Legislature(2017 - 2018)BELTZ 105 (TSBldg)

03/01/2017 01:30 PM JUDICIARY

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01:34:47 PM Start
01:35:07 PM SB54
02:59:52 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 54 CRIME AND SENTENCING TELECONFERENCED
Heard & Held
Invited Testimony from:
- Department of Corrections
- Department of Public Safety
- Department of Law
- Public Defender
- Court System
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 1, 2017                                                                                          
                           1:34 p.m.                                                                                            
                                                                                                                                
                                                                                                                              
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator John Coghill, Chair                                                                                                     
Senator Mia Costello                                                                                                            
Senator Kevin Meyer                                                                                                             
Senator Pete Kelly                                                                                                              
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
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 & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB  54                                                                                                                  
SHORT TITLE: CRIME AND SENTENCING                                                                                               
SPONSOR(s): SENATOR(s) COGHILL                                                                                                  
                                                                                                                                
02/10/17       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/10/17       (S)       JUD, FIN                                                                                               
02/17/17       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/17/17       (S)       Heard & Held                                                                                           
02/17/17       (S)       MINUTE(JUD)                                                                                            
02/24/17       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
02/24/17       (S)       -- MEETING CANCELED --                                                                                 
03/01/17       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
JORDAN SHILLING, Staff                                                                                                          
Senator John Coghill                                                                                                            
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Described the changes between  version A and                                                            
version O of SB 54:                                                                                                             
                                                                                                                                
NANCY MEADE, General Counsel                                                                                                    
Alaska Court System                                                                                                             
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Commented on the sections of  SB 54, version                                                            
O, that the Court System was involved in.                                                                                       
                                                                                                                                
DEAN WILLIAMS, Commissioner                                                                                                     
Department of Corrections                                                                                                       
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Commented on SB 54, version O.                                                                           
                                                                                                                                
JOHN SKIDMORE, Director                                                                                                         
Criminal Division                                                                                                               
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:   Discussed the policy changes  SB 54, version                                                            
O.                                                                                                                              
                                                                                                                                
CLINT CAMPION, District Attorney                                                                                                
Criminal Division                                                                                                               
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   In  the hearing  on  SB  54, discussed  his                                                            
observations  about the policy  calls implemented  in Senate  Bill                                                              
91.                                                                                                                             
                                                                                                                                
QUINLAN STEINER, Public Defender                                                                                                
Public Defender Agency                                                                                                          
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   Discussed  the  policy  changes  in SB  54,                                                            
version O.                                                                                                                      
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                              
1:34:47 PM                                                                                                                    
CHAIR   JOHN  COGHILL   called  the   Senate  Judiciary   Standing                                                            
Committee meeting  to order  at 1:34 p.m.  Present at the  call to                                                              
order were  Senators Costello, Meyer  and Chair Coghill.  Senators                                                              
Wielechowski and Kelly arrived soon thereafter.                                                                                 
                                                                                                                                
                  SB  54-CRIME AND SENTENCING                                                                               
                                                                                                                                
1:35:07 PM                                                                                                                    
CHAIR  COGHILL announced  the  consideration of  SB  54. He  noted                                                              
this is  the second  hearing and there  is a committee  substitute                                                              
(CS) for the committee to consider.                                                                                             
                                                                                                                                
1:35:46 PM                                                                                                                    
SENATOR  COSTELLO moved  to adopt  the  work draft  CS for  Senate                                                              
Bill 54, labeled 30-LS0461\O, as the working document.                                                                          
                                                                                                                                
CHAIR COGHILL objected for an explanation of the changes.                                                                       
                                                                                                                                
1:36:00 PM                                                                                                                    
JORDAN  SHILLING,   Staff  to   Senator  Coghill,  described   the                                                              
following changes between version A and version O of SB 54:                                                                     
                                                                                                                                
         Section 5                                                                                                          
         AS 11.66.150 - Definitions.                                                                                            
                                                                                                                                
          Establishes a definition for "compensation"                                                                           
             which does not include any payment for                                                                             
         reasonably apportioned shared expenses.                                                                                
                                                                                                                                
MR.  SHILLING explained  that  the  sponsor's office  solicited  a                                                              
definition  from the  Department of  Law and  the Public  Defender                                                              
that  both agreed  would meet  the  goals of  the Alaska  Criminal                                                              
Justice Commission  ("Commission") recommendation. Any  use of the                                                              
term "compensation"  in Sections 3 and  4 of the bill  has its own                                                              
definition for the purposes of those sections.                                                                                  
                                                                                                                                
1:37:33 PM                                                                                                                    
SENATOR WIELECHOWSKI joined the committee.                                                                                      
                                                                                                                                
MR. SHILLING  continued to  review the  changes between  version A                                                              
and version O of SB 54.                                                                                                         
                                                                                                                                
         Section 6                                                                                                          
         AS 11.56.757(b) - Sentences of imprisonment for                                                                        
         felonies.                                                                                                              
                                                                                                                                
         Increases  the active term  of imprisonment  that                                                                      
         may be  imposed for  a C-felony that  is a  first                                                                      
         felony conviction  from zero to  90 days to  zero                                                                      
         to 120 days.                                                                                                           
                                                                                                                                
CHAIR  COGHILL noted  this  goes beyond  the  term the  Commission                                                              
recommended which gives judges more latitude.                                                                                   
                                                                                                                                
         Section 7                                                                                                          
         AS 12.55.125 - Sentences of imprisonment for felonies.                                                                 
                                                                                                                                
         Establishes minimum  probation term  lengths for                                                                       
         felony   sex   offenses.   15   years   for   an                                                                       
         unclassified  felony; 10  years  for an  A  or B                                                                       
         felony; and 5 years for a C felony.                                                                                    
                                                                                                                                
MR.  SHILLING  reminded  the members  that  while  the  Commission                                                              
recommended  some supervision  for  felony sex  offenders, it  did                                                              
not  specify   the  minimums.   The  sponsor's  office   solicited                                                              
opinions  from  the Department  of  Law  and the  Public  Defender                                                              
about  appropriate minimums  and the  sponsor decided  to go  with                                                              
the higher numbers suggested by the Department of Law.                                                                          
                                                                                                                                
The maximum  probation for  felony sex offenses  is 15  years. The                                                              
minimum probation  for an  unclassified felony  sex offense  is 15                                                              
years so  the term of  probation is set  at 15 years.  The minimum                                                              
probation  for a  class A  or class  B  felony sex  offense is  10                                                              
years,  which  creates  a  range   of  10-15  years.  The  minimum                                                              
probation  for a  class C  felony sex  offense is  5 years,  which                                                              
creates a range of 5-15 years.                                                                                                  
                                                                                                                                
1:40:23 PM                                                                                                                    
SENATOR KELLY joined the committee.                                                                                             
                                                                                                                                
         Section 8                                                                                                          
         AS   12.55.135   -   Sentences    of   imprisonment   for                                                              
         misdemeanors.                                                                                                          
                                                                                                                                
         Increases  the maximum  sentence of imprisonment                                                                       
         for  distributing an  explicit image  of a  minor                                                                      
         to  an Internet  website  that is  accessible  to                                                                      
         the public.                                                                                                            
                                                                                                                                
MR. SHILLING explained  that last year Senate Bill  91 was amended                                                              
on  the  House floor  to  enhance  the  penalty  for the  class  B                                                              
misdemeanor offense  of distributing an explicit image  of a minor                                                              
to  one other  person. However,  the amendment  failed to  enhance                                                              
the penalty  for the  class A  misdemeanor offense  of posting  an                                                              
explicit image  on an internet website  that is accessible  to the                                                              
public. This eliminates  that disparity by increasing  the maximum                                                              
term  of  imprisonment  for  the conduct.  This  is  a  Commission                                                              
recommendation.                                                                                                                 
                                                                                                                                
         Section 10                                                                                                         
         AS 12.55.135(l) - Sentences of imprisonment for                                                                        
         misdemeanors.                                                                                                          
                                                                                                                                
                                                           th                                                                   
           Revises language relating to Theft in the 4                                                                          
         Degree (and  similar offenses)  to comport with  the                                                                   
         Alaska      Criminal      Justice       Commission's                                                                   
         recommendations  that  probation   term  lengths  be                                                                   
         clarified  and   3rd  and  subsequent   offenses  be                                                                   
         punishable by up to 10 days in prison.                                                                                 
                                                                                                                                
MR. SHILLING described this as a technical change to comport                                                                    
with the Commission's recommendation.                                                                                           
                                                                                                                                
     Section 11                                                                                                             
     AS  12.55.135(p)   -  Sentences   of  imprisonment   for                                                                   
     misdemeanors.                                                                                                              
                                                                                                                                
     Conforming change  that requires notice to  the opposing                                                                   
     party  if   the  state  seeks   to  establish   the  new                                                                   
     aggravating factor for A misdemeanors.                                                                                     
                                                                                                                                
MR. SHILLING noted that this comports with the Commission                                                                       
recommendation.                                                                                                                 
                                                                                                                                
     Section 12                                                                                                             
     AS 12.55.145(a) - Prior convictions.                                                                                       
                                                                                                                                
     Establishes  a 5-year lookback  period for the  purposes                                                                   
     of establishing  aggravating factors for  A misdemeanors                                                                   
     that are  based on  prior convictions. Unclassified  and                                                                   
     class  A   felonies  are  excluded  from   the  lookback                                                                   
     period.                                                                                                                    
                                                                                                                                
MR. SHILLING  explained that  there is  already a 5-year  lookback                                                              
for domestic  violence assault  in the fourth  degree and  it made                                                              
sense  to extend that  lookback  to all class  A misdemeanors.  He                                                              
noted  that  the   felony  sentencing  framework   has  a  10-year                                                              
lookback, but unclassified and class A felonies are excluded.                                                                   
                                                                                                                                
1:46:45 PM                                                                                                                    
                                                                                                                                
     Section 15                                                                                                             
     AS 28.15.011 - Drivers must be licensed.                                                                                   
                                                                                                                                
     Reduces the crime of No Valid Operator's License to an                                                                     
     infraction.                                                                                                                
                                                                                                                                
MR. SHILLING explained  that this corrects a disparity  created by                                                              
Senate  Bill 91  that  reduced driving  with  a suspended  license                                                              
(for  reasons other  than a  DUI) to  an infraction,  but did  not                                                              
similarly reduce  the crime  of driving  with no valid  operator's                                                              
license to an infraction. This was a Commission recommendation.                                                                 
                                                                                                                                
     Section 17                                                                                                             
    AS    33.07.010    -    Pretrial    services    program;                                                                    
     establishment.                                                                                                             
                                                                                                                                
        Technical changes to clarify the requirement to                                                                         
     conduct pretrial risk assessments on defendants.                                                                           
                                                                                                                                
MR.  SHILLING  explained  that  this  relates  to  the  Commission                                                              
recommendation  to eliminate the  requirement for risk  assessment                                                              
for  individuals   who  are   cited  rather   than  arrested   and                                                              
individuals  who are  released  on the  bail  schedule. Version  A                                                              
used the legal  term "brought into custody" and  that created some                                                              
confusion  about  what  it  meant.  On the  advice  of  the  Court                                                              
System,  the language  was changed  to "detained  in custody  in a                                                              
correctional facility following arrest".                                                                                        
                                                                                                                                
     Section 18                                                                                                             
     AS 33.07.030 - Duties of pretrial services officers.                                                                       
                                                                                                                                
     Requires the Department of Corrections to present the                                                                      
         results of the pretrial risk assessment to the                                                                         
     prosecution and the defense, in addition to the court.                                                                     
                                                                                                                                
MR.  SHILLING advised  that the  Department  of Corrections  (DOC)                                                              
has  concerns  with this  section.  The  question centers  on  who                                                              
should  be responsible  for presenting  the results  and there  is                                                              
some thought that the Court System might be more appropriate.                                                                   
                                                                                                                                
CHAIR  COGHILL   said  the  bill   identified  DOC   because  they                                                              
administer the risk assessment.                                                                                                 
                                                                                                                                
MR. SHILLING  said  those are all  the changes  between version  A                                                              
and version O of SB 54.                                                                                                         
                                                                                                                                
1:49:57 PM                                                                                                                    
CHAIR   COGHILL  removed   his  objection.   Finding  no   further                                                              
objection, he  announced that version  O is before  the committee.                                                              
He listed the invited testimony.                                                                                                
                                                                                                                                
1:52:30 PM                                                                                                                    
NANCY  MEADE, General  Counsel,  Alaska Court  System,  Anchorage,                                                              
Alaska, noted  the Court System's  zero fiscal note. She  said she                                                              
was prepared  to answer any questions  but would address  just the                                                              
sections  of version  O that the  Court System  was most  involved                                                              
in.                                                                                                                             
                                                                                                                                
She  turned  to  Sections  1  and   2  that  relate  to  violating                                                              
conditions of release  (VCOR). Senate Bill 91 changed  VCOR from a                                                              
crime to a violation,  which means there can be no  jail time, but                                                              
it  is an  arrestable offense.  This created  some confusion  when                                                              
individuals  were  taken to  the  holding facility  about  whether                                                              
they  could be  held. "If  this  was a  non-jailable offense,  how                                                              
really can we hold  the person to have something  more happen with                                                              
their   underlying  bail   conditions?"   The  presiding   judges'                                                              
solution  was to amend  the bail  form by  adding a sentence  that                                                              
says  a person  who  violates any  of  the conditions  of  release                                                              
shall be  held for another  bail review hearing.  She acknowledged                                                              
that  this  may or  may  not be  working,  but  it was  an  Alaska                                                              
Criminal  Justice  Commission  ("Commission")   recommendation  to                                                              
change VCOR  back to a  crime to ensure  that people  arrested for                                                              
this conduct could be held for a short period.                                                                                  
                                                                                                                                
She said  the corresponding  punishment  for Sections  1 and  2 is                                                              
found in Section  9 on page 5,  line 4. It specifies  that VCOR is                                                              
a class B misdemeanor,  and the maximum time a person  can be held                                                              
is 5  days. During that  time the person  would have  another bail                                                              
hearing on  the underlying  charge. She  reiterated that  changing                                                              
VCOR back to a crime was a Commission recommendation.                                                                           
                                                                                                                                
1:56:13 PM                                                                                                                    
MS.  MEADE turned  to  Section  8 that  relates  to  the terms  of                                                              
imprisonment permissible  for class  A misdemeanors.  She directed                                                              
attention to the  new paragraph (2) that has  the enhanced penalty                                                              
of  60   days  imprisonment   for  a   person's  second   class  A                                                              
misdemeanor if  it is similar in  nature to the first  one. Judges                                                              
brought  it  to  her  attention  that  this  penalty  is  slightly                                                              
anomalous, especially  in the  context of a  second DUI.  A second                                                              
DUI  is a  class A  misdemeanor and  the DUI  statute provides  20                                                              
days minimum  imprisonment  and 30 days  maximum imprisonment.  If                                                              
SB 54 were to  pass, the permissible range for a  second DUI would                                                              
be  20 days  up to  60 days.  She suggested  that clarifying  what                                                              
happens the  second time  would be  helpful for practitioners  and                                                              
judges.                                                                                                                         
                                                                                                                                
She  directed attention  to  page 4,  lines  8-9, and  highlighted                                                              
that the  language in  Senate Bill 91  said imprisonment  would be                                                              
one year  if the defendant  has "past criminal convictions."  That                                                              
generated  a lot of  discussion  about whether  you needed  two or                                                              
more convictions  or whether  it really  meant a past  conviction.                                                              
She  said at  least  one  judge decided  you  needed  two or  more                                                              
because it  is plural, but  both practitioners and  judges thought                                                              
it was quite vague.                                                                                                             
                                                                                                                                
She reminded members  that Section 9 has the  five-day penalty for                                                              
violating conditions of release.                                                                                                
                                                                                                                                
1:59:32 PM                                                                                                                    
MS.  MEADE  turned  to  Section  10  that  addresses  the  penalty                                                              
provision for class  B misdemeanor theft offenses  of items valued                                                              
under $250.  The question that came  up was whether  any probation                                                              
could  be ordered.  She  noted that  Mr.  Shilling explained  that                                                              
judges and  lawyers have rules  for statutory interpretation  that                                                              
led some  to believe  that if it  wasn't specified that  probation                                                              
could be  ordered, then  probation wasn't  permitted. She  said it                                                              
was the  sponsor's  intent that  probation ought  to be an  option                                                              
for low level theft offenders, so that addition was clarifying.                                                                 
                                                                                                                                
She  described  Section  11  that  relates  to  the  procedure  of                                                              
putting aggravating  factors  into practice  as something  that is                                                              
non-controversial  but helpful to the  Court System. It  says that                                                              
the court will  determine whether to put the  class A misdemeanant                                                              
into the category of a possible higher jail term.                                                                               
                                                                                                                                
MS. MEADE  turned to  Section 15. She  explained that  Senate Bill                                                              
91  changed  the  penalty  for   driving  with  a  license  either                                                              
suspended or revoked  (unrelated to DUI) to an  infraction and the                                                              
maximum penalty  is $300. However, it  left intact the  law with a                                                              
higher penalty for  driving without ever having  gotten a license.                                                              
That is a  misdemeanor punishable by  up to 90 days in  jail. This                                                              
new subsection is intended to resolve that discrepancy.                                                                         
                                                                                                                                
She said  that Section  16 addresses  what is  referred to  as the                                                              
Section  113  problem in  Senate  Bill  91.  That bill  said  that                                                              
municipalities  cannot have  penalties that  are more severe  than                                                              
the   state  penalties,   but   it   overlooked   the  fact   that                                                              
municipalities  and the  state have  fines for  the same  offenses                                                              
and the municipal  fines are sometimes higher.  Section 16 changes                                                              
the  term  "offense"   to  "crime"  which  clarifies   that  minor                                                              
offenses  such  as  traffic  tickets  are  not  included  in  that                                                              
provision.                                                                                                                      
                                                                                                                                
MS.  MEADE turned  to Section  18 that  relates to  the duties  of                                                              
pretrial services  officers. She said one issue  that arose during                                                              
implementation  meetings  is  how  the  pretrial  report  will  be                                                              
disseminated.  Senate Bill  91 said the  pretrial risk  assessment                                                              
would be presented  to the court,  but it did not address  how the                                                              
parties  would  get   it.  She  said  she  understands   that  the                                                              
Department of Correction  might not like this change,  but it does                                                              
seem that  the prosecution and  defense attorneys need  to receive                                                              
the report before the hearing.                                                                                                  
                                                                                                                                
She explained  that when someone  is arrested late in  the evening                                                              
and  will  be  arraigned  by  9:00  a.m.  the  next  morning,  the                                                              
pretrial   services   office   is  tasked   with   conducting   an                                                              
assessment, creating  a report, and getting it  to the appropriate                                                              
people  before the  arraignment. The  change in  Section 18  would                                                              
have the  pretrial services  office issue the  report not  only to                                                              
the court,  but also  the prosecution and  the public  defender or                                                              
defense   attorney.   She   said   she   didn't   view   this   as                                                              
controversial, but that may or may not be the case.                                                                             
                                                                                                                                
CHAIR COGHILL  said it's appropriate  and the question  relates to                                                              
implementation.                                                                                                                 
                                                                                                                                
MS. MEADE  said she  could talk  with the pretrial  implementation                                                              
group about whether  the court should distribute  the reports, but                                                              
that  might not  be the  most efficient  since  the attorneys  may                                                              
need that document even before the court needs it.                                                                              
                                                                                                                                
2:07:51 PM                                                                                                                    
SENATOR  MEYER   referred  to  Section   10  and   summarized  his                                                              
understanding  that the penalty  would not  include jail  time for                                                              
someone who steals items worth less than $250 two times.                                                                        
                                                                                                                                
MS. MEADE  agreed there  is no  active jail  time but pointed  out                                                              
that SB 54 adds a term of probation of six months.                                                                              
                                                                                                                                
SENATOR  MEYER  commented  on the  frustration  related  to  small                                                              
thefts and asked if there is a lookback for these crimes.                                                                       
                                                                                                                                
MS. MEADE  directed  attention to  the language  in Section  12 on                                                              
page  8, starting  on line  6. Version  O of  SB 54  adds what  is                                                              
generally a five-year lookback for those misdemeanors.                                                                          
                                                                                                                                
CHAIR COGHILL said  he believes that relates primarily  to class A                                                              
misdemeanors,  but  he'd double  check  and  discuss it  with  the                                                              
Department of Law.                                                                                                              
                                                                                                                                
MS. MEADE said she may have misspoken.                                                                                          
                                                                                                                                
SENATOR MEYER asked  if a penalty that has a  mandatory minimum of                                                              
20 days in  jail actually means that  term or if it  could be less                                                              
for good time.                                                                                                                  
                                                                                                                                
MS.  MEADE suggested  he ask  the Department  of Corrections,  but                                                              
she  believes that  a good  time  deduction applies  for a  20-day                                                              
jail term.                                                                                                                      
                                                                                                                                
CHAIR  COGHILL   welcomed  Commissioner  Williams   and  expressed                                                              
interest  in  receiving his  comments  on  the fiscal  note  after                                                              
hearing from  both the Department  of Law and the  Public Defender                                                              
Agency.                                                                                                                         
                                                                                                                                
2:13:05 PM                                                                                                                    
DEAN WILLIAMS,  Commissioner, Department of Corrections,  said the                                                              
department needs  to analyze the  provisions in version O,  but he                                                              
understands  that the  proposed  changes are  a  policy call.  His                                                              
perspective is  that anything  that increases incarcerations  will                                                              
impact  the department  because  the budget  is  already set.  The                                                              
forthcoming  fiscal  note will  help  clarify what  the  different                                                              
policy calls will cost.                                                                                                         
                                                                                                                                
He highlighted  areas of concern  for DOC  in version O.  First is                                                              
how  DOC  will  deliver  the  risk  assessment  tool  to  multiple                                                              
parties, not just  the court. His understanding  is that attorneys                                                              
frequently  aren't appointed  until the arraignment,  so  it seems                                                              
logical  that  the  court  would  distribute  the  report  to  the                                                              
appropriate  parties at  that time.  A second  concern relates  to                                                              
how  the  partners  involved  in   the  risk  assessment  will  be                                                              
affected by this change.                                                                                                        
                                                                                                                                
CHAIR  COGHILL asked  him to  discuss the  pretrial working  group                                                              
and who is involved.  He acknowledged that the  department and the                                                              
working group might have better ideas.                                                                                          
                                                                                                                                
COMMISSIONER  WILLIAMS explained  that the  pretrial director  has                                                              
everyone at  the table who is  even remotely involved  in standing                                                              
up  the   pretrial  unit.   He  said   he  would  appreciate   the                                                              
opportunity for  the workgroup to  continue to formulate  the plan                                                              
including  figuring out  how to  get it to  the relevant  parties.                                                              
"If we find that  there is a glaring glitch at the  end of that, I                                                              
guess I'd feel better about addressing it in statute."                                                                          
                                                                                                                                
CHAIR COGHILL said point well taken.                                                                                            
                                                                                                                                
2:19:06 PM                                                                                                                    
JOHN  SKIDMORE, Director,  Criminal Division,  Department of  Law,                                                              
thanked  the  sponsor  and  committee   for  addressing  what  the                                                              
Department of Law  considers to be very few tweaks  to Senate Bill                                                              
91. He said he  asked Mr. Campion to join him today  to talk about                                                              
the front-line  view of three policy  areas of Senate Bill  91. He                                                              
would follow  Mr. Campion and  talk about  the changes that  SB 54                                                              
makes in those policy areas.                                                                                                    
                                                                                                                                
2:20:15 PM                                                                                                                    
CLINT CAMPION,  District Attorney,  Criminal Division,  Department                                                              
of  Law,  Anchorage,   Alaska,  said  he  would   talk  about  his                                                              
observations  in  the areas  of  violating conditions  of  release                                                              
(VCOR), class C felonies, and theft in the fourth degree.                                                                       
                                                                                                                                
He  explained that  his  observations about  theft  in the  fourth                                                              
degree  in the  Municipality of  Anchorage  are anecdotal  because                                                              
the  municipality   generally  prosecutes   those  cases.   Police                                                              
officers  are  telling  him that  suspected  thieves  are  telling                                                              
officers  to  issue  a  citation  and  let  them  go  because  the                                                              
officers can't take them to jail. This has caused frustration.                                                                  
                                                                                                                                
Regarding  VCOR, he  agreed with  Ms.  Meade that  there has  been                                                              
confusion   within  the   DA's  office,   with  judges,   and  law                                                              
enforcement about what  to do when someone is  suspected of having                                                              
violated their  conditions of  release. If  a judicial  officer is                                                              
unable  or  unwilling   to  remand  someone  on   a  violation  of                                                              
conditions of  release and the officer  is confused about  what to                                                              
do, the recourse  is for his office  to ask the court  to schedule                                                              
a  bail  hearing.  He  noted  that   because  his  office  doesn't                                                              
typically  prosecute  violations,  there  is a  possibility  there                                                              
won't  be a  record  upon which  the  pretrial  services unit  can                                                              
evaluate future risk assessments                                                                                                
                                                                                                                                
Regarding  class  C felonies,  he  said  the committee  should  be                                                              
aware that  many offenders who are  charged with a class  C felony                                                              
may sit  in jail  30-60 days  consuming DOC  resources, but  won't                                                              
get any jail  time once their case  is tried or resolved.  This is                                                              
an unintended  consequence of  Senate Bill 91.  He also  cited the                                                              
dramatic increase  in vehicle thefts  over the last two  years and                                                              
highlighted  how difficult  it is to  explain to  a victim  that a                                                              
defendant   who   stole  their   car   will  get   a   presumptive                                                              
probationary sentence and no jail time.                                                                                         
                                                                                                                                
2:24:30 PM                                                                                                                    
MR.  SKIDMORE reviewed  the instructions  to  the Alaska  Criminal                                                              
Justice Commission  to reduce  both recidivism  and the  number of                                                              
people incarcerated  in jails at any given time  across the state.                                                              
He said jails are  not intended to be a dumping  ground for people                                                              
with substance  abuse issues  and/or mental  illness, but  some of                                                              
these  people  commit  offenses   that  have  serious  impacts  on                                                              
society. In those  circumstances it is appropriate  to impose some                                                              
amount  of jail  time, but  there  should be  both discretion  and                                                              
balance. The  courts need to have  the discretion to look  at both                                                              
the offense  and the offender and  decide if the person  should be                                                              
put on probation or sent to jail.                                                                                               
                                                                                                                                
He said that  one of the problems  the Department of Law  ran into                                                              
when Senate  Bill 91 was  enacted is that  it did not  give judges                                                              
sentencing  discretion  for  class  C  felony  offenses.  That  is                                                              
despite  the fact that  discretion  and balance  is rooted  in the                                                              
laws,  the constitution,  and cases.  He  cited art.  I, sec.  12,                                                              
Constitution  of the  State of  Alaska, AS  12.55.005, and  quotes                                                              
from the U.S.  Supreme Court in Lancaster. The  question, he said,                                                              
is  how  much discretion  will  you  return  to the  Court  System                                                              
regarding class C felonies?                                                                                                     
                                                                                                                                
MR. SKIDMORE related  that [in 2017] the Commission  looked at the                                                              
penalty for  class C felonies,  debated a recommendation  from the                                                              
Department  of  Law,  and  ultimately   recommended  a  sentencing                                                              
framework  from 0  to 90  days. SB  54, version  O, increases  the                                                              
upper limit  to 120  days. He said  that it is  a policy  call for                                                              
the committee  to make,  while keeping  in mind the  constitution,                                                              
the  statutes, and  the  case law  that  call  for discretion  and                                                              
balance.                                                                                                                        
                                                                                                                                
MR. SKIDMORE said  the Department of Law also saw  it as a concern                                                              
that  no  active jail  time  is  initially  imposed for  a  second                                                              
offense of theft  in the fourth degree - stealing  property valued                                                              
under $250.  He highlighted that  Senate Bill 91 also  revoked the                                                              
recidivist statute  under theft in the third  degree. That statute                                                              
said  a third  conviction of  theft  in the  fourth degree  within                                                              
five years  elevates  the offense  to a class  A misdemeanor.  The                                                              
Department  of Public Safety  and the  Department of Law  together                                                              
proposed  not  changing what  happens  the  first or  second  time                                                              
because these  are the  lowest level offenders  and they  ought to                                                              
be  given  a  chance.  "Many will  change  their  ways  just  with                                                              
probation."  What  we suggested  was  trying  to have  some  other                                                              
sanction when  you get to that  third offense, he said.  While DOL                                                              
and  DPS recommended  reinstating  the recidivist  provision,  the                                                              
Commission  recommended  leaving  the  third  offense  a  class  B                                                              
misdemeanor  and allowing  the maximum  term  of imprisonment  for                                                              
that level, which is 10 days.                                                                                                   
                                                                                                                                
For  class  C  felonies  and  theft  in  the  fourth  degree,  the                                                              
Department  of  Law is  not  proposing  absolutely no  jail  time.                                                              
Rather, they  are proposing  that the  courts have the  discretion                                                              
to respond to the particular circumstance.                                                                                      
                                                                                                                                
He said  Ms. Meade  and Mr.  Campion both  spoke  on the topic  of                                                              
violating conditions  of release (VCOR), so the  committee already                                                              
understands  why  the  Department  of Law  believes  it  would  be                                                              
appropriate to return that offense to a misdemeanor.                                                                            
                                                                                                                                
MR. SKIDMORE  endorsed the  policy call in  SB 54 about  mandatory                                                              
probation for  sex offenders. He called  it a solid concept  and a                                                              
critical component  for addressing sex offenders in  the state. He                                                              
noted his intention  to work with the sponsor's office  on a minor                                                              
issue regarding language placement.                                                                                             
                                                                                                                                
Referring to  Senator Meyer's question  about a lookback,  he said                                                              
nothing  in current  law talks  about how  far to  look back  when                                                              
determining  whether  a  third  offense  of theft  in  the  fourth                                                              
degree  would  be   subject  to  a  maximum  of   10  days  active                                                              
imprisonment. The  lookback in the  current version of SB  54 only                                                              
applies to  sentencing for  class A  misdemeanors. Referring  to a                                                              
second question Senator  Meyer asked, he said a  mandatory minimum                                                              
sentence cannot be reduced.                                                                                                     
                                                                                                                                
He noted that SB  54 also has a provision on  sex trafficking that                                                              
closes  the loophole  that  was  created by  Senate  Bill 91  when                                                              
language from a  separate bill was used to modify  the sex offense                                                              
statutes. That was not a recommendation of the Commission.                                                                      
                                                                                                                                
CHAIR COGHILL thanked  Commissioner Monegan for waiting  online to                                                              
offer  testimony   and  asked  if  he  could   return  on  Friday.                                                              
Commissioner Monegan agreed.                                                                                                    
                                                                                                                                
2:34:18 PM                                                                                                                    
SENATOR WIELECHOWSKI  reviewed the three areas of  concern that SB
54  addresses. First,  the  bill proposes  a  presumptive term  of                                                              
zero to 18 months for first time class C felonies.                                                                              
                                                                                                                                
MR. SKIDMORE  clarified that version  O proposes zero to  120 days                                                              
of  active imprisonment  with the  possibility  of suspending  the                                                              
additional time  for a total of  18 months. The Department  of Law                                                              
originally  looked at  zero to  18  months but  now believes  that                                                              
zero  to 12  months is  more reasonable.  He  added that  it is  a                                                              
policy call for the legislature to make.                                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI  said he understands it's a  policy call, but                                                              
he's  basing his  policy  decision  of Mr.  Skidmore's  expertise.                                                              
"Are   we  keeping   the  public   safer  if   we  go  with   your                                                              
recommendation to make  it zero to 12 months for  first time class                                                              
C felonies?"  He said he also  understands that the  Department of                                                              
Law   recommended   reenacting   AS   11.41.140(a)(3)   to   allow                                                              
recidivist thefts to  be prosecuted at a higher  level; and making                                                              
violating  conditions of  release  a class  B  misdemeanor with  a                                                              
maximum of 10  days in jail. He  asked, "What do we need  to do to                                                              
keep the public safe?"                                                                                                          
                                                                                                                                
MR.  SKIDMORE replied  DOL recommended  the  presumptive range  of                                                              
zero to one year  for first-time class C felonies  because that is                                                              
consistent  with  the  Commission's  recommendation  and  original                                                              
intent to adjust  presumptive sentencing. He explained  that prior                                                              
to  2005 all  felonies  were  subject  to presumptive  terms,  but                                                              
after the Blakely  decision ranges were created  which resulted in                                                              
increased sentencing.  He recapped saying, "A year  feels right in                                                              
terms  of looking  at all  those types  of offenses  and types  of                                                              
conduct that is classified for class C felonies."                                                                               
                                                                                                                                
He explained  that the Department  of Law's proposal for  theft in                                                              
the  fourth  degree  was  to  have   some  sanction  for  repeated                                                              
offenses. By  the third time it's  clear the person  hasn't gotten                                                              
the message  and some other sanction  is needed, he  said. Whether                                                              
that message  is what is  in SB 54 or  what the Department  of Law                                                              
originally   recommended  isn't   the   significant  point.   "The                                                              
significant  point  is  that  there  is  some  other  sanction  or                                                              
penalty available."                                                                                                             
                                                                                                                                
MR.  SKIDMORE  endorsed  the  provisions  in  SB  54  relating  to                                                              
violations  of conditions  of release.  They  are closely  aligned                                                              
with what the Department of Law originally recommended.                                                                         
                                                                                                                                
CHAIR  COGHILL thanked  Mr. Skidmore  and Mr.  Campion, and  asked                                                              
Mr. Steiner to offer the public defender perspective.                                                                           
                                                                                                                                
2:40:42 PM                                                                                                                    
QUINLAN STEINER,  Public Defender, Public Defender  Agency, stated                                                              
that  he  has  been  a  member  of  the  Alaska  Criminal  Justice                                                              
Commission   since  it   began,   and  he   participated  in   the                                                              
discussions for Senate  Bill 91, the 2017 recommendations,  and SB
54. He  said his intention  today is to  discuss the  policies and                                                              
answer  questions. He  identified the  recommendations related  to                                                              
class C felonies as the biggest policy change.                                                                                  
                                                                                                                                
He reported  that the  clear basis  of the  class C felony  policy                                                              
drove  the Commission's  work, with  two  things being  paramount.                                                              
The  first was  that jail  time for  certain individuals  actually                                                              
increases recidivism.  The second was the concept  that the actual                                                              
conviction  for  a  felony  further reduces  the  ability  for  an                                                              
individual   to  rehabilitate   him/herself.   That  has   barrier                                                              
consequences for employment and housing.                                                                                        
                                                                                                                                
MR. STEINER  pointed out  that the  2017 recommendations  from the                                                              
Commission  were not  based on  any assessment  that the  original                                                              
recommendations  had failed,  had  compromised  public safety,  or                                                              
didn't  achieve their  goals. Rather,  it was  a more  complicated                                                              
discussion  about refining  the  policy based  on  input from  the                                                              
public as  well as a  contemplation of the  merit of how  even the                                                              
scheme really was.  The discussion included rolling  back but that                                                              
appeared  to  be a  repudiation  of  the  policy. He  offered  his                                                              
perspective that  what drove  the debate was  how to  mitigate the                                                              
likelihood  that somebody  is going  to  be in  a situation  where                                                              
they  will  plead to  jail  time  for  a felony  when  they  could                                                              
otherwise negotiate  an agreement either  without jail time  or to                                                              
an  aggravated   misdemeanor  where  they  could   participate  in                                                              
treatment  and potentially  not suffer the  consequences  of that.                                                              
He  said he  supported  90 days  because he  didn't  think it  had                                                              
pressure to  compel pleas without  the associated benefits  of the                                                              
treatment and rehabilitation.                                                                                                   
                                                                                                                                
He explained  that  the policy about  theft in  the fourth  degree                                                              
was  a discussion  that  resulted  from an  inaccurate  perception                                                              
that a person could  never go to jail for a  low-level theft. That                                                              
was never the case.  An individual could not go to  jail the first                                                              
two times and the  third time there was a suspended  sentence. The                                                              
fourth  time the individual  could  go to jail  for revocation  of                                                              
their prior.  But in  a discussion about  evening the  scheme, the                                                              
talk was  whether it  was appropriate  to elevate  the offense  to                                                              
the  higher-level misdemeanor.  He  noted that  he supported  that                                                              
change  as  well  as the  misdemeanor  aggravator.  He  summarized                                                              
saying that  "for a second similar  would allow a  more aggravated                                                              
sentence rather  than imposing  an aggravator  where you  jump all                                                              
the way  up to a  year." He  emphasized that it  was an  effort to                                                              
refine the  policy not change  it based  on an assessment  that it                                                              
had failed.  A valuable  part of  the discussion  was getting  the                                                              
right mix so  that the policies are effective  and accommodate the                                                              
concern about community condemnation.                                                                                           
                                                                                                                                
MR.  STEINER  said  the  policy  debate he  did  not  support  was                                                              
changing  the violating  conditions  of  release.  He offered  his                                                              
perspective  that the  discussion was  administrative. There  were                                                              
fixes in  place that could  have accomplished the  original intent                                                              
without making it  a crime. What did mitigate the  concern was the                                                              
cap on  the jail  time. It  is not  limited to  a period that  was                                                              
necessary  to  effectuate  the   goal  of  being  able  to  arrest                                                              
somebody for  violating conditions  of release  and then  having a                                                              
bail hearing. That  was always possible and with the  fix that was                                                              
put in place by  the court that remained possible.  But it was not                                                              
given a chance to  work and become part of the  daily practice and                                                              
culture.                                                                                                                        
                                                                                                                                
2:46:20 PM                                                                                                                    
MR.   STEINER   said  the   Commission   recommended   that   some                                                              
probationary period  be imposed  for individuals convicted  of sex                                                              
offenses, but  it was never discussed  what that would  be. It was                                                              
left  to  the  legislature.  The  discussion  was  for  a  similar                                                              
percentage to  the prior  policy so that  it left some  discretion                                                              
for the judges to impose an appropriate period of probation.                                                                    
                                                                                                                                
CHAIR COGHILL asked if the provision in SB 54 is appropriate.                                                                   
                                                                                                                                
MR.  STEINER replied  it  leaves no  discretion.  The maximum  and                                                              
minimum are  the same so  it's a definite  term. The judge  has no                                                              
discretion to decide  what is appropriate under  the circumstance.                                                              
His suggestion  was to do  a similar percentage  to the  prior law                                                              
so there was some movement.                                                                                                     
                                                                                                                                
CHAIR  COGHILL  pointed out  that  the  change  to the  good  time                                                              
credit had a significant impact.                                                                                                
                                                                                                                                
MR.  STEINER  agreed  that  including   earned  compliance  credit                                                              
furthered the rehabilitative goals.                                                                                             
                                                                                                                                
CHAIR COGHILL asked  his perspective of 90 and 120  days for class                                                              
C felonies.                                                                                                                     
                                                                                                                                
MR.  STEINER  said that  from  his  perspective there  isn't  much                                                              
difference,  but the  discretion  of  up to  one  year would  have                                                              
created a  problem. The Commission  was concerned  about sentences                                                              
increasing  over  time when  ranges  were available.  That's  what                                                              
happened. Judges  had the discretion  to ramp up sentences  in the                                                              
old school  idea that  more jail  time was  likely to  produce the                                                              
desired  effect. But  the data shows  that isn't  true. More  jail                                                              
time  doesn't produce  a  better outcome  or  more motivation  for                                                              
rehabilitation.  That's why  he supported  90 days  and he  didn't                                                              
think 120 days wouldn't undermine his reasoning.                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI  said he'd  like to look  at the  research on                                                              
how 90 days,  120 days and  one year in prison  affects recidivism                                                              
and the public  safety impacts for those different  terms. He also                                                              
expressed interest in looking at what other states do.                                                                          
                                                                                                                                
MR. STEINER confirmed that was all documented by the Commission.                                                                
                                                                                                                                
CHAIR  COGHILL   said  that   information   is  probably   on  the                                                              
Commission's website,  but he could also provide  the documents to                                                              
the committee.                                                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI said he'd appreciated that.                                                                                
                                                                                                                                
CHAIR  COGHILL  reminded  the members  that  the  Commission  said                                                              
their   [2017]    recommendations   were   based    on   community                                                              
condemnation and  public safety concerns, not data.  He noted that                                                              
the  current  data  says  that less  jail  time  results  in  less                                                              
recidivism, but the public isn't satisfied with that right now.                                                                 
                                                                                                                                
He  asked Commissioner  Williams  to  discuss how  the  department                                                              
will approach the fiscal note.                                                                                                  
                                                                                                                                
2:54:32 PM                                                                                                                    
COMMISSIONER  WILLIAMS   explained  that  the  fiscal   note  cost                                                              
drivers  will be  based on  reintroducing jail  time after  Senate                                                              
Bill  91 removed  it for  certain  offenses. He  pointed out  that                                                              
everyone that  returns to prison  returns with health  care issues                                                              
that are  cause for concern,  even for  those who are  returned to                                                              
prison for  15-20 days.  He said  a piece  of justice reform  that                                                              
hasn't  been discussed  is  whether the  state  is putting  enough                                                              
into  treatment   opportunities.   This  should  be   contemplated                                                              
because treatment  options need to  be in place before  people can                                                              
be diverted from  $150 per day prison beds. The  opioid crisis and                                                              
attendant  crime  issues  brings  this more  clearly  into  focus.                                                              
Addressing  that is  part of the  policy call.  He expressed  hope                                                              
that that wouldn't be lost in the discussion.                                                                                   
                                                                                                                                
2:57:38 PM                                                                                                                    
CHAIR  COGHILL  noted  that Representative  Reinbold  was  in  the                                                              
audience.                                                                                                                       
                                                                                                                                
He reviewed the  agenda for Friday and stated he  would hold SB 54                                                              
in committee for further consideration.                                                                                         
                                                                                                                                
2:59:52 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Coghill adjourned the Senate Judiciary Standing Committee                                                                 
meeting at 2:59 p.m.                                                                                                            

Document Name Date/Time Subjects
CS for SB 54 - Version O.pdf SJUD 3/1/2017 1:30:00 PM
SB 54
SB 54 - Summary of Changes (ver. A to ver. O).pdf SJUD 3/1/2017 1:30:00 PM
SB 54