Legislature(2007 - 2008)BUTROVICH 205
03/15/2007 03:30 PM JUDICIARY
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ALASKA STATE LEGISLATURE SENATE JUDICIARY STANDING COMMITTEE March 15, 2007 3:32 p.m. MEMBERS PRESENT Senator Hollis French, Chair Senator Charlie Huggins, Vice Chair Senator Bill Wielechowski MEMBERS ABSENT Senator Lesil McGuire Senator Gene Therriault COMMITTEE CALENDAR SENATE BILL NO. 64 "An Act relating to the requirement for candidates, groups, legislators, public officials, and other persons to submit reports electronically to the Alaska Public Offices Commission; relating to disclosures by legislators, public members of the Select Committee on Legislative Ethics, legislative directors, public officials, and certain candidates for public office concerning services performed for compensation and concerning certain income, gifts, and other financial matters; requiring legislators, public members of the Select Committee on Legislative Ethics, legislative directors, public officials, and municipal officers to make certain financial disclosures when they leave office; relating to insignificant ownership interest in a business and to gifts from lobbyists for purposes of the Alaska Executive Branch Ethics Act; relating to certain restrictions on employment after leaving state service for purposes of the Alaska Executive Branch Ethics Act; and providing for an effective date." MOVED CSSB 64(JUD) OUT OF COMMITTEE 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." MOVED CSSB 89(JUD) OUT OF COMMITTEE SENATE BILL NO. 7 "An Act relating to the voting rights of felons." 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." HEARD AND HELD PREVIOUS COMMITTEE ACTION BILL: SB 64 SHORT TITLE: DISCLOSURES & ETHICS SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR 01/26/07 (S) READ THE FIRST TIME - REFERRALS 01/26/07 (S) JUD, STA, FIN 02/08/07 (S) JUD AT 3:30 PM BUTROVICH 205 02/08/07 (S) Heard & Held 02/08/07 (S) MINUTE(JUD) 02/12/07 (S) JUD AT 1:30 PM BELTZ 211 02/12/07 (S) Heard & Held 02/12/07 (S) MINUTE(JUD) 03/12/07 (S) JUD AT 1:30 PM BELTZ 211 03/12/07 (S) Heard & Held 03/12/07 (S) MINUTE(JUD) 03/14/07 (S) JUD AT 1:30 PM BELTZ 211 03/14/07 (S) Heard & Held 03/14/07 (S) MINUTE(JUD) 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 03/05/07 (S) Heard & Held 03/05/07 (S) MINUTE(JUD) 03/14/07 (S) JUD AT 1:30 PM BELTZ 211 03/14/07 (S) Scheduled But Not Heard 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 03/05/07 (S) Heard & Held 03/05/07 (S) MINUTE(JUD) 03/15/07 (S) JUD AT 3:30 PM BUTROVICH 205 BILL: SB 36 SHORT TITLE: SENTENCING FOR ALCOHOL-RELATED CRIMES SPONSOR(s): SENATOR(s) THERRIAULT 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 01/23/07 (S) STA AT 9:00 AM BELTZ 211 01/23/07 (S) Heard & Held 01/23/07 (S) MINUTE(STA) 01/25/07 (S) STA AT 9:00 AM BELTZ 211 01/25/07 (S) Scheduled But Not Heard 01/30/07 (S) STA AT 9:00 AM BELTZ 211 01/30/07 (S) PEACE OFFICER CONVICTED OF MURDER 02/01/07 (S) STA AT 9:00 AM BELTZ 211 02/01/07 (S) -- Rescheduled from 01/30/07 -- 02/22/07 (S) STA AT 9:00 AM BELTZ 211 02/22/07 (S) Moved CSSB 36(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) LETTER OF INTENT WITH STA REPORT 02/23/07 (S) DP: FRENCH 02/23/07 (S) NR: MCGUIRE, GREEN 03/05/07 (S) JUD AT 1:30 PM BELTZ 211 03/05/07 (S) Scheduled But Not Heard 03/15/07 (S) JUD AT 3:30 PM BUTROVICH 205 WITNESS REGISTER Dwayne Peeples, Deputy Commissioner Department of Corrections (DOC) Juneau, AK POSITION STATEMENT: Commented on SB 89 Anne Carpeneti, Assistant District Attorney Criminal Division Department of Law Juneau, AK POSITION STATEMENT: Provided the Department of Law perspective on SB 89 and SB 36 Cindy Smith, Aide to Senator French Alaska State Capitol Juneau, AK POSITION STATEMENT: Explained a proposed change to SB 7 Michael Macleod-Ball, Executive Director ACLU of Alaska Anchorage, AK POSITION STATEMENT: Commented on SB 7 Dave Stancliff, staff to Senator Therriault Alaska State Capitol POSITION STATEMENT: Introduced SB 36 for the sponsor MaShelle Hess, Project Coordinator Division of Behavioral Health Department of Health and Social Services (DHSS) Juneau, AK POSITION STATEMENT: Commented on SB 36 ACTION NARRATIVE CHAIR HOLLIS FRENCH called the Senate Judiciary Standing Committee meeting to order at 3:32:50 PM. Present at the call to order were Senator Wielechowski, Senator Huggins, and Chair French. SB 64- DISCLOSURES & ETHICS 3:33:13 PM CHAIR FRENCH announced the consideration of SB 64 and asked for a motion to adopt Version \M work draft. SENATOR HUGGINS motioned to adopt Version \M committee substitute (CS) for SB 64, labeled 25-GS1059\M CHAIR FRENCH asked the committee to note that the two substantive amendments that were made at the last hearing are incorporated in Version \M. The bribery provision is found in Sections 1 and 10 and the aircraft provision is in Sections 8 and 9. The sections are renumbered to take the added provisions into account, but other than that the bill is unchanged. CHAIR FRENCH, finding no questions or comments, asked for the will of the committee. 3:34:12 PM SENATOR HUGGINS motioned to report CSSB 64(JUD) from committee with individual recommendations and attached fiscal note(s). There being no objection, it was so ordered. At ease 3:34:48 PM SB 89-ELECTRONIC MONITORING OF GANG PROBATIONER 3:35:55 PM CHAIR FRENCH announced the consideration of SB 89 and solicited a motion to adopt Version \E committee substitute (CS) as the working document SENATOR HUGGINS motioned to adopt Version \E CS for SB 89 labeled, 25-LS0644\E. There was no objection. 3:36:21 PM SENATOR WIELECHOWSKI explained that the previous version addressed gang members on probation, but did not include parolees. The Criminal Division of the Department of Law asked that parolees be included and so a new section was added to accommodate that request. The Department of Corrections (DOC) suggested removing the word "continuous" to give it leeway in cost effectively administering the program and that was done. That resulted in a revised indeterminate DOC fiscal note. The current analysis indicates the estimated general fund cost at $195 thousand, which is down from about $1 million. This last weekend he received a demonstration from constituents who do this type of work. Essentially, a Blackberry is programmed so that whenever someone moves in or out of a particular zone the PDA [personal digital assistant] beeps. When that happens someone contacts the person who is wearing the ankle bracelet to find out what is happening. That is more passive than having someone sitting in a room watching a number of different screens. Removing the requirement for the monitoring to be continuous will have a fairly significant impact, he stated. 3:38:20 PM CHAIR FRENCH, directing a question to Mr. Peeples, asked if $40 per day per ankle monitor is the cost estimate that was applied. DWAYNE PEEPLES, Deputy Commissioner, Department of Corrections (DOC), referenced the analysis on page 2 of the indeterminate fiscal note, which breaks out a series of scenarios. The right column shows a passive model ratio of 1 probation officer to 40 offenders. DOC allocates $40 per day under the system of releasing inmates from institutions under furlough. That includes release to a halfway house, a community residential center or on electronic monitoring. That is fairly comparable to this, he stated and it does not use GPS. The numbers reflect first year estimates that include startup costs of purchasing computers and vests for new probation officers. CHAIR FRENCH noted that the daily cost per offender is $17 and the estimate for collections is 30 percent. He asked if the idea is to charge probationers for the ankle bracelets. MR. PEEPLES said that's the idea. For this program DOC would try to recover about $75,000 per year toward operating costs. 3:41:55 PM CHAIR FRENCH highlighted the previous policy discussion about the difference between a special condition and a general condition. Making it a special condition would require a higher burden of proof and his understanding is that it would be necessary to prove that the person is a member of a criminal street gang for the condition to apply. Making it a general condition would be a lower burden of proof; it would apply to anyone who is convicted of a felony provided that there is some nexus between the crime that was committed and criminal street gangs. 3:43:07 PM ANNE CARPENETI, Assistant District Attorney, Criminal Division, Department of Law, said right now it's pegged to the finding of the aggravating factor, which is AS 12.55.155(c)(29). As drafted this may be a Blakley factor meaning that prosecutors would need to prove to the jury beyond a reasonable doubt the connection to an aggravating factor. Mr. Svobodny previously suggested that another approach would be to make it a general condition of probation. That way it wouldn't require going through the procedure that under Blakley is required for every aggravating factor unless it's connected to a prior conviction. CHAIR FRENCH summarized that for this condition to apply, both the grand jury and the trial jury would have to find that the crime was committed by a criminal street gang member. MS. CARPENETI said that's the effect. 3:44:30 PM SENATOR WIELECHOWSKI recalled that Mr. Svobodny suggested making it a special condition for anyone who is on parole or probation. For fiscal reasons he limited it to those who met the aggravating factor under AS 12.55.155(c)(29). CHAIR FRENCH observed that the fiscal conversation may be better suited for the finance committee. This committee is to confront legal questions such as whether the application should be narrow and apply to all or broad and apply to few. He would defer to the bill sponsor. SENATOR WIELECHOWSKI said his goal is to deal with the increasing gang problems in Anchorage. The idea is to keep track of gang members who are on parole so that if they do congregate or go to prohibited areas the movement will be recorded using global positioning system (GPS). The policy call to make it a special condition was to keep the cost down, but it could be expanded to any number of people on parole or probation. 3:46:09 PM CHAIR FRENCH said he just wanted the committee to make a heads- up eyes-wide-open policy call while the bill is in the committee. SENATOR HUGGINS stated a preference to keep the bill narrow, but he is concerned about the state's liability. CHAIR FRENCH acknowledged it is a valid question, adding that that is a tough legal doctrine. SENATOR WIELECHOWSKI agreed that it would be difficult for anyone to go against the state. SENATOR HUGGINS said the benefit is that this will show what it costs. If it proves to be successful the program can be expanded. 3:47:51 PM CHAIR FRENCH found no further questions or comments and asked the will of the committee. SENATOR HUGGINS motioned to report CSSB 89(JUD) from committee with individual recommendations and attached fiscal note(s). There being no objection, it was so ordered. At ease 3:48:33 PM SB 7-FELONS' RIGHT TO VOTE 3:49:25 PM CHAIR FRENCH announced the consideration of SB 7 and solicited a motion to adopt Version \L committee substitute (CS). SENATOR HUGGINS motioned to adopt Version \L CS for SB 7, labeled, 25-LS0100\L as the working document. CHAIR FRENCH explained that the CS distinguishes among felons according to the category of crime for which they were incarcerated. The categories are broken out on page 1, lines 8- 13. The idea is to continue under the existing system, which is to not restore the rights of released felons if they have been convicted of an unclassified felony or a class A felony. Also, voting rights would not be restored to repeat felons who are released from prison. In summary the policy call is that someone is able to vote upon release from incarceration after having served time for a lower level felony. Someone who has been convicted of rape, robbery, or murder would have to complete the requirements for unconditional discharge before regaining the right to vote. The other sections are conforming amendments to make the changes work for the Division of Elections. Under the current draft there would be two classes of felons: one group that is restricted and another that is able to vote upon release. CHAIR FRENCH drew attention to page 2, line 15 and said the director of the Division of Elections has asked the committee to consider amending subsection (a) so that the onus for obtaining the names of persons convicted of a felony is placed on the Department of Corrections (DOC) rather than on the director of elections. The argument is that DOC officials already have access to that information. CHAIR FRENCH motioned to adopt Amendment 1. On page 2, line 15, delete "The director shall make reasonable efforts to obtain" and insert "The commissioner of corrections shall notify the director of". 3:53:39 PM SENATOR WIELECHOWSKI objected to ask if the intention is to say that "the commissioner of corrections shall notify the director and the director shall make reasonable efforts to obtain the names". CHAIR FRENCH said the Division of Elections suggested the language. 3:54:08 PM CINDY SMITH, Aide to Senator French, explained that both aren't needed; the Department of Corrections already electronically transmits names and other identifiers to the Division of Elections. The change is consistent with subsection (d) above. DWAYNE PEEPLES, Deputy Commissioner, Department of Corrections stated that the department has the ability to provide the Division of Elections with names and identifiers of persons who were convicted and released. DOC provides similar information to the Permanent Fund Dividend Corporation for the purpose of seizing dividend checks from felons. SENATOR WIELECHOWSKI referenced page 2, line 17, and asked if everything else in subsection (a) remains the same. MS. SMITH replied nothing else is changed. SENATOR WIELECHOWSKI asked to see the provision incorporated in the bill before making a final determination. CHAIR FRENCH found that to be fair and asked if he maintained his objection. SENATOR WIELECHOWSKI removed his objection. CHAIR FRENCH announced that Amendment 1 is adopted. 3:56:31 PM MICHAEL MACLEOD-BALL, Executive Director, ACLU of Alaska, identified himself. CHAIR FRENCH asked if he foresees any constitutional problems associated with stratifying and changing the rights of felons according to the seriousness of the offense for which they were convicted. MR. MACLEOD-BALL said he did not. There isn't a lot of guiding case law, but generally the legislature and the courts have some authority to define terminology that is used in interpreting constitutional provisions. The intent in SB 7 is essentially no different than what is already in statute. To the extent that the current statute is constitutionally permissible, this should be as well. CHAIR FRENCH asked if he has any other observations about the bill. MR. MACLEOD-BALL articulated the view that the original version of the bill was preferable from a policy perspective because it would have allowed more felons onto the voting rolls. Nonetheless, this is a step in the right direction, he stated. SENATOR HUGGINS asked where Alaska would stand in terms of voting rights relative to other states. MR. MACLEOD-BALL summarized the statistical information that was given during the previous hearing and said this would place Alaska in the middle. SENATOR HUGGINS asked if Alaska is currently in a group with 21 other states. MR. MACLEOD-BALL said, "I believe that large number in the middle brings felons back onto the voting rolls at some time and there are a variety of distinctions in the states as to when they're brought back on the rolls or for what crimes they lose the voting rights in the first place. And so I viewed the change that's being proposed here as being just a variation within that group." 4:00:55 PM CHAIR FRENCH announced he would hold SB 7 to prepare the amended language and for consideration by the full committee. SB 36-SENTENCING FOR ALCOHOL-RELATED CRIMES 4:01:23 PM CHAIR FRENCH announced the consideration of SB 36. DAVE STANCLIFF, staff to Senator Therriault, explained that SB 36 is based on three points. The first is the premise that some members of society are transformed under the influence of alcohol, predisposing them to violence that can result in criminal activity. In such circumstances SB 36 would allow judges the discretion to remove alcohol for some period, up to a lifetime, as part of the sentence. Another aspect of the bill deals with people who have more than two DUIs on record or a single DUI that has resulted in a serious physical injury. He noted that when legislation similar to SB 36 was before the Senate Judiciary Committee last year, Chair French added this language. MR. STANCLIFF said the purpose of SB 36 is to protect people. He asked members to imagine someone who is released on probation after having served time for committing a violent offense while under the influence of alcohol. Alcohol is prohibited as a condition of probation and everything works well until probation is over. At that point the individual returns to his or her old pattern of drinking, which leads to the same old violent and or criminal behavior. Follow the papers and see the great role that alcohol plays in so many of today's violent crimes, he said. What isn't reported is that there are volumes of studies that connect alcohol and the way certain people react when they drink. For some people there is a physiological change that occurs. "Something as basic as a massive amounts and releases of testosterone for some males that consume alcohol, to a very subtle changes in brain activity." Clearly, when certain individuals use alcohol, they have a propensity to do great violence. MR. STANCLIFF said the protective provision of the bill provides an opportunity for interdiction before a crime occurs. If someone who has served time for a crime that was committed while under the influence of alcohol begins to drink again, that person could be taken into custody. "This is not a mandatory option. It is one we don't see will be used very frequently. We do see it in some cases as an alternative to a much longer prison sentence if the person agrees, is willing to go through treatment." He noted that the Senate State Affairs Committee added a provision to use Therapeutic Courts in lieu of this option. MR. STANCLIFF described SB 36 as a way to change the way our culture and our young people view alcohol. "Young people grow up thinking of alcohol and drinking as a right and not necessarily as a privilege." This is a novel and serious approach that would be used infrequently, but it would be a sentencing option in the toolbox. Recidivism and violence related to alcohol is a tremendous problem and Senator Therriault feels that judges ought to have this option. 4:07:05 PM SENATOR WIELECHOWSKI directed attention to page 3, line 15, and asked if, in a criminal case, a finding of clear and convincing evidence is more appropriate than a finding of beyond a reasonable doubt. CHAIR FRENCH said the short answer is yes. The guilty verdict must be supported by the beyond a reasonable doubt standard, but there are other sentencing factors that sometimes come with different standards of proof. He asked Ms. Carpeneti to give her perspective. 4:07:56 PM ANNE CARPENETI, Criminal Division, Department of Law, advised members she and Doug Kossler discussed the bill and concluded that it probably would not be a Blakely factor. The clear and convincing evidence standard of proof could be supported. MS. CARPENETI informed members that Mr. Kossler litigates the validity of legislation and he suggested that the committee consider adding to subparagraph (A) the standard of proof of protecting the public that is in subparagraph (B). Although she isn't lax on drunk drivers, there could be a first-time drunk driver who is convicted of a felony third degree assault for breaking someone's leg, for example. It is serious physical injury and it would fit under this provision unless the court found that it was necessary for protection of the public to have this long time condition imposed. CHAIR FRENCH rephrased the suggestion, which is that subparagraph (A), on page 3, lines 14-17, would be more defensible if it included the requirement that the judge make a finding that imposition of the condition was to protect the public. He agreed to take that under advisement. SENATOR WIELECHOWSKI said he didn't track why not having that standard might be problematic. MS. CARPENETI elaborated that a condition of probation must have some rational relationship to the crime that was committed. There could a drunk driver who assaults someone and does not cause death but it is a felony against a person. "You wouldn't want a court to be able to impose a lifetime prohibition of drinking on somebody under circumstances where it wasn't necessary to protect the public." SENATOR WIELECHOWSKI asked if it would be a constitutional problem. MS. CARPENETI said assault in the third degree is class C felony with a maximum 5 years imprisonment. A lifetime prohibition of drinking is a lot longer than 5 years in jail. It would be more defensible and make more sense if there were a protection of the public standard. SENATOR WIELECHOWSKI posed the hypothetical example of someone who rapes a person while under the influence. It was a first time offense and there wasn't much proof that it would happen again. He questioned why policy makers couldn't say that person has lost the right to drink for the rest of their life. "I guess I'm just not tracking why we wouldn't be able to do that as a policy call," he stated. MS. CARPENETI responded the courts generally hold that punishment should be somewhat proportional to the act that was committed. "Even in a first-time rape case it would certainly be more defensible." It just makes sense to require the court to make a finding that prohibiting drinking for a lifetime is for the protection of the public in both (A) and (B). CHAIR FRENCH recapped that if the most severe penalty is imposed for the least severe felony, the imbalance is so great that without the finding that it was necessary to protect the public, it would be difficult to defend the sentence in the court of appeals. MS. CARPENETI said it's a question of proportionality. CHAIR FRENCH said he is sure Mr. Kossler is thinking ahead to the time when he has to defend this law. It would be easier if the judge has made a more specific finding about why the condition is being imposed. MS. CARPENETI said that is correct. 4:13:40 PM SENATOR WIELECHOWSKI continued to express concern with the suggested change. He is reluctant to restrict a judge from prohibiting someone from using alcohol for a heinous offense. "You're always going to have that constitutional proportionality issue, but I think we're taking away something else by adding what you're requesting that we add and I'm not sure I necessarily want to do that." MS. CARPENETI gave her perspective that the two sections will be compared and she believes the finding would be more necessary under subparagraph (A) than subparagraph (B), So, she said, if it's included just once it ought to be under (A). Also, if someone is on their third time driving drunk, it is more defensible to have a lifetime prohibition. CHAIR FRENCH suggested that Mr. Kossler write up his feelings so they could be part of the record and help the members to form their thinking. 4:15:26 PM CHAIR FRENCH asked Mr. Stancliff if other states have adopted this approach of criminalizing the consumption of alcohol. MR. STANCLIFF replied as far as he knows Alaska would be totally unique. 4:16:07 PM MaSHELLE HESS, Division of Behavioral Health, Department of Health and Social Services (DHSS), stated support for the idea of increasing public safety and the intent of the committee substitute. However, the division and the department are concerned that the bill doesn't address the issue of dwindling dollars in the prison system resulting in reduced substance abuse treatment. CHAIR FRENCH acknowledged it is a valid concern. He added that the Department of Corrections is asking for a budget of $241 million to cover 5,500 inmates and an equal number of parolees, which is basically $22,000 per year per inmate/parolee. This has made him mindful that every time a law is passed that makes someone a convict, the state gets a bill for $22,000. SENATOR WIELECHOWSKI asked what currently happens to someone who is incarcerated and has a substance abuse problem. MS HESS said prison treatment programs are limited to non- existent. If alcohol or another drug was a part of the crime, a condition of probation might include the requirement to go through a community-based substance abuse program. Those programs are grant-funded through the Division of Behavioral Health. "If they are convicted of a violent crime and then this bill passes where a judge can as a tool in his toolbox sentence them to a lifetime ban on alcohol, they will just continue to cycle through the system." When these people are in prison they won't use alcohol and this is the ideal place to receive treatment. SENATOR WIELECHOWSKI restated that she envisions a revolving door scenario. MS. HESS said right adding that in her previous life as a probation officer she used to tell her clients: "Lack of access does not constitute treatment." 4:20:09 PM SENATOR WIELECHOWSKI asked if there is a Department of Corrections fiscal note. CHAIR FRENCH said the fiscal note from the Department of Corrections is indeterminate. The analysis says: "The Department of Corrections can not determine fiscal impacts of this legislation. Data is not available for the department to calculate the number of offenders that would not comply with the sentencing requirements. There is a zero fiscal note from the Department of Law and an indeterminate fiscal note from the Public Defender Agency. The latter was prepared by Quinlan Steiner and the analysis says: "The Agency... can not reliably predict the fiscal impact of this legislation." CHAIR FRENCH found no further questions of testimony and announced he would hold SB 36 in committee. There being no further business to come before the committee, Chair French adjourned the meeting at 4:22:04 PM.