Legislature(1995 - 1996)
02/20/1996 09:15 AM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
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MINUTES
SENATE FINANCE COMMITTEE
20 February 1996
9:15 A.M.
TAPES
SFC-96, #27, Sides 1 & 2
CALL TO ORDER
Senator Rick Halford, Co-chair, convened the meeting at
approximately 9:15 A.M.
PRESENT
In addition to Co-chairman Halford, co-chairman Frank and
Senators Phillips, Donley and Zharoff were present when the
meeting was convened
Also Attending: Representative Pete Kelly, Dean Guaneli,
Chief Assistant Attorney General, Criminal Division,
Department of Law; Jerry Shriner, Special Assistant, Office
of the Commissioner, Department of Corrections; Mike Greany,
Director, Legislative Finance Division; and aides to
committee members.
SUMMARY INFORMATION
HOUSE BILL NO. 127
"An Act increasing the minimum term of imprisonment for
assaults in the fourth degree committed against a peace
officer, fire fighter, correctional officer, emergency
medical technician, paramedic, ambulance attendant, or
other emergency responders."
Testimony was given by the sponsor of the bill
Representative Pete Kelly. Testimony was also given by Mr.
Dean Guaneli, Chief Assistant Attorney General, Criminal
Division, Department of Law; and Mr. Jerry Shriner, Special
Assistant, Office of the Commissioner, Department of
Corrections. SCS CSHB 127 was MOVED by Senator Donley and
REPORTED OUT with recommendations and fiscal notes from
Department of Public Safety, zero; Department of
Administration, zero; Department of Corrections, $21.4; and
Department of Law, zero.
SENATE BILL NO. 175
"An Act relating to correctional institutions and their
administration; providing the Department of Corrections
with the authority to require prisoners to assist in
paying for medical treatment; relating to the authority
of a law enforcement agency to charge a prisoner for
medical costs for a preexisting condition; and relating to
service of criminal sentences."
Testimony was given by the sponsor of the bill, Senator Dave
Donley. Testimony was also given by Mr. Dean Guaneli, Chief
Assistant Attorney General, Criminal Division, Department of
Law; and Mr. Jerry Shriner, Special Assistant, Office of the
Commissioner, Department of Corrections. Senator Donley
MOVED amendments #1, 2 and 3; there being no objection
heard, amendments #1, 2 and 3 were ADOPTED. CSSS SB 175
(JUD) was MOVED by Senator Donley and REPORTED OUT with
recommendations and fiscal notes from Department of Health
and Social Services, zero; and Department of Corrections,
zero.
HOUSE BILL NO. 127
"An Act increasing the minimum term of imprisonment for
assaults in the fourth degree committed against a peace
officer, fire fighter, correctional officer, emergency
medical technician, paramedic, ambulance attendant, or
other emergency responders."
Representative Pete Kelly, sponsor of HB 127, was invited
to join the committee. He stated the bill was created due
to increasing violence to police during the execution of
their duties. It sends a clear message to those who would
assault a police officer that engaging in a fight with a
police officer is a bad idea. The sentence was extended to
include emergency responders, correctional nurses,
firefighters and any other emergency personnel. Due to
technical flaws in sentencing it was found that judges were
prevented from using aggravated factors on felony assaults
against police officers. Fourth degree assault now includes
threatening speech and the sixty day sentence arrived at was
the same formula used in felony assault when there are
aggravating factors. He referred to the fiscal note from
the Department of Law, 2/9/96.
Co-chairman Halford cited the fiscal note from the
Department of Law, zero; $21.4 from Department of
Corrections; the rest are all zero.
Senator Donley asked for an explanation on repealers.
Representative Kelly advised that it refers to felonious
assault and presumptive sentencing. Later there are
aggravators. If presumptive sentencing is used regarding a
police officer the aggravator can not be used. As the law
was written the presumptive sentence was less for a police
officer than for a normal citizen. That section was
repealed in the presumptive sentencing and felonious C&B
assaults and just allowed the judge to use the aggravator.
As long as it was in presumptive sentencing the judge's
hands were tied. Because of case law it was double
jeopardy. A specific provision was repealed to include
peace officers and correctional officers. Senator Donley
referred to the definition of "peace officer" under Title 12
and who all was included.
Mr. Dean Guaneli was invited to join the committee. He
explained the law enforcement community is concerned and
feels the current thirty-day sentence is not adequate to
address the matter and deter people from assaulting police
officers. Representative Kelly advised that Col. Godfrey
from the Alaska State Troopers was not available to testify
today but referred to the fact that there has been a jump
from 66 assaults in 1994 to 91 assaults in 1995 - 1996.
This is viewed not as a spite but a trend.
Senator Frank asked if this was because judges were giving
minimum sentences when a police officer is assaulted.
Representative Kelly advised that judges have the option to
sentence up to one year. Mr. Guaneli noted that in general
when the legislature imposes a minimum sentence the judges
ordinarily give that sentence unless there are particular
aggravating factors. The ultimate jail time tends to focus
around the mandatory minimum set forth by the legislature.
It is felt by judges that it is foreseeable police officers
may be assaulted and that is why they choose the minimum
sentence unless a specific direction otherwise. Senator
Frank asked the definition of assault. Mr. Guaneli informed
the committee that assault can simply be the infliction of
some level of pain, a punch in the nose, a shove, just about
anything can rise to the level of a misdemeanor assault.
Senator Frank commented on not leaving discretion to the
judges to look at the situation.
Representative Kelly reflected on a conversation with former
police chief from Fairbanks in that there is an escalating
level of violence against them and they feel that they would
like the thirty-day sentence raised. The message must be
clearly sent that this is a police officer and it is hands
off. This must extend to all people who are in the
execution of their duties on the front lines of law
enforcement. Senator Frank stated he felt the situation was
very serious. Mr. Guaneli felt that a conversation between
the police chief association or the Department of Public
Safety and the Chief Justice or perhaps at the next judges
training session or their annual conference someone could
come before them and express the concern that these are
serious matters. Judges feel there is a wide range of
assaults and they try to base their sentences on the facts;
from the officers stand point they see largely the minimum
sentence being imposed. Senator Donley and Senator Frank
referred to the sentencing commission.
Senator Donley asked what the elements were for AS
11.41.230. Mr. Guaneli answered where by words or other
conduct one is placed in fear of imminent physical injury.
This subsection is not usually charged in connection with
police officers. A blow has to be landed. Representative
Kelly and Senator Donley further discussed that all three
classes of assault are lumped together under the existing
law.
Senator Zharoff asked the difference between "correctional
employee" and "officer". Representative Kelly advised that
a police officer is trained in closer contact with felons
and murderers. A correctional employee such as kitchen
help, nurse, etc. is not. Therefore the intent of the bill
was to include protection for correctional employees who
came in contact with the prisoners.
Senator Frank posed a hypothetical case on a civilian
assault. Mr. Guaneli informed that there is no minimum for
assault on ordinary citizens.
Senator Donley MOVED SCS CSHB 127 with individual
recommendations and the accompanying fiscal note of the
Department of Corrections in the amount of $21.4. Without
objections the bill was REPORTED OUT with individual
recommendations and the fiscal note.
SENATE BILL NO. 175
"An Act relating to correctional institutions and their
administration; providing the Department of Corrections
with the authority to require prisoners to assist in
paying for medical treatment; relating to the authority
of a law enforcement agency to charge a prisoner for
medical costs for a preexisting condition; and relating to
service of criminal sentences."
Senator Donley testified on behalf of his bill. This bill
is modeled after the Federal Act named the "no frills"
prison act. Some of the changes were made in order to save
money particularly for those prisoners who have severe
illnesses. At present we pay for them. He referred to
amendment #3 which has a more focused definition regarding
this. (He noted, at this time, that he supported all three
of the amendments.) Additionally some limits are placed
parallel to the current Federal limits in prisons regarding
what prisoners are allowed to have in their possession or
cells and what kind of facilities can be provided to them.
The most important are: denial of access to weight-lifting
equipment; prohibition to more than basic cable T.V.;
prohibition to television in cells; prohibition of computers
in cells; bans on certain types of movies being in their
possession or being viewed. These appear in section four of
the bill and are parallel to the Federal Act. The
Department is allowed some flexibility to engage in
vocational training. This is a real important tool that can
be used to help the prisoners be able to earn a living when
they get out. At the request of the Department, some
authority is added in section 7 to authorize prisoners to
engage in vocational training. There was further discussion
on the three amendments: #1, extension on the prohibition
on televisions to include possession of VCR's and compact
disc players; #2, prohibition on smoking except in
designated areas; #3, fine tunes the severely medical
disabled language. Amendment #1 was MOVED by Senator Donley
and without objection was ADOPTED.
Amendment #2 was MOVED by Senator Donley and testimony
regarding this amendment was given by Mr. Jerry Shriner,
Special Assistant, Office of the Commissioner, Department of
Corrections. There are some facilities where smoking is
banned altogether and other facilities where smoking is
allowed in designated areas only. The decisions were made
by the Superintendent. Without objection Amendment #2 was
ADOPTED.
Senator Donley MOVED amendment #3. Mr. Jerry Shriner
further testified regarding this amendment that during the
past year there were several inmates that were paroled
needing either placement in a nursing home or full time
nursing care at home. This care was covered by medicaid or
medicare. At present anyone being paroled under the new
language could also be paroled under the old. Community
safety could be secured without requiring the parole board
to adhere specifically to the "confined to bed" standard.
Some small groups of individuals could be paroled and save
the department health care money. Co-chairman Frank
inquired as to why there is no positive fiscal note from
Corrections. Mr. Shriner advised that it presently is a
speculative situation as it just depends on the inmates and
their medical needs. Without objection Amendment #3 was
ADOPTED.
Senator Zharoff and Senator Donley discussed briefly
contract and municipal jails. Mr. Dean Guaneli clarified
the matter by stating that municipal jails are not under
State statutes. The definition of correctional facility is
something that is specifically owned or operated by the
Department of Corrections. It is generally known that the
contract facilities do not offer better services than the
state jails. Contract facilities only hold prisoners ten to
fifteen days; others maybe up to thirty days. This is
usually for pre-trial purposes. There would be no conflict
with what this bill seeks to address.
Senator Frank discussed quality and quantity of food in the
jail. Senator Donley advised that the original version of
the bill was the same language which appeared in the Federal
Act which states that the quality and quantity of food
should not exceed what is available if you were in the
military service of the United States. Since the department
could not identify what that standard was they requested
the present standard. There still are some problems. Mr.
Guaneli commented that a standard based on the constitution
has some uncertainty as to what that means. What is
constitutional in one prison may not be constitutional in
another. Judges base their decisions on the totality of
the circumstances. Since our facilities are generally new
we could get by with a lesser quality of food. He referred
to sections 1(a) and (c) and stated that the department
would have to adopt a conservative approach. Senator Frank
felt there should be some review of what is happening and
how the Department could change their behaviour. If there
is going to be a reduction of the "frill" aspect in the
prisons regarding food then there should be some savings
resulting in a positive fiscal note. Senator Donley
concurred with these suggestions. In setting up some
standards the past abuses would be prohibited. Mr. Guaneli
advised there are a number of constitutional provisions that
could be worked under including the standard of what is
nutritious and what will maintain health adequately.
Senator Frank stated that if we are going to pass a bill we
should know what we are passing and maybe get some savings.
(tape SFC-96 #27 switched to side 2)
Senator Donley said a specific provision could be added
stating that the menu shall include not more than two meat
servings a day. Senator Frank would like to see a serious
response from the Department as to what this bill means in
their management and felt that the matter has not been taken
seriously. Senator Donley said that they have been working
with the Department for the last eight months and they are
not really enthusiastic supporters. Senator Frank felt that
this was probably due to the fact that they felt this was
changing their ability to manage. Mr. Guaneli noted that
the Department will have to take certain things into
consideration in adopting to medically prescribed diets and
religious diets.
Senator Frank asked that the Department be put on notice
that a thorough understanding of the overall cost of the
food service and how it would be impacted by this change in
law was needed. He asked further as to what state and
Federal lawsuits have been used to develope standards as to
what is acceptable, constitutional and appropriate. Senator
Donley advised that the Federal Act was basically adjusted
to fit the specifics of the situation here in Alaska.
Almost everything done in the prisons today gets litigated.
A balance must be reached between an aggressive policy and
just letting the prisoners do what they want.
Senator Frank asked about the premium channels on
television. Senator Donley said the judiciary version
allowed basic cable to be paid for by the prisoners. Mr.
Shriner advised that some prisoners have jobs within the
prison and earn sixty to eighty cents per hour, others have
money brought in my relatives. In Palmer, for example, the
inmates paid for the installation of the cable television in
the day room including the service. Senator Donley
explained that preventing prisoners from having televisions
in individual rooms and no cable prohibits them from having
premium cable channels. The reason for allowing the basic
cable service is because the reception in some of the areas
does not work so an allowance was made to allow basic cable
as an alternative to an antenna. The original bill placed a
total ban on cable television but the department felt it
appropriate to at least allow basic cable. Senator Frank
asked about a book list. Senator Donley advised that it
varies from institution to institution what books and how
many you can have. Mr. Shriner advised that libraries are
available in most institutions. There is a good access to
books and magazines. The department has a security problem
with too many books in rooms because contraband can be
hidden in them and they are difficult to search. Senator
Frank also inquired about housekeeping privileges in
individual cells and Mr. Shriner advised that even though
there is no current prohibition from a statutory point of
view on the matter there are none allowed by the
superintendents. No computers are allowed in individual
cells. Senator Donley said that computers raise a lot of
difficulties. Allowing state controlled computers in a
common area for educational purposes is good. All training
can be done in this common room under the watchful eye of
the correctional officer. A computer in an individual cell
will cause a constant security problem. This powerful
entertainment tool is not appropriate in a punishment
situation.
Senator Donley MOVED CSSS SB 175(JUD) with individual
recommendations and without objection the bill is REPORTED
OUT with individual recommendations and zero fiscal notes
from the Department of Health and Social Services and
Department of Corrections.
ADJOURNMENT
The meeting was adjourned at approximately 10:15 A.M.
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