Legislature(2019 - 2020)SENATE FINANCE 532
05/09/2019 01:30 PM Senate FINANCE
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| Audio | Topic |
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| Start | |
| HB49 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 49 | TELECONFERENCED | |
| + | TELECONFERENCED |
SENATE FINANCE COMMITTEE
May 9, 2019
1:33 p.m.
1:33:44 PM
CALL TO ORDER
Co-Chair von Imhof called the Senate Finance Committee
meeting to order at 1:33 p.m.
MEMBERS PRESENT
Senator Natasha von Imhof, Co-Chair
Senator Bert Stedman, Co-Chair
Senator Click Bishop
Senator Lyman Hoffman
Senator Peter Micciche
Senator Donny Olson
Senator Mike Shower
Senator Bill Wielechowski
Senator David Wilson
MEMBERS ABSENT
None
ALSO PRESENT
John Skidmore, Director, Criminal Division, Department of
Law, In Room; Senator Jesse Kiehl.
SUMMARY
CSHB 49(FIN) am
CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
CSHB 49(FIN) am was HEARD and HELD in committee
for further consideration.
CS FOR HOUSE BILL NO. 49(FIN) am
"An Act relating to criminal law and procedure;
relating to pretrial services; establishing the crime
of possession of motor vehicle theft tools; relating
to electronic monitoring; relating to controlled
substances; relating to probation and parole; relating
to sentencing; amending the definitions of 'most
serious felony,' 'sex offense,' and 'sex offender';
relating to registration of sex offenders; relating to
operating under the influence; relating to refusal to
submit to a chemical test; relating to the duties of
the commissioner of corrections; relating to testing
of sexual assault examination kits; relating to
reports of involuntary commitment; amending Rules
6(r)(6) and 38.2, Alaska Rules of Criminal Procedure;
and providing for an effective date."
Co-Chair von Imhof explained that the Department of Law
(LAW) would provide an overview regarding changes. She
stated that the meeting would provide an overview without
the fiscal impact discussed.
1:36:20 PM
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW, IN ROOM, discussed CSHB 49 (FIN). He noted that the CS
drew from various bills including the Senate versions. He
looked at the Sectional Analysis:
? Eliminate Marriage as a Defense to Sexual Assault
o Repeals marriage as a defense to sexual assault
except in cases where there is consent and the conduct
is illegal due to the nature of the relationship but-
for the marriage (probation officer/probationer, peace
officer/person in custody, DJJ officer/person 18 or 19
an under the jurisdiction of the Division of Juvenile
Justice).
? Sexual Abuse of a Minor in the Third Degree
Sentencing o Makes sexual abuse of a minor in the
third degree a sexual felony when there is a 6 year
age difference, thus increasing the sentencing range
from 0-2 to 2-12 years.
? Enticement of a Minor
o Deletes "online" from the crime of "online
enticement of a minor" making any solicitation of a
minor to commit sexual acts a B felony.
? Indecent Viewing
o Makes indecent viewing or production of a picture of
a child and production of a picture of an adult a
registerable sex offense and sentenced as a sexual
felony. Conduct involving the viewing of a picture of
an adult would be a class A misdemeanor.
? Theft
? Indecent Viewing involves conduct such as setting up
a camera in a locker room to capture the private
exposure of other people.
o Removes inflation adjustment.
? Failure to Appear o Removes the 30 day grace period
for FTA to ensure better enforcement for ? defendants
appearing in court for the hearings, including trial.
? Violating Conditions of Release
o Pre-SB 91:
? Escape
Class A misdemeanor if the person violates conditions
while on release for a felony. Class B misdemeanor if
the person violates conditions while on release for a
misdemeanor. )
o Makes it a class C felony
Threats
? for a person to tamper or remove an electronic
monitoring device while under official detention for a
misdemeanor; or
? tamper or remove an electronic monitoring device or
leave one's residence or other place designated by a
court as a condition of release before trial.
o Creates a generalized terroristic threatening
statute to address threats of harm.
? Drugs o Possession - First two offenses would be a
class A misdemeanor subject to a sentencing range of
0-365 days. On the third offense it would be a class C
felony.
o Drug Distribution - Returns distribution of drugs to
class B and A felonies from the current C and B levels
and removes quantity as an element.
o Methamphetamine Manufacturing and Distribution - Re-
enacts the enhanced sentences for those who make
methamphetamine around children or who engage children
in the manufacture of methamphetamine.
? Arraignment o Allows 48 hours after arrest to
arraign a defendant and set bail.
? Presumptions For Release on Bail
o Removes the presumptions that are in current law
which require the judge to release unless they find by
clear and convincing evidence that there is no
nonmonetary condition that will ensure the defendant's
appearance in court or Removes inability to pay as a
reason for the court to review a bail setting; and o
Makes the risk assessment tool a factor that the judge
can consider when determining bail and conditions of
release.
? Pretrial Electronic Monitoring
o Prohibits a court from granting credit towards a
person's sentence for time spent on electronic
monitoring before trial for certain offenses.
? Probation Lengths o Increases the maximum probation
length for sex felonies to 25 years and 10 years for
all other offenses.
? Caps on Sanctions for Technical Violations and
Absconding o Repeals the caps on the sanctions for
technical violations ( currently 3, 5, and 10 days for
the first three violations respectively) and
absconding (up to 30 days). Returns discretion to
judges and the parole board to impose a sanction
appropriate for the offender, the type of violation,
and the underlying offense.
? Early Termination Of Probation And Parole o Returns
to a true recommendation of the probation or parole
officer instead of a mandated recommendation after 1
or 2 years without violation.
? Felony sentences -Increases A and B felony
presumptive ranges by approximately 1 year.
? A Misdemeanor Sentencing o Remove 30-day presumptive
sentence for A misdemeanors and returns discretion to
judges to impose 0-365 days. Also increases the
sentencing range for B misdemeanors from 0-10 days to
0-30 days.
? Presumptive Sex Offense Sentencing o Clarifies that
any prior felony counts as a prior felony for
presumptive sentencing purposes in sex cases. This
means prior felonies, even when they are a non-sex
felony, trigger an increased presumptive range for a
sex offense.
? Driver's License after Felony DUI o Allows a person
to obtain a driver's license if they have been
convicted of a felony DUI that was not associated with
a crime against a person (vehicular assault etc.),
their license has been revoked for 10 years and in the
preceding 10 years the person has not committed a new
criminal offense.
? Driving with License Suspended/Revoked/Canceled o
Returns DWLS to a crime.
? Under current law it is a crime only if the person
has had their license revoked due to a DUI.
? Out Of State Sex Offender Registration o Requires
anyone convicted of a registerable sex offense in
another state to register in Alaska if they are
present in the Alaska.
? Earned Compliance Credits o Grants credit against a
person's term of probation or parole upfront. The
reduction to a person's period of probation or parole
will be at 1/3 instead of 30 days for every 30 days
the person goes without a violation. If a person
violates, they will have time added back on to their
period of probation or parole. This restructuring of
earned compliance credits is similar to how statutory
good time is awarded to prisoners in custody. Also,
prohibits certain offenders from getting earned
compliance credits.
? Parole Eligibility - Returns to restricting what
crimes are eligible for discretionary parole. Makes
the following crimes ineligible:
o Non-sex class A felonies (Robbery 1, Assault 1,
Arson 1, Escape 1, MIW 1);
o B felonies if the person had one or more prior
felony convictions;
o C felonies if the person had two or more prior
felony convictions; and
o B and C sex felonies (Sexual Assault 2, Sexual Abuse
of a Minor 2, Distribution of Child Pornography).
? Parole Release Presumptions o Returns discretion to
the parole board by eliminating a presumption of
release.
? Parole Application o Requires the person to actually
apply for discretionary parole rather than forcing the
parole board to have a hearing automatically.
? ASPIN Use At Grand Jury o Allows APSIN (rap sheet)
to be used at grand jury when an element of the
offense requires proof of prior convictions.
? Increase Use of Video-Teleconferencing - Encourages
the use of videoconferencing for all pretrial court
hearings.
? Involuntary Commitments o Requires the Alaska Court
System to transmit information regarding involuntary
commitments that have occurred since October 1, 1981
to the Department of Public Safety.
1:39:12 PM
Co-Chair von Imhof asked about cybercrime.
Mr. Skidmore clarified that the crime was related to online
enticement as it existed in current statute. The change did
not change it from being criminal, rather it included a
face-to-face enticement.
Senator Olson asked about the possibility that two students
that were in high school that may be enticing each other.
Mr. Skidmore replied that the law did not change the
requirement. He stated that the elements stated that it was
a crime when the individual engaging in the enticement who
was older than 18-years-old, and the enticed was under the
age of 16-years-old.
1:41:12 PM
Senator Olson surmised that the solicitation does not
relate to who "pushes send."
Mr. Skidmore replied that the solicitation must occur by a
person 18 years of age or older, and they knowingly
communicated with someone under the age of 16.
Senator Olson proposed a situational crime.
Mr. Skidmore clarified the question.
Senator Olson asked his question again.
Mr. Skidmore replied someone who is 18 years old or older.
Statute related to solicitation of child.
Mr. Skidmore sections 9-25 and the vast majority of the
sections same as SB 32, which adjust for inflation for a
felon.
Mr. Skidmore highlighted section 9. He noted that the
addition of theft in the second degree. He mentioned that
the theft two and the identification document added to the
crime.
1:45:01 PM
Co-Chair von Imhof clarified that the bill was similar to
that passed by the Senate.
Mr. Skidmore elaborated about the new material in section
19 and the motor vehicle theft. He noted that the conscious
objective to commit a vehicle theft.
Senator Wilson asked the department's opinion on the
vehicle theft.
Mr. Skidmore stated that the department did not recommend
the crime, instead it was advocated for by law enforcement.
Therefore, the department supported the Section.
Senator Wilson asked about intent described within.
Mr. Skidmore replied that the intent was not subjective. He
stated that "intent" was defined in Alaska Statute
11.81.900, which was a definition that required the
conscious objective to achieve a particular result.
Senator Wielechowski wondered if the department supported
expanded the language to include breaking into the vehicle
to steal its contents.
Mr. Skidmore stated that he was pausing to process the
concept. He shared that the concept would allow for the
prosecution of someone possessing such tools to break into
vehicles. He stressed that it would be a class A
misdemeanor. He announced that he would support that
language.
1:50:20 PM
Senator Micciche discussed stealing a vehicle and the
felony charge. He asked whether including the possession of
motor theft tools in the theft of objects would increase
the level of the crime, than the value of the stolen
objects.
Mr. Skidmore replied that the crime could prevent people
from engaging in the crime itself. He responded that if
someone possessed to engage in the activity, the tools
would be used multiple times.
Mr. Skidmore discussed section 26, page 14. He noted that
some theft is just enough to be charged with a lower level
offence. He referenced a statute allowing the aggregation.
He provided an example. He clarified that the statute
Co-Chair von Imhof provided an example of theft and
aggregate of charges.
Mr. Skidmore agreed that it did not matter.
In response to a question from Senator Bishop, Mr. Skidmore
replied that the other body established the notion
discussed in section 26.
1:55:53 PM
Senator Bishop remarked that construction sites constantly
had their tools stolen, and he felt that should be
discussed further.
Senator Micciche asked about specific language. He wondered
if any theft of items taken of value.
Mr. Skidmore stated that he had focused on commercial
establishments, but agreed with the addressing of Senator
Bishop's concerns.
Senator Micciche appreciated the addition to the
legislation. He noted that the consequences were steeper
with the changes to the bill.
Co-Chair von Imhof looked at the "or persons", so a
perpetrator could go to homes or cabins over six months to
steal items. She remarked that the "or persons" would
result in more than $750.
Mr. Skidmore agreed.
Mr. Skidmore discussed sections 27 and 28.
Mr. Skidmore highlighted sections 29 and 30.
Mr. Skidmore addressed sections 31-36.
2:00:04 PM
Senator Micciche asked whether the sections met the intent
of the discussions related to indecent viewing.
Mr. Skidmore replied that the legislation was drafted with
the intent of the discussions in the legislature.
Senator Wielechowski wondered whether the legislation made
viewing pornography a crime.
Mr. Skidmore replied no.
Senator Wielechowski wondered about indecent viewing.
Mr. Skidmore replied private exposure in situation in which
they would not think that a person would take a photograph.
He mentioned a case where a person placed a camera in a
public place to photo someone without their knowledge.
Senator Wielechowski wondered about an exception for art
that might be viewed in a museum.
Mr. Skidmore stated not a private exposure for art class
was not considered private exposure.
Senator Olson asked medical professionals who would take
photographs.
Mr. Skidmore replied that there was an exception with use
for medical treatment in Section 36.
Mr. Skidmore discussed Sections 38 through 40.
2:06:22 PM
Senator Shower discussed law enforcement and the use of the
charge of possession to - 1. entice people to go into
treatment; and 2. have the tool to ensure prosecution or
have evidence. He felt that the bill was removing the tool.
Mr. Skidmore agreed that the bill kept the charge as a
misdemeanor, but would be subject to zero to 365 days; as
opposed to current law where the first two possessions get
zero jail time. The idea was having up to a year in jail to
use as either the incentive for treatment or the incentive
for cooperation. He understood that there was still a
difference between a misdemeanor and felony, but stressed
that it was a policy issue. He stressed that the
administration originally requested the felony. He felt
that the change was still a substantial step in the
direction to help law enforcement and prosecutors.
Co-Chair von Imhof wondered whether the "up to a year in
jail" was the change.
Mr. Skidmore replied in the affirmative. He stated that
there were two important changes: 1. The first two offenses
would carry up to a year in jail, 2. A third offense would
become a Class C felony.
2:09:15 PM
Senator Wielechowski looked at page 25, lines 1 through 5,
which addressed possession of a schedule 3A, 4A, 5A, and 6A
controlled substance with reckless disregard that the
possession occur within 500 feet of a school ground or
recreation youth center. He noted that there were many
houses in that range, and noted that a schedule 6A
substance was marijuana. He wondered about a person who had
an ounce of legal marijuana in their home, and wondered
whether that person would be committing a crime under the
law.
Mr. Skidmore replied in the negative, because that person
was in compliance with AS 17.38, which had the marijuana
regulatory exemptions.
Senator Micciche looked at page 26, which had the two
required convictions that would become a felony on the
third conviction. He wondered whether it was in the
legislature to require a different felony on the second
conviction, if looking for some middle ground. He stressed
that getting caught twice with possession might imply
hundreds of injections of drugs. He wondered whether it was
possible for the legislature to require a felony on the
second arrest.
Mr. Skidmore replied that it was a complicated question,
because the SEJ contemplated resolving a case by setting
certain conditions.
Senator Micciche clarified that if the situation did not
work the first time, the ability to require successful
treatment. He stressed that compromise is constitutional.
Mr. Skidmore agreed to look into that consideration.
Mr. Skidmore discussed section 43 and misconduct in the 5th
degree. He noted that the differences related back to the
concept.
Mr. Skidmore moved to sections 44 and 45 that continued to
deal with the drug statutes. He pointed out that the
statutes were now written to assure that the 6a substance
would not qualify.
2:14:36 PM
Senator Micciche asked for a reminder about misconduct of a
controlled substance and 4th and 5th degrees.
Mr. Skidmore summarized that 4 degree was class C felony.
He stated that misconduct involving controlled substance in
the 5th degree was possession of various controlled
substances other than marijuana, that would make the first
two offenses a Class A misdemeanor. He noted the other
subsections that dealt with some other concepts.
Senator Micciche wondered whether there was logic in
tracking between the 4th and 5th degree.
Mr. Skidmore stated that he did not understand the
question.
Senator Micciche assumed that the 5th degree required to or
more convictions for a felony charge.
Mr. Skidmore replied that the distinction included the
possession, but left the subsection that made the
possession a misdemeanor. He stated that prior to SB 91,
both misconduct involving a controlled substance in the 4th
and 5th degree broke out a more complex tiered approach to
possession or distribution of some of the other lower
classifications.
Mr. Skidmore transitioned to procedure discussed in section
46-48. Time held prior to arraignment same as SB 33. He
noted that section 47-52 all addressed bail.
Mr. Skidmore continued with section 48 and 49 including the
subsequent bail hearing.
2:21:11 PM
Mr. Skidmore continued with the subsections.
Senator Shower recalled repeal language for SB 91. He
expressed concern that judges would use the information was
Mr. Skidmore responded that the court must consider 12
factors and the relationships. Any pending criminal
charges. He wondered about the risk assessment tool. This
version says that the factors should be considered. All of
the information in front of them. Risk assessment tool
2:25:10 PM
Senator Micciche asked about the pretrial assessment tool.
He discussed that lack of requirement for the pretrial risk
assessment.
Mr. Skidmore replied that subsection b, lines 19 and 20,
which said, "in addition to conditions under 'A' of this
section, the judicial officer may order the person to
submit." He stated that in reading that in combination with
subsection c, found on page 32, which said, "the court
shall consider the risk assessment provided by the pretrial
services officer." He stated that the court would examine
whatever the risk assessment tells them, but were free to
assign whatever weight they deep appropriate.
Senator Micciche opined that a pretrial risk assessment
might not be ordered.
Mr. Skidmore replied that the law stated that statutes must
conform with each other. Risk assessment is available, and
it should be considered.
Senator Micciche followed up regarding the risk assessment.
Mr. Skidmore replied that there was not a require to order
a risk assessment.
Senator Bishop felt that with the word, "shall" the judge
must do the requirements.
Mr. Skidmore stated that the judge must consider the
factors. He noted that the information might not be
something to consider. He stressed that the judge may not
have all of that information.
Senator Bishop paused because he did not understand
Mr. Skidmore moved to sections 51 and 52 discussing third
party custodians, which is the same language as SB 33.
2:30:47 PM
Senator Micciche asked about changes in the Senate, so he
surmised that the language was different than the Senate's
final.
Mr. Skidmore replied that it was the exact same language as
the Senate.
Co-Chair von Imhof clarified that the language was the same
in Section 52.
Mr. Skidmore agree.
Mr. Skidmore sections 53 and 55.
Co-Chair von Imhof asked how it changes the intent in the
Senate version.
Mr. Skidmore replied that an individual would have to be on
probation for two years or eighteen months before
recommendations are made for early termination.
Co-Chair von Imhof noted that the section adds more
restrictions.
Mr. Skidmore agreed.
Mr. Skidmore moved on to section 57 and caps on technical
violations.
Co-Chair von Imhof asked the Department of Law's opinion
about the caps.
Mr. Skidmore stated that Department of Law looked at the
caps. He asked for consideration of administrative
sanction, which was an intermediate step. He used the
example including the filing of a petition to change the
conditions enforced.
Mr. Skidmore continued that the technical violation
addressed the lesser penalty. He stated that the bill now
allowed for adjusting behavior. He pointed out 21,000
administrative sanctions and opportunities to correct
behavior without creating a petition. Petitions must be
addressing more significant violations. He stated that
technical caps do not work and should be eliminated.
Senator Wilson wondered about third party vendors.
Mr. Skidmore replied that the technical caps only apply to
felonies.
2:41:30 PM
AT EASE
2:42:16 PM
RECONVENED
Mr. Skidmore replied that technical caps only apply to
felony probation.
Co-Chair von Imhof asked about Section 57, and that the
Department of Law was not thrilled. She wondered if the
administrative sanctions could overrule Sections 1 and 2,
and ignore the caps. She queried the flexibility of
probation officers.
Mr. Skidmore replied that probation officers could not
ignore subsection C 1 and 2. He explained that the cap was
a restriction placed on the judge, not on the probation
officer.
2:45:17 PM
Senator Wielechowski requested the available administrative
sanctions for probation officers.
Mr. Skidmore replied that caps could be eliminated. He
advocated for the administrative sanctions.
Senator Wielechowski discussed the goal of quick and
immediate action, and wondered whether it could be tied to
the violation.
Mr. Skidmore replied that it could be considered.
Mr. Skidmore explained Sections 58 through 73.
2:54:18 PM
Co-Chair von Imhof looked at page 52, line 3, which said,
"a person has not been convicted of a criminal offense in
the ten years preceding the request for restoration of
license." She surmised that if a person had not an issue
for ten years, there license could be reinstated.
Mr. Skidmore reviewed the provision and the revoked
driver's license. He agreed that 10 years without another
criminal offense, would be eligible to have license
restored.
Co-Chair von Imhof announced that it was identical to the
provisions in the Senate version.
2:56:09 PM
Mr. Skidmore same concept and identical to senate version.
He looked at Section 73.
Senator Wilson used the example of someone with seven DUIs,
but did not harm anyone. He stated that after ten years,
then it was ok to get a driver's license.
Mr. Skidmore stated that the person must have to go for 10
years without any other issue or conviction.
Mr. Skidmore discussed Section 74.
Senator Bishop asked about a timeline for the commissioner
to establish the regulations.
Mr. Skidmore replied no. He agreed to examine the issue
further.
Senator Bishop wondered if the issue could be nailed down
to be included in the bill.
Mr. Skidmore stated that the law said that the law must
have regulations.
Senator Shower noted the attempt to separate the accounting
for time, because there was a possible accounting for time
while at home. He wondered whether there was an attempt to
fix that issue.
Mr. Skidmore clarified that the concepts were separate. He
stated that probation could be reduced by 33 percent. He
noted how the litigation could resolve the litigation.
Co-Chair Stedman handed the gavel to Co-Chair von Imhof.
3:01:12 PM
AT EASE
3:05:57 PM
RECONVENED
Mr. Skidmore discussed Sections 75 through 77.
Co-Chair von Imhof asked Department of Law's opinion.
Mr. Skidmore shared that they had no position.
3:10:15 PM
Mr. Skidmore moved to section 78 and the eligibility of
discretionary parole. The amendment occurred on the House
floor.
Senator Wilson queried what the language was changing
toward.
Mr. Skidmore replied that the Senate version was SB 34, in
Section 10 that set out the ineligibility or eligibility
for discretionary parole.
Co-Chair von Imhof surmised that the House version
increased the number of requirements needed to be
ineligible.
Mr. Skidmore agreed. He replied that the difference was
that the current version stated that there would be more
individuals eligible to apply for discretionary parole,
therefore it would be more restrictive. The difference
between the two was the number of prior felonies.
Co-Chair von Imhof remarked that it was the discretion of
the Board, so the Board ultimately had the discretion
regardless of the number of prior felonies.
Mr. Skidmore agreed.
3:14:23 PM
Senator Micciche asked where the unclassified was located
in the list of people who would not be eligible for
discretionary parole.
Mr. Skidmore replied that a different statute addressed the
unclassified crimes, and were restricted.
Senator Wilson asked whether geriatric release was included
in SB 91.
Mr. Skidmore replied in the affirmative, and looked at page
57, lines 6 through 8.
Mr. Skidmore discussed Sections 79 through 83.
Mr. Skidmore highlighted Sections 84 through 91.
3:20:35 PM
Senator Wilson wondered about hearings.
Mr. Skidmore replied that a number of other hearings
occurred and would occur.
Co-Chair von Imhof stated that the meeting would resume
tomorrow at 9:00 am. She noted that there were missing
aspects of the Senate version of the bills.
CSHB 49(FIN) am was HEARD and HELD in committee for further
consideration.
ADJOURNMENT
3:22:02 PM
The meeting was adjourned at 3:21 p.m.
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