03/21/2018 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB184 | |
| SB175 | |
| SB150 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 184 | TELECONFERENCED | |
| *+ | SB 150 | TELECONFERENCED | |
| *+ | SB 175 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 21, 2018
1:31 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Mia Costello
Senator Pete Kelly
Senator Bill Wielechowski
Senator Mike Shower
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 184
"An Act restricting the release of certain records of
convictions; relating to criminal history information for state
employment applications; amending Rule 37.6, Alaska Rules of
Administration; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 175
"An Act authorizing the commissioner of natural resources to
disclose confidential information in an investigation or
proceeding, including a lease royalty audit, appeal, or request
for reconsideration and issue a protective order limiting the
persons who have access to the confidential information."
- HEARD & HELD
SENATE BILL NO. 150
"An Act relating to pretrial release procedures; amending Rule
41, Alaska Rule of Criminal Procedure; and providing for an
effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 184
SHORT TITLE: ACCESS TO MARIJUANA CONVICTION RECORDS
SPONSOR(s): SENATOR(s) BEGICH
02/12/18 (S) READ THE FIRST TIME - REFERRALS
02/12/18 (S) JUD, FIN
03/21/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 175
SHORT TITLE: DNR: DISCLOSURE OF CONFIDENTIAL INFO
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/05/18 (S) READ THE FIRST TIME - REFERRALS
02/05/18 (S) JUD, RES
03/21/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 150
SHORT TITLE: PRETRIAL RELEASE; NON-AK CRIM HISTORY
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/18/18 (S) READ THE FIRST TIME - REFERRALS
01/18/18 (S) JUD
03/21/18 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
SENATOR TOM BEGICH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 184.
SYDNEY LIENEMANN, PhD., Staff
Senator Tom Begich
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Delivered the sectional analysis for SB 184.
KATHRYN MONFREDA, Chief
Criminal Records and Identification Bureau
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: Provided information related to SB 184.
ANDREW MACK, Commissioner
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Introduced SB 175 on behalf of the
administration.
ED KING, Special Assistant to the Commissioner
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: Delivered the sectional analysis for SB 175.
JAHNA LINDEMUTH, Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided introductory remarks on SB 150.
ROBERT HENDERSON, Deputy Attorney General
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Provided supporting information for SB 150.
GERI FOX, Director
Pretrial Services Division
Department of Corrections (DOC)
Anchorage, Alaska
POSITION STATEMENT: Provided supporting information for SB 150.
ACTION NARRATIVE
1:31:41 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:31 p.m. Present at the call to
order were Senators Costello, Shower, Wielechowski, and Chair
Coghill. Senator Kelly arrived soon thereafter.
SB 184-ACCESS TO MARIJUANA CONVICTION RECORDS
1:32:07 PM
CHAIR COGHILL announced the consideration of SB 184 and stated
his intention to hear an introduction and take questions.
1:33:03 PM
SENATOR TOM BEGICH, Alaska State Legislature, Juneau, Alaska,
sponsor of SB 184, stated that the bill is the result of
meetings in his district on public safety that occurred last
September. He continued the introduction speaking to the
following sponsor statement:
Senate Bill 184 would make confidential the records of
individuals who have been convicted of minor marijuana
crimes, and no other crime. In 2014, Alaskans voted to
legalize the cultivation, sales, and possession of
marijuana for those 21 years old or older. This
legislation led to a robust and growing marijuana
industry, but some Alaskans remain blocked from
employment and housing by previous marijuana
possession.
According to a report by Legislative Research, between
2007 and 2017 there were more than 700 Alaskans
convicted of low level marijuana crimes. Those
convictions can make obtaining housing and gainful
employment challenging, even though marijuana
possession would not be a crime today.
Further, Senate Bill 184 would prevent the State from
asking if someone has been convicted of a felony on a
job application, with an exclusion for any position
related to the criminal justice field. This type of
'ban the box' legislation has been shown to reduce
barriers to gainful, fulltime employment, amongst the
most important factors in reducing recidivism.
Now that voters have legalized marijuana, this
legislation would allow those previously convicted to
move on with their lives, while ensuring those in the
criminal justice field still have access to needed
background information.
SENATOR BEGICH pointed out that entities would not be prohibited
from investigating an applicant.
1:34:37 PM
SENATOR KELLY joined the committee.
1:36:09 PM
SYDNEY LIENEMANN, PhD., Staff, Senator Tom Begich, Alaska State
Legislature, Juneau, Alaska, delivered the following sectional
analysis for SB 184:
Section 1: Describes the legislative intent to reduce
barriers to re-entry for those convicted of low-level
marijuana possession, which would no longer be
considered crimes today.
Section 2: Prohibits the Department of Public Safety,
and any designated reporting agency, from disclosing
any criminal records associated with possession of
less than one ounce of a schedule VIA controlled
substance conviction, covering both State Statute and
municipal ordinance. These cases will be protected
from disclosure only if marijuana possession is the
only crime for which the person was convicted in a
particular criminal case. A schedule VIA controlled
substance considered to have the lowest degree of
danger to users. Marijuana is the only VIA drug.
Section 3: Makes Alaska Court System's records of
criminal cases involving convictions for possession of
less than one ounce of marijuana confidential. Those
cases would not be available on Court View.
Section 4: Limits a State agency's ability to ask a
job applicant if they have been convicted of a crime.
This section makes an exception for any position
associated with the criminal justice field.
Section 5: Indirectly amends Alaska Court System Rules
of Administration by making certain cases
confidential.
Section 6: Because Section 5 indirectly amends a court
rule, this legislation will require a two-thirds vote
as described by the Alaska Constitution.
Section 7: Provides 120 days for this legislation to
take effect after bill signing, giving the Courts as
well as affected agencies time to change their
reporting protocols.
1:37:49 PM
SENATOR BEGICH advised that he and his staff have worked with
the Department of Law and the Court System, and they
participated in the Criminal Justice working groups that looked
at barriers to reentry and explored issues ranging from
expungement to confidentiality of records. He noted that at
least nine other states have passed legislation like SB 184
proposes. At least 30 other states have laws with some element
of expungement. He offered to provide that information to the
committee.
CHAIR COGHILL offered his understanding that in this instance
confidentiality makes these cases unavailable on CourtView, but
it does not expunge the record.
SENATOR BEGICH agreed that the record is not eliminated; it
would still be searchable by law enforcement and other entities.
1:38:52 PM
SENATOR SHOWER asked if a private investigator could access the
record on CourtView.
SENATOR BEGICH said his understanding is that the entity could
do a background search, but the record would not be available on
CourtView. He deferred further explanation to Dr. Lienemann.
DR. LIENEMANN advised that those records would be available for
a more detailed background check, but someone who is doing a
Google search would not find those records.
CHAIR COGHILL asked what a "ban the box" application would look
like.
SENATOR BEGICH clarified that the "ban the box" would only apply
to state agency applications, not private entities. The box and
direction to check the box if the applicant has convictions of
minor marijuana crimes would not appear on state applications.
He reiterated that this would not stop an employer from doing
necessary background checks. The idea is to keep state hiring
managers from tossing an application that indicates a prior
marijuana conviction that is no longer against the law.
CHAIR COGHILL said the Criminal Justice Commission has debated
the issue and that is the positive aspect. The negative is that
more agencies might require background checks.
SENATOR SHOWER asked for clarification. The third paragraph of
the sponsor statement talks about a felony conviction, but the
bill doesn't specifically mention that.
1:42:16 PM
SENATOR BEGICH referenced Senator Coghill's last comment and
advised that the Department of Administration issued a zero
fiscal note indicating that the bill would not increase costs.
He deferred Senator Shower's question to Dr. Lienemann.
DR. LIENEMANN advised that the bill says a person convicted of
any crime, not just a felony.
CHAIR COGHILL asked if the bill has generated any opposition.
SENATOR BEGICH said he hasn't heard any opposition but there
have been questions requesting assurance that the bill would not
place public safety at risk. The intent is to offer people who
have prior low-level marijuana convictions an opportunity to be
considered fairly in the job market. The bill does not ask for
expungement.
CHAIR COGHILL asked how many Alaskans have a record of a VIA
controlled substance conviction.
SENATOR BEGICH said the research his office asked for shows that
there were 721 convictions going back to 2007.
1:45:12 PM
CHAIR COGHILL thanked the sponsor and his staff for presenting
the bill. He said he would be in touch when it would be heard
again.
SENATOR WIELECHOWSKI noted that the Court System submitted a
zero fiscal note and the Department of Public Safety (DPS)
indicated it would need additional staff to go through the
records. He expressed interest in the difference in procedure to
make these records confidential between the two agencies.
SENATOR BEGICH deferred the explanation to the departments.
1:46:41 PM
KATHRYN MONFREDA, Chief, Criminal Records and Identification
Bureau, Department of Public Safety, Anchorage, Alaska, advised
that each of the more than 11,000 entries in the criminal
history system for AS 11.71.060 would need review to make sure
the conviction was for possession of less than an ounce of the
schedule VI substance. That is the reason for the DPS fiscal
note.
SENATOR WIELECHOWSKI commented that it seems odd that the fiscal
impacts are so different.
CHAIR COGHILL said his understanding is the Court System would
simply block the information. They would probably depend on DPS
to identify the individuals.
1:48:10 PM
CHAIR COGHILL stated that he would hold SB 184 for future
consideration.
SB 175-DNR: DISCLOSURE OF CONFIDENTIAL INFO
1:48:30 PM
CHAIR COGHILL announced the consideration of SB 175.
1:49:06 PM
ANDREW MACK, Commissioner, Department of Natural Resources,
Anchorage, Alaska, introduced SB 175 stating the following:
The department has a longstanding issue with respect
to the handling of information considered confidential
under Alaska law. Specifically, this issue impedes the
department's ability to effectively audit and collect
the appropriate amount of royalty and net profit share
payments due under some leases held under oil and gas
producers.
A material term of the oil and gas lease requires
producers to provide price information to the
department. If this price information is higher than
the value used by the audited company for computing
royalty or net profit share due the state, the
department will use this higher value in determining
the payment due.
Because this sales information is confidential - yet
is used by the department in determining the royalty
in net profit share values, disclosing the information
to the audited party in limited fashion is necessary
to complete and finalize the audits. Some audits have
been completed using voluntary confidentiality
agreements entered into by the department, the owner
of the data, and the audited party. More frequently,
one or more of the parties refuses to sign the
agreements. This again is an obstacle to finalizing
the audit.
The leases in existing statutes allow for the
disclosure of confidential information during an
official proceeding or the investigation of the
department. What they don't provide is the method of
disclosure nor any additional protective measures to
ensure the limited use of the confidential
information. The department has taken a conservative
position and has chosen not to disclose confidential
information over the objections of the information
owner.
To be clear, every member of the Department of Natural
Resources who has access to, uses, or handles
confidential company information is well aware of the
restrictions on that information. They are also well
aware of how to safeguard that information and how to
use it in the normal course of their duties. It is a
trust we take very seriously. In fact, I am not aware
of a single instance where inadvertent or malicious
release of company confidential material or
information has occurred. It is a very serious
business to use and we do not take our
responsibilities lightly.
What this bill does is provide myself, the
commissioner, with the ability to determine [whether]
disclosure of confidential information is required in
the official conduct of state business. And if I do
find disclosure is necessary, provide a tool for me to
use to safeguard that information.
This bill is about protecting company information, not
about disclosing it in some haphazard manner. As I
mentioned earlier, DNR takes our responsibilities with
respect to this kind of information very seriously.
This bill gives the commissioner and the Department of
Natural Resources a tool to describe in specific
detail how that information is to be used, who gets to
see it, what it is to be used for, and how to dispose
of it if necessary. These are the things we think are
important in the conduct of our official duties.
I'd like to add, what we're proposing here Mr.
Chairman is not something new. It is very similar to
the process the Department of Revenue uses when they
have to determine tax issues.
1:53:24 PM
CHAIR COGHILL listed the individuals available to answer
questions.
1:54:33 PM
ED KING, Special Assistant to the Commissioner, Department of
Natural Resources (DNR), Juneau, Alaska, delivered the following
sectional analysis for SB 175:
Section 1 adds to the commissioner's authorities under AS
38.05.020(b). Paragraph (15) allows the commissioner to disclose
confidential information under a protective order during an
official proceeding such as a lease on an appeal or request for
consideration. This statute would mirror the Department of
Revenue statute AS 43.55.040. It lays out the process for which
confidential information can be disclosed to a party that is
under audit when another party's information was used to asses
that audit value.
He explained that what occasionally happens is a lease term
requires a lessee to pay royalty based on the highest price that
is within the field. For example, if a lessee sells their oil
for $50, they would pay DNR royalty based on that $50 sale. If
another lessee within that same lease sold their share of the
oil for $60, they would pay DNR based on $60. DNR would then
audit the first company saying it owed additional royalty based
on the second lessee who got more value. Because that sales
information is confidential, DNR would need to figure out how to
disclose that confidential data through the audited party. The
current statute, AS 38.05.036(f), gives the department authority
to disclose that information during an audit or during an appeal
of an audit. What the statute does not do is provide a process
to disclose that information. When the party whose information
is to be disclosed objects to the disclosure, the department
does not have statutory process to protect that information.
What SB 175 seeks to do is provide that process for disclosure
through a protective order.
Sections 2 and 3 are conforming language to adopt the new
section into AS 38.05.020.
COMMISSIONER MACK advised that the department has about $40
million in outstanding appeals that are potentially impacted by
this legislation. Embedded in the department's thinking is to
get the most and best value for the sales contracts within a
unit while protecting the confidential data of each of the
working interest owners. He was unaware of anyone who has broken
the obligation of confidentiality but the fact that there is the
possibility of criminal prosecution catches the eye of an
employee who is trying to do their job and trying to establish
what is the royalty for that unit. What SB 175 seeks to do is
allow DNR to show working interests when another working
interest has negotiated a higher price contract on that unit.
1:59:59 PM
CHAIR COGHILL summarized that competitors are worried that some
of their internal workings would be disclosed.
COMMISSIONER MACK said DNR's primary objective is to ensure that
the state is treated fairly. He referenced Mr. King's example of
sales contracts on the same unit for $50 and $60. The entity
that negotiated the $50 sales contract will be able to look at
the higher priced contract, but the particulars of what is and
is not disclosed in the protective order would be very focused.
He noted that DNR has the option of going to the court and
asking for a protective order but it's a little cumbersome to do
so in each case.
MR. KING added that the information that would be disclosed is
what is used in an audit. The information is several years old
so the ability for a company to use it to gain a competitive
advantage is very limited. The protective order can also impose
limitations on who can see that information. It's necessary to
have the flexibility to construct the protective orders to fit
each situation. What is lacking is a process. He also pointed
out that the higher of provision that DNR is enforcing is a
lease term to which the lessee agreed. The department has the
statutory authority to prosecute those terms, complete the
audit, and get the money that's due to the state but what's
lacking is a process. SB 175 provides that process, which is the
same as the one the Department of Revenue has.
CHAIR COGHILL asked where the industry feels they might be
violated.
MR. KING suggested the industry answer that because the
department doesn't see this as a problem.
CHAIR COGHILL said he understands the department's perspective.
COMMISSIONER MACK said the department holds a lot of
confidential information and has a stellar record for
maintaining confidentiality.
CHAIR COGHILL commented that there is a notice provision for all
parties. He asked if this is new.
MR. KING said there is a process in place to do a voluntary
confidentiality agreement similar to a protective order. The
problem arises in those cases where the other party won't
consent to the confidentiality agreement.
COMMISSIONER MACK advised that many royalty issues are settled
without this being an issue.
2:06:02 PM
CHAIR COGHILL stated that he would hold SB 175 in committee for
future consideration.
2:06:29 PM
At ease
SB 150-PRETRIAL RELEASE; NON-AK CRIM HISTORY
2:08:30 PM
CHAIR COGHILL reconvened the meeting and announced the
consideration of SB 150.
2:08:52 PM
JAHNA LINDEMUTH, Attorney General, Department of Law, Anchorage,
Alaska, stated that, as attorney general, this is a top priority
to pass this session. It is critical for public safety. Phase
III of Senate Bill 91, which put the pretrial risk assessment
tool in place, went into effect on January 1, 2018. She
understands that DOC has already hired 35 new pretrial officers,
which should have a good impact on public safety going forward.
She explained that in the process of putting this in place, the
Department of Law recognized an oversight that requires a
legislative fix this session. The division is using a pretrial
risk assessment tool that generates a score that informs judges
about whether a person should be released mandatory own
recognizance (OR), presumptive OR, or whether the judge should
use discretion on imposing conditions of bail or keep the person
in prison pretrial.
The statute required a validating tool be put in place for the
pretrial risk assessment. However, only in-state criminal
history has been used. There was a problem using the out-of-
state criminal history and getting the tool validated in time.
That is something that may or may not happen in the future. SB
150 seeks to put in place a fix that would go away if the out-
of-state criminal history is used in the future. In the interim,
an override is necessary when the tool is generating a mandatory
OR if it's taking discretion away from the judge to keep
somebody in jail who has a risk factor based on out-of-state
criminal history.
CHAIR COGHILL offered his understanding that the state went to
the FBI for data to help validate this tool and access to the
information was denied because the use was identified as a
research purpose rather than a law enforcement purpose.
2:13:05 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Department of Law (DOL), Anchorage, Alaska, agreed. He said
criminal justice information is highly confidential and can
generally only be used for law enforcement purposes. The
pretrial risk assessment tool mandated by Senate Bill 91
requires that information to be validated, but the FBI won't
release that information for this non-law enforcement purpose.
CHAIR COGHILL said the idea is to give judges more discretion
regarding mandatory release if the out-of-state criminal justice
information indicates that more judicial discretion is
warranted.
MR. HENDERSON said that's correct. He said with the chair's
permission, he would give a general overview of the law, the
problem that's been identified, and how SB 150 proposes to fix
the problem.
He advised that pretrial enforcement is a key component of
criminal justice reform. It provides a way to apply analytics
and empirical data to give judges as much information as
possible in order to make release decisions. Bail is designed to
ensure a person appears at court and to keep the public safe.
Bail is not a sanction and it can't be used as such because a
person is presumed innocent until found guilty.
Phase III of Senate Bill 91 put the pretrial risk assessment
tool in place. It is objective, standardized, based on the
analysis of empirical data, and validated by the state's
pretrial population. The rub is not being able to apply the out-
of-state criminal history to the state's pretrial population
because it can affect bail decisions.
He directed attention to the bail matrix in the packets. He
explained that an algorithm drives the decisions that judges
make regarding bail. For example, if the Pretrial Enforcement
Division finds somebody to be low risk (they are charged with
non-violent, non-sex misdemeanors), they would be mandatory OR.
The judge would be required to release that person without
setting a monetary bail. The mandatory decision is for low risk
misdemeanors, moderate risk misdemeanors, and low risk felonies.
2:17:42 PM
CHAIR COGHILL clarified that out-of-state data is still being
collected, but at this point it isn't factored into the
different levels of recognizance.
MR. HENDERSON agreed that DOC is collecting the out-of-state
criminal history information outside the FBI system in the hope
that it can be used in the future to validate the tool. He
referred to the proposed fix as a safety valve that won't be
used if the FBI system is available. He acknowledged that using
the FBI system is not a sure thing.
He reviewed the sample pretrial report generated by the Pretrial
Enforcement Division. He explained that DOC collects information
like the age of first arrest, and the number of criminal
convictions, the number of times on probation, and the number of
times in jail to determine whether someone is low, moderate, or
high risk for appearing in court and for reoffending.
2:19:50 PM
SENATOR COSTELLO said that at Senator Coghill's suggestion,
Suzanne DiPietro explained the process to her at length. The
risk assessment tool is data driven and the questions on the
tool were generated by actual situations. Certain factors result
in the risk of committing a new criminal offense and a different
set of factors result in the risk for failure to appear. This is
why there are two different tools and two different scores. Out-
of-state felony information is not part of the data that
generated the tool so someone with a felony from another state
could commit a felony in Alaska and still score zero on the risk
assessment tool. She said the administration was alerted to this
loophole after an incident in Anchorage. A felon from another
state wielded a gun in a mall and subsequently scored zero on
DOC's risk assessment tool. She said her concern is that similar
incidents can occur until the loophole is closed. She asked if
her understanding was correct.
MR. HENDERSON said the bill would address that issue. When the
statute was created the intent was that out-of-state criminal
history would be considered in the creation of the risk
assessment tool. Because that did not happen, SB 150 creates a
fix that allows the judge to exercise discretion in making an
appropriate bail decision in narrow, targeted circumstances. He
noted that information from DOC indicates that one in three
individuals who fall within the red boxes of the bail matrix
have out-of-state criminal histories that were not taken into
account.
2:24:21 PM
CHAIR COGHILL highlighted that Senator Costello was talking
about felony behavior, whereas Mr. Henderson was talking about
overall criminal history.
MR. HENDERSON agreed. The bill defines out-of-state criminal
history to include convictions, arrests, and charges.
2:25:06 PM
SENATOR COSTELLO asked him to respond to the point that the
department proceeded to develop the tool after it learned that
out-of-state criminal history would not be part of it.
MR. HENDERSON said the department went ahead for several
different reasons. Primarily, it was because the law was going
into effect January 1, 2018 and that law mandated the use of the
tool. The department used just Alaska data because that was what
was available.
SENATOR COSTELLO noted that the bill required the department to
promulgate regulations and she understands that hasn't happened.
She asked if the department still intends to draft the
regulations that were required by state statute.
MR. HENDERSON explained that the law requires DOC to adopt the
regulations in consultation with the Department of Law, the
Public Defender Agency, the Department of Public Safety, the
Office of Victims' Rights, and the Court System. That workgroup
is actively meeting and discussing the regulations that will be
promulgated.
SENATOR COSTELLO said she is extremely supportive of this effort
but is concerned that the process did not include the public.
There was no public comment or public education about how the
tool was generated and why it's being used.
2:27:55 PM
SENATOR WIELECHOWSKI wondered if the bill goes far enough
because constituents have purported a cycle of people repeatedly
being arrested and released. He asked if those stories are
accurate and what can be done to stop that cycle if that is the
case.
MR. HENDERSON said they have started to see that type of cycle,
but the bill doesn't address that. SB 150 proposes to address
the issue of out-of-state criminal history. One other issue is
how the tool considers new offenses committed during the
pendency of bail. Something else that needs clarification is
that pretrial services officers have the authority to arrest and
file the subsequent criminal complaint. Because of different
interpretations of the statute, the Court System has not allowed
pretrial services officers to file criminal complaints.
CHAIR COGHILL said his intention is to address that in the bill.
ATTORNEY GENERAL LINDEMUTH said she believes that Senator
Wielechowski's question focuses on stories that circulated
before the pretrial unit was put in place. The Court System
changing its bail schedule before the Pretrial Enforcement
Division was up and running was also a factor. She said her
general sense is that the program is very successful, but more
data is needed to evaluate it completely.
SENATOR WIELECHOWSKI said he appreciates the bill because his
constituents are very frustrated. In the past few days he's
heard reports that people under observation by the Pretrial
Enforcement Division have figured out how to manipulate their
monitoring devices to evade observation. They are entering
prohibited areas and circumventing alcohol prohibitions. He said
he's curious about the accuracy of those reports and wonders how
to fix the problem.
SENATOR COSTELLO shared that this morning she released the
results of an unscientific survey of five questions about crime.
It was circulated to 70,000. Almost 5,000 people responded to
the questions and 1,000 shared their stories. Based on the
responses she's read so far, she isn't sure the tool is as
successful as she thought it would be as a co-sponsor of the
governor's crime reform. She invited the attorney general to
visit her office and read the stories. She described them as
valuable feedback.
ATTORNEY GENERAL LINDEMUTH said she appreciates the offer
because other than the fiscal crisis, public safety is the
state's top concern. The crime statistics are unacceptably high,
and the three branches of government need to work together to
address the problem.
2:36:44 PM
SENATOR SHOWER said crime was a top concern at the two town
halls he held last weekend. The UCR statistics support the
concern and the law enforcement officers he talks to say the
lack of prosecutors is causing a backlog of cases. He referenced
the one in three statistic that Mr. Henderson cited and
questioned whether the bill is too narrowly focused considering
the broad scope of the problems the state is facing.
ATTORNEY GENERAL LINDEMUTH said she believes that one in three
represents a significant population that will be impacted by the
bill.
SENATOR SHOWER said his concern is waiting another year when
crime is affecting people so much.
ATTORNEY GENERAL LINDEMUTH said the Department of Law had a
number of concerns with Senate Bill 91 and all those were
addressed in Senate Bill 54. SB 150 fixes a problem that was
identified last fall and the fix is needed right now.
CHAIR COGHILL asked Senator Wielechowski to restate his question
for Ms. Fox.
2:41:03 PM
SENATOR WIELECHOWSKI asked if it's true that people being
monitored under the Pretrial Enforcement Division have figured
out how to manipulate their monitoring devices to evade
observation so they can enter prohibited areas, take drugs in
violation of court order, and evade alcohol prohibitions.
2:42:08 PM
GERI FOX, Director, Pretrial Services Division, Department of
Corrections (DOC), Anchorage, Alaska, said DOC is aware of the
attempts people make to defeat their monitoring devices and the
manufacturers have built in specific strategies to detect such
attempts. She pointed out that prior to January 1, defendants
were only monitored if they paid a private company for the
service and judges did not have the broad authority to put
individuals on electronic monitoring devices. Currently more
than 228 defendants around the state are on electronic
monitoring.
SENATOR WIELECHOWSKI said private companies have provided quite
effective electronic monitoring in years past, but most of them
have gone out of business. He asked if the Pretrial Enforcement
Division is using active, realtime GPS monitoring.
MS. FOX said they use four realtime GPS devices. One monitors
curfew, another monitors curfew and alcohol, another is a
handheld breathalyzer that monitors alcohol and GPS, and another
is an ankle device that does realtime GPS monitoring.
SENATOR WIELECHOWSKI said he was disappointed that private
industry was rebuffed when they offered to provide their
expertise. Many have now gone out of business and that
accumulated expertise is lost.
MS. FOX clarified that her role in DOC is to stand up the
Pretrial Enforcement Division according to statute. She said she
oversaw the process to get those private businesses certified to
work with the department. Defendants still have the option to
pay a private company for electronic monitoring. Some people
exercise that option, but it's an expensive endeavor.
CHAIR COGHILL commented that an individual who pays for their
electronic monitoring probably has the advantage of the Nygren
credit. He asked if someone released on mandatory OR could still
be under some monitoring.
MS. FOX said yes. Pretrial enforcement officers oversee
individuals released on mandatory OR if the judge orders that
and the orders may include electronic monitoring.
CHAIR COGHILL asked if the range of the offense in the out-of-
state criminal history will be taken into consideration for the
mandatory release measure.
MR. HENDERSON said yes. The judge will make certain findings and
shall impose the least restrictive condition(s) that reasonably
ensures the appearance of the offender and public safety.
CHAIR COGHILL offered his perspective that appearing in court is
subtler than the safety question.
SENATOR WIELECHOWSKI asked what percentage of people monitored
by pretrial enforcement are violating the terms of their
release.
MS. FOX said there isn't enough data to answer that question,
but after 2.5 months 3,864 assessments have been done and 1,069
individuals are under supervision in Alaska communities.
CHAIR COGHILL said he would reiterate that previously
supervision only happened under a third-party, which was found
to be very ineffective.
SENATOR WIELECHOWSKI disagreed that it was ineffective; a grant
to provide electronic monitoring was found to be very effective.
CHAIR COGHILL said he stands corrected. It was third-party
monitoring by a relative that was found to be ineffective.
He stated his intention to send the governor's bill to
legislative drafting. He asked Mr. Henderson if he had any
comments or suggestions on the language in the bill.
MR. HENDERSON said it's important to keep in mind that Section 1
allows the prosecuting attorney to ask the judge to postpone
arraignment for 48 hours to allow time to obtain the out-of-
state criminal history. That will be helpful in informing the
judge regarding what release conditions should occur.
2:56:55 PM
CHAIR COGHILL said SB 150 seems to be a reasonable solution to
the issue that was identified last fall. He said he appreciates
the widespread effort that's gone into finding a resolution.
CHAIR COGHILL stated he would hold SB 150 in committee awaiting
a committee substitute.
2:58:01 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:58 pm.