Legislature(2017 - 2018)BELTZ 105 (TSBldg)
01/30/2017 01:30 PM Senate JUDICIARY
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| Presentation: Alaska Criminal Justice Commission 2017 Recommendations | |
| Adjourn |
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
January 30, 2017
1:34 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Mia Costello
Senator Kevin Meyer
Senator Pete Kelly
Senator Bill Wielechowski
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
PRESENTATION: ALASKA CRIMINAL JUSTICE COMMISSION 2017
RECOMMENDATIONS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
GREGORY RAZO, Chair
Alaska Criminal Justice Commission and
Vice President, Cook Inlet Region Incorporated (CIRI)
Anchorage, Alaska
POSITION STATEMENT: Presented recommendations from the Alaska
Criminal Justice Commission to change Senate Bill 91.
BARBARA DUNHAM, Project Attorney
Alaska Criminal Justice Commission
Anchorage, Alaska
POSITION STATEMENT: Participated in the discussion and
explanation of the recommendations from the Alaska Criminal
Justice Commission to change Senate Bill 91.
SUZANNE DIPIETRO, Executive Director
Alaska Judicial Council
Anchorage, Alaska
POSITION STATEMENT: Participated in the discussion and
explanation of the recommendations from the Alaska Criminal
Justice Commission to change Senate Bill 91.
ACTION NARRATIVE
1:34:42 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:34 p.m. Present at the call to
order were Senators Costello, Wielechowski, Meyer and Chair
Coghill.
^Presentation: Alaska Criminal Justice Commission 2017
Recommendations
Presentation: Alaska Criminal Justice Commission 2017
Recommendations
1:35:14 PM
CHAIR COGHILL announced the business before the committee is to
hear about the recommendations the Alaska Criminal Justice
Commission ("Commission") made for 2017. Today the chair of the
Commission will relay the pros and cons of each of the 14
recommendations. He asked members to be mindful that the
recommendations include substantive policy calls as well as
technical changes. At the end of the meeting the committee would
discuss the path forward.
1:37:23 PM
GREGORY RAZO, Chair, Alaska Criminal Justice Commission, stated
that he works as Vice Chair at CIRI [Cook Inlet Region
Incorporated]. He reported that the recommendations to change
Senate Bill 91 are the result of discussions at the January 19
and January 27, 2017 meetings. The Commission tried to take as
much public comment as possible. Public comment as well as
testimony from law enforcement, prosecutors and the Court System
served to frame the recommendations. He emphasized that every
person that testified and each commissioner placed great
emphasis on public safety.
He reminded the committee that the Commission was created in
2014 and the legislature directed it to make recommendations
based on: the need to rehabilitate the offender; the sufficiency
of state resources to administer the criminal justice system;
the effect of state laws and practices on the rate of
recidivism; and peer-reviewed and data-driven research. He
relayed that the Commission was fortunate to be able to utilize
the resources of the PEW Trust to collect and analyze data.
MR. RAZO said that when the Commission formed, it agreed to
forward only recommendations that were backed by data and were
evidence-based. In 2015, the legislature gave further direction
to the Commission to forward recommendations that would either
1) avert all future prison growth; 2) avert all future prison
grown and reduce the current prison population by 15 percent; or
3) avert all future prison grown and reduce the current prison
population by 25 percent. He said that those focusing factors
became part of the process that ultimately resulted in Senate
Bill 91 that passed in 2016.
1:43:11 PM
SENATOR KELLY joined the committee.
MR. RAZO relayed that as part of Senate Bill 91, the legislature
tasked the Commission with monitoring the efficacy of the
reforms using data collected from certain state agencies.
However, because the bill was enacted in July 2016 and parts of
the bill will not go into effect until January 2018, the
Commission does not currently have enough data to assess whether
Senate Bill 91 is achieving its intended outcomes. Thus, the
Commission's recommendations are not based on data-driven
research and they are not based on the data that the legislature
instructed the Commission to collect and analyze. Importantly,
the recommendations are not expected to reduce the prison
population, reduce recidivism, or reduce the criminal justice
system's usage of state resources.
He explained that the Commission's 14 recommendations are based
on feedback from members of law enforcement, prosecutors, and
the public. He pointed out that this feedback reflects other
factors the Commission was directed to consider in making
recommendations. These important factors are found in state law
and they include: 1) the need for confinement; 2) the effect of
deterrents; and 3) the need for community condemnation.
MR. RAZO said the Commission recognizes that the factors it has
been tasked to consider often work in tension. He relayed that
while it is difficult to focus on these factors at the same
time, the commissioners have a tremendous amount of experience
and it is that experience that helps inform the recommendations.
He added, "I dare say that that experience is as important as
the huge amount of public testimony that we heard over various
concerns." He cautioned that not all the recommendations
received unanimous support. The recommendations that did not
receive unanimous support include an explanation of the concerns
of the commissioners who did not support the recommendation.
CHAIR COGHILL welcomed Senator Kelly to the meeting.
1:46:38 PM
MR. RAZO turned to the recommendations, starting with
Recommendation 14-2017: Enact the following technical
corrections to SB 91. He said he would not belabor each of the
technical corrections, but could report that they received
unanimous support from the Commission and were consensus based.
He explained the meaning of consensus based in the context of
the Commission.
CHAIR COGHILL agreed that the members individually could review
the recommended technical corrections. He relayed his
expectation to draft those corrections in a separate bill.
1:48:20 PM
MR. RAZO presented Recommendation 1-2017: Return VCOR to
Misdemeanor Status. He summarized that Senate Bill 91 enacted
the Commission's recommendation to downgrade the crime of
Violation of Conditions of Release (VCOR) to a non-criminal
violation, punishable by a fine. This change created an
unintended consequence. He deferred to Ms. Dunham for an
explanation.
1:50:23 PM
BARBARA DUNHAM, Project Attorney, Alaska Criminal Justice
Commission, stated that the recommendation is to return
violations of conditions of release to a class B misdemeanor,
punishable by up to 5 days in jail. She explained that Senate
Bill 91 included an arrest provision so defendants who violate
their conditions of release could be arrested and held until the
judge in their underlying case could review bail. The problem
that has arisen is that some people who were arrested were
released as soon as they were brought to jail.
CHAIR COGHILL summarized that this requirement is to hold a
person who has violated their condition of release until a bail
schedule hearing.
MR. RAZO agreed. He relayed that the Commission discussion on
January 19, included a long description of the perfect storm of
factors that made the VCOR unworkable. The Alaska Court System
initiated a new bail schedule for misdemeanors, and magistrates
were told in many cases to OR (own recognizance) release certain
people. Then Senate Bill 91 passed at about the same time that
significant cuts were made in prosecutor and law enforcement
personnel, so those resources were in short supply. This
combination of factors accounted for a lot of the public
criticism of the new VCOR statute.
1:54:50 PM
SENATOR WIELECHOWSKI cautioned against making reactionary
changes. He said that to make sure any changes are evidence
based, it would be helpful to know: 1) the number of people that
would be impacted by the change; 2) the success that other
states or communities have had with these changes; and 3) the
cost to implement each recommendation.
CHAIR COGHILL pointed out that the Commission said the
recommendations are not based on data-driven research. Once a
bill is drafted, the agencies will be given an opportunity to
comment and, most probably, answer those questions. He asked Mr.
Razo if he wanted to comment or move on to the next
recommendation.
MR. RAZO said the commissioners have those same questions and
will use evidence that is available to see if there is a
statistical correlation between Senate Bill 91 and what is
happening in communities statewide.
He opined that Recommendation 1 has the potential to be
significant with respect to having people spend more days in
jail.
1:58:12 PM
MR. RAZO presented Recommendation 2-2017: Increase penalties for
repeat Theft 4 offenders. He noted that this, too, has the
potential to be significant with respect to having people spend
more days in jail. This recommendation targets recidivist theft
in the fourth degree ("Theft 4") offenders. He deferred further
explanation to Ms. Dunham.
MS DUNHAM explained that Theft 4 is a class B misdemeanor that
penalizes the theft of items or services valued at $250 or less.
Senate Bill 91 limited the penalties for first and second
convictions of this offense and eliminated jail time for a third
or subsequent conviction. The Commission heard a lot of
testimony about this provision that people who commit three or
more lower-level theft crimes should receive an escalating
penalty.
The Commission considered two proposals one of which was to
reenact the recidivist provision and return the third and
subsequent offense to a class A misdemeanor. The Commission
ultimately decided to recommend that for third-time Theft 4
offenders, the offense should remain a class B misdemeanor, but
punishable by up to 10 days in jail.
The debate centered on what is the appropriate approach for
dealing with people who have chronic addictions, homelessness,
and mental health issues. Some commissioners were concerned
about the potential for criminalizing those issues without
treating the underlying causes. Everyone on the Commission did
agree that these offenders should not be left to cycle through
the criminal justice system. Further solutions are needed,
including more options to treat mental illness, addiction, and
chronic homelessness. This recommendation was to increase the
consequences for Theft 4 and address what is widely perceived as
a growing theft problem.
CHAIR COGHILL opined that this may be a tool to get pretrial
risk assessments.
MR. RAZO said it is important for the committee to realize that
the reinvestment money that was directed to prevention and
treatment has just begun to hit the streets. The money that was
directed to the Department of Corrections has been used for
training and development of the various tools that are expected
to come from the bill, but they have yet to be deployed. "It's
difficult to make recommendations that are evidence based when
the full effect of Senate Bill 91 has not hit the streets."
2:02:51 PM
MR. RAZO presented Recommendation 5-2017: Enact a 0-90 day
presumptive sentencing range for first-time Class C Felonies. He
described this as the most significant factor to potentially
place people in jail. He explained that a fundamental principle
of Senate Bill 91 was that a person is more likely to not
reoffend if they are given probation for a first-time felony
offense. A person who is placed in jail for even a small period
for a nonviolent offense is more likely to commit additional
crimes.
He read the following into the record:
SB 91 provides that Class C Felonies are punishable by
a suspended term of 0-18 months for first-felony
offenders. This means that a first-time felony
offender convicted of a Class C Felony is presumed to
receive a probationary sentence that would include
some amount of suspended time. A person receiving a
probationary sentence with suspended time does not
spend any time in jail up front, but is subject to
jail time if they violate conditions of probation.
The purpose of this provision was to provide community
supervision for first-time offenders to (1) allow the
offender to maintain pro-social ties to the community
and (2) ensure that the offender would comply with
conditions of probation such as remaining sober, not
committing new crimes, and paying fines and
restitution to victims. If the offender failed with
these conditions, that offender could be made to serve
part or all the suspended time in jail.
The Commission heard numerous concerns about this
provision. Prosecutors felt that some violent Class C
Felonies warranted jail time for a first-time offense,
and were concerned that there was not enough of an
incentive to encourage these offenders to get into
treatment. Members of law enforcement were frustrated
that this provision was overbroad and did not provide
for an offender's immediate incarceration if the
offender posed a danger to the community. Members of
the community were offended by this provision and felt
that it did not express community condemnation
strongly enough.
Prosecutors and law enforcement preferred a provision
that would allow a judge discretion in sentencing and
would provide for immediate incarceration if
necessary. They thought that while there were some
cases where a probationary term was warranted for a
first-time offender, the judge should be able to
impose jail time in some instances, particularly cases
involving violence.
The Commission therefore recommends that Class C
Felonies carry a presumptive jail term of 0-90 days
for first-felony offenders.
MR. RAZO deferred further explanation to Ms. Dunham.
2:07:49 PM
SENATOR COSTELLO asked if anything in Senate Bill 91 would
prevent a police officer from arresting a person at the time
that they committed a felony.
MS. DUNHAM said nothing in the bill prevents an officer from
arresting a person who has committed a class C felony if there
is probable cause. However, the officer does have the discretion
to issue a citation instead of making an arrest.
SENATOR COSTELLO summarized that it's up to the discretion of
the police officer and that will be the case until the pretrial
regulations go into effect.
MR. RAZO agreed.
2:09:59 PM
MS. DUNHAM said this provision was of particular concern and the
subject of considerable debate. Several proposals were put
forward to increase the penalties for first-time felony
offenders who committed a class C felony, but the Commission
ultimately recommended a presumptive jail term of 0-90 days.
This range would allow a judge to still impose no jail time and
a probation sentence with a suspended term if he/she thought it
was warranted. She reminded the committee that class C felonies
cover a wide range of conduct, some that the public would
consider fairly serious and some not serious at all.
MR. RAZO added that one of the proposals was to separate violent
and nonviolent felonies into different sections of the code and
provide a more severe penalty for the violent crimes. That
proposal did not pass.
CHAIR COGHILL said the committee will take that into
consideration.
2:11:54 PM
SENATOR MEYER asked for examples of both violent and nonviolent
class C felonies.
2:12:23 PM
SUZANNE DIPIETRO, Executive Director, Alaska Judicial Council
stated that assault in the third degree is a violent felony.
MR. RAZO added that examples are threatening a person with a
deadly weapon and causing serious physical injury. An example of
a nonviolent class C felony is theft of more than $1,000.
SENATOR MEYER said he's heard frustrations about this, too, and
from his perspective, 90 days jail time doesn't sound like much
of a deterrent for somebody who threatens a person with a deadly
weapon.
CHAIR COGHILL said the two areas that are getting quite a bit of
attention are repeated fourth degree assault or class B
misdemeanors, and class C felonies. He recalled that the
Commission thought probation accountability would be better than
sitting in jail watching TV, but it turned out that the
incentive to follow through on their probation was diminished.
2:15:56 PM
SENATOR WIELECHOWSKI said it would be helpful to get some
evidence on how this has worked in Alaska and other states. "If
the penalties we have in the bill work and people are getting
rehabilitated, that's something I would want to know. By the
same token, if it's not working and people are getting off and
committing other crimes, then I certainly want to know that as
well."
CHAIR COGHILL said it will be difficult to get evidence from
other states. These recommendations are based on testimony from
the public and law enforcement.
MR. RAZO said it's important for the committee to understand the
presumptive sentencing process in Alaska. For all class C
felonies, the maximum sentence is 5 years in jail. The
presumptive range is 0-90 days, but if the prosecutor proves by
clear and convincing evidence that the case is aggravated,
he/she can request the judge sentence the offender outside the
presumptive range. He highlighted that there are 23 aggravators.
CHAIR COGHILL said this goes to the point made earlier about the
Department of Law's [reduced] resources for prosecutions and the
implementation of Senate Bill 91.
2:19:11 PM
MR. RAZO presented Recommendation 3-2017: Allow municipalities
to set different non-incarceration punishments for non-criminal
offenses that have state equivalents. He noted that this
recommendation passed unanimously. It basically says that Senate
Bill 91 has no impact on a city's list of violations. But if
state and municipal crimes are equivalent, they must have
equivalent punishments.
CHAIR COGHILL said this recommendation came from municipalities.
MR. RAZO said the Commission is doing its best to ensure that
interested stakeholders are kept in the loop regarding all these
recommendations.
2:21:14 PM
MR. RAZO presented Recommendation 4-2017: Revise the sex
trafficking statute. He deferred the explanation to Ms. Dunham.
MS. DUNHAM clarified that the provisions in Senate Bill 91 that
changed the sex trafficking statutes were not based on a
recommendation from the Commission. However, as implemented it
was hindering prosecutions of people who were committing sex
trafficking. This change would still allow prosecution of people
who are committing sex trafficking, but would not affect people
who are engaged in the sex trade and are simply sharing
resources.
CHAIR COGHILL cited testimony from the Department of Law about
the ability to hide as a sex trafficker under the current
writing of the law. He described the recommendation as
straightforward.
MR. RAZO commented that there was considerable testimony from
sex workers.
2:23:34 PM
MR. RAZO presented Recommendation 6-2017: Enact an aggravator
for class A misdemeanors for defendants who have a prior
conviction for similar conduct. He explained that Senate Bill 91
enacted a presumptive sentence range of 0-30 days for most class
A Misdemeanors. The sentence could be increased for certain
cases including those where the defendant has two or more
criminal convictions for similar conduct. The latter is an
aggravator and this recommendation is to make it an aggravator
if the defendant has one prior conviction for similar conduct.
MR. RAZO presented Recommendation 7-2017: Clarify that ASAP is
available for minor consuming alcohol. He explained that the
Alcohol Safety Action Program monitors misdemeanor DUI and
Refusal cases. In 2015, the Commission recommended that the
program either receive more funding or be restricted to just DUI
and Refusal offenders. Following this direction, Senate Bill 91
limited ASAP to offenders who have been convicted of DUI and
Refusal offenses. That same year, Senate Bill 165 passed and
changed Minor Consuming Alcohol from a crime to a violation. The
bill also specified that the fine for this violation could be
reduced if the defendant attended and completed ASAP. As
currently written, provisions in these two laws are in conflict.
MR. RAZO presented Recommendation 8-2017: Enact a provision
requiring mandatory probation for sex offenders. He described it
as an oversight that Senate Bill 91 eliminated the provision
requiring sex offenders to serve a period of probation.
2:26:53 PM
MS. DUNHAM said the Commission did not hear any evidence that
sex offenders were getting through a loophole, but wanted the
legislature to decide where in the statute to enact this
provision
MR. RAZO presented Recommendation 9-2017: Clarify the length of
probation allowed for theft in the fourth degree. He deferred
explanation to Ms. Dunham.
MS. DUNHAM explained that Senate Bill 91 provides that a third
Theft 4 conviction is punishable by up to 5 days of suspended
jail time and 6 months of probation. However, probation for a
first or second Theft 4 conviction is not addressed. She noted
that Theft 4 is a class B misdemeanor and generally carries a
maximum probation term of 1 year. The Commission believes that a
probationary term is appropriate and requests the legislature
clarify what probation should be for first and second Theft 4
offenses.
CHAIR COGHILL said the committee will debate the matter and the
bill will provide clarification.
2:29:25 PM
MR. RAZO presented Recommendation 10-2017: Require victim
notification only if practical. He explained that Senate Bill 91
requires the court at the time of sentencing to provide the
victim with information about the defendant's sentence and
potential release. The difficulty is that the Court System does
not have victim information, so it would not have a way to
supply this information if the victim was not present at
sentencing or did not want to participate or be informed. The
recommendation to insert the words "if practical" in the statute
would correct this problem.
CHAIR COGHILL said that makes sense and the committee will
debate whether the definition of "practical" is too loose. "We
want to push the limit to where the victim is notified if at all
possible in every way we can."
MR. RAZO presented Recommendation 11-2017: Felony DUI sentencing
provisions should be in one statute. He explained that driving
under the influence is a Title 28 offense and the sentencing
provisions are in Title 12 so the consequence for DUI is not
found where you would expect to find it.
MS. DUNHAM clarified that there are penalty provisions [for DUI
and Refusal] in both Title 12 and Title 28 and the Commission
recommends there be just one penalty provision, in either Title
12 or Title 28.
CHAIR COGHILL summarized, "So in charging and sentencing you go
to one code for both the charge and the penalty. Mr. Razo
agreed.
MR. RAZO presented Recommendation 12-2017: Clarify who will be
assessed by pre-trial services. He relayed that this
recommendation came from the Department of Corrections (DOC),
and it relates to the pretrial services program that has yet to
go into effect. Senate Bill 91 directs the DOC commissioner to
administer this program that will provide: a pretrial risk
assessment for all defendants, recommendations to the court
concerning pretrial release decisions, and supervision of
defendants released while awaiting trial as ordered by the
court. The concern centers on the fact that all defendants are
subject to the pretrial risk assessment. He deferred further
explanation to Ms. DiPietro.
MS. DIPIETRO added that the idea of a pretrial risk assessment
is to help the judge and attorneys decide what type of pretrial
release from imprisonment would be appropriate. But not all
defendants go to jail pretrial; some will be issued a citation
and a summons to appear before the court at a later date. The
Department of Corrections argued that defendants who are not
taking up jail beds pretrial do not need a risk assessment.
Also, providing assessments for people who are not in jail would
add considerably to the use of resources and the workload for
the department.
She said the Commission wanted to be sure that the prosecutor
could request a pretrial risk assessment for a particular
defendant if he/she saw the need. This clarifies for DOC the
scope of people to whom it needs to provide the pretrial risk
assessment.
CHAIR COGHILL said he likes that the prosecutor may request a
risk assessment.
2:35:06 PM
MS. DUNHAM presented Recommendation 13-2017: Fix a drafting
error regarding victim notification. She explained that a
provision in Senate Bill 91 requires a victim to be provided
notice for a release on administrative parole for certain
offenders, but those offenders are not eligible for
administrative parole. This is a technical drafting error and
the provision should be deleted.
CHAIR COGHILL said the Commission's explanation makes it clear
that if a defendant is not eligible for administrative parole,
that language should be deleted. "We'll clean that up in the
bill."
2:36:44 PM
MR. RAZO advised that that was the last recommendation.
CHAIR COGHILL summarized the three main issues: 1) the
escalating nature of class B misdemeanors; 2) the potential for
jail time for class C felonies; and 3) violations of conditions
of release. He thanked the commission members for the time and
effort they had contributed over the last year. "You have done a
yeoman's job." He asked Mr. Razo if he had concluding comments.
2:39:05 PM
MR. RAZO offered his perspective. He opined that the success of
Senate Bill 91 hinges on the implementation and necessary
training of troopers, municipal police officers, prosecutors,
judges, defense lawyers and others associated with the criminal
justice system. Resources are tight and there is only so much
the part-time volunteer commissioners and two staff members can
do. He lauded the Court System for doing an excellent job in
explaining the law when their resources are equally scarce.
He reminded the committee that this was the justice reinvestment
initiative, and the reinvestment is just beginning. The services
that need to be provided to these people have yet to be
implemented. If the necessary programs and services aren't
implemented, the results are inevitable.
CHAIR COGHILL thanked Mr. Razo, Ms. Dunham, and Ms. DiPietro for
their quick, concise work. He stated his intention to draft two
bills, one technical and one policy related. He requested
members think about whether one or both bills should be
sponsored by the Senate Judiciary Committee. He concluded,
"Public condemnation has played a huge part in this, but I think
Senator Wielechowski you're right. We need to keep it balanced
against what we can demonstrate by whatever research we can
find, but we cannot ignore the public who feels so violated."
2:44:08 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 2:44 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| ACJC Recommendations Regarding SB 91.pdf |
SJUD 1/30/2017 1:30:00 PM |