Legislature(2007 - 2008)BUTROVICH 205

03/15/2007 03:30 PM JUDICIARY

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* first hearing in first committee of referral
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Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 64(JUD) Out of Committee
Moved CSSB 89(JUD) Out of Committee
                    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                                                               
                  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                                                               
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                                                               
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                                                               
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                                                               
CHAIR  FRENCH  said  the  Division  of  Elections  suggested  the                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                             

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