Legislature(2017 - 2018)BELTZ 105 (TSBldg)

01/30/2017 01:30 PM JUDICIARY

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01:34:42 PM Start
01:35:14 PM Presentation: Alaska Criminal Justice Commission 2017 Recommendations
02:44:08 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation of Alaska Criminal Justice TELECONFERENCED
Commission Recommendations
Greg Razo, Chair, Alaska Criminal Justice
Commission
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                        January 30, 2017                                                                                        
                           1:34 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator John Coghill, Chair                                                                                                     
Senator Mia Costello                                                                                                            
Senator Kevin Meyer                                                                                                             
Senator Pete Kelly                                                                                                              
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
PRESENTATION:   ALASKA    CRIMINAL   JUSTICE    COMMISSION   2017                                                               
RECOMMENDATIONS                                                                                                                 
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
GREGORY RAZO, Chair                                                                                                             
Alaska Criminal Justice Commission and                                                                                          
Vice President, Cook Inlet Region Incorporated (CIRI)                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Presented recommendations from the Alaska                                                                 
Criminal Justice Commission to change Senate Bill 91.                                                                           
                                                                                                                                
BARBARA DUNHAM, Project Attorney                                                                                                
Alaska Criminal Justice Commission                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Participated in the discussion and                                                                        
explanation of the recommendations from the Alaska Criminal                                                                     
Justice Commission to change Senate Bill 91.                                                                                    
                                                                                                                                
SUZANNE DIPIETRO, Executive Director                                                                                            
Alaska Judicial Council                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION   STATEMENT:   Participated   in  the   discussion   and                                                             
explanation  of  the  recommendations from  the  Alaska  Criminal                                                               
Justice Commission to change Senate Bill 91.                                                                                    
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:34:42 PM                                                                                                                    
CHAIR  JOHN   COGHILL  called   the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:34  p.m. Present at the  call to                                                               
order  were  Senators  Costello, Wielechowski,  Meyer  and  Chair                                                               
Coghill.                                                                                                                        
                                                                                                                                
^Presentation:   Alaska   Criminal    Justice   Commission   2017                                                               
Recommendations                                                                                                                 
     Presentation: Alaska Criminal Justice Commission 2017                                                                  
                        Recommendations                                                                                     
                                                                                                                              
1:35:14 PM                                                                                                                    
CHAIR COGHILL announced  the business before the  committee is to                                                               
hear  about  the  recommendations  the  Alaska  Criminal  Justice                                                               
Commission ("Commission") made  for 2017. Today the  chair of the                                                               
Commission  will relay  the  pros  and cons  of  each  of the  14                                                               
recommendations.  He  asked  members  to   be  mindful  that  the                                                               
recommendations  include  substantive  policy calls  as  well  as                                                               
technical changes. At the end  of the meeting the committee would                                                               
discuss the path forward.                                                                                                       
                                                                                                                                
1:37:23 PM                                                                                                                    
GREGORY RAZO,  Chair, Alaska Criminal Justice  Commission, stated                                                               
that  he  works  as  Vice   Chair  at  CIRI  [Cook  Inlet  Region                                                               
Incorporated].  He reported  that the  recommendations to  change                                                               
Senate Bill  91 are the result  of discussions at the  January 19                                                               
and January  27, 2017 meetings.  The Commission tried to  take as                                                               
much  public  comment as  possible.  Public  comment as  well  as                                                               
testimony from law enforcement,  prosecutors and the Court System                                                               
served  to frame  the recommendations.  He emphasized  that every                                                               
person  that   testified  and  each  commissioner   placed  great                                                               
emphasis on public safety.                                                                                                      
                                                                                                                                
He  reminded the  committee that  the Commission  was created  in                                                               
2014  and the  legislature  directed it  to make  recommendations                                                               
based on: the need to  rehabilitate the offender; the sufficiency                                                               
of  state resources  to administer  the criminal  justice system;                                                               
the  effect  of   state  laws  and  practices  on   the  rate  of                                                               
recidivism;  and  peer-reviewed   and  data-driven  research.  He                                                               
relayed that the  Commission was fortunate to be  able to utilize                                                               
the resources of the PEW Trust to collect and analyze data.                                                                     
                                                                                                                                
MR.  RAZO said  that when  the  Commission formed,  it agreed  to                                                               
forward only  recommendations that were  backed by data  and were                                                               
evidence-based. In 2015,  the legislature gave  further direction                                                               
to the  Commission to forward  recommendations that  would either                                                               
1) avert  all future  prison growth; 2)  avert all  future prison                                                               
grown and reduce the current  prison population by 15 percent; or                                                               
3) avert  all future prison  grown and reduce the  current prison                                                               
population by  25 percent.  He said  that those  focusing factors                                                               
became part  of the  process that  ultimately resulted  in Senate                                                               
Bill 91 that passed in 2016.                                                                                                    
                                                                                                                                
1:43:11 PM                                                                                                                    
SENATOR KELLY joined the committee.                                                                                             
                                                                                                                                
MR. RAZO relayed that as part  of Senate Bill 91, the legislature                                                               
tasked  the  Commission  with  monitoring  the  efficacy  of  the                                                               
reforms  using  data  collected   from  certain  state  agencies.                                                               
However, because the  bill was enacted in July 2016  and parts of                                                               
the  bill  will  not  go  into effect  until  January  2018,  the                                                               
Commission does not currently have  enough data to assess whether                                                               
Senate  Bill 91  is achieving  its intended  outcomes. Thus,  the                                                               
Commission's  recommendations   are  not  based   on  data-driven                                                               
research and they are not based  on the data that the legislature                                                               
instructed the  Commission to  collect and  analyze. Importantly,                                                               
the  recommendations  are  not  expected  to  reduce  the  prison                                                               
population,  reduce recidivism,  or reduce  the criminal  justice                                                               
system's usage of state resources.                                                                                              
                                                                                                                                
He explained  that the Commission's 14  recommendations are based                                                               
on  feedback from  members of  law enforcement,  prosecutors, and                                                               
the  public. He  pointed out  that this  feedback reflects  other                                                               
factors  the  Commission  was  directed  to  consider  in  making                                                               
recommendations. These  important factors are found  in state law                                                               
and they include:  1) the need for confinement; 2)  the effect of                                                               
deterrents; and 3) the need for community condemnation.                                                                         
                                                                                                                                
MR. RAZO said  the Commission recognizes that the  factors it has                                                               
been tasked  to consider often  work in tension. He  relayed that                                                               
while  it is  difficult to  focus on  these factors  at the  same                                                               
time, the  commissioners have a  tremendous amount  of experience                                                               
and it is that experience  that helps inform the recommendations.                                                               
He added,  "I dare say  that that  experience is as  important as                                                               
the huge  amount of public  testimony that we heard  over various                                                               
concerns."  He   cautioned  that  not  all   the  recommendations                                                               
received  unanimous support.  The  recommendations  that did  not                                                               
receive unanimous support include  an explanation of the concerns                                                               
of the commissioners who did not support the recommendation.                                                                    
                                                                                                                                
CHAIR COGHILL welcomed Senator Kelly to the meeting.                                                                            
                                                                                                                                
1:46:38 PM                                                                                                                    
MR.   RAZO  turned   to   the   recommendations,  starting   with                                                               
Recommendation   14-2017:    Enact   the    following   technical                                                             
corrections to  SB 91. He said  he would not belabor  each of the                                                             
technical  corrections,  but  could  report  that  they  received                                                               
unanimous support  from the Commission and  were consensus based.                                                               
He explained  the meaning  of consensus based  in the  context of                                                               
the Commission.                                                                                                                 
                                                                                                                                
CHAIR COGHILL  agreed that the members  individually could review                                                               
the   recommended   technical   corrections.   He   relayed   his                                                               
expectation to draft those corrections in a separate bill.                                                                      
                                                                                                                                
1:48:20 PM                                                                                                                    
MR.  RAZO   presented  Recommendation  1-2017:  Return   VCOR  to                                                             
Misdemeanor  Status. He  summarized that  Senate Bill  91 enacted                                                             
the  Commission's  recommendation  to   downgrade  the  crime  of                                                               
Violation  of  Conditions of  Release  (VCOR)  to a  non-criminal                                                               
violation,  punishable   by  a  fine.  This   change  created  an                                                               
unintended  consequence.  He  deferred   to  Ms.  Dunham  for  an                                                               
explanation.                                                                                                                    
                                                                                                                                
1:50:23 PM                                                                                                                    
BARBARA  DUNHAM,   Project  Attorney,  Alaska   Criminal  Justice                                                               
Commission,  stated   that  the   recommendation  is   to  return                                                               
violations of  conditions of  release to  a class  B misdemeanor,                                                               
punishable by  up to 5  days in  jail. She explained  that Senate                                                               
Bill 91  included an arrest  provision so defendants  who violate                                                               
their conditions of release could  be arrested and held until the                                                               
judge in  their underlying  case could  review bail.  The problem                                                               
that  has arisen  is  that  some people  who  were arrested  were                                                               
released as soon as they were brought to jail.                                                                                  
                                                                                                                                
CHAIR  COGHILL summarized  that  this requirement  is  to hold  a                                                               
person who has  violated their condition of release  until a bail                                                               
schedule hearing.                                                                                                               
                                                                                                                                
MR. RAZO  agreed. He  relayed that  the Commission  discussion on                                                               
January 19, included  a long description of the  perfect storm of                                                               
factors that  made the VCOR  unworkable. The Alaska  Court System                                                               
initiated a  new bail schedule for  misdemeanors, and magistrates                                                               
were told in many cases  to OR (own recognizance) release certain                                                               
people. Then  Senate Bill 91 passed  at about the same  time that                                                               
significant  cuts were  made in  prosecutor  and law  enforcement                                                               
personnel,  so  those  resources   were  in  short  supply.  This                                                               
combination  of  factors  accounted  for  a  lot  of  the  public                                                               
criticism of the new VCOR statute.                                                                                              
                                                                                                                                
1:54:50 PM                                                                                                                    
SENATOR   WIELECHOWSKI  cautioned   against  making   reactionary                                                               
changes.  He said  that to  make  sure any  changes are  evidence                                                               
based, it would be helpful to  know: 1) the number of people that                                                               
would  be impacted  by  the  change; 2)  the  success that  other                                                               
states or  communities have  had with these  changes; and  3) the                                                               
cost to implement each recommendation.                                                                                          
                                                                                                                                
CHAIR  COGHILL   pointed  out  that   the  Commission   said  the                                                               
recommendations  are not  based on  data-driven research.  Once a                                                               
bill is  drafted, the  agencies will be  given an  opportunity to                                                               
comment and, most probably, answer  those questions. He asked Mr.                                                               
Razo  if   he  wanted  to  comment   or  move  on  to   the  next                                                               
recommendation.                                                                                                                 
                                                                                                                                
MR. RAZO  said the  commissioners have  those same  questions and                                                               
will  use  evidence that  is  available  to  see  if there  is  a                                                               
statistical  correlation  between  Senate  Bill 91  and  what  is                                                               
happening in communities statewide.                                                                                             
                                                                                                                                
He  opined  that  Recommendation  1   has  the  potential  to  be                                                               
significant  with respect  to having  people spend  more days  in                                                               
jail.                                                                                                                           
                                                                                                                                
1:58:12 PM                                                                                                                    
MR. RAZO presented Recommendation  2-2017: Increase penalties for                                                             
repeat  Theft 4  offenders.  He  noted that  this,  too, has  the                                                             
potential to be  significant with respect to  having people spend                                                               
more days  in jail. This recommendation  targets recidivist theft                                                               
in the fourth  degree ("Theft 4") offenders.  He deferred further                                                               
explanation to Ms. Dunham.                                                                                                      
                                                                                                                                
MS DUNHAM  explained that Theft 4  is a class B  misdemeanor that                                                               
penalizes the theft of items or  services valued at $250 or less.                                                               
Senate  Bill  91  limited  the penalties  for  first  and  second                                                               
convictions of this offense and  eliminated jail time for a third                                                               
or  subsequent   conviction.  The  Commission  heard   a  lot  of                                                               
testimony about  this provision that  people who commit  three or                                                               
more  lower-level  theft  crimes  should  receive  an  escalating                                                               
penalty.                                                                                                                        
                                                                                                                                
The  Commission considered  two  proposals one  of  which was  to                                                               
reenact  the  recidivist  provision  and  return  the  third  and                                                               
subsequent  offense  to a  class  A  misdemeanor. The  Commission                                                               
ultimately  decided  to recommend  that  for  third-time Theft  4                                                               
offenders, the offense  should remain a class  B misdemeanor, but                                                               
punishable by up to 10 days in jail.                                                                                            
                                                                                                                                
The  debate centered  on  what is  the  appropriate approach  for                                                               
dealing with  people who  have chronic  addictions, homelessness,                                                               
and  mental  health  issues. Some  commissioners  were  concerned                                                               
about  the  potential  for  criminalizing  those  issues  without                                                               
treating the  underlying causes.  Everyone on the  Commission did                                                               
agree that  these offenders should  not be left to  cycle through                                                               
the  criminal  justice  system.  Further  solutions  are  needed,                                                               
including more  options to treat  mental illness,  addiction, and                                                               
chronic  homelessness. This  recommendation was  to increase  the                                                               
consequences for Theft 4 and  address what is widely perceived as                                                               
a growing theft problem.                                                                                                        
                                                                                                                                
CHAIR COGHILL  opined that  this may  be a  tool to  get pretrial                                                               
risk assessments.                                                                                                               
                                                                                                                                
MR. RAZO said  it is important for the committee  to realize that                                                               
the  reinvestment  money  that was  directed  to  prevention  and                                                               
treatment has just  begun to hit the streets. The  money that was                                                               
directed  to the  Department  of Corrections  has  been used  for                                                               
training and development  of the various tools  that are expected                                                               
to come  from the bill, but  they have yet to  be deployed. "It's                                                               
difficult to  make recommendations  that are evidence  based when                                                               
the full effect of Senate Bill 91 has not hit the streets."                                                                     
                                                                                                                                
2:02:51 PM                                                                                                                    
MR.  RAZO  presented  Recommendation  5-2017: Enact  a  0-90  day                                                             
presumptive sentencing range for  first-time Class C Felonies. He                                                             
described  this as  the most  significant  factor to  potentially                                                               
place people in  jail. He explained that  a fundamental principle                                                               
of  Senate Bill  91  was that  a  person is  more  likely to  not                                                               
reoffend  if they  are given  probation for  a first-time  felony                                                               
offense. A person  who is placed in jail for  even a small period                                                               
for  a nonviolent  offense is  more likely  to commit  additional                                                               
crimes.                                                                                                                         
                                                                                                                                
He read the following into the record:                                                                                          
                                                                                                                                
     SB 91 provides that Class C Felonies are punishable by                                                                     
        a suspended term of 0-18 months for first-felony                                                                        
     offenders.   This  means   that  a   first-time  felony                                                                    
     offender convicted of  a Class C Felony  is presumed to                                                                    
     receive  a  probationary  sentence that  would  include                                                                    
     some  amount of  suspended time.  A person  receiving a                                                                    
     probationary  sentence  with  suspended time  does  not                                                                    
     spend  any time  in jail  up front,  but is  subject to                                                                    
     jail time if they violate conditions of probation.                                                                         
                                                                                                                                
     The purpose of this  provision was to provide community                                                                    
     supervision for  first-time offenders to (1)  allow the                                                                    
     offender to  maintain pro-social ties to  the community                                                                    
     and  (2) ensure  that  the offender  would comply  with                                                                    
     conditions of  probation such  as remaining  sober, not                                                                    
     committing   new   crimes,   and   paying   fines   and                                                                    
     restitution  to victims.  If the  offender failed  with                                                                    
     these conditions, that offender  could be made to serve                                                                    
     part or all the suspended time in jail.                                                                                    
                                                                                                                                
     The  Commission  heard  numerous  concerns  about  this                                                                    
     provision. Prosecutors  felt that some violent  Class C                                                                    
     Felonies warranted jail time  for a first-time offense,                                                                    
     and  were concerned  that there  was not  enough of  an                                                                    
     incentive  to encourage  these  offenders  to get  into                                                                    
     treatment. Members  of law enforcement  were frustrated                                                                    
     that this  provision was overbroad and  did not provide                                                                    
     for  an  offender's   immediate  incarceration  if  the                                                                    
     offender posed  a danger to  the community.  Members of                                                                    
     the community were offended by  this provision and felt                                                                    
     that   it  did   not  express   community  condemnation                                                                    
     strongly enough.                                                                                                           
                                                                                                                                
     Prosecutors and  law enforcement preferred  a provision                                                                    
     that would  allow a judge discretion  in sentencing and                                                                    
     would   provide   for    immediate   incarceration   if                                                                    
     necessary.  They thought  that  while  there were  some                                                                    
     cases  where a  probationary term  was warranted  for a                                                                    
     first-time  offender,  the  judge  should  be  able  to                                                                    
     impose jail time in  some instances, particularly cases                                                                    
     involving violence.                                                                                                        
                                                                                                                                
     The  Commission  therefore   recommends  that  Class  C                                                                  
     Felonies  carry a  presumptive jail  term of  0-90 days                                                                  
     for first-felony offenders.                                                                                              
                                                                                                                                
MR. RAZO deferred further explanation to Ms. Dunham.                                                                            
                                                                                                                                
2:07:49 PM                                                                                                                    
SENATOR  COSTELLO  asked if  anything  in  Senate Bill  91  would                                                               
prevent  a police  officer from  arresting a  person at  the time                                                               
that they committed a felony.                                                                                                   
                                                                                                                                
MS.  DUNHAM said  nothing in  the bill  prevents an  officer from                                                               
arresting a  person who has committed  a class C felony  if there                                                               
is probable cause. However, the  officer does have the discretion                                                               
to issue a citation instead of making an arrest.                                                                                
                                                                                                                                
SENATOR COSTELLO  summarized that  it's up  to the  discretion of                                                               
the police officer  and that will be the case  until the pretrial                                                               
regulations go into effect.                                                                                                     
                                                                                                                                
MR. RAZO agreed.                                                                                                                
                                                                                                                                
2:09:59 PM                                                                                                                    
MS. DUNHAM said this provision  was of particular concern and the                                                               
subject  of  considerable  debate.  Several  proposals  were  put                                                               
forward  to   increase  the   penalties  for   first-time  felony                                                               
offenders  who committed  a class  C felony,  but the  Commission                                                               
ultimately  recommended a  presumptive  jail term  of 0-90  days.                                                               
This range would  allow a judge to still impose  no jail time and                                                               
a probation sentence  with a suspended term if  he/she thought it                                                               
was warranted. She  reminded the committee that  class C felonies                                                               
cover  a  wide range  of  conduct,  some  that the  public  would                                                               
consider fairly serious and some not serious at all.                                                                            
                                                                                                                                
MR. RAZO added that one of  the proposals was to separate violent                                                               
and nonviolent felonies  into different sections of  the code and                                                               
provide  a  more severe  penalty  for  the violent  crimes.  That                                                               
proposal did not pass.                                                                                                          
                                                                                                                                
CHAIR   COGHILL  said   the  committee   will   take  that   into                                                               
consideration.                                                                                                                  
                                                                                                                                
2:11:54 PM                                                                                                                    
SENATOR MEYER asked  for examples of both  violent and nonviolent                                                               
class C felonies.                                                                                                               
                                                                                                                                
2:12:23 PM                                                                                                                    
SUZANNE  DIPIETRO, Executive  Director,  Alaska Judicial  Council                                                               
stated that assault in the third degree is a violent felony.                                                                    
                                                                                                                                
MR.  RAZO added  that examples  are threatening  a person  with a                                                               
deadly weapon and causing serious  physical injury. An example of                                                               
a nonviolent class C felony is theft of more than $1,000.                                                                       
                                                                                                                                
SENATOR MEYER said  he's heard frustrations about  this, too, and                                                               
from his perspective,  90 days jail time doesn't  sound like much                                                               
of a deterrent for somebody who  threatens a person with a deadly                                                               
weapon.                                                                                                                         
                                                                                                                                
CHAIR COGHILL said the two areas  that are getting quite a bit of                                                               
attention  are   repeated  fourth  degree  assault   or  class  B                                                               
misdemeanors,  and  class  C  felonies.   He  recalled  that  the                                                               
Commission thought probation accountability  would be better than                                                               
sitting  in  jail  watching  TV,  but  it  turned  out  that  the                                                               
incentive to follow through on their probation was diminished.                                                                  
                                                                                                                                
2:15:56 PM                                                                                                                    
SENATOR  WIELECHOWSKI  said  it  would be  helpful  to  get  some                                                               
evidence on how  this has worked in Alaska and  other states. "If                                                               
the penalties  we have in  the bill  work and people  are getting                                                               
rehabilitated,  that's something  I would  want to  know. By  the                                                               
same token,  if it's not working  and people are getting  off and                                                               
committing other  crimes, then I  certainly want to know  that as                                                               
well."                                                                                                                          
                                                                                                                                
CHAIR  COGHILL said  it will  be difficult  to get  evidence from                                                               
other states.  These recommendations are based  on testimony from                                                               
the public and law enforcement.                                                                                                 
                                                                                                                                
MR. RAZO said it's important  for the committee to understand the                                                               
presumptive  sentencing  process  in  Alaska.  For  all  class  C                                                               
felonies,  the  maximum   sentence  is  5  years   in  jail.  The                                                               
presumptive range is  0-90 days, but if the  prosecutor proves by                                                               
clear  and  convincing  evidence  that the  case  is  aggravated,                                                               
he/she can  request the judge  sentence the offender  outside the                                                               
presumptive range. He highlighted that there are 23 aggravators.                                                                
                                                                                                                                
CHAIR COGHILL said this goes to  the point made earlier about the                                                               
Department of Law's [reduced] resources  for prosecutions and the                                                               
implementation of Senate Bill 91.                                                                                               
                                                                                                                                
2:19:11 PM                                                                                                                    
MR.  RAZO presented  Recommendation 3-2017:  Allow municipalities                                                             
to set  different non-incarceration punishments  for non-criminal                                                             
offenses  that  have  state  equivalents.   He  noted  that  this                                                             
recommendation passed unanimously. It  basically says that Senate                                                               
Bill 91  has no  impact on  a city's list  of violations.  But if                                                               
state  and  municipal  crimes  are  equivalent,  they  must  have                                                               
equivalent punishments.                                                                                                         
                                                                                                                                
CHAIR COGHILL said this recommendation came from municipalities.                                                                
                                                                                                                                
MR. RAZO  said the Commission  is doing  its best to  ensure that                                                               
interested stakeholders are kept in  the loop regarding all these                                                               
recommendations.                                                                                                                
                                                                                                                                
2:21:14 PM                                                                                                                    
MR.  RAZO   presented  Recommendation  4-2017:  Revise   the  sex                                                             
trafficking statute. He deferred the explanation to Ms. Dunham.                                                               
                                                                                                                                
MS. DUNHAM clarified  that the provisions in Senate  Bill 91 that                                                               
changed  the  sex  trafficking  statutes  were  not  based  on  a                                                               
recommendation from  the Commission.  However, as  implemented it                                                               
was  hindering prosecutions  of  people who  were committing  sex                                                               
trafficking. This change would still  allow prosecution of people                                                               
who are committing  sex trafficking, but would  not affect people                                                               
who  are  engaged  in  the  sex  trade  and  are  simply  sharing                                                               
resources.                                                                                                                      
                                                                                                                                
CHAIR COGHILL  cited testimony from  the Department of  Law about                                                               
the  ability  to hide  as  a  sex  trafficker under  the  current                                                               
writing  of   the  law.  He   described  the   recommendation  as                                                               
straightforward.                                                                                                                
                                                                                                                                
MR.  RAZO commented  that there  was considerable  testimony from                                                               
sex workers.                                                                                                                    
                                                                                                                                
2:23:34 PM                                                                                                                    
MR.  RAZO presented  Recommendation 6-2017:  Enact an  aggravator                                                             
for  class  A  misdemeanors  for  defendants  who  have  a  prior                                                             
conviction for similar conduct. He  explained that Senate Bill 91                                                             
enacted a presumptive sentence range  of 0-30 days for most class                                                               
A  Misdemeanors.  The sentence  could  be  increased for  certain                                                               
cases  including  those  where  the defendant  has  two  or  more                                                               
criminal  convictions  for  similar  conduct. The  latter  is  an                                                               
aggravator and  this recommendation is  to make it  an aggravator                                                               
if the defendant has one prior conviction for similar conduct.                                                                  
                                                                                                                                
MR. RAZO  presented Recommendation  7-2017: Clarify that  ASAP is                                                             
available  for minor  consuming  alcohol. He  explained that  the                                                             
Alcohol  Safety  Action  Program  monitors  misdemeanor  DUI  and                                                               
Refusal  cases.  In 2015,  the  Commission  recommended that  the                                                               
program either receive more funding  or be restricted to just DUI                                                               
and Refusal  offenders. Following this direction,  Senate Bill 91                                                               
limited  ASAP to  offenders who  have been  convicted of  DUI and                                                               
Refusal  offenses. That  same year,  Senate Bill  165 passed  and                                                               
changed Minor Consuming Alcohol from  a crime to a violation. The                                                               
bill also  specified that  the fine for  this violation  could be                                                               
reduced  if  the  defendant  attended   and  completed  ASAP.  As                                                               
currently written, provisions in these two laws are in conflict.                                                                
                                                                                                                                
MR.  RAZO  presented  Recommendation 8-2017:  Enact  a  provision                                                             
requiring mandatory probation for  sex offenders. He described it                                                             
as  an oversight  that Senate  Bill 91  eliminated the  provision                                                               
requiring sex offenders to serve a period of probation.                                                                         
                                                                                                                                
2:26:53 PM                                                                                                                    
MS. DUNHAM  said the  Commission did not  hear any  evidence that                                                               
sex offenders  were getting  through a  loophole, but  wanted the                                                               
legislature  to  decide  where  in  the  statute  to  enact  this                                                               
provision                                                                                                                       
                                                                                                                                
MR. RAZO  presented Recommendation 9-2017: Clarify  the length of                                                             
probation allowed  for theft  in the  fourth degree.  He deferred                                                             
explanation to Ms. Dunham.                                                                                                      
                                                                                                                                
MS. DUNHAM  explained that Senate  Bill 91 provides that  a third                                                               
Theft 4  conviction is punishable  by up  to 5 days  of suspended                                                               
jail time  and 6  months of probation.  However, probation  for a                                                               
first or  second Theft 4  conviction is not addressed.  She noted                                                               
that Theft  4 is a  class B  misdemeanor and generally  carries a                                                               
maximum probation term of 1  year. The Commission believes that a                                                               
probationary  term is  appropriate and  requests the  legislature                                                               
clarify what  probation should  be for first  and second  Theft 4                                                               
offenses.                                                                                                                       
                                                                                                                                
CHAIR COGHILL said  the committee will debate the  matter and the                                                               
bill will provide clarification.                                                                                                
                                                                                                                                
2:29:25 PM                                                                                                                    
MR.  RAZO   presented  Recommendation  10-2017:   Require  victim                                                             
notification only if practical. He  explained that Senate Bill 91                                                             
requires  the court  at the  time  of sentencing  to provide  the                                                               
victim  with  information  about  the  defendant's  sentence  and                                                               
potential release. The  difficulty is that the  Court System does                                                               
not  have victim  information,  so it  would not  have  a way  to                                                               
supply  this  information  if  the  victim  was  not  present  at                                                               
sentencing or  did not  want to participate  or be  informed. The                                                               
recommendation to insert the words  "if practical" in the statute                                                               
would correct this problem.                                                                                                     
                                                                                                                                
CHAIR  COGHILL  said that  makes  sense  and the  committee  will                                                               
debate whether  the definition of  "practical" is too  loose. "We                                                               
want to push the limit to where  the victim is notified if at all                                                               
possible in every way we can."                                                                                                  
                                                                                                                                
MR. RAZO presented Recommendation  11-2017: Felony DUI sentencing                                                             
provisions should  be in one  statute. He explained  that driving                                                             
under  the influence  is a  Title 28  offense and  the sentencing                                                               
provisions are  in Title  12 so  the consequence  for DUI  is not                                                               
found where you would expect to find it.                                                                                        
                                                                                                                                
MS. DUNHAM clarified  that there are penalty  provisions [for DUI                                                               
and Refusal]  in both Title  12 and  Title 28 and  the Commission                                                               
recommends there be  just one penalty provision,  in either Title                                                               
12 or Title 28.                                                                                                                 
                                                                                                                                
CHAIR COGHILL summarized,  "So in charging and  sentencing you go                                                               
to  one code  for  both  the charge  and  the  penalty. Mr.  Razo                                                               
agreed.                                                                                                                         
                                                                                                                                
MR. RAZO  presented Recommendation  12-2017: Clarify who  will be                                                             
assessed   by   pre-trial   services.  He   relayed   that   this                                                             
recommendation  came from  the Department  of Corrections  (DOC),                                                               
and it relates  to the pretrial services program that  has yet to                                                               
go into  effect. Senate Bill  91 directs the DOC  commissioner to                                                               
administer  this  program  that  will provide:  a  pretrial  risk                                                               
assessment  for  all  defendants, recommendations  to  the  court                                                               
concerning  pretrial   release  decisions,  and   supervision  of                                                               
defendants  released  while  awaiting  trial as  ordered  by  the                                                               
court. The  concern centers on  the fact that all  defendants are                                                               
subject  to the  pretrial  risk assessment.  He deferred  further                                                               
explanation to Ms. DiPietro.                                                                                                    
                                                                                                                                
MS. DIPIETRO  added that the  idea of a pretrial  risk assessment                                                               
is to help  the judge and attorneys decide what  type of pretrial                                                               
release  from  imprisonment would  be  appropriate.  But not  all                                                               
defendants go  to jail pretrial;  some will be issued  a citation                                                               
and a  summons to appear  before the court  at a later  date. The                                                               
Department  of Corrections  argued  that defendants  who are  not                                                               
taking  up jail  beds pretrial  do  not need  a risk  assessment.                                                               
Also, providing assessments for people  who are not in jail would                                                               
add considerably  to the  use of resources  and the  workload for                                                               
the department.                                                                                                                 
                                                                                                                                
She said  the Commission  wanted to be  sure that  the prosecutor                                                               
could  request  a  pretrial  risk  assessment  for  a  particular                                                               
defendant  if he/she  saw the  need. This  clarifies for  DOC the                                                               
scope of  people to whom  it needs  to provide the  pretrial risk                                                               
assessment.                                                                                                                     
                                                                                                                                
CHAIR COGHILL  said he  likes that the  prosecutor may  request a                                                               
risk assessment.                                                                                                                
                                                                                                                                
2:35:06 PM                                                                                                                    
MS.  DUNHAM  presented  Recommendation 13-2017:  Fix  a  drafting                                                             
error  regarding  victim  notification.   She  explained  that  a                                                             
provision  in Senate  Bill 91  requires a  victim to  be provided                                                               
notice  for  a  release  on  administrative  parole  for  certain                                                               
offenders,   but   those   offenders   are   not   eligible   for                                                               
administrative  parole. This  is a  technical drafting  error and                                                               
the provision should be deleted.                                                                                                
                                                                                                                                
CHAIR COGHILL  said the Commission's  explanation makes  it clear                                                               
that if  a defendant is  not eligible for  administrative parole,                                                               
that  language should  be deleted.  "We'll clean  that up  in the                                                               
bill."                                                                                                                          
                                                                                                                                
2:36:44 PM                                                                                                                    
MR. RAZO advised that that was the last recommendation.                                                                         
                                                                                                                                
CHAIR  COGHILL   summarized  the   three  main  issues:   1)  the                                                               
escalating nature of  class B misdemeanors; 2)  the potential for                                                               
jail time for  class C felonies; and 3)  violations of conditions                                                               
of release.   He thanked the commission members for  the time and                                                               
effort they had contributed over the  last year. "You have done a                                                               
yeoman's job." He asked Mr. Razo if he had concluding comments.                                                                 
                                                                                                                                
2:39:05 PM                                                                                                                    
MR. RAZO offered  his perspective. He opined that  the success of                                                               
Senate  Bill  91  hinges  on  the  implementation  and  necessary                                                               
training  of troopers,  municipal  police officers,  prosecutors,                                                               
judges, defense  lawyers and others associated  with the criminal                                                               
justice system.  Resources are  tight and there  is only  so much                                                               
the part-time  volunteer commissioners and two  staff members can                                                               
do. He  lauded the  Court System  for doing  an excellent  job in                                                               
explaining the law when their resources are equally scarce.                                                                     
                                                                                                                                
He reminded the committee that  this was the justice reinvestment                                                               
initiative, and the reinvestment  is just beginning. The services                                                               
that  need  to  be  provided  to these  people  have  yet  to  be                                                               
implemented.  If  the  necessary  programs  and  services  aren't                                                               
implemented, the results are inevitable.                                                                                        
                                                                                                                                
CHAIR COGHILL thanked Mr. Razo,  Ms. Dunham, and Ms. DiPietro for                                                               
their quick, concise  work. He stated his intention  to draft two                                                               
bills,  one  technical  and  one  policy  related.  He  requested                                                               
members  think  about  whether  one   or  both  bills  should  be                                                               
sponsored  by  the  Senate  Judiciary  Committee.  He  concluded,                                                               
"Public condemnation has played a huge  part in this, but I think                                                               
Senator Wielechowski  you're right. We  need to keep  it balanced                                                               
against  what we  can  demonstrate by  whatever  research we  can                                                               
find, but we cannot ignore the public who feels so violated."                                                                   
                                                                                                                                
2:44:08 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Coghill adjourned the Senate Judiciary Standing Committee                                                                 
meeting at 2:44 p.m.                                                                                                            

Document Name Date/Time Subjects
ACJC Recommendations Regarding SB 91.pdf SJUD 1/30/2017 1:30:00 PM