Legislature(2017 - 2018)BELTZ 105 (TSBldg)

02/17/2017 01:30 PM JUDICIARY

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01:35:21 PM Start
01:37:51 PM SB54
02:45:20 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 54 CRIME AND SENTENCING TELECONFERENCED
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                       February 17, 2017                                                                                        
                           1:35 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator John Coghill, Chair                                                                                                     
Senator Kevin Meyer                                                                                                             
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Mia Costello                                                                                                            
Senator Pete Kelly                                                                                                              
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 54                                                                                                              
"An  Act  relating   to  crime  and  criminal   law;  relating  to                                                              
violation of  condition of release;  relating to  sex trafficking;                                                              
relating  to sentencing;  relating to probation;  relating  to the                                                              
pretrial services program; and providing for an effective date."                                                                
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JORDAN SHILLING, Staff                                                                                                          
Senator John Coghill                                                                                                            
POSITION STATEMENT:  Provided a sectional summary for SB 54 on                                                                
behalf of the sponsor.                                                                                                          
                                                                                                                                
JOHN SKIDMORE, Director                                                                                                         
Criminal Division                                                                                                               
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Commented on SB 54.                                                                                      
                                                                                                                                
RENEE MCFARLAND, Attorney                                                                                                       
Public Defender Agency                                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Commented on SB 54.                                                                                      
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:35:21 PM                                                                                                                    
CHAIR   JOHN  COGHILL   called  the   Senate  Judiciary   Standing                                                            
Committee meeting  to order  at 1:35 p.m.  Present at the  call to                                                              
order were Senators Meyer, Wielechowski, and Chair Coghill.                                                                     
                                                                                                                                
                  SB  54-CRIME AND SENTENCING                                                                               
                                                                                                                                
CHAIR COGHILL  announced the consideration  of SB 54.  Speaking as                                                              
the  sponsor,  he explained  that  the  bill contains  the  policy                                                              
revisions recommended  by the Alaska Criminal  Justice Commission.                                                              
He  reviewed  the contents  of  the  packet  and noted  that  John                                                              
Skidmore  and Renee  McFarland  were  available online  to  answer                                                              
questions.                                                                                                                      
                                                                                                                                
1:37:51 PM                                                                                                                    
JORDAN  SHILLING, Staff,  Senate Judiciary  Committee and  Senator                                                              
John  Coghill,  introduced  SB   54  on  behalf  of  the  sponsor,                                                              
starting with the following sectional summary:                                                                                  
                                                                                                                                
     Section 1                                                                                                              
     AS 11.56.757(a) - Violation of condition of release.                                                                       
                                                                                                                                
        Changes the offense of violation of condition of                                                                        
     release to a crime.                                                                                                        
                                                                                                                                
     Section 2                                                                                                              
     AS 11.56.757(b) - Violation of condition of release.                                                                       
                                                                                                                                
    Changes the offense of violation of condition of release                                                                    
     to a crime (class B misdemeanor).                                                                                          
                                                                                                                                
MR. SHILLING  explained that in  2015 the Alaska  Criminal Justice                                                              
Commission  ("Commission") recommended  downgrading violations  of                                                              
conditions  of   release  (VCOR)  to  an   arrestable,  detainable                                                              
violation.  That recommendation  was enacted  through Senate  Bill                                                              
91, but implementation  did not occur as the  Commission intended.                                                              
While  the bill  did  include an  arrest  provision  so that  VCOR                                                              
offenders could  be arrested, some  of those individuals  were not                                                              
held  in  jail  because  judges  did  not  believe  they  had  the                                                              
authority  to hold  the defendant  pending  a bail  review by  the                                                              
judge in the underlying case.                                                                                                   
                                                                                                                                
CHAIR  COGHILL added  that the  Commission tried  to follow  data-                                                              
driven  practices  and  consider   the  need  for  rehabilitation,                                                              
sufficiency of  state resources,  the effect of recidivism  rates,                                                              
and  peer review  metadata. The  Commission also  had to  consider                                                              
the  need  to   confine  offenders  to  maintain   public  safety,                                                              
deterrence, and public condemnation.                                                                                            
                                                                                                                                
MR.   SHILLING   said  the   Commission   ultimately   recommended                                                              
returning  violation  of  condition   of  release  to  a  criminal                                                              
offense. Section  1 is conforming  and changes the  term "offense"                                                              
to  "crime"  because offense  can  include  noncriminal  behavior.                                                              
Section  2  makes  VCOR  a  class   B  misdemeanor  instead  of  a                                                              
violation that has a penalty of up to $500.                                                                                     
                                                                                                                                
1:41:00 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if there are exceptions  because there                                                              
were  good policy  reasons for  changing VCOR  from a  crime to  a                                                              
violation.  "I wonder  if there  is  a way  to craft  this so  the                                                              
[less] egregious  ones are violations  and the ones that  are more                                                              
egregious are class B misdemeanors."                                                                                            
                                                                                                                                
MR. SHILLING said  the Commission considered  different approaches                                                              
to resolving  this problem,  but ultimately  settled on  returning                                                              
it to a criminal offense.                                                                                                       
                                                                                                                                
CHAIR  COGHILL,   speaking  as  sponsor,  said  he   was  open  to                                                              
suggestions  that  would  give   the  court  some  flexibility  in                                                              
administering  the  punishment,  including  the  misdemeanor  when                                                              
needed.                                                                                                                         
                                                                                                                                
1:42:36 PM                                                                                                                    
SENATOR  MEYER  concurred  with  Senator  Wielechowski  that  some                                                              
flexibility is warranted.                                                                                                       
                                                                                                                                
1:43:11 PM                                                                                                                    
MR. SHILLING continued the sectional review.                                                                                    
                                                                                                                                
     Section 3                                                                                                              
     AS 11.66.130(a) - Sex trafficking in the third degree.                                                                     
                                                                                                                                
     Distinguishes  between people who are  profiting and                                                                       
     promoting  a place  of prostitution  and  people who                                                                       
     are  participating in  a cooperative  of independent                                                                       
     sex  workers and  engaging  in prostitution  without                                                                       
     receiving compensation or promoting prostitution.                                                                          
                                                                                                                              
     Section 4                                                                                                              
    AS 11.66.135(a) - Sex trafficking in the fourth degree.                                                                     
                                                                                                                                
     Distinguishes  between a person engaging  in conduct                                                                       
     that institutes, aids,  or facilitates prostitution,                                                                       
     and a person who  is also receiving compensation for                                                                       
     prostitution services rendered by another.                                                                                 
                                                                                                                                
MR. SHILLING explained  that Sections 3 and 4 seek  to ensure that                                                              
sex workers cannot  be prosecuted for sex trafficking  if they are                                                              
merely working  together and not  exploiting one another.  This is                                                              
the  balance that  House  Bill 349  sought  to  strike last  year.                                                              
However,  those provisions  created  an unintended  loophole  that                                                              
could  allow  sex  traffickers  to  avoid  prosecution  for  lower                                                              
degrees  of sex  trafficking.  Those  provisions  are repealed  in                                                              
Section 15 of SB 54.                                                                                                            
                                                                                                                                
He  noted that  the Commission  also  recommended the  legislature                                                              
define  the  term   "compensation"  and  the  sponsor   asked  the                                                              
Department of Law and the Public Defender to draft a definition.                                                                
                                                                                                                                
CHAIR  COGHILL   said  his   office  is   still  waiting   on  the                                                              
definition.                                                                                                                     
                                                                                                                                
1:45:33 PM                                                                                                                    
MR. SHILLING continued the sectional review.                                                                                    
                                                                                                                                
     Section 5                                                                                                              
        AS 12.55.125(e) - Sentences of imprisonment for                                                                         
     felonies.                                                                                                                  
                                                                                                                                
     Increases  the  presumptive   sentence  for  a  class  C                                                                   
     felony that  is a  first felony conviction  to up  to 90                                                                   
     days  imprisonment   and  up  to  18   months  suspended                                                                   
     imprisonment.                                                                                                              
                                                                                                                                
MR. SHILLING explained  that under current law,  an individual who                                                              
is convicted  of a class  C felony, but  has no prior  felonies on                                                              
their record, receives  a presumptive sentence of up  to 18 months                                                              
of felony  probation supervision. If  an aggravator is  proven the                                                              
individual  can  be  sentenced  up  to 5  years  in  prison.  This                                                              
provision  was  recommended  by  the  Commission  and  enacted  by                                                              
Senate  Bill 91. The  intention  was to allow  these offenders  to                                                              
maintain  social  ties  to the  community  while  the  supervision                                                              
ensured that they were complying with their conditions.                                                                         
                                                                                                                                
Prosecutors  and the  public voiced  concern  with this  provision                                                              
and said  there ought to be  some active imprisonment,  regardless                                                              
of whether  it was a first offense  or not. Section 5  removes the                                                              
provision   that   requires  probation   for   first-time   felony                                                              
offenders and  imposes 0 to 90  days of active imprisonment  and a                                                              
suspended period of imprisonment of up to 18 months.                                                                            
                                                                                                                                
CHAIR  COGHILL   encouraged  members  to  read   the  Commission's                                                              
Recommendation 5-2017.                                                                                                          
                                                                                                                                
SENATOR WIELECHOWSKI  asked what the  penalty is for  a first-time                                                              
DUI offense and if SB 54 changes it.                                                                                            
                                                                                                                                
MR.  SHILLING  replied that  is  a  class  A misdemeanor  and  the                                                              
penalty that  is typically imposed  is 3 days active  imprisonment                                                              
and  27 days  suspended.  However,  the maximum  jail  time is  30                                                              
days.                                                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI   asked  if  Senate  Bill   91  changed  the                                                              
penalty.                                                                                                                        
                                                                                                                                
MR.  SHILLING  replied  the  number of  days  wasn't  changed  but                                                              
Senate Bill  91 requires  an individual with  a first-time  DUI to                                                              
serve  a minimum  of 3  days on  electronic  monitoring with  home                                                              
confinement.                                                                                                                    
                                                                                                                                
1:48:34 PM                                                                                                                    
SENATOR MEYER observed  that SB 54 doesn't  guarantee imprisonment                                                              
for a defendant  convicted of a first-time class C  felony, but it                                                              
could be up to 90 days.                                                                                                         
                                                                                                                                
MR. SHILLING  agreed  and noted  that prior to  passage of  Senate                                                              
Bill 91, the court  could impose a penalty ranging  from 0 days up                                                              
to two years.                                                                                                                   
                                                                                                                                
SENATOR MEYER  highlighted that  one example  of a class  C felony                                                              
is somebody shooting at another person.                                                                                         
                                                                                                                                
CHAIR COGHILL  said the committee  should probably talk  about the                                                              
range  of  C  felony  conduct.  The  bill  generally  follows  the                                                              
Commission's recommendation  that 0  to 90 days imprisonment  with                                                              
additional  suspended time would  be enough  to get the  defendant                                                              
into some corrective action.                                                                                                    
                                                                                                                                
1:50:52 PM                                                                                                                    
MR. SHILLING continued the sectional review.                                                                                    
                                                                                                                                
     Section 6                                                                                                              
     AS 12.55.125 - Sentences of imprisonment for felonies.                                                                     
                                                                                                                                
     Requires the court to impose a term of probation for felony                                                                
     sex offenders.                                                                                                             
                                                                                                                                
MR. SHILLING explained  that in 2015 the Commission  recommended a                                                              
limit of 5 years  probation for a felony sex offender  and 3 years                                                              
probation  for  all  other  felony offenders.  At  the  time,  the                                                              
required  minimum   for  a  felony  sex  offender   was  15  years                                                              
probation.  That statute  conflicted with  Senate Bill  91 and  it                                                              
was  repealed. When  the bill  moved  to the  House the  probation                                                              
term limit  was increased to 15  years, but the  mandatory minimum                                                              
was  not resurrected.  While the  Commission  has not  heard of  a                                                              
felony sex offender  who has not had a term of  probation imposed,                                                              
it seemed  prudent to require it  in law so that  couldn't happen.                                                              
He suggested the  committee could allow the provision  in SB 54 to                                                              
stand  or   determine  other  unique   minimums  for   felony  sex                                                              
offenders.                                                                                                                      
                                                                                                                                
CHAIR COGHILL summarized  that SB 54 imposes  mandatory probation,                                                              
which would  give both  the Board  of Parole and  judges a  lot of                                                              
discretion.                                                                                                                     
                                                                                                                                
MR. SHILLING  added that Section  6 would allow  from 1 day  up to                                                              
15 years probation for a felony sex offender                                                                                    
                                                                                                                                
     Section 7                                                                                                              
        AS 12.55.135(a) - Sentences of imprisonment for                                                                         
     misdemeanors.                                                                                                              
                                                                                                                                
         A person convicted of an A misdemeanor may be                                                                          
        sentenced up to 60 days if the defendant has one                                                                        
     previous conviction for a similar offense.                                                                                 
                                                                                                                                
MR. SHILLING explained  that Section 7 addresses  the Commission's                                                              
recommendation  regarding  class A  misdemeanors.  Senate Bill  91                                                              
enacted a presumptive  sentence of 0  to 30 days for most  class A                                                              
misdemeanors. Prosecutors  voiced concern about the  escalator, so                                                              
the  Commission recommended:  0 to  30 days  for a  first class  A                                                              
misdemeanor; 0  to 60 days for  a second class A  misdemeanor; and                                                              
up to  one year  for a  third class A  misdemeanor. Assault,  even                                                              
the  first  time, and  certain  sex  offenses are  exceptions  and                                                              
those have sentences of up to 1 year.                                                                                           
                                                                                                                                
Page  3, line  28,  specifies that  the  aggravator  to receive  a                                                              
sentence up to one year requires two or more convictions.                                                                       
                                                                                                                                
Page  4, lines  9-11,  creates the  0-60  range  for one  previous                                                              
conviction for a similar offense.                                                                                               
                                                                                                                                
1:55:07 PM                                                                                                                    
     Section 8                                                                                                              
     AS  12.55.135(b)   -  Sentences   of  imprisonment   for                                                                   
     misdemeanors.                                                                                                              
                                                                                                                                
     A  person  convicted  of  violation   of  conditions  of                                                                   
     release   may  be  sentenced   to  up   to  5  days   of                                                                   
     imprisonment.                                                                                                              
                                                                                                                                
MR. SHILLING  explained that  Section 8 is  a continuation  of the                                                              
Commission's recommendation  regarding violation of  the condition                                                              
of release.                                                                                                                     
                                                                                                                                
     Section 9                                                                                                              
     AS  12.55.135(l)   -  Sentences   of  imprisonment   for                                                                   
     misdemeanors.                                                                                                              
                                                                                                                                
     A person  convicted of theft  in the fourth  degree (and                                                                   
     similar  offenses) may  be sentenced  up to  10 days  of                                                                   
     active   imprisonment    for   third   and    subsequent                                                                   
     convictions.                                                                                                               
                                                                                                                                
MR.   SHILLING   explained   that    Section   9   addresses   two                                                              
recommendations  the  Commission   made  regarding  theft  in  the                                                              
fourth degree.  First, it  explicitly says  that a six-month  term                                                              
of probation  can be imposed for  first and second  convictions of                                                              
theft in the fourth  degree. This is what Senate  Bill 91 intended                                                              
but the  probation term  limit was not  included in  that specific                                                              
statute.                                                                                                                        
                                                                                                                                
Section 9  also provides up to  10 days active imprisonment  for a                                                              
third  conviction of  theft in the  fourth degree.  He noted  that                                                              
this differs from  the Commission's recommendation  in 2016, which                                                              
provided  five  days  suspended   imprisonment  for  a  third  and                                                              
subsequent conviction of theft in the fourth degree.                                                                            
                                                                                                                                
CHAIR  COGHILL suggested  the  members  look at  the  Commission's                                                              
Recommendations  2-2017 and  9-2017  as well  as a  list of  these                                                              
misdemeanors for context.                                                                                                       
                                                                                                                                
MR. SHILLING highlighted  for the members that  this section could                                                              
be clarified in a future committee substitute.                                                                                  
                                                                                                                                
CHAIR COGHILL agreed.                                                                                                           
                                                                                                                                
1:58:48 PM                                                                                                                    
MR. SHILLING continued the sectional review.                                                                                    
                                                                                                                                
     Section 10                                                                                                             
     AS 12.63.100(6) - Definitions.                                                                                             
                                                                                                                                
     Updates the definition of "sex offense" to conform to                                                                      
     amendments to sex trafficking in the third and fourth                                                                      
     degrees.                                                                                                                   
                                                                                                                                
     Section 11                                                                                                             
     AS 18.67.101 - Incidents and offenses to which this chapter                                                                
     applies.                                                                                                                   
                                                                                                                                
     Updating  the   offenses  for  which  the   Violent  Crimes                                                                
     Compensation  Board may  order payment  of compensation  to                                                                
     conform to amendments  to sex trafficking in the  third and                                                                
     fourth degrees.                                                                                                            
                                                                                                                                
MR.  SHILLING said  Sections  10 and  11  are conforming  sections                                                              
related to sex trafficking.                                                                                                     
                                                                                                                                
     Section 12                                                                                                             
     AS 29.25.070(g) - Penalties.                                                                                               
                                                                                                                                
     Clarifies that limitations of municipal authority to impose                                                                
     punishments does not apply to non-criminal offenses.                                                                       
                                                                                                                                
MR.  SHILLING  said  Section  12  is  a  recommendation  from  the                                                              
Commission  and  a  priority of  the  Municipality  of  Anchorage.                                                              
Although  not intended, this  provision was  interpreted  to apply                                                              
to noncriminal offenses.  Replacing the terms "offense"  and "law"                                                              
with "crime"  will  allow a municipality  to  have its own  unique                                                              
punishments for infractions and violations.                                                                                     
                                                                                                                                
SENATOR  MEYER  asked if  a  municipality  could impose  a  higher                                                              
penalty than the state for a DUI offense.                                                                                       
                                                                                                                                
MR. SHILLING  said a municipality  could not impose a  longer term                                                              
of imprisonment,  but it could  be open to interpretation  whether                                                              
the fine  could be  higher. He  noted there  is also a  discussion                                                              
about forfeiture  and impoundment  of vehicles.  For example,  the                                                              
Municipality  of  Anchorage  ordinance  impounds  an  individual's                                                              
vehicle  for first  time  DUI, whereas  state  law doesn't  impose                                                              
that penalty until a second DUI.                                                                                                
                                                                                                                                
He   suggested  the   committee   may  want   to  further   define                                                              
"punishment" to  clarify the way  a municipality would  respond to                                                              
non-jail punishments such as fines and vehicle impoundment.                                                                     
                                                                                                                                
CHAIR COGHILL said  he's open to discussion on the  matter, but he                                                              
hasn't seen language he's willing to put in the bill.                                                                           
                                                                                                                                
SENATOR  MEYER  asked  if  the Municipality  of  Anchorage  has  a                                                              
choice  of charging  an individual  under state  law versus  local                                                              
law and  if the  state picks  up the  court costs  if they  charge                                                              
under state law.                                                                                                                
                                                                                                                                
CHAIR COGHILL asked Mr. Skidmore to address the question.                                                                       
                                                                                                                                
2:03:00 PM                                                                                                                    
JOHN  SKIDMORE, Director,  Criminal  Division,  Department of  Law                                                              
(DOL),  Anchorage,  Alaska,  said  the arresting  agency  has  the                                                              
discretion to  refer the case to  the municipal prosecutor  or the                                                              
state prosecutors.  When the  case is  referred to either  agency,                                                              
that  agency   would  screen  the   case  under   the  appropriate                                                              
authorizing  legislation. For the  state that  is a state  statute                                                              
and  for  a  municipality  that is  the  municipal  code.  Neither                                                              
agency can screen  out a case and force the other  to take it, but                                                              
an agency could  decline to prosecute, and the  other agency could                                                              
pick up the case.                                                                                                               
                                                                                                                                
SENATOR MEYER said  his concern is about potential  cost shifting.                                                              
"If APD  picks up  somebody for  DUI and then  they decide  to use                                                              
the state  law for  that case,  then does  the cost  automatically                                                              
shift to the state versus the municipality?"                                                                                    
                                                                                                                                
MR. SKIDMORE replied  costs could be shifted, and  that has always                                                              
been  a  possibility.  If a  case  is  referred  to the  state  as                                                              
opposed  to the  municipality, the  state  bears the  cost of  the                                                              
prosecution and  incarceration that might follow.  Similarly, if a                                                              
case is referred  to the municipality, the municipality  bears the                                                              
cost of the prosecution and subsequent incarceration.                                                                           
                                                                                                                                
CHAIR  COGHILL offered  his understanding  that the  [Municipality                                                              
of Anchorage] prosecutes misdemeanors but not felonies.                                                                         
                                                                                                                                
MR.  SKIDMORE  said   both  Anchorage  and  Juneau   have  enacted                                                              
municipal  codes  that  allow  prosecution  of  misdemeanors,  but                                                              
municipalities do  not prosecute felony  conduct. That is  left to                                                              
the State of Alaska unless the charges are under federal law.                                                                   
                                                                                                                                
2:06:21 PM                                                                                                                    
SENATOR MEYER  offered his  understanding  that driving under  the                                                              
influence is a class A misdemeanor.                                                                                             
                                                                                                                                
CHAIR COGHILL added that the third DUI is a felony offense.                                                                     
                                                                                                                                
2:06:40 PM                                                                                                                    
MR. SHILLING  clarified that the third  DUI in 10 years  becomes a                                                              
felony.                                                                                                                         
                                                                                                                                
He continued the sectional review.                                                                                              
                                                                                                                                
     Section 13                                                                                                             
    AS 33.07.010 - Pretrial services program; establishment.                                                                    
                                                                                                                                
     Limits the assessment of pretrial risk to defendants                                                                       
     brought into custody, or any defendant if requested by                                                                     
     prosecution.                                                                                                               
                                                                                                                                
MR.  SHILLING  explained  that  when  Senate  Bill  91's  pretrial                                                              
provisions  go into  effect  January 1,  2018,  the Department  of                                                              
Corrections  (DOC) will  be required  to conduct  a pretrial  risk                                                              
assessment on  all defendants, regardless  of whether they  are in                                                              
custody.  Because  the purpose  of  the  assessment is  to  inform                                                              
judges  and  pretrial  services   officers  in  making  a  release                                                              
decision, the  DOC argued that it  was unreasonable to  require an                                                              
assessment   for  defendants   who  were   not  in  custody.   The                                                              
Commission agreed  and recommended that pretrial  risk assessments                                                              
be limited  to defendants in custody  and any defendant  for which                                                              
the prosecution requests an assessment.                                                                                         
                                                                                                                                
     Section 14                                                                                                             
     AS 34.03.360(10) - Definitions.                                                                                            
                                                                                                                                
     Updates the definition of "illegal activity involving                                                                      
      a place of prostitution" to conform to amendments to                                                                      
     sex trafficking in the third and fourth degrees.                                                                           
                                                                                                                                
MR.  SHILLING  explained  that   the  definitions  is  Section  14                                                              
conform  to  the  sex  trafficking  changes  and  accommodate  the                                                              
renumbering in Section 3.                                                                                                       
                                                                                                                                
     Section 15                                                                                                             
     Repealed statutes                                                                                                          
                                                                                                                                
    Repeals duplicative felony DUI sentencing provisions and                                                                    
     certain sex trafficking statutes.                                                                                          
                                                                                                                                
MR.   SHILLING   explained   that    [AS   11.66.130(b)   and   AS                                                              
11.66.135(b);  and AS  12.55.125(e)(4)(B), AS  12.55.125(e)(4)(C),                                                              
and  AS  12.55.125(e)(4)(D)]  are  repealed. They  relate  to  the                                                              
inadvertent   loophole  created   regarding  sex  trafficking   he                                                              
mentioned earlier,  and the  Commission's recommendation  that all                                                              
felony  DUI  sentencing  provisions   be  in  one  location.  With                                                              
passage  of Senate  Bill 91,  felony DUI  sentencing statutes  are                                                              
found  in both Title  11 and  Title 28.  SB 54  repeals them  from                                                              
Title 11 and they remain in Title 28.                                                                                           
                                                                                                                                
     Section 16                                                                                                             
     Uncodified law                                                                                                             
                                                                                                                                
     This section contains applicability provisions.                                                                            
                                                                                                                                
     Section 17                                                                                                             
     Effective date                                                                                                             
                                                                                                                                
     Section 13 takes effect January 1, 2018.                                                                                   
                                                                                                                                
MR.  SHILLING explained  that Section  13  addresses the  pretrial                                                              
risk assessment and  those provisions do not go  into effect until                                                              
January 1, 2018.                                                                                                                
                                                                                                                                
     Section 18                                                                                                             
     Effective date                                                                                                             
                                                                                                                                
     Other than section 17, this bill takes effect immediately.                                                                 
                                                                                                                                
CHAIR  COGHILL   highlighted  that   violation  of   condition  of                                                              
release, class  C felonies,  theft in the  fourth degree,  and the                                                              
municipal penalty are  the four large questions the  bill seeks to                                                              
answer.   The   sex   trafficking   issue   isn't   a   Commission                                                              
recommendation,  but it  was inserted  as part  of Senate  Bill 91                                                              
and it needs attention to ensure the intent is clear.                                                                           
                                                                                                                                
2:12:57 PM                                                                                                                    
SENATOR MEYER  said he continues  to have concern about  the class                                                              
C felonies  and  the ability  to separate  violent and  nonviolent                                                              
conduct. He  expressed interest  in treating violent  conduct more                                                              
harshly  than the  nonviolent and  observed that  the bill  "isn't                                                              
quite there yet."                                                                                                               
                                                                                                                                
CHAIR  COGHILL  suggested  he  read the  record  from  the  Alaska                                                              
Criminal   Justice  Commission   where  the   Department  of   Law                                                              
discussed separating  violent and  nonviolent behavior.  They also                                                              
talked  about  a   broader  penalty  range,  and   that  might  be                                                              
something to consider.  He emphasized that he didn't  want to bump                                                              
against the  next felony  level and lose  the benefit  of changing                                                              
behavior, but he is open to the discussion.                                                                                     
                                                                                                                                
SENATOR MEYER  said his other concern  is the class  B misdemeanor                                                              
to address  the rise  in thievery. He  asked for clarification  of                                                              
Sections 7 and 9.                                                                                                               
                                                                                                                                
CHAIR COGHILL said  Section 7 deals with class  A misdemeanors and                                                              
the  aggravator that  could be  added. The  class B  misdemeanors,                                                              
theft in the fourth degree, are addressed in Section 9.                                                                         
                                                                                                                                
2:16:08 PM                                                                                                                    
MR. SHILLING  clarified that  robbery and  burglary are  felonies.                                                              
Section 9  deals with theft in  the fourth degree and  things that                                                              
are  similar such  as removal  of ID  marks, unlawful  possession,                                                              
issuing a bad  check, and criminal simulation.  The bill envisions                                                              
up to  10 days of  active imprisonment  for a third  conviction of                                                              
theft of items valued under $250                                                                                                
                                                                                                                                
SENATOR  MEYER asked  what  the  penalty is  for  breaking into  a                                                              
house and stealing $500 worth of jewelry.                                                                                       
                                                                                                                                
MR. SHILLING  explained that  burglary and  robbery are  felonies.                                                              
Theft  of property  between $250  and  $1,000, without  committing                                                              
either a burglary or robbery, is a class A misdemeanor.                                                                         
                                                                                                                                
CHAIR COGHILL suggested Mr. Skidmore also answer the question.                                                                  
                                                                                                                                
MR. SKIDMORE  said Mr. Shilling  answered the question  correctly.                                                              
If a  person breaks  into a  home with  intent to  steal, that  is                                                              
burglary  in  the  first  degree,  which  is  a  class  B  felony.                                                              
Stealing property  off another person  through force or  threat is                                                              
considered a  robbery. Theft of property  under $250 is  a class B                                                              
misdemeanor and  is called  theft in the  fourth degree.  Theft of                                                              
property between  $250 and $1,000  would be a class  A misdemeanor                                                              
and is called theft in the third degree.                                                                                        
                                                                                                                                
SENATOR MEYER asked  if breaking into an electronics  store versus                                                              
a home is still considered a robbery.                                                                                           
                                                                                                                                
MR. SKIDMORE  answered no. Breaking  into a building other  than a                                                              
residence  is burglary  in the second  degree,  a class C  felony.                                                              
Taking an  electronic device out  of someone's purse or  pocket is                                                              
not  a robbery  because  it is  not done  through  force. That  is                                                              
theft and the degree depends on the value of the item.                                                                          
                                                                                                                                
SENATOR MEYER asked how the device is valued.                                                                                   
                                                                                                                                
MR. SKIDMORE replied  AS 11.46.980 says the value  of the property                                                              
is  market value  at  the  time and  place  of the  crime,  unless                                                              
otherwise  specified. If  the market value  cannot be  determined,                                                              
the replacement cost of the property after the crime is used.                                                                   
                                                                                                                                
SENATOR  MEYER  commented  on the  frustration  that  people  have                                                              
about   increased  thefts,   the  opioid   epidemic,  and   police                                                              
frustrations with Senate Bill 91.                                                                                               
                                                                                                                                
CHAIR COGHILL talked  about the need to restore  confidence of the                                                              
public,  police,  and  prosecutors  and  the need  to  have  tools                                                              
available.                                                                                                                      
                                                                                                                                
2:24:16 PM                                                                                                                    
SENATOR MEYER noted  that the committee had not  received a fiscal                                                              
note and that increased enforcement will cost more.                                                                             
                                                                                                                                
CHAIR COGHILL clarified  that Senate Bill 91 was  intended to save                                                              
criminal  activity and  divert  any savings  to  programs. "If  we                                                              
save Alaska  from more crime  that will save  us money as  a safer                                                              
society."                                                                                                                       
                                                                                                                                
2:25:16 PM                                                                                                                    
SENATOR  WIELECHOWSKI  reviewed the  field  manual  for crime  and                                                              
asked if  breaking into a house  is burglary in the  first degree,                                                              
a class A felony                                                                                                                
                                                                                                                                
MR. SKIDMORE  answered yes; burglary  in the first degree  is when                                                              
someone  enters or  remains  unlawfully in  a  residence with  the                                                              
intent to  commit a crime. Burglary  in the second degree  is when                                                              
someone enters and  remains unlawfully in a building  other than a                                                              
dwelling.                                                                                                                       
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if breaking  into a  shed and  taking                                                              
something  would  be  burglary   in  the  second  degree;  and  if                                                              
stealing someone's boat and trailer would also be theft.                                                                        
                                                                                                                                
MR. SKIDMORE explained  that a boat is considered  a motor vehicle                                                              
and  that  type  of  theft  is  automatically  a  felony,  whereas                                                              
stealing a bicycle  would be theft and the degree  would depend on                                                              
the value  of the  property. He  noted that  earlier he  read that                                                              
governing  statute to Senator  Meyer. Addressing  the question  of                                                              
breaking into  a shed, he  read AS 11.81.900(b)(5)  and determined                                                              
a  shed does  not meet  the definition  of  a building,  therefore                                                              
that would  not be a  burglary. It would  be theft and  the degree                                                              
would be determined by the value of the property stolen.                                                                        
                                                                                                                                
2:28:53 PM                                                                                                                    
SENATOR  WIELECHOWSKI stated  agreement  with  Senator Meyer  that                                                              
the theft issue  is enormous. He asked how Alaska's  penalties for                                                              
theft compare  to other states. "I  wonder if there's maybe  a few                                                              
things where  we just want  to tick up  the penalty a  little bit,                                                              
so we  just stop  what I'm seeing  as really  an epidemic  in this                                                              
area."                                                                                                                          
                                                                                                                                
CHAIR COGHILL said  the intention is to increase  penalties to the                                                              
point  that  there   is  accountability  with  the   capacity  for                                                              
diversion.  He asked  Mr.  Skidmore  how a  case  is analyzed  and                                                              
eventually leads to plea bargaining.                                                                                            
                                                                                                                                
MR.  SKIDMORE  explained that  when  a  case  is referred  to  the                                                              
Department  of Law,  it is screened  to determine  whether  it has                                                              
sufficient evidence  to meet the  elements of a particular  crime.                                                              
Thereafter, it  is a  question of whether  there are  resources to                                                              
carry out the prosecution.                                                                                                      
                                                                                                                                
CHAIR  COGHILL asked  if  the degree  of  theft  increases if  the                                                              
property that is stolen is required for a person's livelihood.                                                                  
                                                                                                                                
MR.  SKIDMORE answered  no;  the statute  does  not describe  that                                                              
element.  The  statute talks  primarily  about  the value  of  the                                                              
property although  the crime  can be elevated  for things  like an                                                              
access device or a firearm.                                                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI  asked if  people  are committing  the  same                                                              
crimes over and over;  and his sense of what can  be done to break                                                              
this cycle of escalating thefts.                                                                                                
                                                                                                                                
MR.  SKIDMORE replied  you're asking  the million-dollar  question                                                              
and  there isn't  a  simple answer.  He  confirmed  that the  same                                                              
people frequently  do come back  and commit the same  crimes. This                                                              
is borne out  in his personal experience and  the recidivism data.                                                              
He  opined  that it  will  be a  case  by  case and  defendant  by                                                              
defendant analysis  to determine what sanction is  appropriate. In                                                              
large  part that  is why  discretion  is built  into the  criminal                                                              
justice system.                                                                                                                 
                                                                                                                                
CHAIR COGHILL said  that was part of the debate  as the Commission                                                              
looked  at   how  to   hold  people   accountable  and   give  the                                                              
opportunity for diversion.                                                                                                      
                                                                                                                                
SENATOR MEYER  noted the opioid  epidemic in Alaska  and expressed                                                              
his  belief  that a  lot  of the  murders  are  a result  of  drug                                                              
activity.  He  said  he  supports  treatment  to  get  people  off                                                              
addictive  drugs,  but realizes  that  only  works if  the  person                                                              
wants  the  help.  He  expressed  interest  in  hearing  from  the                                                              
Department  of Corrections  regarding drug  treatment options  and                                                              
the prevalence of drugs in prison.                                                                                              
                                                                                                                                
CHAIR COGHILL  said DOC will be  available at a future  meeting to                                                              
address these questions.                                                                                                        
                                                                                                                                
SENATOR  MEYER said  there is  no  silver bullet  but looking  for                                                              
ways to stop the revolving door is one option.                                                                                  
                                                                                                                                
CHAIR  COGHILL   highlighted  that   many  of  the   programs  and                                                              
community  support  services established  in  Senate  Bill 91  are                                                              
just starting.  "We still  have to  hold people accountable,  give                                                              
opportunity to change  where they can, and when  they won't change                                                              
we have to hold them accountable at a higher level."                                                                            
                                                                                                                                
He asked Ms. McFarland if she had any comments.                                                                                 
                                                                                                                                
2:40:19 PM                                                                                                                    
RENEE  MCFARLAND,  Attorney, Public  Defender  Agency,  Anchorage,                                                              
Alaska,  clarified  that whether  theft  from a  shed  constitutes                                                              
burglary or not  depends on the nature of the shed.  The closer it                                                              
approximates  a  building  the  more  likely  it  qualifies  as  a                                                              
building and  therefore would  qualify as  burglary in  the second                                                              
degree. She  said this is often  a factual question for  juries to                                                              
consider.                                                                                                                       
                                                                                                                                
2:41:08 PM                                                                                                                    
MR.  SHILLING, following  up  on Senator  Wielechowski's  question                                                              
about  what   works  to   reduce  crime,   highlighted  that   the                                                              
Commission  relied heavily  on the  large body  of research  about                                                              
the things that  don't work when it made its  recommendations last                                                              
year.  One  of the  findings  of  that  research was  that  longer                                                              
prison stays  do not  reduce the  likelihood of committing  crimes                                                              
in the future.                                                                                                                  
                                                                                                                                
He reminded the  committee that the Commission made  it clear that                                                              
the  2017  recommendations  are  not  based on  a  large  body  of                                                              
research.  They   are  in  response  to  other   factors  such  as                                                              
community  condemnation  and  retribution.  He also  reminded  the                                                              
committee  that  the  justice  reinvestment  initiative  is  about                                                              
spending  less  money  on  things   that  don't  work  and  aren't                                                              
supported by  research and  investing any  savings in  things that                                                              
do  reduce  crime  such as  substance  abuse  treatment,  violence                                                              
prevention, and pretrial services.                                                                                              
                                                                                                                                
CHAIR COGHILL added  that the Department of Corrections  looked at                                                              
the  current  programs  and  found   that  over  80  percent  were                                                              
effective, based on the justice reinvestment review.                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI  said  he's concerned  about the small  group                                                              
of  people that,  for  whatever  reason, can't  be  rehabilitated.                                                              
"What do we do with those people?"                                                                                              
                                                                                                                                
CHAIR  COGHILL said  starting this  time next  year there  will be                                                              
pretrial  risk  assessments but  that's  not  now, so  we'll  keep                                                              
looking.                                                                                                                        
                                                                                                                                
[SB 54 was held in committee.]                                                                                                  
                                                                                                                                
2:45:20 PM                                                                                                                    
There  being no  further business  to come  before the  committee,                                                              
Chair Coghill  adjourned the  Senate Judiciary Standing  Committee                                                              
meeting at 2:45 p.m.                                                                                                            

Document Name Date/Time Subjects
SB 54 - ACJC Recommendations.pdf SJUD 2/17/2017 1:30:00 PM
SB 54
SB 54 - Bill Contents.pdf SJUD 2/17/2017 1:30:00 PM
SB 54
SB 54 - Sectional Summary.pdf SJUD 2/17/2017 1:30:00 PM
SB 54
SB 54 - Sponsor Statement.pdf SJUD 2/17/2017 1:30:00 PM
SB 54