LEDOUX asked Ms. Meade whether there is anything
about the amendment that would make the risk assessment tool
unworkable.
MS. MEADE responded that she believes it would because Amendment
7, as written, would be fairly impossible to implement. She
explained that the tool is an objective tool wherein people
receive points and they end up with a score. Sometime people,
who are charged with [these crimes] will end up with a score
that puts them in the low-risk category. Therefore, to say that
these people may not receive that score does not seem sensible
because some people will receive that score. She opined that
she understands that the goal would be to prevent certain
release decisions for those people with those charges who
receive the low score, and she thought that in order to
accomplish that goal to instead change the release decision-
making portion. She said that this is like saying in a
multiple-choice test that the person may not get below 50
percent, and they actually do get below 50 percent. She noted
that she could not imagine how that would be implemented as
written.
9:38:52 PM
REPRESENTATIVE FANSLER surmised that if Amendment 7 was passed
out of committee, that Ms. Meade was not entirely sure how it
would be implemented.
MS. MEADE answered that Representative Fansler was correct.
REPRESENTATIVE FANSLER further surmised that it would somewhat
destroy the pretrial risk assessment tool.
MS. MEADE offered that she was unsure whether it would destroy
the tool because Amendment 7 read that a person could not
receive a certain score with the tool, except a person could
receive a certain score with the tool. The goal of having
certain crimes receive different treatment could be accomplished
in some other manner, but to say that "you just can't be
assessed as low-risk" does not seem reasonable, she remarked.
9:40:00 PM
REPRESENTATIVE REINBOLD referred to this "bail tool" and asked
whether it was possible that a sex offense in any manner could
be considered low-risk.
MR. SKIDMORE answered that anyone could be assessed low-risk.
The question to ask is where the person falls on the grid to
determine the discretions allowed to the court.
9:41:55 PM
REPRESENTATIVE REINBOLD asked whether Mr. Skidmore had heard
about a bell curve, or any target as to how many people would
potentially be released. She asked "whether they" want to
release 90 percent, or only certain individuals that possibly
committed a murder, and what he has heard about this grid and
the percentage being targeted to release.
MR. SKIDMORE answered that he has been in meetings where the
discussion has been, how many people would fall into which
category, but he could not recall percentages.
9:42:51 PM
REPRESENTATIVE REINBOLD opined that "we had" a conversation with
someone who knows about the tool and the target was 90 percent,
roughly, a "goofy bell curve." She reiterated her question as
to whether he knows anything about a bell curve or any type of
target in which to release a certain number of inmates.
MR. SKIDMORE advised that he is not aware of any targets, and
low, medium, and high-risk was determined based upon the scores.
He said that he had heard percentages of who fell into which
categories, but he could not recall any percentages off the top
of his head. He advised that he knows "they have described"
things in percentages for each block, but he could not remember
what it would look like.
REPRESENTATIVE REINBOLD stated that is inclined to have people,
when testifying, swear to tell the truth and nothing but the
truth before the committee.
9:44:32 PM
REPRESENTATIVE EASTMAN advised Ms. Meade that he is troubled by
her previous testimony wherein she had said that by interjecting
Amendment 7 into the process, the tool would potentially become
unworkable. If that is the case, he offered, that he is
inclined to think the problem is with the tool and not with the
amendment. He asked why it would not be possible to simply
assign a higher deal of points to certain crimes, such as
escape.
MS. MEADE responded that she understands what Representative
Eastman is asking, and the confusion is that the risk assessment
tool is unrelated to a person's current charge. It does not
matter if a person comes in with a charge of murder or a charge
of theft, the tool assesses the person on things in the person's
criminal history, and things that happened in the past to
determine a score for that person. The score is then placed
into the statute, and the grid being discussed is merely a
visual summary of the bail statute passed in Senate Bill 91.
She explained that a pretrial services officer determines the
score, which is unrelated to the current charge, transmits it to
the court, the court then takes that score and applies the bail
statute - that blue chart, the court takes the risk score and
looks at the charge, goes down the chart to determine what the
statutes say about the release decision, in some cases it must
be or it may be. She reiterated that you can say, as this
amendment does, say that "you can't be assessed as low" because
a person can be assessed as low. In order to accomplish the
goal of the amendment, which is that "these folks ought not be
released very easily" the fix could be made in the bail statute.
Whereby, people charged with endangering the welfare of a child,
type of class C felony, who are assessed at low risk based on
their history, have a different release decision. For example,
they cannot be released OR, or they have the presumptive OR
release, because currently all class C felons have a mandatory
OR if they are low-risk.
9:48:21 PM
REPRESENTATIVE EASTMAN asked whether it is correct to say that
the legislature created this quagmire wherein someone charged
with escape is automatically put into this mandatory OR, no
bail, and are back on the street due to Senate Bill 91. He
asked whether Senate Bill 91 caused this situation.
MS. MEADE remarked that there is no quagmire because a person
who had previously escaped necessarily has a criminal history,
and she opined that it could be difficult to end up with a low-
risk score because the score takes into account things that had
happened in the person's past. According to Senate Bill 91, if
someone is a class C felon, and they do not fall under the
exclusions of: crimes against a person, sex crimes, domestic
violence, DUIs, [audio difficulties] failure to appear, then if
they are a low-risk class C felon, there is a mandatory OR
release.
9:49:40 PM
REPRESENTATIVE EASTMAN asked why the tool was designed in such a
manner that the decision of high-risk or low-risk has nothing to
do with the charge.
MS. MEADE responded that many intelligent people developed that
tool, such as social science doctors. She stated that the
constitution and the current bail statute assumes that people
can be released OR, except for two reasons: something more is
needed to ensure the person's appearance in court, which is the
failure to appear risk score. Unless something more is needed
to ensure the safety of community, victims, and other people,
which is the risk of committing a new criminal arrest. Those
are the two things that people may be held in pretrial for. She
described that as a general explanation, but once the court has
that score based upon their criminal history of the chances one
of those two things may occur, then the judge can look at the
nature of the charge, the effect on the victim when they are
setting conditions of release and deciding how much evidence
there may be for some money bail if it is a presumptive OR
situation.
9:52:20 PM
REPRESENTATIVE EASTMAN opined that "we've gotten lost" in social
science by putting the legislature's eggs in that basket.
Social science can be helpful and useful to a point because it
is one thing to have an expert offer an idea and make it your
own and persuade each other of its value. Except, he commented
that is not what has taken place in this committee because he
has heard "deference to, I don't personally understand, but the
expert said, and I trust them, or the expert has these
credentials so, you know, we should do their proposal, their
recommendation." He opined that the job of legislator is to
hear from experts, members of the public, or whoever has wisdom
and experience, and to ask questions and articulate the
information to constituents. In the event legislators must rely
on someone with credentials or degrees, he opined, "legislators
are not doing their job." He said that he sees the common sense
in Amendment 7, yet someone else is pairing it up against some
expert's credentials, but he must go on the side that makes
sense to him every time no matter the degrees of the experts.
He said that he must be able to articulate this information to
the people he serves, and if he cannot do that, something is
wrong with the process.
9:55:28 PM
REPRESENTATIVE REINBOLD said that she has heard there is "a tool
out there" and she has no idea what it is, but the tool says
that sex offenders can be low-risk because this tool disregards
charges. She said that people are saying that class C felonies,
such as vehicle theft or stealing a firearm, are mandatory OR,
and the committee was advised as to "some doctor, she sounds
like a quack to me," social science and social engineering, "I
don't know," and she has never heard anything so outrageous that
says, "the constitution says that we should all be released on
our own recognizance if there is a risk of failure to appear or
to ensure safety of victims." That is not how she interprets
the constitution, and she said she believes the committee is
being sold a snake-oil tool and that it will increase risk, it
needs to be fully vetted. She claimed that certain witnesses
"didn't tell the truth and nothing but the truth," and she was
amazed at the number of times the witnesses had advised that
they did not know the answer to a question, and the only
research was from the Pew Foundation. Amendment 7 is important,
valid, and critical and she supports the amendment.
9:57:33 PM
REPRESENTATIVE KOPP advised that he will not support Amendment
7, "it is a very poor amendment." He explained that "we as a
state" have long recognized its need for experts and looking at
comparative fiscal systems for oil and gas. The state does not
have the capacity to pay for more advice even though it would
like to pay as much as possible for more advice. People who are
much smarter than the legislators advise the legislature as to
how to build a fiscal system that will best provide the state
with a long-term future that maximizes its ability to not only
fund that natural resource, but to provide a vibrant and healthy
economy for decades to come. The state does not look inwardly
just to itself with management of fisheries, or on a number of
issues. Similarly, with criminal justice reform, the state
looks at the best examples "we can find out there" to help make
the best risk assessments possible. He stated that he could not
imagine the state's corrections, probation, and parole
personnel, of which has been stated by several people in the
system that these people are as "risk averse a people as we can
get," would pursue a decision that would harm any Alaskan
intentionally, or otherwise. He offered that just as the
legislature extends a little faith and credit in other areas of
state government, it important to receive the best advice
possible from the best experts when looking at this pretrial
services unit. Plus, he said, the fact that the state will now
have a uniform standard that will prevent wildly disparate
release decisions, and bail decisions based on a person with
similar circumstances. In this case, the state will have a tool
that will bring those things in line and the state will be
better off. In the event the state is not better off, many
people will have egg on their faces and they will be back before
the legislature to change the plan. He said he would be a no-
vote on Amendment 7.
10:00:34 PM
REPRESENTATIVE LEDOUX commented that there is not something
wrong with Amendment 7, there is something wrong with the tool
when the tool cannot exclude folks from being assessed as low
risk when charged with escape in the third degree, burglary in
the second degree, or stealing cars, for instance.
REPRESENTATIVE FANSLER maintained his objection.
10:01:50 PM
A roll call vote was taken. Representatives LeDoux, Eastman,
and LeDoux voted in favor of the adoption of Amendment 7.
Representatives Fansler, Kopp, Kreiss-Tomkins, and Claman voted
against it. Therefore, Amendment 7 failed to be adopted by a
vote of 3-4.
10:02:18 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 8, Version 30-
LS0461\N.39, Martin, 10/23/17, which read as follows:
Page 2, following line 29:
Insert a new bill section to read:
"* Sec. 6. AS 12.30.006(b), as amended by sec. 55,
Ch. 36, SLA 2016, is amended to read:
(b) At the first appearance before a judicial
officer, a person [WHO IS CHARGED WITH A FELONY, OTHER
THAN A CLASS C FELONY AND THE PERSON HAS BEEN ASSESSED
AS LOW RISK UNDER AS 12.30.011(c)(1),] may be detained
up to 48 hours for the prosecuting authority to
demonstrate that release of the person under
AS 12.30.011 would not reasonably ensure the
appearance of the person or will pose a danger to the
victim, other persons, or the community, if the person
has been charged with the following crimes:
(1) an unclassified, class A, or class B
felony;
(2) a class C felony under AS 11.41.220,
11.41.260, 11.41.425, AS 11.46.310, 11.46.360,
AS 11.51.100(d)(2) or (f), 11.51.200, AS 11.56.320,
11.56.335, 11.56.540, 11.56.590, 11.56.610, 11.56.770,
11.56.835, AS 11.61.123(f)(1), 11.61.127,
11.61.128(d), 11.61.140(h), 11.61.200,
11.61.240(b)(3), or 11.61.250; or
(3) a class C felony, other than a class C
felony listed in (2) of this subsection, and the
person has been assessed as moderate to high risk
under AS 12.30.011(c)(2)."
Renumber the following bill sections accordingly.
Page 15, line 17:
Delete "and"
Page 15, following line 17:
Insert a new paragraph to read:
"(6) AS 12.30.006(b), as amended by sec. 6
of this Act; and"
Renumber the following paragraph accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 8"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 9"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 10"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 11"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 12"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 13"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 30:
Delete all material and insert:
"* Sec. 25. Sections 6 and 18 of this Act take
effect January 1, 2018."
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
CHAIR CLAMAN advised that Amendment 8 has many of the
similarities of Amendment 7 and Amendment 48, and he will limit
questions to one question and two follow-up questions per
legislator.
10:02:44 PM
REPRESENTATIVE LEDOUX noted that Amendment 8 is similar to
Amendment 48, and asked Mr. Smith to explain the differences
between the two amendments.
MR. SMITH explained that Amendment 8 allows prosecutors up to
48-hours to provide additional information to the court in order
to properly assess probable cause and bail for the class C
felonies listed in the amendment. The differences between
Amendment 8 and Amendment 48 are that Amendment 48 applied to
all felonies, and Amendment 8 applies to unclassified felonies,
class A felonies and class B felonies and includes the list of
class C felonies in Amendment 8, subsection (b)(2), page 1,
lines 12-19. He offered that it is the same list of crimes he
described during the discussion of Amendment 7, with the
addition of: assault in the third degree; stalking in the first
degree; and sexual assault in the third degree. Amendment 8
relates to the amount of time prosecution would have to assess
probable cause and bail, and it does not have the same exclusion
of crimes against a person, and so forth.
CHAIR CLAMAN referred to page 1, beginning line 12 of the
assault charges, and asked whether AS 11.41.220, .260, and .445
are all offenses against the person [audio difficulties] under
the way the statute has been described in prior testimony, and
they would already be excluded by, what had been heard in prior
testimony.
MR. SMITH responded that the exclusion discussed in prior
testimony is related to the crimes that someone had been charged
with, and those exclusions go into the grid. He said that
Amendment 8 is solely relating to the amount of time the
prosecutors have to provide the information to the courts.
10:05:48 PM
REPRESENTATIVE KOPP noted that Amendment 8 deals with the first
appearance of a defendant and its purpose is to give prosecutors
more time to assess the public safety concerns of a person to a
victim and the community if charged with certain crimes. He
asked Mr. Skidmore to offer his thoughts about this amendment
and whether it addresses an issue or is a tool the prosecution
needs, and how he would see this working in practice.
MR. SKIDMORE answered that prior to criminal justice reform
efforts, a statute authorized the prosecution to delay an
arraignment up to 48 hours when it needed additional to develop
a probable cause statement. That statute changed during the
criminal justice reform efforts, AS 12.25.150, which read that
the prosecution is required to bring someone to arraignment
within 24 hours absent compelling circumstances, which was not
defined in that particular statute. Amendment 8 talks about the
first appearance, it still has language regarding 48-hours, and
it does not alter the compelling circumstances. The amendment
further describes the types of crimes "they seem to think would
matter." It is not an exact definition of compelling
circumstances, but it seems to suggest that these are the types
of crimes the statutes would then provide guidance, to which the
48-hours could be applied. He described it as an unclassified
felony, class A felony, and class B felony, and it lists
specifically these class C felonies. He opined that the crimes
are similar to the list of class C felonies discussed in a
previous amendment this evening, and it is those same sorts of
concepts. He referred to subsection (b)(3), lines 17-19, the
class C felony listed in subsection (b)(2), and the person has
been assessed as a moderate or high-risk, so that it is also
describing other class C felonies not on that list, just at the
higher level. In response to whether it is a tool that the
prosecution needs, answered that yes, that would be a tool for
prosecutor, and that he could not answer how frequently the tool
was being used previously but that it was not used extensively.
10:09:08 PM
REPRESENTATIVE KOPP surmised that previously, the prosecution
was using an undefined compelling circumstance standard, and
"this more defines it?"
MR. SKIDMORE answered, "No." The addition of requiring the
compelling circumstances is language that was added within the
criminal justice reform efforts, and it was not defined at that
time. Amendment 8 appears to provide further guidance as to
what might qualify for compelling circumstances by listing the
crimes, despite the fact that it doesn't define that term,
because when reading the two statutes together that would be a
more reasonable interpretation of what is meant.
10:09:54 PM
REPRESENTATIVE KOPP asked whether the Department of Law (DOL)
has taken a position on Amendment 8.
MR. SKIDMORE responded, "No."
CHAIR CLAMAN asked for clarification as to whether the DOL has a
position on Amendment 8.
MR. SKIDMORE explained that this is not something the DOL
requested and it is not something he does not want; therefore,
he does not have a position on it one way or the other.
CHAIR CLAMAN asked whether the DOL supports SB 54 in its
existing state.
MR. SKIDMORE answered that the DOL does support SB 54 in its
existing state.
CHAIR CLAMAN asked whether Amendment 8 would change SB 54.
MR. SKIDMORE answered in the affirmative.
10:10:23 PM
CHAIR CLAMAN asked how the DOL could support SB 54 and also be
neutral on Amendment 8.
MR. SKIDMORE explained that the department supports SB 54 as it
exists. The department is not seeking this tool, but he could
not say that it is not a tool. Therefore, he is not taking a
position as he is not asking for it because the department
supports SB 54.
10:11:27 PM
REPRESENTATIVE REINBOLD asked whether there had been any
instructions in any manner to pass SB 54 with no amendments.
MR. SKIDMORE responded that the position of the Department of
Law (DOL) is that SB 54 is an important tool. The tools found
in SB 54 as it existed, are the tools the department was
seeking, and the department would like to see the bill move as
quickly as possible. He noted that SB 54 had previously passed
through the Senate and that the bill passing through this body
without changes is the cleanest way to see that it is enacted
quickly. Be that as it may, he said, the DOL respects this
committee and this body in its ability to make its own policy
calls and pass the amendments it deems appropriate.
10:12:26 PM
REPRESENTATIVE REINBOLD pointed out that she had asked whether
there had been any discussions with Governor Bill Walker, or
anyone, wherein the DOL wants this and that is what Mr. Skidmore
is here for, to keep SB 54 clean without any amendments.
MR. SKIDMORE answered that he has tried to make clear his
position throughout his testimonies in front of this committee.
He advised that he represents the Department of Law (DOL) and
the administration, and the positions he states in this
committee are not his personal positions in that they are the
positions of the Department of Law (DOL), as the department has
evaluated all of this information. He noted that, of course he
has talked with people in the DOL and members of the
administration, but he has not been told what he was and was not
allowed to say.
10:13:47 PM
CHAIR CLAMAN commented that as to SB 54, he personally had a
conversation with Governor Walker before the legislature
reconvened its fourth special session, in which Governor Walker
advised him that he would like to see SB 54 pass in the same
version that it left the Senate. Governor Walker is the chief
executive and Chair Claman figured that that was the position of
his team, he said.
REPRESENTATIVE REINBOLD commented that "this has kind a been a
mockery of questions," because Mr. Skidmore has not answered
most of the questions, he was forgetting things, and not
remembering conversations, and he doesn't have the statistics,
"bla, bla, bla, bla." She offered disappointment because she
was asking simple questions. She asked whether there had been
discussions between Mr. Skidmore and Governor Walker, and
whether there had been any discussion directing him in any
manner, "because someone in room told me there was." She
described it is a complete disservice to inter-twine the
executive branch. The legislature writes laws, and in this case
and in this building with the governor so close, "I feel like
this is more the legislative branch has almost been overtaken by
the executive branch." She said that it appears to be
unconstitutional as to how much the executive branch and
judicial branch are inter-twined.
10:15:49 PM
REPRESENTATIVE LEDOUX asked Mr. Skidmore whether there is any
reason that he, as a prosecutor, would not want this additional
tool.
MR. SKIDMORE related that he could not say there is a reason
that he wants the tool or a reason he does not want the tool.
He related that it would be a tool that could be utilized in
certain circumstances, but that it has not been utilized often.
He added that it is not something the DOL is seeking because he
does not see a problem that would be solved by Amendment 8.
10:16:46 PM
REPRESENTATIVE EASTMAN commented that he finds it difficult to
participate in this "mockery of the legislative process" because
he is paid by his constituents and they do not appreciate this
charade. He opined that it is fairly clear to his constituents
that the members know how the chair of this committee would
likely vote and having already decided that the amendment is not
important, has created a system in which the chair had decided
for him that it is not important for him either. He said that
he does not understand why the legislature is in session if the
decision had already been made that the legislators could not
improve on a bill that was written in March.
10:20:06 PM
REPRESENTATIVE LEDOUX noted that it "speaks a lot" when Mr.
Skidmore advised the committee that he supports SB 54 as
currently written, but he would not take a position on Amendment
8.
REPRESENTATIVE FANSLER maintained his objection.
10:20:34 PM
A roll call vote was taken. Representatives LeDoux, Eastman,
Reinbold, and Kopp voted in favor of the adoption of Amendment
8. Representatives Kreiss-Tomkins, Fansler, and Claman voted
against it. Therefore, Amendment 8 was adopted by a vote of 4-
3.
10:21:12 PM
The committee took an at-ease from 10:21 p.m. to 10:25 p.m.
10:25:56 PM
CHAIR CLAMAN advised that by a vote of 4-3, Amendment 8 was
adopted.
REPRESENTATIVE LEDOUX advised the committee that she was
withdrawing Amendments 10-21 because those amendments would
clearly be voted down, or they are part of SB 54, or they were
previously discussed by the committee.
10:27:38 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 23, Version 30-
LS0461\N.41, Bruce/Martin, 10/24/17, which read as follows:
Page 2, following line 29:
Insert a new bill section to read:
"* Sec. 6. AS 12.55.090(g) is amended to read:
(g) A probation officer shall recommend to the
court that probation be terminated, and a defendant be
discharged from probation if the defendant
(1) has completed at least
(A) four [TWO] years on probation if the
person was convicted of a class A [OR CLASS B] felony
that is not a crime under (5) of this subsection; [OR]
(B) three years on probation if the person
was convicted of a class B felony that is not a crime
under (5) of this subsection; or
(C) one year on probation if the person was
convicted of a crime that is not a crime
(i) under (A) or (B) of this paragraph; or
(ii) under (5) of this subsection;
(2) has completed all treatment programs
required as a condition of probation;
(3) has not been found in violation of
conditions of probation by the court for the period
specified in (1) of this subsection;
(4) is currently in compliance with all
conditions of probation for all of the cases for which
the person is on probation; and
(5) has not been convicted of an
unclassified felony offense, a sexual felony as
defined in AS 12.55.185, or a crime involving domestic
violence as defined in AS 18.66.990."
Renumber the following bill sections accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, line 21:
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"(c) AS 12.55.090(g), as amended by sec. 6 of
this Act, applies to probation ordered on or after the
effective date of sec. 6 of this Act, for offenses
committed on or after the effective date of sec. 6 of
this Act."
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REPRESENTATIVE FANSLER objected.
10:27:54 PM
REPRESENTATIVE LEDOUX explained that Amendment 23 increases the
time for which people can be discharged from probation, if
convicted of a class A felony, from 2-years to 4-years; and 3-
years for class B felonies.
MR. SMITH repeated Representative LeDoux's statement and advised
that the probationer must have completed at least 2-years of
their probation. There are exceptions under AS 12.55.090(g)(5),
[page 1, lines 22-23 and page 2, line 1], as follows:
unclassified felony offenses, a sexual felony as defined in AS
12.55.185, or crimes involving domestic violence. He referred
to subsection (g), [page 1, line 4], and paraphrased as follows:
"A probation officer shall recommend discharging from
probation." It is not just the length of time because the
person must have completed all of the treatment programs
required of a condition, have not been in violation of a
probation, and are complying with all conditions of probation.
He noted that "in some following" subsections," there is
substantial victim involvement in terms of giving testimony and
submitting comments, and the court shall consider these
comments. He opined that it is not that the probation officers
make their recommendation and the court automatically "does it"
because a number of other conditions must be met. He advised
that maximum probation sentences for felonies, that are not a
felony sex offense or unclassified felonies is 5-years.
10:31:20 PM
REPRESENTATIVE FANSLER asked Ms. DiPietro to explain why the
Alaska Criminal Justice Commission would have suggested this
level of probation, and the effect of Amendment 23 to the scheme
of the criminal justice reform.
MS. DiPIETRO answered that this recommendation was generated
from research in Alaska relating to people violating their
conditions of probation or parole, when do those violations
typically take place, and how fast they typically take place.
She said that it is a little surprising that a large percentage
of the people who are going to violate their conditions of
probation or parole, do so within the first 3-months and almost
all of them, if they are going to violate, have violated within
the first year. She explained that the people having trouble
complying or having trouble getting their lives on track will
let the state know by their behavior because they will not work
their plan and; therefore, will not qualify for the compliance
credit discussed earlier, and the probation officer will not
recommend an early release from probation. Not everyone
violates and will "go along quietly" and, she pointed out, that
if they have not violated within the first year, the state could
be fairly certain they would not be a problem. The question
then becomes, why would the busy probation officers keep the
people who are not violating and going along quietly, on their
caseloads when they really do not need further supervision.
Based on these statistics, the question was, why wouldn't the
state allow the probation officer, who knows this person best,
the ability to recommend to the court to release the defendant
from probation early, and that is the basis of the
recommendation, she explained.
10:34:19 PM
REPRESENTATIVE FANSLER surmised that when discussing recidivism,
the statistics bear out that violations typically occur within
the first year, which lead to the commission's recommendation.
MS. DiPIETRO advised that Representative Fansler was exactly
correct.
10:34:51 PM
REPRESENTATIVE REINBOLD noted that Ms. DiPietro continued to
refer to research, and that Ms. DiPietro never identifies the
specific date, time, place, and name of the study. She asked
whether this is PEW Foundation research, "her research," or
little surveys that she brought to the committee's attention
"asking a little survey inside jail."
MS. DiPIETRO reiterated that the research data is from the
Alaska Department of Corrections (DOC).
[The audio was unexpectantly disconnected.]
10:36:33 PM
The committee took an at-ease from 10:36 p.m. to 10:39 p.m.
10:39:14 PM
MS. DiPIETRO continued her response to Representative Reinbold
as to the research on supervision violation, noting that the
research is posted on the Alaska Criminal Justice Commission's
website, and that she would send the link if folks were
interested. The data, she reiterated, is from the Alaska
Department of Corrections (DOC) and analyzed by the PEW
Foundation.
REPRESENTATIVE REINBOLD referred to this research and
analyzation of data and asked what the involvement was by the
Pew Foundation or the PEW Charitable Trust. She asked whether
it was just that one piece.
MS. DiPIETRO asked whether she was asking Ms. DiPietro about all
of the testimony she has given over the past several hours as to
when she had cited research.
10:40:27 PM
REPRESENTATIVE REINBOLD said she wanted anything related to the
Alaska Criminal Justice Commission.
MS. DiPIETRO advised that the research she cites comes from a
variety of places. When discussing Alaska specific research,
she is talking about "our data," and a portion of that data was
analyzed by the PEW Foundation, and some of it would have been
analyzed by the commission's staff. She explained that national
research comes from all over and is published in journals. She
offered that almost all of the national studies she had referred
to in her testimony can be found noted in the December 2015
Alaska Criminal Justice Commission Report to the legislature.
10:41:26 PM
REPRESENTATIVE REINBOLD asked what involvement the PEW
Foundation has had, "who funds PEW," the involvement of the PEW
Foundation in the commission, whether there have been any trips
by any members, and whether there have been any types of
contracts with the PEW Foundation, the commission, or the DOC.
She said that people want to know who is influencing the
legislature, "we know that PEW weighed in heavily and this
justice commission if you read the minutes." She said that she
wants to know a "freedom of information" about any money that is
coming into the state from the PEW Foundation for criminal
justice reform and any influence it has had in any manner over
the Alaska Criminal Justice Commission. She remarked that she
was asking Ms. DiPietro to provide that information to the
committee.
MS. DiPIETRO advised that Representative Reinbold certainly did
not need to file a Freedom of Information Act (FOIA) request
because she could provide any information Representative
Reinbold seeks. She said that no money was given to the
commission by the PEW Foundation and the commission's
recommendations are the commission's recommendations, "I can
assure you of that." She explained that after sitting in all of
the meetings and watching the commissioners deliberate, the
December 15, 2017 is "very much" the commission's report.
10:43:39 PM
REPRESENTATIVE REINBOLD clarified that she had asked whether
"any money involved in any way in regards to the research"
because the research analysis was not free. She asked whether
there are contracts with the DOC, whether meals were purchased,
whether the state paid for any PEW Foundation people to come to
Alaska, or if PEW paid for any of the commission's travel to a
meeting possibly in the State of Kentucky. She said that the
Southern Law Foundation in California paid for Commissioner
Williams to travel to Norway recently, and she wants to know who
is influencing this commission, and that she supports Amendment
23.
CHAIR CLAMAN pointed out that Ms. DiPietro had advised that
Representative Reinbold could certainly contact her office and
ask for any information and Ms. DiPietro would provide the
information.
10:45:00 PM
REPRESENTATIVE KOPP commented that for decades it has been well
known, and there is nothing new in the research that would
suggest, no matter who brought it forward, that most of the
people who reoffend, do reoffend in that first year. In the
event a defendant acts appropriately while on probation during
that first year, it is known that they have a negligible
possibility of reoffending/recidivating. Therefore, he asked,
why would the state push the discharge date out to three to four
years when Alaska has limited supervision resources. The whole
idea is to allow the state's officers to focus on those who are
the highest risk and most likely to recidivate, and that the
state does not have unlimited resources. He pointed out that
Amendment 23 takes away from the well-known science, and he
would not support the amendment.
10:46:16 PM
REPRESENTATIVE EASTMAN commented that there is a lot he does not
know about this amendment so there was not much he could say on
the details. Legislators need to do what they can to keep
things straight-forward for the legislators' sake in working
through these details and future bills, and the sake of giving
the public the opportunity to understand what is transpiring in
these statutes within the state's criminal justice system. When
an inmate, the public, and the victims are told that someone
would receive a certain period of time within their sentence on
probation or parole, it is important that the words mean what
people believe they mean. In the event a judge, parole board,
or a process had assigned a sentence to a defendant for a
certain amount of time on probation, that it is fair to assume
that is what would take place. In the event the focus is on
limited supervision resources and a sentence had been applied,
to then change it because the state did not have the resources
points to the fact that a mistake was made earlier on in the
process in assigning an incorrect amount of time to serve in
jail or on parole. Hence, there is a departure there from what
the expectations are of the public, not to mention of the
inmates themselves. He referred to Senate Bill 91 without this
amendment and said that the legislature needs to put its time
and resources into creating solutions when that problem begins
and not try to use a band-aid on the backend.
10:49:23 PM
REPRESENTATIVE LEDOUX commented that she questions the research
because the likelihood of a person violating their probation
goes down in the second and third and fourth year because they
were still on probation during that second, third, and fourth
year. She noted that if the state actually ever had any testing
as to what happens when a person is taken off of probation,
there probably are not any statistics about that. She remarked
that just to say, "Well, the likelihood of them violating the
probation in the second -- after the first year, I don't really
buy that."
REPRESENTATIVE FANSLER maintained his objection.
10:50:20 PM
A roll call vote was taken. Representatives LeDoux, Eastman,
and Reinbold voted in favor of the adoption of Amendment 23.
Representatives Kopp, Kreiss-Tomkins, Fansler, and Claman voted
against it. Therefore, Amendment 23 failed to be adopted by a
vote of 3-4.
10:50:46 PM
CHAIR CLAMAN advised that the consideration of all of the
amendments was concluded, and he brought the committee back to
the consideration of SB 54, as amended.
10:51:44 PM
REPRESENTATIVE LEDOUX commented that the committee had made some
good amendments, but not nearly enough good amendments. She
said that she was glad to see that SB 54 would continue on
through the process and perhaps some of those amendments, which
were not adopted in this committee, could be made as the bill
further progresses. She commented that she does not think SB
54, as amended, is enough of a fix for Senate Bill 91, but she
would not object to it leaving this committee because the state
would be in worse shape if the legislature did not do anything.
10:52:43 PM
REPRESENTATIVE REINBOLD said that the constitution needs to be
upheld, and the legislature, "all is we get to do it is write
law and do a budget" holding the purse strings. She related
that "the executive branch who spends 95 percent, they get to
enforce the policies that we write." This executive branch has
been "so unbelievably pushy" with its legislation she advised,
and it does not want the legislature to have the opportunity to
respect the constitution, so legislators can represent "our
people" and make [audio difficulties] laws. That has been
frustrating, she noted because the executive branch and the
Senate do not want SB 54 amended, and it does not want the
opinion of the House of Representatives. If this legislation
was so important to Governor Walker, he should not have signed
Senate Bill 91 into law and had performed more research. She
noted that SB 54 has been in place since March, "I had all these
amendments, 15 amendments, I brought forth under, you know, the
House floor," and described the legislature as being in "a very
un-special session." These amendments could have been dealt
with in the House State Affairs Standing Committee, the House
Judiciary Standing Committee, and on the floor of the House of
Representatives. Except, with the legislature being in an un-
special session, the public is concerned about the amount of
money that is being spent, and the fact that "our voices" are
shut out for the most part because "we don't get to ask" the
questions that are needed and to not vet them properly. She
reiterated her lack of faith in the Alaska Criminal Judicial
Commission because Senate Bill 91 has been a complete disaster.
Representative Reinbold referred to Police Chief John
Papasodora, the President of the Alaska Association of Chiefs of
Police, and she stated that "he basically said Senate Bill 91
isn't working. Serious amendments are needed." She remarked
that "we did a few little recommendations" on SB 54 with a few
amendments of which she is grateful and commented that she still
believes it would be wiser to "repeal the whole thing with three
exceptions" and start from scratch because the people deserve
better. She advised that she is a yes-vote with the hope for
greater success with amendments being passed, and the voices of
the public heard to improve this law.
10:56:03 PM
REPRESENTATIVE KOPP noted that he echoes some of the comments of
the previous speaker, and that he does believe the legislature
is moving in a good strong direction. He referred to SB 54 and
highlighted that the House Judiciary Standing Committee directly
addressed the issues in the law that have been identified by
public safety, prosecutors, and the police as being the problems
[with Senate Bill 91]. He pointed out that the committee dealt
with the following: violations of conditions of release have
been returned to misdemeanor status with active imprisonment;
"we've talked" about sex trafficking enough tonight; as to class
C felony sentencing, the committee moved first time felony
offenders to active imprisonment of up to one-year and "no more
just messing around" with suspended time - a person goes
straight to jail for stealing cars; class A misdemeanor
sentencing was increasing that category; class B misdemeanor
sentencing added a recidivist provision, these are jailable
misdemeanors for low-level thefts which will help the state's
businesses feel validated that the legislature actually cares
about their businesses and supports them; pretrial risk
assessments are like never before; the ASAP was expanded, and he
knows that the judges wanted the expansion to put drug or
alcohol related offenders into treatment; the committee
increased penalties for disorderly conduct to five-days and
making that a tool law enforcement can actually use in carrying
out its duties; and the committee added a "sober law" thanks to
Representative Millett.
REPRESENTATIVE KOPP pointed out for the committee that SB 54 is
supported by the National Federation of Independent Business
(NFIB), the Fred Meyer director for Alaska called in support of
this bill, even before it was made stronger. Members of this
committee also received letters from private businesses offering
their support, Chief Peter Mlynarik, a 25-year Alaska State
Trooper and a long time Soldotna Chief of Police offered
support. He expressed that SB 54 is a good bill and it
addresses the problems law enforcement are facing, and known
that the Alaska Department of Law, the Alaska Department of
Public Safety supports this bill. The best minds are looking at
this tool to address what is not working, making it strong and
better, and keep the provisions in place that are working. He
said he is a strong yes-vote, and he appreciates the good work
of this committee with its robust debate.
10:59:01 PM
REPRESENTATIVE KREISS-TOMKINS stated that he supports SB 54 and
opined that the fact worth keeping in mind is that prior to
criminal justice reform, Alaska's criminal justice system was
not working well by all manner of data and evidence. The
legislature changed that system in many promising ways, but
certain areas needed to be revisited and improved upon via SB
54. He argued that the intent of the legislative process is
working, and that he is looking forward to re-visiting some
aspects of this legislation, and the state's criminal justice
system in general. He noted his particular interest in the
pretrial services aspect, and "looking at how this stuff works"
in the field, reviewing recidivism data and data from the
Pretrial Enforcement Division, and continue to make tweaks,
adjustments, and changes as needed. He remarked that he feels
good about this ongoing process as well, and that he is looking
forward to supporting this legislation.
11:00:28 PM
REPRESENTATIVE EASTMAN said that having spent the last few days
discussing changes to SB 54, or not changing SB 54, he described
that his take-away is fear, and that fear is that if the
committee changes something in SB 54, that some terrible thing
will befall the state, and to not consider any substantive
amendments. Whereas, he said, if fairly straight forward common
sense is injected that it will completely blow up that tool, and
the tool will be unworkable and unusable. In many cases, he
commented, that fear may be because the committee did not
receive answers to questions that "some of us have put forward."
Changes were made to SB 54 approximately seven months ago
wherein a decision made, for political reasons it seems, that
the legislature would not look at any new information that may
have taken place these last seven months, he said, "that that
was the gold standard and any deviation was less than
perfection." He offered that he had been advised that a
homeowner almost killed an 18-year old boy in a car theft
situation, and there is reason to believe that similar
circumstances will continue to happen while waiting for data and
answers. He described that [some members] are unwilling to
recognize that some of the social science "we trusted" was not
appropriate for Alaska in 2017. Legislators owe it to their
constituents to look closely now, and not wait some number of
months or years before it can honestly recognize that what was
thought would work, did not work, but there still seems to be an
unwillingness to [look closely].
11:03:40 PM
REPRESENTATIVE FANSLER thanked the public because it seems like
months ago that the committee began the debate on SB 54, even
though it was only a couple of day ago. Many passionate folks
came out and testified on both side of this issue, and it was
good to see that kind of turnout with the public's investment in
the public process. He then thanked his fellow committee
members for its robust discussion and spending 40 plus hours
discussing SB 54 because the members stuck it out to the end.
When it comes down to it, he pointed out that that that does not
touch on the dozens and dozens and dozens of hours he spent in
the background trying to get cued up this, trying to find the
facts and knocking door-to-door, noting that all of the members
committed their time to the issues. Clearly, SB 54, as amended,
is linked to the whole situation with Senate Bill 91 and, he
offered that he did not view it as "a fear situation," but
rather an optimistic situation. Wherein, Senate Bill 91 is a
vision for a better future for Alaska with a vision of not
repeating of the cycles, not letting folks rot away in jail
cells for the rest of their lives and getting them out of the
penal system to start becoming contributing members to society.
That is not fear by any means on his part because it is
imperative to give these changes time to work, and he pointed
out that everyone wants to be able to tweet 140 characters and
get things done, which is not how it works in the real world
because it takes time to let these processes play out. Senate
Bill 91 was not perfect, which was the reason for SB 54, and SB
54 is not perfect, and it will continually change because this
is an evolution, a learning experience, something the
legislature will tinker with until the end of time, which is
what makes "us great Alaskans." While he does not like where
this committee ended with SB 54, in the end he will vote for
this bill because he appreciates the process. He noted that he
will continue to mix it up on the floor of the House of
Representatives and the bill will be revisited the in the House
Finance Committee, and "we'll keep working as a team together."
He stressed that, "By golly, we're going to finish this and
we're going to get Alaska back where it needs to be and protect
the public, and that's what I want."
11:07:01 PM
CHAIR CLAMAN commented that the public consistently asks the
legislature to be tough on crime, smart on spending, and do
better for public safety. Criminal justice reform is all about
doing better for public safety because the state's previous
system has not worked. The state has huge recidivism rates, 37
percent of the people on pretrial release are being arrested on
new charges while awaiting trial, that is not a system that
works, and Alaska can do better. He referred to SB 54 and noted
that the committee actually all pretty much agreed on some of
the amendments with broad support, and some of the amendments
need further consideration as the bill moves forward. He
related that he is pleased to move SB 54 forward, and when the
public asks whether SB 54 is good for Alaska, the answer is that
first and foremost it changed the structure on class C felonies,
changed the law with regard to repeat theft offenses for low-
level thefts, adds a violation of conditions of release as a
crime, and the House Judiciary Standing Committee added
provisions regarding rehabilitation, which are all critical. He
pointed out that this bill received support from business,
particularly in Anchorage, the Anchorage Chamber of Commerce
came out in strong support of SB 54, and the National Federation
of Independent Businesses, and the Alaska Chapter supports this
legislation. Each and every day, legislators are asked to try
to do their best for Alaska, and Alaskans, and to put their
communities first, and Alaska first, he reminded the committee.
This committee process has been robust and detailed, he stated.
Chair Claman invited anyone who suggested that SB 54 did not
receive a full and complete hearing in this committee, to spend
40 hours watching the entire set of proceedings and then explain
how the committee process had been less than complete. He then
thanked each of the committee members for their courtesy and
working with one another in moving forward, and for all those
reasons he said that he will be happy to move the bill from
committee.
11:09:49 PM
REPRESENTATIVE FANSLER moved to report CS for Senate Bill 54, as
amended, Version 30-LS0461\N, out of committee with individual
recommendations and forthcoming fiscal notes.
REPRESENTATIVE EASTMAN objected.
11:09:59 PM
A roll call vote was taken. Representatives Reinbold, Kopp,
Kreiss-Tomkins, LeDoux, Fansler, and Claman voted in favor to
move SB 54, as amended, out of committee. Representative
Eastman voted against it. Therefore, CSSB 54(JUD) was reported
out of the House Judiciary Standing Committee by a vote of 6-1.
AMENDMENTS
The following amendments to SB 54 were either discussed or
adopted during the hearing.
AMENDMENT 45 [30-LS0461\N.15, Bruce/Martin, 10/20/17]
Page 1, following line 5:
Insert new bill sections to read:
"* Section 1. AS 11.41.110(a) is amended to read:
(a) A person commits the crime of murder in the
second-degree if
(1) with intent to cause serious physical
injury to another person or knowing that the conduct
is substantially certain to cause death or serious
physical injury to another person, the person causes
the death of any person;
(2) the person knowingly engages in conduct
that results in the death of another person under
circumstances manifesting an extreme indifference to
the value of human life;
(3) under circumstances not amounting to
murder in the first degree under AS 11.41.100(a)(3),
while acting either alone or with one or more persons,
the person commits or attempts to commit arson in the
first degree, kidnapping, sexual assault in the first
degree, sexual assault in the second degree, sexual
abuse of a minor in the first degree, sexual abuse of
a minor in the second degree, burglary in the first
degree, escape in the first or second degree, robbery
in any degree, or misconduct involving a controlled
substance under AS 11.71.010(a), 11.71.021(a),
11.71.030(a)(2) or (9) [11.71.030(a)(1), (2), OR (4)
- (8)], or 11.71.040(a)(1) or (2) and, in the course
of or in furtherance of that crime or in immediate
flight from that crime, any person causes the death of
a person other than one of the participants;
(4) acting with a criminal street gang, the
person commits or attempts to commit a crime that is a
felony and, in the course of or in furtherance of that
crime or in immediate flight from that crime, any
person causes the death of a person other than one of
the participants; or
(5) the person with criminal negligence
causes the death of a child under the age of 16, and
the person has been previously convicted of a crime
involving a child under the age of 16 that was
(A) a felony violation of AS 11.41;
(B) in violation of a law or ordinance in
another jurisdiction with elements similar to a felony
under AS 11.41; or
(C) an attempt, a solicitation, or a
conspiracy to commit a crime listed in (A) or (B) of
this paragraph.
* Sec. 2. AS 11.41.150(a) is amended to read:
(a) A person commits the crime of murder of an
unborn child if the person
(1) with intent to cause the death of an
unborn child or of another person, causes the death of
an unborn child;
(2) with intent to cause serious physical
injury to an unborn child or to another person or
knowing that the conduct is substantially certain to
cause death or serious physical injury to an unborn
child or to another person, causes the death of an
unborn child;
(3) while acting alone or with one or more
persons, commits or attempts to commit arson in the
first degree, kidnapping, sexual assault in the first
degree, sexual assault in the second degree, sexual
abuse of a minor in the first degree, sexual abuse of
a minor in the second degree, burglary in the first
degree, escape in the first or second degree, robbery
in any degree, or misconduct involving a controlled
substance under AS 11.71.010(a), 11.71.021(a),
11.71.030(a)(2) or (9) [11.71.030(a)(1), (2), OR (4) -
(8)], or 11.71.040(a)(1) or (2), and, in the course of
or in furtherance of that crime or in immediate flight
from that crime, any person causes the death of an
unborn child;
(4) knowingly engages in conduct that
results in the death of an unborn child under
circumstances manifesting an extreme indifference to
the value of human life; for purposes of this
paragraph, a pregnant woman's decision to remain in a
relationship in which domestic violence, as defined in
AS 18.66.990, has occurred does not constitute conduct
manifesting an extreme indifference to the value of
human life."
Page 1, line 9:
Delete "Section 1"
Insert "Sec. 3"
Renumber the following bill sections accordingly.
Page 2, following line 29:
Insert new bill sections to read:
"* Sec. 8. AS 11.71 is amended by adding a new
section to read:
Sec. 11.71.021. Misconduct involving a controlled
substance in the second degree. (a) Except as
authorized in AS 17.30, a person commits the crime of
misconduct involving a controlled substance in the
second degree if the person
(1) manufactures or delivers any amount of
a schedule IA controlled substance or possesses any
amount of a schedule IA controlled substance with
intent to manufacture or deliver;
(2) manufactures any material, compound,
mixture, or preparation that contains
(A) methamphetamine, or its salts, isomers,
or salts of isomers; or
(B) an immediate precursor of
methamphetamine, or its salts, isomers, or salts of
isomers;
(3) possesses an immediate precursor of
methamphetamine, or the salts, isomers, or salts of
isomers of the immediate precursor of methamphetamine,
with the intent to manufacture any material, compound,
mixture, or preparation that contains methamphetamine,
or its salts, isomers, or salts of isomers;
(4) possesses a listed chemical with intent
to manufacture any material, compound, mixture, or
preparation that contains
(A) methamphetamine, or its salts, isomers,
or salts of isomers; or
(B) an immediate precursor of
methamphetamine, or its salts, isomers, or salts of
isomers;
(5) possesses methamphetamine in an organic
solution with intent to extract from it
methamphetamine or its salts, isomers, or salts of
isomers; or
(6) under circumstances not proscribed
under AS 11.71.010(a)(2), delivers
(A) an immediate precursor of
methamphetamine, or the salts, isomers, or salts of
isomers of the immediate precursor of methamphetamine,
to another person with reckless disregard that the
precursor will be used to manufacture any material,
compound, mixture, or preparation that contains
methamphetamine, or its salts, isomers, or salts of
isomers; or
(B) a listed chemical to another person
with reckless disregard that the listed chemical will
be used to manufacture any material, compound,
mixture, or preparation that contains
(i) methamphetamine, or its salts, isomers,
or salts of isomers;
(ii) an immediate precursor of
methamphetamine, or its salts, isomers, or salts of
isomers; or
(iii) methamphetamine or its salts,
isomers, or salts of isomers in an organic solution.
(b) In a prosecution under (a) of this section,
possession of more than six grams of the listed
chemicals ephedrine, pseudoephedrine,
phenylpropanolamine, or the salts, isomers, or salts
of isomers of those chemicals is prima facie evidence
that the person intended to use the listed chemicals
to manufacture, to aid or abet another person to
manufacture, or to deliver to another person who
intends to manufacture methamphetamine, its immediate
precursors, or the salts, isomers, or salts of isomers
of methamphetamine or its immediate precursors. The
prima facie evidence described in this subsection does
not apply to a person who possesses
(1) the listed chemicals ephedrine,
pseudoephedrine, phenylpropanolamine, or the salts,
isomers, or salts of isomers of those chemicals
(A) and the listed chemical was dispensed
to the person under a valid prescription; or
(B) in the ordinary course of a legitimate
business, or an employee of a legitimate business, as
a
(i) retailer or as a wholesaler;
(ii) wholesale drug distributor licensed by
the Board of Pharmacy;
(iii) manufacturer of drug products
licensed by the Board of Pharmacy;
(iv) pharmacist licensed by the Board of
Pharmacy; or
(v) health care professional licensed by
the state; or
(2) less than 24 grams of ephedrine,
pseudoephedrine, phenylpropanolamine, or the salts,
isomers, or salts of isomers of those chemicals, kept
in a locked storage area on the premises of a
legitimate business or nonprofit organization
operating a camp, lodge, school, day care center,
treatment center, or other organized group activity,
and the location or nature of the activity, or the age
of the participants, makes it impractical for the
participants in the activity to obtain medicinal
products.
(c) In this section, "listed chemical" means a
chemical described under AS 11.71.200.
(d) Misconduct involving a controlled substance
in the second degree is a class A felony.
* Sec. 9. AS 11.71.030(a) is amended to read:
(a) Except as authorized in AS 17.30, a person
commits the crime of misconduct involving a controlled
substance in the third [SECOND] degree if the person
(1) manufactures or delivers, or possesses
with intent to manufacture or deliver,
(A) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of one
gram or more containing a schedule IA controlled
substance;
(B) 25 or more tablets, ampules, or
syrettes containing a schedule IA controlled
substance;
(C) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of 2.5
grams or more containing a schedule IIA or IIIA
controlled substance; or
(D) 50 or more tablets, ampules, or
syrettes containing a schedule IIA or IIIA controlled
substance;
(2) delivers any amount of a schedule IVA,
VA, or VIA controlled substance to a person under 19
years of age who is at least three years younger than
the person delivering the substance;
(3) possesses any amount of a schedule IA
or IIA controlled substance
(A) with reckless disregard that the
possession occurs
(i) on or within 500 feet of school
grounds; or
(ii) at or within 500 feet of a recreation
or youth center; or
(B) on a school bus;
(4) manufactures any material, compound,
mixture, or preparation that contains
(A) methamphetamine, or its salts, isomers,
or salts of isomers; or
(B) an immediate precursor of
methamphetamine, or its salts, isomers, or salts of
isomers;
(5) possesses an immediate precursor of
methamphetamine, or the salts, isomers, or salts of
isomers of the immediate precursor of methamphetamine,
with the intent to manufacture any material, compound,
mixture, or preparation that contains methamphetamine,
or its salts, isomers, or salts of isomers;
(6) possesses a listed chemical with intent
to manufacture any material, compound, mixture, or
preparation that contains
(A) methamphetamine, or its salts, isomers,
or salts of isomers; or
(B) an immediate precursor of
methamphetamine, or its salts, isomers, or salts of
isomers;
(7) possesses methamphetamine in an organic
solution with intent to extract from it
methamphetamine or its salts, isomers, or salts of
isomers; [OR]
(8) under circumstances not proscribed
under AS 11.71.010(a)(2), delivers
(A) an immediate precursor of
methamphetamine, or the salts, isomers, or salts of
isomers of the immediate precursor of methamphetamine,
to another person with reckless disregard that the
precursor will be used to manufacture any material,
compound, mixture, or preparation that contains
methamphetamine, or its salts, isomers, or salts of
isomers; or
(B) a listed chemical to another person
with reckless disregard that the listed chemical will
be used to manufacture any material, compound,
mixture, or preparation that contains
(i) methamphetamine, or its salts, isomers,
or salts of isomers;
(ii) an immediate precursor of
methamphetamine, or its salts, isomers, or salts of
isomers; or
(iii) methamphetamine or its salts,
isomers, or salts of isomers in an organic solution;
or
(9) under circumstances not proscribed
under AS 11.71.021(a)(2) - (6), manufactures or
delivers any amount of a schedule IIA or IIIA
controlled substance or possesses any amount of a
schedule IIA or IIIA controlled substance with intent
to manufacture or deliver.
* Sec. 10. AS 11.71.030(d) is amended to read:
(d) Misconduct involving a controlled substance
in the third [SECOND] degree is a class B felony.
* Sec. 11. AS 11.71.040(a) is amended to read:
(a) Except as authorized in AS 17.30, a person
commits the crime of misconduct involving a controlled
substance in the fourth [THIRD] degree if the person
(1) manufactures or delivers any amount of
a schedule IVA or VA controlled substance or possesses
any amount of a schedule IVA or VA controlled
substance with intent to manufacture or deliver;
(2) manufactures or delivers, or possesses
with the intent to manufacture or deliver, one or more
preparations, compounds, mixtures, or substances of an
aggregate weight of one ounce or more containing a
schedule VIA controlled substance;
(3) possesses
(A) any amount of a
(i) schedule IA controlled substance
[LISTED IN AS 11.71.140(e)];
(ii) IIA controlled substance except a
controlled substance listed in AS 11.71.150(e)(11) -
(15);
(B) 25 or more tablets, ampules, or
syrettes containing a schedule IIIA or IVA controlled
substance;
(C) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of
(i) three grams or more containing a
schedule IIIA or IVA controlled substance except a
controlled substance in a form listed in (ii) of this
subparagraph;
(ii) 12 grams or more containing a schedule
IIIA controlled substance listed in AS 11.71.160(f)(7)
- (16) that has been sprayed on or otherwise applied
to tobacco, an herb, or another organic material; or
(iii) 500 milligrams or more of a schedule
IIA controlled substance listed in AS 11.71.150(e)(11)
- (15);
(D) 50 or more tablets, ampules, or
syrettes containing a schedule VA controlled
substance;
(E) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of six
grams or more containing a schedule VA controlled
substance;
(F) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of four
ounces or more containing a schedule VIA controlled
substance; or
(G) 25 or more plants of the genus
cannabis;
(4) possesses a schedule IIIA, IVA, VA, or
VIA controlled substance
(A) with reckless disregard that the
possession occurs
(i) on or within 500 feet of school
grounds; or
(ii) at or within 500 feet of a recreation
or youth center; or
(B) on a school bus;
(5) knowingly keeps or maintains any store,
shop, warehouse, dwelling, building, vehicle, boat,
aircraft, or other structure or place that is used for
keeping or distributing controlled substances in
violation of a felony offense under this chapter or
AS 17.30;
(6) makes, delivers, or possesses a punch,
die, plate, stone, or other thing that prints,
imprints, or reproduces a trademark, trade name, or
other identifying mark, imprint, or device of another
or any likeness of any of these on a drug, drug
container, or labeling so as to render the drug a
counterfeit substance;
(7) knowingly uses in the course of the
manufacture or distribution of a controlled substance
a registration number that is fictitious, revoked,
suspended, or issued to another person;
(8) knowingly furnishes false or fraudulent
information in or omits material information from any
application, report, record, or other document
required to be kept or filed under AS 17.30;
(9) obtains possession of a controlled
substance by misrepresentation, fraud, forgery,
deception, or subterfuge;
(10) affixes a false or forged label to a
package or other container containing any controlled
substance; or
(11) manufactures or delivers, or possesses
with the intent to manufacture or deliver,
(A) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of less
than one gram containing a schedule IA controlled
substance;
(B) less than 25 tablets, ampules, or
syrettes containing a schedule IA controlled
substance;
(C) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of less
than 2.5 grams containing a schedule IIA or IIIA
controlled substance; or
(D) less than 50 tablets, ampules, or
syrettes containing a schedule IIA or IIIA controlled
substance.
* Sec. 12. AS 11.71.040(d) is amended to read:
(d) Misconduct involving a controlled substance
in the fourth [THIRD] degree is a class C felony.
* Sec. 13. AS 11.71.050 is amended to read:
Sec. 11.71.050. Misconduct involving a controlled
substance in the fifth [FOURTH] degree. (a) Except as
authorized in AS 17.30, a person commits the crime of
misconduct involving a controlled substance in the
fifth [FOURTH] degree if the person
(1) manufactures or delivers, or possesses
with the intent to manufacture or deliver, one or more
preparations, compounds, mixtures, or substances of an
aggregate weight of less than one ounce containing a
schedule VIA controlled substance;
(2) [REPEALED]
(3) fails to make, keep, or furnish any
record, notification, order form, statement, invoice,
or information required under AS 17.30; [OR]
(4) under circumstances not proscribed
under AS 11.71.030(a)(3), 11.71.040(a)(3),
11.71.040(a)(4), or 11.71.060(a)(2), possesses any
amount of a schedule IA, IIA, IIIA, IVA, VA, or VIA
controlled substance; or
(5) possesses
(A) less than 25 tablets, ampules, or
syrettes containing a schedule IIIA or IVA controlled
substance;
(B) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of less
than
(i) three grams containing a schedule IIIA
or IVA controlled substance except a controlled
substance in a form listed in (ii) of this
subparagraph;
(ii) 12 grams but more than six grams
containing a schedule IIIA controlled substance listed
in AS 11.71.160(f)(7) - (16) that has been sprayed on
or otherwise applied to tobacco, an herb, or another
organic material; or
(iii) 500 milligrams containing a schedule
IIA controlled substance listed in AS 11.71.150(e)(11)
- (15);
(C) less than 50 tablets, ampules, or
syrettes containing a schedule VA controlled
substance;
(D) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of less
than six grams containing a schedule VA controlled
substance; or
(E) one or more preparations, compounds,
mixtures, or substances of an aggregate weight of one
ounce or more containing a schedule VIA controlled
substance.
(b) Misconduct involving a controlled substance
in the fifth [FOURTH] degree is a class A misdemeanor.
* Sec. 14. AS 11.71.060 is amended to read:
Sec. 11.71.060. Misconduct involving a controlled
substance in the sixth [FIFTH] degree. (a) Except as
authorized in AS 17.30, a person commits the crime of
misconduct involving a controlled substance in the
sixth [FIFTH] degree if the person
(1) uses or displays any amount of a
schedule VIA controlled substance;
(2) possesses one or more preparations,
compounds, mixtures, or substances of an aggregate
weight of
(A) less than one ounce containing a
schedule VIA controlled substance;
(B) six grams or less containing a schedule
IIIA controlled substance listed in AS 11.71.160(f)(7)
- (16) that has been sprayed on or otherwise applied
to tobacco, an herb, or another organic material; or
(3) refuses entry into a premise for an
inspection authorized under AS 17.30.
(b) Misconduct involving a controlled substance
in the sixth [FIFTH] degree is a class B misdemeanor.
* Sec. 15. AS 11.71.311(a) is amended to read:
(a) A person may not be prosecuted for a
violation of AS 11.71.030(a)(3), 11.71.040(a)(3) or
(4), 11.71.050(a)(5) [11.71.050(a)(4)], or
11.71.060(a)(1) or (2) if that person
(1) sought, in good faith, medical or law
enforcement assistance for another person who the
person reasonably believed was experiencing a drug
overdose and
(A) the evidence supporting the prosecution
for an offense under AS 11.71.030(a)(3),
11.71.040(a)(3) or (4), 11.71.050(a)(5)
[11.71.050(a)(4)], or 11.71.060(a)(1) or (2) was
obtained or discovered as a result of the person
seeking medical or law enforcement assistance;
(B) the person remained at the scene with
the other person until medical or law enforcement
assistance arrived; and
(C) the person cooperated with medical or
law enforcement personnel, including by providing
identification;
(2) was experiencing a drug overdose and
sought medical assistance, and the evidence supporting
a prosecution for an offense under AS 11.71.030(a)(3),
11.71.040(a)(3) or (4), 11.71.050(a)(5)
[11.71.050(a)(4)], or 11.71.060(a)(1) or (2) was
obtained as a result of the overdose and the need for
medical assistance."
Renumber the following bill sections accordingly.
Page 11, following line 27:
Insert a new bill section to read:
"* Sec. 30. AS 34.03.360(7) is amended to read:
(7) "illegal activity involving a
controlled substance" means a violation of
AS 11.71.010(a), 11.71.021(a), 11.71.030(a)(2) or (9)
[11.71.030(a)(1), (2), OR (4) - (8)], or
11.71.040(a)(1), (2), or (5);"
Renumber the following bill sections accordingly.
Page 15, lines 7 - 8:
Delete all material and insert:
"* Sec. 33. AS 11.66.130(b), 11.66.135(b);
AS 11.71.030(a)(1), 11.71.030(a)(4), 11.71.030(a)(5),
11.71.030(a)(6), 11.71.030(a)(7), 11.71.030(a)(8),
11.71.030(c), 11.71.030(e), 11.71.040(a)(11),
11.71.050(a)(4); AS 12.55.125(e)(4)(B),
12.55.125(e)(4)(C), 12.55.125(e)(4)(D), and
12.55.135(n) are repealed."
Page 15, line 13:
Delete "sec. 1"
Insert "sec. 3"
Page 15, line 14:
Delete "sec. 2"
Insert "sec. 4"
Page 15, line 15:
Delete "sec. 3"
Insert "sec. 5"
Page 15, line 16:
Delete "sec. 4"
Insert "sec. 6"
Page 15, line 17:
Delete "sec. 5"
Insert "sec. 7"
Delete "and"
Page 15, following line 17:
Insert new material to read:
"(6) AS 11.71.021, enacted by sec. 8 of
this Act;
(7) AS 11.71.030(a), as amended by sec. 9
of this Act;
(8) AS 11.71.030(d), as amended by sec. 10
of this Act;
(9) AS 11.71.040(a), as amended by sec. 11
of this Act;
(10) AS 11.71.040(d), as amended by sec. 12
of this Act;
(11) AS 11.71.050, as amended by sec. 13 of
this Act;
(12) AS 11.71.060, as amended by sec. 14 of
this Act; and"
Renumber the following paragraph accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 25"
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 16"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 17"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 18"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 19"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 20"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 21"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 22"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 28"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 28"
Page 15, line 30:
Delete "Section 17"
Insert "Section 27"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 35"
AMENDMENT 46 [30-LS0461\n.69, Glover/Martin, 10/24/17]
Page 1, following line 5:
Insert new bill sections to read:
"* Section 1. AS 11.46.130(a) is amended to read:
(a) A person commits the crime of theft in the second
degree if the person commits theft as defined in AS
11.46.100 and
(1) the value of the property or services [, ADJUSTED
FOR INFLATION AS PROVIDED IN AS 11.46.982,] is $1,000
or more but less than $25,000;
(2) the property is a firearm or explosive;
(3) the property is taken from the person of another;
(4) the property is taken from a vessel and is vessel
safety or survival equipment;
(5) the property is taken from an aircraft and the
property is aircraft safety or survival equipment;
(6) the value of the property [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] is $250 or
more but less than $1,000 and, within the preceding
five years, the person has been convicted and
sentenced on two or more separate occasions in this or
another jurisdiction of
(A) an offense under AS 11.46.120, or an offense
under another law or ordinance with similar elements;
(B) a crime set out in this subsection or an offense
under another law or ordinance with similar elements;
(C) an offense under AS 11.46.140(a)(1), or an
offense under another law or ordinance with similar
elements; or
(D) an offense under AS 11.46.220(c)(1) or (c)(2)(A),
or an offense under another law or ordinance with
similar elements; or
(7) the property is an access device.
* Sec. 2. AS 11.46.140(a) is amended to read:
(a) A person commits the crime of theft in the third
degree if the person commits theft as defined in AS
11.46.100 and
(1) the value of the property or services [, ADJUSTED
FOR INFLATION AS PROVIDED IN AS 11.46.982,] is $250 or
more but less than $1,000; or
(2) [REPEALED]
(3) [REPEALED].
* Sec. 3. AS 11.46.150(a) is amended to read:
(a) A person commits the crime of theft in the fourth
degree if the person commits theft as defined in AS
11.46.100 and the value of the property or services [,
ADJUSTED FOR INFLATION AS PROVIDED IN AS 11.46.982,]
is less than $250.
* Sec. 4. AS 11.46.220(c) is amended to read:
(c) Concealment of merchandise is
(1) a class C felony if
(A) the merchandise is a firearm;
(B) the value of the merchandise [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] is $1,000 or
more; or
(C) the value of the merchandise [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] is $250 or
more but less than $1,000 and, within the preceding
five years, the person has been convicted and
sentenced on two or more separate occasions in this or
another jurisdiction of
(i) the offense of concealment of merchandise under
this paragraph or (2)(A) of this subsection, or an
offense under another law or ordinance with similar
elements; or
(ii) an offense under AS 11.46.120, 11.46.130, or
11.46.140(a)(1), or an offense under another law or
ordinance with similar elements;
(2) a class A misdemeanor if
(A) the value of the merchandise [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] is $250 or
more but less than $1,000; or
(B) [REPEALED]
(3) a class B misdemeanor if the value of the
merchandise [, ADJUSTED FOR INFLATION AS PROVIDED IN
AS 11.46.982,] is less than $250.
* Sec. 5. AS 11.46.260(b) is amended to read:
(b) Removal of identification marks is
(1) a class C felony if the value of the property on
which the serial number or identification mark
appeared [, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] is $1,000 or more;
(2) a class A misdemeanor if the value of the
property on which the serial number or identification
mark appeared [, ADJUSTED FOR INFLATION AS PROVIDED IN
AS 11.46.982,] is $250 or more but less than $1,000;
(3) a class B misdemeanor if the value of the
property on which the serial number or identification
mark appeared [, ADJUSTED FOR INFLATION AS PROVIDED IN
AS 11.46.982,] is less than $250.
* Sec. 6. AS 11.46.270(b) is amended to read:
(b) Unlawful possession is
(1) a class C felony if the value of the property on
which the serial number or identification mark
appeared [, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] is $1,000 or more;
(2) a class A misdemeanor if the value of the
property on which the serial number or identification
mark appeared [, ADJUSTED FOR INFLATION AS PROVIDED IN
AS 11.46.982,] is $250 or more but less than $1,000;
(3) a class B misdemeanor if the value of the
property on which the serial number or identification
mark appeared [, ADJUSTED FOR INFLATION AS PROVIDED IN
AS 11.46.982,] is less than $250.
* Sec. 7. AS 11.46.280(d) is amended to read:
(d) Issuing a bad check is
(1) a class B felony if the face amount of the check
is $25,000 or more;
(2) a class C felony if the face amount of the check
[, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] is $1,000 or more but less than $25,000;
(3) a class A misdemeanor if the face amount of the
check [, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] is $250 or more but less than $1,000;
(4) a class B misdemeanor if the face amount of the
check [, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] is less than $250.
* Sec. 8. AS 11.46.285(b) is amended to read:
(b) Fraudulent use of an access device is
(1) a class B felony if the value of the property or
services obtained is $25,000 or more;
(2) a class C felony if the value of the property or
services obtained [, ADJUSTED FOR INFLATION AS
PROVIDED IN AS 11.46.982,] is $1,000 or more but less
than $25,000;
(3) a class A misdemeanor if the value of the
property or services obtained [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] is less than
$1,000.
* Sec. 9. AS 11.46.360(a) is amended to read:
(a) A person commits the crime of vehicle theft in
the first degree if, having no right to do so or any
reasonable ground to believe the person has such a
right, the person drives, tows away, or takes
(1) the car, truck, motorcycle, motor home, bus,
aircraft, or watercraft of another;
(2) the propelled vehicle of another and
(A) the vehicle or any other property of another is
damaged in a total amount [, ADJUSTED FOR INFLATION AS
PROVIDED IN AS 11.46.982,] of $1,000 or more;
(B) the owner incurs reasonable expenses as a result
of the loss of use of the vehicle, in a total amount
[, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] of $1,000 or more; or
(C) the owner is deprived of the use of the vehicle
for seven days or more;
(3) the propelled vehicle of another and the vehicle
is marked as a police or emergency vehicle; or
(4) the propelled vehicle of another and, within the
preceding seven years, the person was convicted under
(A) this section or AS 11.46.365;
(B) former AS 11.46.482(a)(4) or (5);
(C) former AS 11.46.484(a)(2);
(D) AS 11.46.120 - 11.46.140 of an offense involving
the theft of a propelled vehicle; or
(E) a law or ordinance of this or another
jurisdiction with elements substantially similar to
those of an offense described in (A) - (D) of this
paragraph.
* Sec. 10. AS 11.46.482(a) is amended to read:
(a) A person commits the crime of criminal mischief
in the third degree if, having no right to do so or
any reasonable ground to believe the person has such a
right,
(1) with intent to damage property of another, the
person damages property of another in an amount [,
ADJUSTED FOR INFLATION AS PROVIDED IN AS 11.46.982,]
of $1,000 or more;
(2) the person recklessly creates a risk of damage in
an amount exceeding $100,000 to property of another by
the use of widely dangerous means; or
(3) the person knowingly
(A) defaces, damages, or desecrates a cemetery or the
contents of a cemetery or a tomb, grave, or memorial
regardless of whether the tomb, grave, or memorial is
in a cemetery or whether the cemetery, tomb, grave, or
memorial appears to be abandoned, lost, or neglected;
(B) removes human remains or associated burial
artifacts from a cemetery, tomb, grave, or memorial
regardless of whether the cemetery, tomb, grave, or
memorial appears to be abandoned, lost, or neglected.
* Sec. 11. AS 11.46.484(a) is amended to read:
(a) A person commits the crime of criminal mischief
in the fourth degree if, having no right to do so or
any reasonable ground to believe the person has such a
right,
(1) with intent to damage property of another, the
person damages property of another in an amount [,
ADJUSTED FOR INFLATION AS PROVIDED IN AS 11.46.982,]
of $250 or more but less than $1,000;
(2) the person tampers with a fire protection device
in a building that is a public place;
(3) the person knowingly accesses a computer,
computer system, computer program, computer network,
or part of a computer system or network;
(4) the person uses a device to descramble an
electronic signal that has been scrambled to prevent
unauthorized receipt or viewing of the signal unless
the device is used only to descramble signals received
directly from a satellite or unless the person owned
the device before September 18, 1984; or
(5) the person knowingly removes, relocates, defaces,
alters, obscures, shoots at, destroys, or otherwise
tampers with an official traffic control device or
damages the work on a highway under construction.
* Sec. 12. AS 11.46.486(a) is amended to read:
(a) A person commits the crime of criminal mischief
in the fifth degree if, having no right to do so or
any reasonable ground to believe the person has such a
right,
(1) with reckless disregard for the risk of harm to
or loss of the property or with intent to cause
substantial inconvenience to another, the person
tampers with property of another;
(2) with intent to damage property of another, the
person damages property of another in an amount [,
ADJUSTED FOR INFLATION AS PROVIDED IN AS 11.46.982,]
less than $250; or
(3) the person rides in a propelled vehicle knowing
it has been stolen or that it is being used in
violation of AS 11.46.360 or 11.46.365(a)(1).
* Sec. 13. AS 11.46.530(b) is amended to read:
(b) Criminal simulation is
(1) a class C felony if the value of what the object
purports to represent [, ADJUSTED FOR INFLATION AS
PROVIDED IN AS 11.46.982,] is $1,000 or more;
(2) a class A misdemeanor if the value of what the
object purports to represent [, ADJUSTED FOR INFLATION
AS PROVIDED IN AS 11.46.982,] is $250 or more but less
than $1,000;
(3) a class B misdemeanor if the value of what the
object purports to represent [, ADJUSTED FOR INFLATION
AS PROVIDED IN AS 11.46.982,] is less than $250.
* Sec. 14. AS 11.46.620(d) is amended to read:
(d) Misapplication of property is
(1) a class C felony if the value of the property
misapplied [, ADJUSTED FOR INFLATION AS PROVIDED IN AS
11.46.982,] is $1,000 or more;
(2) a class A misdemeanor if the value of the
property misapplied [, ADJUSTED FOR INFLATION AS
PROVIDED IN AS 11.46.982,] is less than $1,000.
* Sec. 15. AS 11.46.730(c) is amended to read:
(c) Defrauding creditors is a class A misdemeanor
unless that secured party, judgment creditor, or
creditor incurs a pecuniary loss [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] of $1,000 or
more as a result of the defendant's conduct, in which
case defrauding secured creditors is
(1) a class B felony if the loss is $25,000 or more;
(2) a class C felony if the loss [, ADJUSTED FOR
INFLATION AS PROVIDED IN AS 11.46.982,] is $1,000 or
more but less than $25,000."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 16"
Renumber the following bill sections accordingly.
Page 15, lines 7 - 8:
Delete all material and insert:
"* Sec. 37. AS 11.46.980(d), 11.46.982; AS
11.66.130(b), 11.66.135(b); AS 12.55.125(e)(4)(B),
12.55.125(e)(4)(C), and 12.55.125(e)(4)(D) are
repealed."
Page 15, following line 12:
Insert new material to read:
"(1) AS 11.46.130(a), as amended by sec. 1 of this
Act;
(2) AS 11.46.140(a), as amended by sec. 2 of this
Act;
(3) AS 11.46.150(a), as amended by sec. 3 of this
Act;
(4) AS 11.46.220(c), as amended by sec. 4 of this
Act;
(5) AS 11.46.260(b), as amended by sec. 5 of this
Act;
(6) AS 11.46.270(b), as amended by sec. 6 of this
Act;
(7) AS 11.46.280(d), as amended by sec. 7 of this
Act;
(8) AS 11.46.285(b), as amended by sec. 8 of this
Act;
(9) AS 11.46.360(a), as amended by sec. 9 of this
Act;
(10) AS 11.46.482(a), as amended by sec. 10 of this
Act;
(11) AS 11.46.484(a), as amended by sec. 11 of this
Act;
(12) AS 11.46.486(a), as amended by sec. 12 of this
Act;
(13) AS 11.46.530(b), as amended by sec. 13 of this
Act;
(14) AS 11.46.620(d), as amended by sec. 14 of this
Act;
(15) AS 11.46.730(c), as amended by sec. 15 of this
Act;"
Renumber the following paragraphs accordingly.
Page 15, line 13:
Delete "sec. 1"
Insert "sec. 16"
Page 15, line 14:
Delete "sec. 2"
Insert "sec. 17"
Page 15, line 15:
Delete "sec. 3"
Insert "sec. 18"
Page 15, line 16:
Delete "sec. 4"
Insert "sec. 19"
Page 15, line 17:
Delete "sec. 5"
Insert "sec. 20"
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 30"
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 21"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 22"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 23"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 24"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 25"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 26"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 27"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 33"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 33"
Page 15, line 30:
Delete "Section 17"
Insert "Section 32"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 39"
11:11:02 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 11:11 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 Amendments #1-22 10.24.17.pdf |
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 Additional Document-Leg Legal Memo on Amendment #1 (N.32) 10.24.17.pdf |
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 Amendments #23-28 10.24.17.pdf |
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 Amendments #29-48 10.24.17.pdf |
HJUD 10/25/2017 8:00:00 AM HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 House Judiciary Committee Adopted Amendments FINAL 10.26.17.pdf |
HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 House Judiciary Committee Amendment Chart FINAL 10.26.17.pdf |
HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Public Comment 10.26.17.pdf |
HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Supporting Document-Letters of Support 10.26.17.pdf |
HJUD 10/26/2017 9:00:00 AM |
SB 54 |