Legislature(2007 - 2008)BELTZ 211

03/05/2007 01:30 PM JUDICIARY

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                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 5, 2007                                                                                          
                           1:33 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski                                                                                                       
Senator Lesil McGuire                                                                                                           
Senator Gene Therriault                                                                                                         
MEMBERS ABSENT                                                                                                                
Senator Charlie Huggins, Vice Chair                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 7                                                                                                               
"An Act relating to the voting rights of felons."                                                                               
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 89                                                                                                              
"An Act relating to requiring electronic monitoring as a special                                                                
condition of probation for offenders whose offense was related                                                                  
to a criminal street gang."                                                                                                     
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 36                                                                                                              
"An Act relating to sentencing for the commission of certain                                                                    
offenses influenced by alcohol and to the offense of consumption                                                                
of alcohol in violation of sentence."                                                                                           
     SCHEDULED BUT NOT HEARD                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB   7                                                                                                                  
SHORT TITLE: FELONS' RIGHT TO VOTE                                                                                              
SPONSOR(s): SENATOR(s) DAVIS                                                                                                    
01/16/07       (S)       PREFILE RELEASED 1/5/07                                                                                
01/16/07       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/16/07       (S)       STA, JUD, FIN                                                                                          
01/25/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
01/25/07       (S)       <Above Bill Hearing Canceled>                                                                          
02/22/07       (S)       STA AT 9:00 AM BELTZ 211                                                                               
02/22/07       (S)       Moved CSSB   7(STA) Out of Committee                                                                   
02/22/07       (S)       MINUTE(STA)                                                                                            
02/23/07       (S)       STA RPT CS  1DP 2NR   SAME TITLE                                                                       
02/23/07       (S)       DP: MCGUIRE                                                                                            
02/23/07       (S)       NR: FRENCH, GREEN                                                                                      
03/05/07       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
BILL: SB  89                                                                                                                  
SHORT TITLE: ELECTRONIC MONITORING OF GANG PROBATIONER                                                                          
SPONSOR(s): SENATOR(s) WIELECHOWSKI                                                                                             
02/21/07       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/21/07       (S)       JUD, FIN                                                                                               
03/05/07       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
WITNESS REGISTER                                                                                                              
Thomas Obermeyer, Aide                                                                                                          
to Senator Bettye Davis                                                                                                         
Alaska State Capitol                                                                                                            
Juneau, AK 99801-1182                                                                                                           
POSITION STATEMENT:  Introduced SB 7 on behalf of the sponsor                                                                 
Margaret Pugh, Former Commissioner                                                                                              
Department of Corrections                                                                                                       
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Spoke in support of SB 7                                                                                 
Michael Macleod-Ball, Executive Director                                                                                        
American Civil Liberties Union of Alaska                                                                                        
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Spoke in support of SB 7                                                                                 
Natalie Landreth, Staff Attorney                                                                                                
Native American Rights Fund                                                                                                     
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Spoke in support of SB 7                                                                                 
Daniel Levitas, Consultant                                                                                                      
Alaska Civil Liberties Union of Alaska                                                                                          
No address provided                                                                                                             
POSITION STATEMENT:  Spoke in support of SB 7                                                                                 
Dwayne Peeples, Deputy Commissioner                                                                                             
Department of Corrections                                                                                                       
431 N. Franklin, Suite 400                                                                                                      
Juneau, AK 99801                                                                                                                
POSITION STATEMENT:  Answered questions about the Department of                                                               
Corrections fiscal note for SB 89                                                                                               
ACTION NARRATIVE                                                                                                              
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to order at 1:33:39  PM. Present at the call to                                                             
order  were  Senator  McGuire, Senator  Wielechowski,  and  Chair                                                               
French.  Senator  Therriault arrived  during  the  course of  the                                                               
                  SB   7-FELONS' RIGHT TO VOTE                                                                              
CHAIR FRENCH announced the consideration of SB 7.                                                                               
1:34:24 PM                                                                                                                    
THOMAS OBERMEYER, aide to Senator Davis, read the sponsor                                                                       
statement into the record as follows:                                                                                           
     It is essential  to a democracy that  every citizen who                                                                    
     wishes  to  be  a   productive  member  of  society  be                                                                    
     afforded  the right  to vote.  Art. I,  Sec. 12  of the                                                                    
     Alaska    Constitution     provides    that    criminal                                                                    
     administration   is   based   on  the   "principle   of                                                                    
     reformation"  in  addition  to protecting  the  public,                                                                    
     community condemnation of the  offender, and the rights                                                                    
     of   victims.   Political  participation   helps   with                                                                    
     rehabilitation and reintegration into the community.                                                                       
     SB 7  grants felons the  right and opportunity  to vote                                                                    
     if they  wish to exercise that  right immediately after                                                                    
     having  served their  time.  In  Alaska 5,000  Alaskans                                                                    
     have  lost  their  right  to  vote  because  of  felony                                                                    
     convictions.  Current  Alaska  law  bars  the  vote  to                                                                    
     persons convicted of felonies  of moral turpitude until                                                                    
     the  expiration  of   a  post-incarceration  period  of                                                                    
     parole or  probation, which is  often years  after they                                                                    
     have reentered  society as productive citizens  and tax                                                                    
     payers. While  Vermont and Maine do  not disenfranchise                                                                    
     felons at  all, other  states are reforming  their laws                                                                    
     to  allow  felons  to vote  either  after  release  (13                                                                    
     states), after  release and completion of  probation or                                                                    
     parole  (21  states  including  Alaska),  or  permanent                                                                    
     disenfranchisement to certain felons (14 states).                                                                          
     Harsh  sentencing  laws over  the  past  30 years  have                                                                    
     allowed  the   prison  population  to   burgeon,  while                                                                    
     reducing  the rehabilitative  model to  an anachronism.                                                                    
     Over 4.7  million Americans  or 1  in 43  adults cannot                                                                    
     vote due  to felony  convictions, with  1/3 or  more of                                                                    
     them  due  to  alcohol  and  drug  offenses.  Of  those                                                                    
     incarcerated  in  Alaska  47   percent  are  white;  37                                                                    
     percent Alaska  Native; 11 percent African  American; 2                                                                    
     percent   Hispanic;   and   3   percent   Asian/Pacific                                                                    
     Islanders.   Minority  felons   are  disproportionately                                                                    
     disenfranchised  under  current  law and  the  harm  of                                                                    
     continued    disenfranchisement   after    release   is                                                                    
     exacerbated    by   stigma    and   other    forms   of                                                                    
     discrimination as they try to reenter society.                                                                             
     SB  7   will  help  rehabilitate  released   felons  by                                                                    
     welcoming   them  back   into   the  voting   community                                                                    
     immediately  after  release  and  encouraging  them  to                                                                    
     become  good citizens.  Studies  show  that felons  who                                                                    
     vote  have  a  lower  rate of  recidivism.  SB  7  will                                                                    
     streamline  the process  by  which  the state  restores                                                                    
     voting rights to felons and thus will save money.                                                                          
1:39:17 PM                                                                                                                    
SENATOR WIELECHOWSKI  recapped that  if someone is  released from                                                               
prison and is still on probation,  that person is not eligible to                                                               
vote.  Under SB  7 that  person would  be entitled  to vote  upon                                                               
MR. OBERMEYER said  correct and a primary reason for  the bill is                                                               
that enfranchisement  is rehabilitative.  Get them back  into the                                                               
community because they are with us anyway, he said.                                                                             
SENATOR WIELECHOWSKI asked how house arrests would figure in.                                                                   
MR.  OBERMEYER  replied the  Department  of  Corrections and  the                                                               
Division of  Elections would  need to  establish rules  to handle                                                               
such circumstances.                                                                                                             
CHAIR FRENCH opened public testimony.                                                                                           
1:41:22 PM                                                                                                                    
MARGARET  PUGH,   Former  Commissioner   of  the   Department  of                                                               
Corrections  and retired  state employee,  stated strong  support                                                               
for  SB 7  and  described the  issue as  emotional  for some  and                                                               
political for others.  Amendment 14 of the  US Constitution gives                                                               
each state  the right  to determine  who votes  and who  does not                                                               
vote and  clearly there is not  just one American way  to restore                                                               
voting rights, she stated.                                                                                                      
Some states never restore the  right; some restore the right upon                                                               
petition of  the governor  for a pardon;  some restore  the right                                                               
after incarceration  regardless of probation or  parole; and some                                                               
states,  like  Alaska,  restore the  right  after  probation  and                                                               
parole  have been  served. She  noted that  in Alaska  almost all                                                               
felons  have some  period of  probation  and/or parole  following                                                               
release from incarceration.                                                                                                     
MS. PUGH said  American democracy is an evolving  process. In the                                                               
early days the  elite governed and as a  result disabilities were                                                               
visited on  women, slaves, illiterates, and  non-property owners.                                                               
Those  legal  disqualifications  continued  for  years  and  some                                                               
states, notably in the south,  instituted other disabilities such                                                               
as the poll tax. Ms.  Pugh relayed that her great-grandfather had                                                               
to pay  poll taxes  and her great-grandmother  could not  buy her                                                               
own sewing machine.                                                                                                             
The purpose of these disabilities  was clearly discriminatory and                                                               
fortunately  most  of those  practices  have  been overcome.  She                                                               
pointed  out that  today her  great-grandmother could  purchase a                                                               
sewing machine on  her own and she could vote.  Today there is no                                                               
more  slavery, there  are  no  more poll  taxes,  voters are  not                                                               
required  to  be  literate,  and  vision  or  hearing  is  not  a                                                               
requirement.  However, she  said, a  disability that  many states                                                               
have not  revisited, is  the one that  is visited  upon convicted                                                               
MS. PUGH said she views SB 7 as  a first step because all it does                                                               
is restore  voting rights to  persons convicted of  felonies upon                                                               
release  from  custody;  they could  vote  before  probation  and                                                               
parole  is complete.  Because the  Alaska constitution  says that                                                               
voting rights are surrendered by  people convicted of felonies of                                                               
moral  turpitude, and  because most  felonies in  Alaska are,  by                                                               
definition,  considered to  be crimes  of  moral turpitude,  SB 7                                                               
would not restore voting rights to very many people, she stated.                                                                
SB 7 does  not restore other forfeited civil  rights. For example                                                               
a  convicted felon  on  probation and/or  parole  must submit  to                                                               
search  of  a person,  home,  or  property  of any  sort  without                                                               
protection  of  a  warrant;  must  provide  urine  samples;  must                                                               
continue treatment; can  not work in certain fields;  and can not                                                               
bear arms.                                                                                                                      
MS.  PUGH  pointed out  that  restoring  voting rights  does  not                                                               
present a  threat to any person,  place or thing. This  is a very                                                               
small thing for the legislature to  do, she said, but it's a huge                                                               
leap for American democracy. In  her view the current practice is                                                               
blatant racial discrimination and it is time for change.                                                                        
1:50:58 PM                                                                                                                    
SENATOR McGUIRE agreed  with the previous testimony  and said she                                                               
has never understood why restoring  a felon's right to vote would                                                               
be problematic.                                                                                                                 
She asked  Ms. Pugh to  comment on  testimony last year  from the                                                               
Department of  Corrections suggesting that it  would be difficult                                                               
to maintain a registry of  the different conditions of release to                                                               
show the people  who have their voting rights  restored and those                                                               
who do not.                                                                                                                     
MS.  PUGH  replied  it  is   an  issue,  but  the  Department  of                                                               
Corrections  (DOC)  and  the   Permanent  Fund  Division  already                                                               
exchange  data bases  for forfeited  permanent fund  dividends so                                                               
the  technology  is  available  for   DOC  and  the  Division  of                                                               
Elections to  exchange data. There  will always be a  few issues,                                                               
but there is no reason they can't be overcome, she said.                                                                        
SENATOR  McGUIRE asked  if she  believes  that rehabilitation  is                                                               
still a tenet of  the penal system. If so, how  large a part does                                                               
restoring voting rights play in the rehabilitation process.                                                                     
MS. PUGH said  the very definition of correction  means to change                                                               
and correct  and not punish.  "I believe that  corrections should                                                               
have  treatment programs  of all  types and  offenders should  be                                                               
able to vote when they are released from custody," she stated.                                                                  
1:57:34 PM                                                                                                                    
NATALIE  LANDRETH, Staff  Attorney, Native  American Rights  Fund                                                               
(NARF), stated strong support for  SB 7. The most critical reason                                                               
is  that  the  current   law  disproportionately  impacts  Alaska                                                               
Natives  because they  comprise  a disproportionate  part of  the                                                               
felon population. In 2004 a  study by the Alaska Judicial Council                                                               
concluded: that Alaska Natives were  overrepresented in the felon                                                               
population;  that Alaska  Natives receive  longer sentences  than                                                               
non-Natives; that Alaska Natives  typically have lower per capita                                                               
incomes than  non-Natives and can  not afford  private attorneys;                                                               
and that people  with private counsel generally  served less time                                                               
in prison  and on  parole and were  generally more  successful in                                                               
getting reduced charges.                                                                                                        
MS. LANDRETH  said Alaska  Judicial Council  statistics highlight                                                               
the  following: 83  percent of  all  felons are  male, almost  50                                                               
percent are under  30 years of age, 50 percent  are Caucasian, 37                                                               
percent are Alaska  Native, 63 percent have  alcohol problems, 45                                                               
percent   have  drug   problems,  more   than  33   percent  have                                                               
identifiable  mental  health  problems,  and  almost  80  percent                                                               
financially qualified for a public defender.                                                                                    
MS. LANDRETH,  responding to  a question  from the  state affairs                                                               
hearing, relayed  that "65  percent of  felons were  convicted of                                                               
class C felonies  with property crimes comprising  30 percent and                                                               
drug crimes 20 percent. Murder and  sexual assault by the way are                                                               
only 2 percent and 12 percent of these felons respectively."                                                                    
In conclusion  she said  that the people  most likely  to benefit                                                               
from  the bill  are young  men who  need help  reintegrating into                                                               
society.  Re-enfranchising these  people after  they have  served                                                               
their sentence is a positive and empowering way to achieve that.                                                                
2:02:16 PM                                                                                                                    
MICHAEL   MACLEOD-BALL,   Executive  Director,   American   Civil                                                               
Liberties Union  of Alaska  (ACLU), noted  that he  had submitted                                                               
written testimony. He  asked the committee to think  of the issue                                                               
of restoring voting rights in the  larger context of the right to                                                               
rehabilitation  under  the  state constitution.  The  people  who                                                               
would benefit  from this law are  the ones that the  court system                                                               
has said  are ready and  worthy of reentering society.  The scope                                                               
and  context of  rehabilitation  should encompass  the notion  of                                                               
giving  these people  a vote  of confidence  to exercise  a basic                                                               
right of citizenship - the right to vote.                                                                                       
He suggested committee  members refer to the  December 2006 issue                                                               
of  the Alaska  Law Review.  It  contains a  relevant article  by                                                               
Christopher R. Murray titled  "Felon Disenfranchisement in Alaska                                                               
and the Voting Rights Act of 1965."                                                                                             
2:05:24 PM                                                                                                                    
DANIEL LEVITAS,  American Civil Liberties  Union (ACLU),  said he                                                               
submitted written  testimony. His  work focuses  on the  issue of                                                               
felon enfranchisement  and in  the last 10  years 16  states have                                                               
taken positive  steps in this  direction. Of the  11,000 Alaskans                                                               
who  are  disenfranchised  as a  result  of  felony  convictions,                                                               
roughly 54 percent would be reenfranchised if SB 7 were to pass.                                                                
MR. LEVITAS said  the issue enjoys bipartisan  support because it                                                               
is a  fundamental issue of  democratic participation,  rights and                                                               
community safety.  It's axiomatic that giving  former offenders a                                                               
stake  in society  will make  them feel  less inclined  to repeat                                                               
their behavior.  In fact,  one study shows  a clear  link between                                                               
voting behavior and lower re-arrest rates.                                                                                      
MR. LEVITAS  echoed Ms.  Pugh's point that  SB 7  simply restores                                                               
the right to  vote in a narrow and specific  context. It does not                                                               
restore  full  civil  rights to  people  on  parole/probation  or                                                               
parole.  In  conclusion  he  said  SB  7  will  reduce  risks  to                                                               
communities by promoting the reintegration of ex-offenders.                                                                     
CHAIR  FRENCH  noted  that Deputy  Commissioner  Peeples  sent  a                                                               
letter  dated March  1 responding  to  a question  raised at  the                                                               
previous hearing. The data shows  the numbers of probationers and                                                               
parolees  whose  last conviction  was  a  felony crime  of  moral                                                               
turpitude.  Unclassified  felonies are  the  most  serious and  C                                                               
felonies the least.                                                                                                             
     Unclassified Felony:       101                                                                                             
     A Felony:                  200                                                                                             
     B Felony:                  728                                                                                             
     C Felony:                1,640                                                                                             
He asked Mr. Levitas if he  is aware of any state that conditions                                                               
the right to vote upon the severity of the crime.                                                                               
MR.  LEVITAS replied  the  majority of  states  use the  simplest                                                               
scheme of  not distinguishing between  particular crimes,  but it                                                               
is  not  unheard   of  to  make  a  distinction   and  set  aside                                                               
enfranchising people who commit  violent crimes or crimes against                                                               
persons  until release  from probation  or parole.  The patchwork                                                               
approach can  be quite  confusing and  perhaps it  contributes to                                                               
the  fact that  most felons  who are  released from  jail believe                                                               
they can never vote again, he said.                                                                                             
2:15:47 PM                                                                                                                    
CHAIR FRENCH found  no further public testimony  and announced he                                                               
would hold SB 7 in committee to look at possible modifications.                                                                 
At ease                                                                                                                         
        SB  89-ELECTRONIC MONITORING OF GANG PROBATIONER                                                                    
2:16:42 PM                                                                                                                    
CHAIR FRENCH  announced the  consideration of  SB 89  by Senators                                                               
Wielechowski and McGuire.                                                                                                       
SENATOR  WIELECHOWSKI, Co-Sponsor  of SB  89, explained  that the                                                               
bill  is   in  response  to  burgeoning   gang-related  activity,                                                               
particularly  in Anchorage.  Anchorage  has  had 20  gang-related                                                               
crimes  this year  and in  2006  the municipality  had 122  gang-                                                               
related cases. Thus the issue  is a legislative priority for both                                                               
the  Anchorage   Police  Department   and  the   Municipality  of                                                               
Basically SB  89 requires  gang members who  are on  probation to                                                               
wear  electronic  ankle  monitors.  This  would  help  police  to                                                               
monitor  violent  offenders'  movements and  to  supervise  their                                                               
activities. He  noted that San Bernardino  California initiated a                                                               
similar program that has been very successful.                                                                                  
SENATOR WIELECHOWSKI referenced the  fiscal note and suggested it                                                               
is a little high. He understands  the cost for each unit is about                                                               
$8  per day  so  most of  the  cost  in the  fiscal  note is  for                                                               
personnel  services,  which  increase in  successive  years.  The                                                               
question to  address, he said,  is whether the  monitoring should                                                               
be active or passive.                                                                                                           
CHAIR FRENCH asked  for an explanation of  the difference between                                                               
active and passive management.                                                                                                  
SENATOR WIELECHOWSKI  said his understanding  is that there  is a                                                               
continuum for  management, but  typically one  person is  able to                                                               
monitor 15  people. Under  active monitoring,  which is  what the                                                               
fiscal   note   assumes,   all  movement   would   be   monitored                                                               
continually. If  a person is shown  visiting a place that  is off                                                               
limits, a  police officer could  be sent to investigate.  Under a                                                               
more  passive option,  someone would  check  the monitor  several                                                               
times a  day. If the  monitor showed  that a person  visited some                                                               
place that was off limits,  a probation officer or police officer                                                               
would possibly be sent out to investigate.                                                                                      
CHAIR FRENCH  asked if there  are known vendors that  supply this                                                               
SENATOR WIELECHOWSKI said he couldn't  speak to specifics, but he                                                               
understands  that electronic  monitoring  is  currently used  and                                                               
that there are different management levels.                                                                                     
2:21:57 PM                                                                                                                    
SENATOR McGUIRE,  Co-Sponsor of SB  89, added that this  may seem                                                               
like an unusual step, but  indications from other states are that                                                               
electronic monitoring  is a successful  way to  contain activity.                                                               
"We want to stop the deaths.  We want to stop these young people,                                                               
in particular young people, from  getting involved in these gangs                                                               
and ending  up losing  their lives  and this  is one  step toward                                                               
it," she stated.                                                                                                                
CHAIR FRENCH opened public testimony.                                                                                           
2:24:41 PM                                                                                                                    
CAROL  COMEAU, Superintendent  of the  Anchorage School  District                                                               
and member  of a task  force on  gang and youth  violence, voiced                                                               
support for  the legislation if  the courts have  adjudicated the                                                               
person  as a  gang  member.  She said  the  district already  has                                                               
students  who  are  on probation  and  wearing  electronic  ankle                                                               
bracelets in  school. SB  89 would  give the  authorities another                                                               
tool  and  would allow  students  to  go  to  school and  get  an                                                               
MS. COMEAU  referenced active and  passive monitoring  and opined                                                               
that  the  judge  should  decide   which  method  to  use  for  a                                                               
particular individual.                                                                                                          
SENATOR  WIELECHOWSKI asked  if  the  task force  she  is on  had                                                               
recommended either active or passive monitoring.                                                                                
MS.  COMEAU   said  the  policy   task  force  did  not   make  a                                                               
recommendation,  but   Chief  Heun   would  probably   have  that                                                               
2:27:20 PM                                                                                                                    
KEN  GARDNER COBB,  Anchorage Police  Department, explained  that                                                               
part of his job is to  coordinate a response to gang activity and                                                               
SB  89  would be  an  asset  in that  effort.  He  has done  some                                                               
Internet research  and has learned  that the ankle  monitors have                                                               
Global Positioning System (GPS)  tracking capabilities. Also they                                                               
have  software  so that  inclusion  and  exclusion zones  can  be                                                               
established. An  inclusion zone might be  a school or a  place of                                                               
employment and  an exclusion  zone might be  a night  club, movie                                                               
theatre  or a  certain  part  of town.  If  the  device works  as                                                               
described  and  is  cost-effective  there  is  reason  for  great                                                               
He said  the bill  calls for adjudicating  gang members  who have                                                               
been involved  in gang  motivated crimes.  Those are  crimes that                                                               
are for the benefit  of a gang or in association  with a gang. In                                                               
Anchorage  a majority  of the  crimes  are what  are called  gang                                                               
related, which  is where a  gang member or associate  is involved                                                               
in  a fight  over a  girl, over  property, or  over a  showing of                                                               
Initially the bill  will not affect many people so  it would be a                                                               
cost-effective trial.  If it  is effective  the program  could be                                                               
expanded to include  gang related crimes. "That is  where we will                                                               
see the real value in the future," he said.                                                                                     
2:31:17 PM                                                                                                                    
RICK   SVBODNY,  Chief   Assistant  District   Attorney  General,                                                               
Criminal  Division,  stated support  for  SB  89. Gang  violence,                                                               
particularly in Anchorage, is a  major problem and is a difficult                                                               
area to prosecute. SB 89 would  provide a tool that could benefit                                                               
law enforcement and the prosecution, he opined.                                                                                 
MR. SVBODNY,  responding to previous  testimony, said  that under                                                               
the  current structure  it  is probable  that  Blakeley would  be                                                               
implicated. That  is the  state would be  required to  prove that                                                               
the  individual is  a gang  member  or has  gang involvement.  He                                                               
suggested that a way to get  around that is to require wearing an                                                               
ankle monitor as a general  condition of probation. He noted that                                                               
that  gives  the judge  discretion,  which  is absent  under  the                                                               
current  structure.   If  the  judge   does  not   exercise  that                                                               
discretion  he or  she would  have  to make  written findings  to                                                               
explain why an ankle bracelet is not appropriate.                                                                               
If  wearing an  ankle monitor  is a  condition of  probation, the                                                               
prosecution  would  not be  required  to  prove gang  involvement                                                               
beyond a reasonable  doubt at trial. At a  sentencing hearing the                                                               
prosecution  would  have to  prove,  by  a preponderance  of  the                                                               
evidence, that  there was gang  involvement. That is  another and                                                               
easier  way  that the  underlying  purpose  of  the bill  can  be                                                               
fulfilled, he stated.                                                                                                           
MR.  SVBODNY said  just  two district  attorneys  responded to  a                                                               
statewide query  and they  told him  that the  aggravating factor                                                               
necessary for  this to be  implemented has rarely, if  ever, been                                                               
found. He  suggested that  given that history  this would  not be                                                               
implemented very often.                                                                                                         
MR.  SVBODNY referenced  the discussion  regarding active  versus                                                               
passive monitoring  and opined that  technology is ahead  of what                                                               
is recognized  here. In  fact parents are  able to  monitor their                                                               
children's  movements   using  GPS  tracking  devices   that  are                                                               
implanted in their kid's shoes. The  idea behind SB 89 is to keep                                                               
gang members from congregating and  technology isn't too far from                                                               
helping that to happen in a cost effective way, he said.                                                                        
He  relayed that  he  is a  member  of the  Policy  Board of  the                                                               
Western  States  Information  Network,  a  regional  intelligence                                                               
sharing system  that deals with  gang members and drugs.  Part of                                                               
that  includes running  a  watch center  in  Sacramento to  avoid                                                               
conflicts or shootouts when different  agencies end up working on                                                               
different cases in the same  general area. Basically the officers                                                               
wear ankle monitors  and that information goes to  the center for                                                               
deconfliction. In that  system one person is able  to monitor the                                                               
entire  state  of California  and  the  entire state  of  Hawaii.                                                               
Clearly, it can be cost-effective, he stated.                                                                                   
MR.  SVBODNY  pointed  out  that judges  continue  to  rule  that                                                               
electronic monitoring is the functional  equivalent of jail time.                                                               
To address that  he would suggest that the  bill specifically say                                                               
that someone  who is  on probation and  wearing an  ankle monitor                                                               
does not get  credit for serving jail time. In  addition he asked                                                               
the committee to consider allowing  the parole board to make this                                                               
a condition of parole.                                                                                                          
Responding to  Ms. Comeau's comment about  wearing ankle monitors                                                               
to school,  he advised that  the bill  applies to adults.  In his                                                               
view it would not include juveniles.                                                                                            
2:40:28 PM                                                                                                                    
SENATOR  WIELECHOWSKI responded  that  he does  not believe  this                                                               
legislation is  the appropriate  vehicle to  define incarceration                                                               
so he does not favor incorporating the suggestions.                                                                             
MR.  SVBODNY clarified  he  was not  suggesting  the bill  define                                                               
incarceration.  Simply  say  that   under  this  bill  electronic                                                               
monitoring does not count as incarceration.                                                                                     
CHAIR FRENCH asked  for confirmation that his  canvas of district                                                               
attorneys found that this aggravator is rarely used.                                                                            
MR. SVBODNY replied he was told  that it has never been found. He                                                               
understands that it  has been stipulated to a couple  of times in                                                               
the Anchorage Superior Court.                                                                                                   
CHAIR FRENCH added "as a course of agreed upon disposition."                                                                    
MR. SVBODNY  replied it would  be that or with  other aggravating                                                               
factors having been found or stipulated to.                                                                                     
CHAIR FRENCH responded, "Stipulated to,  but not found. Not after                                                               
a contested hearing."                                                                                                           
MR. SVBODNY agreed.                                                                                                             
CHAIR FRENCH  remarked that  making it  a general  condition that                                                               
every convicted felon is subject to  takes care of the problem of                                                               
proof, but then someone would  have to review 2-3 thousand felony                                                               
cases every  year to  decide who would  wear the  expensive ankle                                                               
MR. SVBODNY replied  it isn't that onerous because  there must be                                                               
a nexus between  a condition of probation and the  crime that was                                                               
committed.  "A judge  may decide  if a  person has  shoplifted 80                                                               
times from Fred  Meyer that they are going to  monitor you to see                                                               
that  you don't  go to  Fred  Meyer. But  they would  have to  be                                                               
making that nexus."                                                                                                             
CHAIR  FRENCH  questioned what  the  nexus  is between  an  ankle                                                               
monitor and criminal street gang activity.                                                                                      
MR. SVBODNY replied "You presume that  if a court makes a finding                                                               
that this is gang related -  that is by preponderance of evidence                                                               
because it  is a condition  of probation  - that it  is necessary                                                               
for there  to be electronic  monitoring unless the court  finds a                                                               
reason not to do it."                                                                                                           
CHAIR FRENCH mused he can  see the defense argument already. That                                                               
is that  the first ankle  monitor is  of no value  whatsoever; it                                                               
will  provide  no  information   about  whom  the  individual  is                                                               
associating with. Not  until a number of monitors are  out in the                                                               
community  will it  be  possible to  see  whether people  wearing                                                               
ankle monitors are spending time in the same proximity.                                                                         
SENATOR WIELECHOWSKI said  one rationale is to  keep gang members                                                               
from congregating,  but it's also  a powerful tool to  track gang                                                               
members and keep them from going to prohibited places.                                                                          
SENATOR McGUIRE opined  that wearing an ankle  monitor might help                                                               
some people get out of a  gang and on with their lives. Certainly                                                               
other gang members  wouldn't want someone around  who was wearing                                                               
an ankle monitor and was under scrutiny.                                                                                        
2:47:12 PM                                                                                                                    
CHAIR  FRENCH noted  that  he received  a  letter from  Fairbanks                                                               
Police Chief Daniel P. Hoffman supporting the bill.                                                                             
DWYANE PEEPLES,  Deputy Commissioner, Department  of Corrections,                                                               
stated  that the  department supports  the concept  of SB  89. He                                                               
explained  that to  develop the  fiscal note  he worked  with the                                                               
prime sponsor  of the companion  House bill [HB 133].  It assumes                                                               
that there would  be a fairly large body of  offenders that would                                                               
be  monitored  this  way.  Coming  up  with  a  number  has  been                                                               
difficult,  but  right now  about  96  people with  gang  related                                                               
associations have been identified.                                                                                              
CHAIR FRENCH said he would be  interested to know whether all the                                                               
people are from Anchorage.                                                                                                      
2:49:50 PM                                                                                                                    
SENATOR THERRIAULT joined the meeting.                                                                                          
MR. PEEPLES  said juvenile  justice has  about 75  individuals in                                                               
that  would  fall  under  this  issue  and  the  Municipality  of                                                               
Anchorage  has identified  122 individuals.  The fact  that there                                                               
are  people in  both  the juvenile  and the  adult  system is  an                                                               
indication  that this  is a  pervasive  issue, he  said. And  the                                                               
fiscal note  assumes that the numbers  will build by about  15 to                                                               
20 per year.  According to the people running  the San Bernardino                                                               
system, this is  a very tough group to monitor,  which is part of                                                               
the argument for having GPS tracking.                                                                                           
MR. PEEPLES reported that system  vendors are currently available                                                               
in Alaska so that isn't a big issue.                                                                                            
CHAIR FRENCH, noting  the high and escalating  fiscal note, asked                                                               
if the fiscal  note compensates for population  growth or assumes                                                               
that more and more people will be placed on probation.                                                                          
MR. PEEPLES responded he calculated 15 additions each year.                                                                     
CHAIR FRENCH asked  if he was saying that the  cost to monitor 15                                                               
probationers for a year is $174,000.                                                                                            
MR.  PEEPLES said  yes and  most of  the cost  is staff  time. He                                                               
elaborated  that  the  original  interpretation  was  for  active                                                               
continuous  monitoring   -  24/7.  The  computer   software  that                                                               
monitors the GPS  would notify whoever is  responsible if someone                                                               
exits  or enters  an exclusion  zone. Individuals  could also  be                                                               
monitored  in  the  field  using  a laptop.  He  noted  that  the                                                               
California  program,  which  is  fairly  intensive,  has  a  1:20                                                               
monitoring ratio and  that is inadequate. After  looking at other                                                               
models he chose a 1:15 ratio.                                                                                                   
SENATOR  WIELECHOWSKI asked  what a  passive system  would entail                                                               
and how much it would save.                                                                                                     
MR.  PEEPLES replied  there are  various models,  but the  system                                                               
could be set  up with large inclusion zones. "If  it went off you                                                               
could go  pick somebody  up and  not be  too concerned  about how                                                               
much movement they  had. Or you could just download  the GPS on a                                                               
daily  basis,  review   what  they've  done  and   then  do  some                                                               
reinforcement  on  if they  are  deviating  out of  an  inclusion                                                               
zone." Under  the least  active model  one person  could probably                                                               
monitor 50 people, he said.                                                                                                     
SENATOR WIELECHOWSKI asked  if he had prepared a  fiscal note for                                                               
a passive system.                                                                                                               
MR. PEEPLES said no, but it would be fairly easy to do.                                                                         
SENATOR WIELECHOWSKI  said he'd like  to see that so  the options                                                               
could be evaluated.                                                                                                             
SENATOR McGUIRE commented she appreciates  the work that has been                                                               
done on the  fiscal note and she looks forward  to seeing one for                                                               
a passive model.                                                                                                                
CHAIR  FRENCH  found  no  further   questions  or  testimony  and                                                               
announced he would  hold SB 89 in committee to  allow time to get                                                               
some questions answered.                                                                                                        
There being  no further  business to  come before  the committee,                                                               
Chair French adjourned the meeting at 2:55:54 PM.                                                                             

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