Legislature(2015 - 2016)BUTROVICH 205
03/03/2016 08:30 AM Senate STATE AFFAIRS
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| SB91 | |
| Adjourn |
* first hearing in first committee of referral
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| += | SB 91 | TELECONFERENCED | |
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ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
March 3, 2016
8:32 a.m.
MEMBERS PRESENT
Senator Bill Stoltze, Chair
Senator John Coghill, Vice Chair
Senator Charlie Huggins
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 91
"An Act relating to criminal law and procedure; relating to
controlled substances; relating to probation; relating to
sentencing; establishing a pretrial services program with
pretrial services officers in the Department of Corrections;
relating to permanent fund dividends; relating to electronic
monitoring; relating to penalties for violations of municipal
ordinances; relating to parole; relating to correctional
restitution centers; relating to community work service;
relating to revocation, termination, suspension, cancellation,
or restoration of a driver's license; relating to the
disqualification of persons convicted of certain felony drug
offenses from participation in the food stamp and temporary
assistance programs; relating to the duties of the commissioner
of corrections; amending Rules 6, 32, 32.1, 38, 41, and 43,
Alaska Rules of Criminal Procedure, and repealing Rules 41(d)
and (e), Alaska Rules of Criminal Procedure; and providing for
an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 91
SHORT TITLE: OMNIBUS CRIM LAW & PROCEDURE; CORRECTIONS
SPONSOR(s): SENATOR(s) COGHILL
03/25/15 (S) READ THE FIRST TIME - REFERRALS
03/25/15 (S) STA, JUD, FIN
04/02/15 (S) STA AT 9:00 AM BUTROVICH 205
04/02/15 (S) Heard & Held
04/02/15 (S) MINUTE(STA)
02/03/16 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
02/03/16 (S) STA, JUD, FIN
02/13/16 (S) STA AT 10:00 AM BUTROVICH 205
02/13/16 (S) Heard & Held
02/13/16 (S) MINUTE(STA)
02/18/16 (S) STA AT 8:30 AM BUTROVICH 205
02/18/16 (S) Heard & Held
02/18/16 (S) MINUTE(STA)
02/25/16 (S) STA AT 9:00 AM BUTROVICH 205
02/25/16 (S) Heard & Held
02/25/16 (S) MINUTE(STA)
03/01/16 (S) STA AT 8:30 AM BUTROVICH 205
03/01/16 (S) Heard & Held
03/01/16 (S) MINUTE(STA)
03/03/16 (S) STA AT 8:30 AM BUTROVICH 205
WITNESS REGISTER
DANIEL GEORGE, Staff
Senator Stoltze
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided an overview of the CS for SB 91.
JORDAN SCHILLING, Staff
Senator Coghill
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Addressed the CS for SB 91.
JOHN B. SKIDMORE, Director
Criminal Division
Alaska Department of Law
Juneau, Alaska
POSITION STATEMENT: Addressed the CS for SB 91.
DEAN WILLIAMS, Commissioner
Alaska Department of Corrections
Anchorage, Alaska
POSITION STATEMENT: Commented on the CS for SB 91.
MONICA WINDOM, Chief of Policy and Program Development
Division of Public Assistance
Alaska Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: Commented on the CS for SB 91.
ACTION NARRATIVE
8:32:53 AM
CHAIR BILL STOLTZE called the Senate State Affairs Standing
Committee meeting to order at 8:32 a.m. Present at the call to
order were Senators Coghill, Huggins, and Chair Stoltze.
SB 91-OMNIBUS CRIM LAW & PROCEDURE; CORRECTIONS
8:33:29 AM
CHAIR STOLTZE announced the consideration of SB 91. He stated
that Senator Coghill would address the committee substitute
(CS).
SENATOR COGHILL moved to adopt as the working document the CS
for sponsor substitute (SS) for SB 91, version: P.
CHAIR STOLTZE announced that no objection was heard.
SENATOR COGHILL noted that many changes to the bill came from
both amendments as well as collaborating with Chair Stoltze.
8:35:34 AM
DANIEL GEORGE, Staff, Senator Stoltze, Alaska State Legislature,
Juneau, Alaska, noted that version: P replaced version: N. He
noted that version: N was the sponsor substitute version that
was introduced earlier in the year.
He announced that he would review the CS and highlight the
substantive changes as well as point out recommendations that
came from places like the Office of Victims' Rights or whether
the changes were in an amendment that was previously before the
committee.
He explained change: 1 from the CS as follows:
There are two new sections in the bill, sections
number 1 and 2 appear now; this is because we amend
various statutes reflecting Misconduct Involving a
Controlled Substance. There was a renumbering of
statutes which is why we see Murder in the Second
Degree and Murder of an Unborn Child now appearing in
the bill.
8:36:57 AM
SENATOR WIELECHOWSKI joined the committee meeting.
MR. GEORGE explained changes: 2 and 3 from the CS as follows:
Criminal Trespass in the Second Degree, Criminal
Mischief in the Fifth Degree, and Harassment in the
Second Degree are replaced as class-B misdemeanors
rather than offenses; this is reflected in the removal
of former sections: 8, 13 and 26.
The CS removes the section which would increase the
felony property threshold for Vehicle Theft in the
First Degree, that section had proposed increasing the
threshold from $750 to $2000. We removed former
section 9. As a note, the felony threshold was raised
in SB 64 two years ago from $500 to $750.
SENATOR COGHILL said the third change addressed an issue
regarding victims who had felt violated by auto theft. He noted
that the change was generated out of the committee.
MR. GEORGE explained change: 4 from the CS as follows:
The CS reduces the Fraudulent Use of an Access Device
threshold from a class-C felony to $50; this is seen
in Section 9. The crime was reclassified from a class-
A misdemeanor to a class-C felony in 2005 by the
Legislature; that bill passed unanimously and lowered
the threshold for that felony from $500 to $50. In
working with the sponsor of the bill and law
enforcement stakeholders, it was brought to the
committee's attention that in SB 64, the threshold had
been increased from $50 to $750 and would have risen
to $2000 under the bill, a 40-times increase; this
replaces it at what the bill in 2005 had set that
threshold at as the bill goes forward to Judiciary.
CHAIR STOLTZE revealed that he had worked on the bill that Mr.
George referenced. He detailed that he collaborated with the
departments of Law and Public Safety regarding the theft of
certain devices that primarily addressed credit cards, an act
that was unprosecuted prior to the bill passing. He noted that
elder Alaskan groups were involved in the legislation.
SENATOR COGHILL added that he appreciated the catch and noted
that the committee has worked on both privacy rights and privacy
protections. He remarked that the credit card access devices
have far-reaching effects where the devices' face-value might be
$50, but the intent could take a person's whole identity.
8:39:58 AM
MR. GEORGE explained changes: 5, 6, and 7 from the CS as
follows:
We removed the former section 17 from the bill, it
would have imposed an annual inflation adjustment for
the value of property that distinguishes between a
misdemeanor and a felony offense.
We reestablished the Failure to Appear as a
misdemeanor rather an a offense, this retains bill
language clarifying that a prosecution for Failure to
Appear is not a defense that the defendant was not
provided or did not receive notice or a reminder from
the court, this is seen in section 16.
Sections 17 and 73 respectively, this requires that a
person convicted of a violation of a condition of
release shall have that record published on CourtView
as a Violation of Condition of Release under SB 91, it
is reduced from a crime to an offense so it was
important to note this.
SENATOR COGHILL pointed out that the requirement for the record
to be published on CourtView came from Chair Stoltze. He opined
that the change was just one of the ways that the committee was
trying to show that people should have knowledge for their own
safety.
MR. GEORGE explained changes: 8 and 9 from the CS as follows:
We returned Disorderly Conduct to a class B
misdemeanor while retaining the bill's reduction from
10 days down to 24 hours for the maximum term of
imprisonment, this is seen in Section 20.
Sections 25 and 35 respectively, the CS reestablishes
delivery of any amount of a Schedule IA, IIA, or IIIA
controlled substance to a person under the age of 19
who is at least 3 years younger than the person
delivering the substance as Misconduct Involving a
Controlled Substance (MICS)-1, which is an
unclassified felony, rather than MICS-2, which is a
class A felony as was in the previous version; this
reestablishes also the conduct related to the
manufacture of methamphetamine around children as
MICS-1 rather than MICS-2 and reestablishes this
within the existing felony sentencing presumptive
range.
SENATOR COGHILL added that the changes to Sections 25 and 35
came to the committee's attention mostly through the police
officers.
MR. GEORGE explained change: 10 from the CS as follows:
Sections 25 and 26, the CS elevates the position in
any amount of a schedule IA or IIA controlled
substance around school grounds, youth recreation
centers, and school buses for MICS-3 to MICS-2;
however, we decrease the MICS-2 penalty from a class-A
felony to a class-B felony.
8:42:53 AM
JORDAN SCHILLING, Staff, Senator John Coghill, Alaska State
Legislature, Juneau, Alaska, explained the changes to the MICS
statutes as follows:
The statutes were changed to address some of the
concerns we heard from the Office of Victims' Rights
last week. The Criminal Justice Commission recommended
reducing the felony presumptive ranges and that
included reducing some of these enhanced ranges and so
in response to some of the things we heard from Ms.
Winston, we have chosen to leave that type of conduct
at its existing penalty.
MR. GEORGE explained changes: 11, 12, and 13 from the CS as
follows:
The CS aligns the manufacture of methamphetamine and
possession of methamphetamine precursors with the
manufacture of other scheduled substances in MICS-2.
Section 33, the CS adds several more exceptions to the
presumption of citation by an officer stopping or
contacting a person, by including property offenses;
Theft in the Second Degree, which is a felony; sexual
offenses, Escape, Unlawful Evasion, and Unlawful
Contact. We did hear from some officers who were here
in town recently about this section in particular and
so additionally, the CS, the existing exceptions are
broadened for when an officer may arrest by deleting
the word "significant" from the danger required or the
flight-risk provisions. Also, the CS allows an arrest
for criminal trespass in the second degree or criminal
mischief, and no longer requires that a person be held
for no more than 24 hours.
Section 34, the CS establishes total immunity for
civil action for damages for failure to comply with
the provisions of Section 33 regarding when an officer
may cite or arrest if an improper arrest is made.
SENATOR COGHILL revealed that the new sections 33 and 34 were
requested by the police. He asserted that police have to make
quick judgements and the changes would allow for a lot more
liberty and the courts probably would settle out any issues. He
provided additional detail as follows:
We put in Section 33 a complicated range of things
that there's a presumption to citation, but there's a
whole range of issues that are exceptions to that and
so this is both something that the police wanted, but
it's the best we can do right now in statute to
delineate it.
8:45:45 AM
MR. SCHILLING added that the language was requested by several
law enforcement agencies and associations. He said the change
was the same language used in the mandatory domestic-violence
(DV) statutes.
MR. GEORGE noted that the Chair's office reached out to all
committee members for their input in drafting the CS.
He explained change: 14 from the CS as follows:
Section 37 limits the number of bail review hearings
that a defendant is entitled to due to new information
now that a person's inability to post required bail
can be taken into account under SB 91; there was some
concern with this provision that was brought to us by
the court system and we worked with the sponsor's
office to try and correct that. I think that the
drafting may not reflect entirely the intent of the
committee, there's an existing statute that allows for
multiple bail-review hearings; however, in our attempt
to restrict the number of new review hearings for
inability to pay, we inadvertently, in the drafting,
limited to one review hearing for any reason. So there
is an amendment forth coming which corrects this and
clarify this. The court system should be able to talk
about this as well, their input concurs with this.
CHAIR STOLTZE stated that a final CS would probably be
introduced, especially to address technical mistakes.
8:48:03 AM
MR. GEORGE explained change: 15 from the CS as follows:
Section 41 authorizes the court to require a secured
appearance bond or performance bond for several new
types of defenses, including Terroristic Threatening,
Possession of Child Pornography, Escape in the Third
Degree, Unlawful Evasion, Unlawful Contact in the
First Degree, Misconduct Involving Weapons in the
First, Second, and Third degrees, and all sex
offenses.
He explained that there was a grid-of-presumption as far as
letting a defendant out on their own recognizance or requiring
forms of bond or bail that appeared in the Criminal Justice
Commission Report. He explained that Section 41 would move some
of the noted offenses into the grid-of-presumption's "other
category."
SENATOR COGHILL remarked that the Criminal Justice Commission
had a high-level-view and Section 41 shows how more dangerous
things could be better categorized.
MR. GEORGE revealed that the Criminal Justice Commission Report
was given to the Legislature pursuant to SB 64 and did not
contain draft language for SB 91. He detailed that the
Legislative Legal Services Division had done their best to
implement the Criminal Justice Commission's recommendations and
the changes were needed to carry out the report's intent or
clarify certain things.
8:49:35 AM
MR. GEORGE explained change: 16 from the CS as follows:
Sections 57 and 73, the CS ensures the Suspended Entry
of Judgement provision in the bill does not provide
for record confidentiality under the recently passed
HB 11. Individuals who plead guilty or who are
convicted would now under the CS have their cases
remain on CourtView with notation of Suspended Entry
of Judgement. The Suspended Entry of Judgement now
also excludes persons convicted of a crime involving
domestic violence from eligibility for this provision.
SENATOR COGHILL specified that the change in the new section 57
and 73 were reflective of a dynamic process on CourtView
regarding what should or should not be on CourtView. He noted
that the change came for the Chair's office. He opined that the
change to the Suspended Entry of Judgement was a new concept and
the committee continue to review.
MR. GEORGE explained change: 17 from the CS as follows:
Section 59, the CS increases the maximum term of
probation from 5 years to 10 years for unclassified
felonies or sex felony offenses, current statute is 25
years. The CS increases the maximum term of probation
from 3 years to 5 years, currently 10 years, for all
other felonies except for domestic violence, and the
CS increases to 4 years for all other domestic
violence offenses.
SENATOR COGHILL said the new Section 59 resets the probation to
a more moderate level. He set forth that proven practices has
demonstrated that the best results don't always come from the
longest time. He summarized that Section 59 falls within the
Criminal Justice Commission's recommendations range.
8:52:06 AM
MR. GEORGE explained change: 18 from the CS as follows:
Section 61, the CS removes language from the existing
statute, AS 12.55.090(h), limiting the number of
victims who may give sworn testimony at a hearing to
reduce or terminate probation and discharge a
defendant before the period of probation, before the
offense has been completed; this was a request of the
Office of Victims' Rights.
MR. GEORGE revealed that the language limiting victim testimony
may appear in two other places in the statutes. He added that
the State Affairs and Judiciary committees may wish to further
explore language that limits victim testimony.
CHAIR STOLTZE asserted that every bit of victims' right has been
fought for over the last 20 years and the committee did not want
to inadvertently affect that.
MR. GEORGE stated that the committee had worked closely with the
Office of Victims' Rights and the change exemplifies the
improvements that were made to the existing statutes.
He addressed changes: 19 and 20 from the CS as follows:
Section 67 reestablishes the existing statutory
presumptive range of imprisonment of 2 to 4 years for
criminally negligent homicide where the victim is
under the age of 16.
Section 69 removes Assault in the Fourth Degree from
the 0 to 30 day presumptive range for class A
misdemeanors and replaces it back up to 1 year.
SENATOR COGHILL added that the 0 to 30 day presumptive range was
too light and going back to 1 year was a balanced and
appropriate penalty.
8:54:42 AM
MR. GEORGE explained the twenty-first change made from the CS as
follows:
Under duties of a prosecuting attorney, the CS now
requires the prosecutor to confer with the victims of
any felony offense or domestic violence offense
concerning a proposed plea agreement prior to entering
into such an agreement; this broadens the requirement
to confer with victims of all felonies, not just
victims of domestic violence. This was added at the
request of the Office of Victims' Rights.
SENATOR COGHILL specified that the change was new to the bill
and was consistent with the committee's intent to make sure
victims were included all of the way. He remarked that not
including the language was probably an omission in the state's
law for quite some time.
MR. GEORGE explained changes: 22 and 23 from the CS as follows:
Section 88, this changes the earned compliance credit
to be applied every 30 days upon 30 days of compliance
rather than each day for single-day credit; this was
going to be a significant accounting challenge for
time accounting and also this CS comports more closely
with the recommendations of the Criminal Justice
Commission. This section also clarifies that no
proration of month shall be allowed, so failure to
complete the entire month would result in no award of
a month.
Section 96, this excludes persons convicted of a
sexual felony from eligibility for administrative
parole, which is offered under the bill to prisoners
convicted of a class B or C felony.
SENATOR COGHILL explained that Section 96 was primarily in
response to the Office of Victims' Rights.
8:56:27 AM
MR. GEORGE explained change: 24 from the CS as follows:
Section 97 excludes persons convicted of a sexual or
an unclassified felony from eligibility for geriatric
parole, a concept new in this bill; this increases the
age of eligibility for geriatric parole to 60 years of
age from 55 years of age in the previous version, and
continues to require that at least 10 years of a
sentence for 1 or more crimes in a single judgement
have been served as a prerequisite. A point to note,
the Criminal Justice Commission Report recommended a
range between 55 and 60 years, so this falls within
the recommendation of the Criminal Justice Commission.
SENATOR COGHILL revealed that several people contacted the
committee specifically on the offense that Section 97 addressed.
He summarized that the previous parameters were too low and the
change dictates that an individual must serve at least 10 years
of their sentence for geriatric-parole eligibility. He detailed
as follows:
We had several people contacting us in this particular
issue. First of all, that was way too low, but the
real problem was the amount of time served. So this
actually is an enforcement for those that have to
serve at least 10 years of that sentence. There was
some language that allowed for earned-goodtime credit
under those 10 years and this is just saying that if
there is going to be any knowledge of this, they have
to serve at least 10 years of their sentence before
they can apply.
CHAIR STOLTZE noted that Legislative Legal Services provided
commentary on Section 97. He asked Mr. Schilling for an
explanation.
MR. SCHILLING explained that Legislative Legal Services had a
concern that the geriatric-parole provision might not be
constitutional because two similar offender cohorts were treated
differently due to age and no other reason. He noted that case
law and constitutionality would be evaluated from states that
have geriatric-parole provisions.
CHAIR STOLTZE admitted that the committee would not be able vet
everything. He noted that the bill was assigned to two more
committees.
SENATOR COGHILL asserted that he would continue to address
Section 97 in the next committee of assignment.
CHAIR STOLTZE opined that some people never shake their
propensity for child molestation with many occurring at an older
age. He said he trusted Senator Coghill's commitment to address
Section 91.
8:59:27 AM
MR. GEORGE explained changes: 25, 26, 27, and 28 from the CS as
follows:
Section 117 is a change of a "shall" to a "may," and
this changes from "compulsory" to "discretionary" the
Board of Parole's unconditional discharge of a parolee
upon their completion of one year of parole while in
compliance and having completed all treatment
programs. This adds an exclusion in the CS for persons
convicted of unclassified felony offense, a sexual
felony, or a crime involving domestic violence from
eligibility of early unconditional discharge from
parole.
Section 118 corrects a reference to violators of
parole rather than probation.
Section 129 corrects a drafting error, clarifies
regarding who the section applies to as to the
defenders.
Section 134 establishes a new test. This is from one
of the four amendments that we had before committee.
This establishes a testing program within the
Department of Health and Social Services to determine
eligibility for public assistance for persons
convicted of drug offenses within the previous five
years. Testing is required quarterly, upon renewal of
benefits, and on a random basis for the use of illegal
controlled substances. A person is disqualified from
receiving public assistance for six months if tested
positive for the illegal use of controlled substances.
SENATOR COGHILL added that Section 134 was a new concept that
would hold people accountable and encourage program
participation. He said the section was outside of the
recommendations, but was something that the Legislature had been
thinking about for some time. He opined that some of SB 91's
best language was in Section 134.
CHAIR STOLTZE remarked that Section 134 was narrowly focused. He
said drug testing had been criticized, but the section was
focused, tied to past behavior, and tied to a benefit that an
individual was not getting.
SENATOR COGHILL added that Section 134 would apply to people
that had been convicted of a drug-related crime.
CHAIR STOLTZE opined that his constituents would agree that the
section would apply to people with high probable cause.
MR. GEORGE specified that the drug-related lookback was not
lifetime and only applied to individuals convicted in the last
five years. He added that the section would apply to individuals
convicted of illegal use and not the legal use of a controlled
substance.
9:02:25 AM
MR. GEORGE explained changes 29, 30, and 31 from the CS as
follows:
Section 135 is an exception to the disqualification
from receiving temporary assistance or food stamps, it
is created for those persons in compliance with the
testing program established in Section 134.
Section 142 is a new section, it establishes
severability clause that should the testing
requirement established under Section 134 or the
application of it to any person or circumstance be
held invalid by a court of competent jurisdiction, the
remainder of this act and the application to other
persons or circumstances are not affected. It is
important to note that at this time that the committee
requested for the CS that should Section 134 regarding
testing be found invalid, that the exemption offered
in Section 135 from the state pay on temporary
assistance or food stamps for convicted drug felons,
would be removed, reinstating the ban as it exists
presently in statute. An amendment has been requested
to correct this oversight in drafting.
Section 141, this is an item that was discussed, we've
had some testimony from folks, including Office of
Victims' Rights; it removes the retroactive
application of administrative, geriatric, and
discretionary parole provisions. They shall now apply
to persons sentenced on or after the effective date of
those sections or conduct occurring before, on or
after those effective dates.
SENATOR COGHILL addressed Section 141 regarding parole and said
part of the issue was whether people who had been previously
convicted could be treated. He remarked that parole was kind of
an after-the-fact issue, but starting with the "discretionary,
geriatric, and administrative" paroles was wise.
CHAIR STOLTZE announced that further testimony would be provided
from individuals representing various state agencies. He noted
that representatives from the Department of Health and Social
Services, Division of Probation and Parole, and the Parole Board
were in attendance. He pointed out that a fiscal analyst from
the Division of Legislative Finance was at the meeting to
address the bill's potential fiscal savings.
9:05:59 AM
SENATOR COGHILL commended Chair Stoltze's staff as well as
Jordan Schilling for their tireless work on SB 91. He noted that
Mr. Schilling had been in contact with the Office of Victims'
Rights, the Department of Law, the court system, police
officers, and the corrections facilities to understand what
would actually work while staying as close to the Criminal
Justice Commission's recommendations as possible. He admitted
that the Criminal Justice Commission quite often had very high-
level suggestions that needed some changes.
He asserted that both public safety and accountability were
paramount, but some places required to be ironed out. He pointed
out that the violation-misdemeanor sections needed to be ironed
out due to a huge list of exceptions-to-the-rule.
9:09:55 AM
JOHN B. SKIDMORE, Director, Criminal Division, Alaska Department
of Law, Juneau, Alaska, specified that he managed and supervised
the state's prosecutors. He revealed that he has served for the
Department of Law in a prosecutorial capacity for the last 18
years.
He stated that work done by the Criminal Justice Commission and
legislators had been a balanced approach in order to ensure
public safety was maintained while addressing ways to improve
for less money. He specified that improvement would generally be
thought of as ways to reduce recidivism within the system.
He opined that the changes made by the CS seemed to address
concerns brought up by the Office of Victims' Rights as well as
police officers. He remarked that many issues would continue to
be looked at by the Legislature in order to strike a correct
balance.
9:13:27 AM
He said the only provision that was not addressed in the CS was
in Section 69 regarding his department's request to address the
Supreme Court case called "Blakely v. United States," which
dealt with the way aggravators were addressed at a sentencing
level. He specified that his department requested that the
language be consistent in the way aggravators were handled in
felony cases. He detailed that some aggravators must be
presented beyond a reasonable doubt to a jury, others did not
need to be presented to a jury beyond a reasonable doubt and
were based on previous convictions.
CHAIR STOLTZE noted that he had referenced the Blakely decision
when he added a 99-year sentence provision for child molesters
and murderers to a major revision in 2006.
SENATOR COGHILL admitted that he would go back and address the
new concept in the CS regarding the Suspended Entry of Judgement
provision in the new sections 57 and 73. He asked Mr. Skidmore
to review the Suspended Entry of Judgement concept.
9:16:51 AM
MR. SKIDMORE answered that the Criminal Justice Commission heard
testimony about the current statute that Alaska has called the
Suspended Imposition of Sentence. He specified that the Criminal
Justice Commission was concerned that the original intent of a
Suspended Imposition of Sentence was not meeting its goal where
a conviction would not follow an individual after a probationary
period was completed. He specified that a conviction that
followed a person made them ineligible for certain jobs and
benefits that included housing and food stamps. He stated that
the Suspended Imposition of Judgement was a change so that the
conviction itself would not follow people. He noted that though
a conviction would not be entered against a person who
successfully completed probation, Section 73 from the CS
specified that a Suspended Imposition of Judgement would still
be available in public record on CourtView and in the court
records themselves.
SENATOR COGHILL admitted that he was still learning about the
whole idea of the Suspended Imposition of Judgement. He conceded
that he would have to deal with the issue of an individual
completing something so that their conviction may not appear,
but their conviction would be on CourtView. He asked Mr.
Skidmore to clarify that the Suspended Imposition of Sentence
meant that an individual has to plead guilty, but under the
Suspended Imposition of Judgement that may not be true.
9:20:11 AM
MR. SKIDMORE replied that he was not sure Senator Coghill's
statement was accurate because pleading guilty was generally a
required step in instituting conditions of probation. He said he
would want to go back and review Senator Coghill's scenario more
carefully to determine whether the person had pleaded guilty or
not. He detailed that the concept originally looked at by the
Criminal Justice Commission was whether or not the judge would
accept the guilty plea and enter it, and whether or not the
conditions would end up being conditions of probation versus a
condition of release that was for an extended period of time. He
summarized that a Suspended Imposition of Judgement was similar
to a diversionary program, only it was done later in the case
rather than at the time of charging.
SENATOR COGHILL remarked that he misunderstood. He said he
thought he remembered some of the Criminal Justice Commission's
discussion that the judgement did not have to be applied at that
point, nor did the guilty plea have to be entered.
MR. SKIDMORE referenced Section 57, page 35, lines 5 and 6 as
follows:
Except as provided in (f) of this section, if a person
is found guilty or pleads guilty to a crime, the court
may, with the consent of the defendant and the
prosecution and without imposing or entering a
judgment of guilt, defer further proceedings and place
the person on probation.
He detailed that the previous sentence expressly indicated that
there is a plea where the person has been found guilty by some
other means, presumably by a jury trial or a court trial. He
opined that Section 57 attempts to follow along with the
original intent of the Suspended Imposition of Sentence which is
to avoid the conviction on the person's record. He summarized
that the case would ultimately be dismissed despite the entry of
the guilty plea or the finding of guilt.
CHAIR STOLTZE addressed Section 118 regarding technical
violations of parole and asked for Mr. Skidmore to comment on
the ranges were proportional to the violation.
9:23:27 AM
MR. SKIDMORE replied that Section 118 attempts to set a cap for
technical violations for parole. He explained that the Criminal
Justice Commission found that incarceration by the Department of
Corrections had increased in three areas: pretrial; result of
sentencing; and post-conviction, which addressed parole and
probations. He detailed that the Criminal Justice Commission was
concerned that the post-conviction incarceration included people
for technical violations.
MR. SKIDMORE explained that a technical violation was defined as
anything other than the commission of a new offense. He pointed
out that Ms. Winston, [Director for the Office of Victims'
Rights], previously testified that she was concerned about
technical violations where an individual convicted of Sexual
Abuse of a Minor with a probation or parole provision for not
being in the presence of a child under a certain age, could be
in the presence of that child and only charged with a technical
violation, not a new crime. He specified that as a technical
violation, the courts under the current system would have to
decide how much the violation was worth and what sort of
sanction should be imposed. He said the Criminal Justice
Commission recommended capping technical violations at 3 days
for the first offense, 5 days for the second, and 10 days for
the third. He stated that Section 118 was consistent with the
Criminal Justice Commission's recommendation. He noted that
prosecutors had expressed some concerns about whether or not
Section 118 was appropriate because of the wide range of
technical violations that exist.
9:25:55 AM
CHAIR STOLTZE remarked that a technical violation could include
getting kicked out or walking away from sex-offender treatment
of which there's a reliance.
MR. SKIDMORE agreed that Chair Stoltze's example would be a
technical violation. He noted that technical violations could
also be simply missing an appointment with a probation officer.
CHAIR STOLTZE pointed out that a technical violation could also
be for not reregistering one's address.
MR. SKIDMORE agreed and noted that not advising a change in
employment would also be a technical violation.
CHAIR STOLTZE affirmed that technical violations were widely
different. He conceded that uncertainty existed during post-
incarceration where an individual might not know where they were
going to live the next day, as opposed to a child molester
getting kicked out of or walking away from a sex-offender
treatment.
MR. SKIDMORE remarked that the section fails to take into
consideration the underlying offense, the type of violation that
occurred, and the number of violations that may have occurred in
a particular petition to revoke probation or a particular parole
violation. He summarized that the policy question for the
Legislature was whether or not the section was an appropriate
restriction on the discretion of judges in terms of sanctions to
be imposed.
9:27:53 AM
CHAIR STOLTZE expressed that a person in jail for drug and
alcohol offenses could be let out under the premise that the
individual goes to treatment or abstains from alcohol or drugs;
that person might be great except when they do drugs or alcohol,
but the Legislature puts a cap on how much of a penalty can be
imposed. He opined that external penalties are placing a lot of
trust in parole and probation while putting some real handcuffs
on the system instead of on the criminals.
MR. SKIDMORE noted that he was concerned with capping a
probation violation at 3 days for a first offense along with
other provisions in SB 91 where a person would be released from
jail prior to adjudication to decide whether or not the
individual actually committed the offense. He contended that the
provisions were very different from the Department of
Correction's Probation Accountability with Certain Enforcement
(PACE) model to be swift, certain, and proportional. He remarked
that the provisions in SB 91 would be swift and certain, but he
questioned the proportionality. He remarked that determining
policy was not his place to say what it should be.
9:30:00 AM
CHAIR STOLTZE asserted that Mr. Skidmore's place was determining
policy due to his background. He remarked that he did not want
the departments of Law, Corrections, and Public Safety to merge
with Fish and Game and develop a catch-and-release program.
MR. SKIDMORE revealed that an indeterminate fiscal note from the
Department of Law was submitted primarily due to Section 118. He
asserted that Section 118 would increase the number of contested
adjudications which the Criminal Division has to prove up.
SENATOR WIELECHOWSKI stated that the committee relies on Mr.
Skidmore's expertise. He pointed out that the state's recidivism
rate was 60 to 66 percent and asked Mr. Skidmore how he would
handle technical violations.
MR. SKIDMORE asserted that any system like the criminal justice
system should be continually monitored and evaluated by its
practitioners as well as the Legislature. He admitted that the
current criminal justice system works on some days and in some
cases it does not. He revealed that the Department of Law has
changed a number of its policies due to the Criminal Justice
Commission's review. He specified that the Criminal Division had
implemented changes in the way probation violations were
evaluated. Anchorage and probation officers throughout the state
were given direction on probation violations; for example,
different sanction and tools would be used for missed
appointments rather than sending an individual back to jail. He
noted that different sanctions would be used for an individual
that does respond or has not reported for weeks or months. He
asserted that the PACE model for swift and certain sanctions was
appropriate because people are encouraged to accept
responsibility for what they have done with sanctions that are
proportional. He summarized that technical sanctions can be
reduced, SB 91 does attempt to reduce technical sanctions, but
the bill restricts judges in a way that may have unhealthy
consequences.
9:34:33 AM
SENATOR WIELECHOWSKI asked how the restriction of judges should
be addressed.
MR. SKIDMORE suggested that the Legislature follow the Criminal
Justice Commission's recommendations for reducing the time
people spend for technical violations, but balancing still had
to be addressed. He asserted that humans and not mechanical
mechanisms were required to balance various things. He stated
that he would be willing to suggest ideas; for example, create a
presumption for the 3, 5, and 10 days, but allow judges the
discretion to maintain balance.
CHAIR STOLTZE asked if an individual released on probation for
Sexual Abuse of a Minor with a no-contact provision showed up at
restaurant party with children would have committed a technical
or another violation.
MR. SKIDMORE answered that the person would have committed a
violation due to the no-contact provision. He noted that there
could be additional provisions where another adult has to be
present. He added that language where an individual cannot come
within 50 feet of any child would be unreasonable because of
unavoidable circumstances. He reiterated that Chair Stoltze's
example would depend on specific provisional language.
SENATOR HUGGINS addressed section 9 and noted that the monetary
amount for theft was changed from $750 to $2000. He asked how
the non-monetary value of something like a vehicle would be
taken into account.
9:38:56 AM
MR. SKIDMORE specified that prosecutors look at a vehicle's
resale value. He agreed that a vehicle with a low resale value
may have a higher value to an individual due to sentimentality,
getting to appointments, or going to and from work. He noted
that the intent was to change the monetary amount for theft back
to $750.
CHAIR STOLTZE concurred that putting the value on an only
vehicle was hard.
SENATOR HUGGINS opined that the provision "permissively" created
a bigger loop-in-the-fishnet where an individual pays $5 to go
home rather than go to jail.
9:41:38 AM
MR. SKIDMORE noted that despite the fact that crime rates had
fallen over the past decade, the Criminal Justice Commission
addressed the state's rising incarceration rate in order to
avoid having to build new prisons. He added that the Criminal
Justice Commission looked at a significant amount of research in
order to address the state's high recidivism rate as well. He
remarked that sending people to jail for every offense and
increasing sentences was not always the right way to reduce
recidivism. He asserted that the Criminal Justice Commission and
SB 91 are trying to address the balance that was needed between
individuals that do and do not require jail to change behavior.
He conceded that finding the balance was difficult, but
recommended that the focus be placed on monitoring what works
and does not work rather than just on the changes being made. He
summarized that balance required monitoring with appropriate
changes.
SENATOR COGHILL commented that reduction of crime was another
way to say reducing recidivism. He set forth that reducing
return meant less crime. He conceded that focusing on technical
violations was complex, but adding a discretionary tool to
address the proportional part was needed. He noted that not
doing sex-offender treatment under SB 91 was not a technical
violation.
MR. SKIDMORE pointed out that sex-offender treatment was pulled
out as a technical violation due to SB 91.
9:45:24 AM
CHAIR STOLTZE asked if the premise that less crime was due to
putting certain people away for longer times was valid.
MR. SKIDMORE agreed that Chair Stoltze's theory was one that has
been argued.
CHAIR STOLTZE said he did not attend the Criminal Justice
Commission meetings and did not know how much time was spent on
addressing his theory. He opined that an individual who
committed sexual abuse of minor offenses tended not to be a one-
time occurrence. He added that somebody that was caught for a
property theft for fueling a drug habit usually committed the
offense multiple times and putting the individual away longer
would likely reduce crime in an area.
MR. SKIDMORE recounted that the Criminal Justice Commission also
heard evidence to suggest that a low-risk individual's chances
of committing another crime increased when the individual was
placed in jail. He reiterated that the basic principle was
trying to find a balance.
CHAIR STOLTZE remarked that the key was people management to
make sure the right people were picked for rehabilitation.
MR. SKIDMORE replied that he agreed.
9:47:39 AM
SENATOR COGHILL commented that the state being tougher on crime
over the last decades had a positive impact on serious crimes.
He noted that the serious-crime population in jails has
decreased, but the misdemeanant population has literally
exploded. He asserted that SB 91 addresses the misdemeanant
population, but serious crimes would be treated as seriously as
possible.
CHAIR STOLTZE agreed that incarcerating the wrong people was not
doing society any favors. He noted that he had spoken with
Commissioner Williams that corrections officers should be a part
of the parole and probation process. He asserted that the
corrections officers know prisoners better than anybody else.
9:49:12 AM
DEAN WILLIAMS, Commissioner, Alaska Department of Corrections,
Anchorage, Alaska, agreed with Mr. Skidmore and the committee
that getting the changes right involved a balancing act. He said
SB 91 was a process of change and vetting to make sure everyone
was moving in the right direction. He asserted that getting SB
91 right was critical for dealing with a department that was
overstressed and understaffed. He set forth that progress must
be made to keep people out of jail that should be out of jail
and keeping the people that scare us in jail.
COMMISSIONER WILLIAMS revealed that he started to look at the
issue SB 91 was addressing back in his prior career in juvenile
justice in order to focus on crowded juvenile facilities. He
agreed with findings from "Right on Crime" and the "Pew
Foundation" that getting one thing right in tackling prison
populations was understanding what other states had done. He
asserted that statistics have shown that crime goes down without
compromising safety if reform was done right. He remarked that
if crime goes up, then something was done significantly wrong.
He concurred with Mr. Skidmore that making reform work would
require the state to act on experiences from other states along
with close monitoring. He disclosed that the Parole Board was
getting technical assistance from the National Institute of
Corrections (NIC) in order to simplify parole conditions and
avoid legalese. He said the Department of Corrections has made
progress and a number of reform items have been instituted.
9:52:53 AM
CHAIR STOLTZE commented that the committee would continue to
work on SB 91. He opined that the bill addressed a more
substantive issue that affects people's everyday life more than
some of the governor's bills. He noted that he had discussions
with Commissioner Williams on the mechanics of creating a
formalized review process for correctional officers. He remarked
that correctional officers have a better understanding of the
prisoners based on their everyday actions.
COMMISSIONER WILLIAMS noted that he had discussed formalized
reviews with his staff. He said he did not know if a formalized
review process would be done through statutes or amendments.
CHAIR STOLTZE replied that correctional officers have a lot to
offer and have an important role to play. He requested that
correctional officers' involvement be formalized in the process.
COMMISSIONER WILLIAMS agreed that Chair Stoltze's concept was
valid and he would find the vehicle to move the idea down the
road.
CHAIR STOLTZE pointed out that during the previous year there
were talks that SB 91 would furlough up to 1200 prisoners. He
asked what the status was on the possibility of furloughing
prisoners.
9:55:29 AM
COMMISSIONER WILLIAMS answered that he was first awaiting the
passage of SB 91. He asserted that he wanted a good plan and
good strategy for what DOC would do in terms of furloughing if
necessary.
CHAIR STOLTZE asked if the furlough concept has been suspended.
COMMISSIONER WILLIAMS replied that he had no plans of releasing
people in mass without a complete process of understanding with
counsel from inside and outside of his department. He set forth
that he was not doing anything without a clear vetting and a
clear plan to present to the Legislature.
CHAIR STOLTZE stated that he would like to see placeholder
language in the bill for correction professionals having a role.
COMMISSIONER WILLIAMS replied that reform decisions involve a
lot of people and especially correction officers who were
involved with running the facilities.
9:58:32 AM
MONICA WINDOM, Chief of Policy and Program Development, Division
of Public Assistance, Alaska Department of Health and Social
Services, Juneau, Alaska, revealed that some states have found
that drug testing has not been cost effective; however, the drug
testing in SB 91 would be more targeted.
MS. WINDOM noted that she had questions about points of
clarification and possible technical changes as follows:
Section 134 does address a penalty for failing a drug
test, but it does not address any penalty for refusal
to test.
Section 135 talks about folks that are on temporary
assistance and food stamps, it specifically calls out
the statute at AS 47.25 which does not house temporary
assistance, temporary assistance is in AS 45.27.
She revealed that Section 135 calls out temporary assistance and
food stamps, then the new provision in Section 134 addresses all
of the programs that were listed in AS 45.25 which include adult
public assistance. She pointed out that temporary assistance was
not specifically called out in Section 134.
CHAIR STOLTZE replied that the committee was aware of the
language in Section 134. He asked if the department had a
position on the CS.
MS. WINDOM replied that the department did not have a chance to
review the CS that was distributed this morning.
CHAIR STOLTZE asked if Ms. Windom had any general philosophical
positions from the division and the department.
MS. WINDOM answered that she did not.
10:01:36 AM
CHAIR STOLTZE announced that SB 91 would be held in committee.
SENATOR COGHILL noted that his intent was to work through the
bill's issue one-by-one with committee members.
CHAIR STOLTZE asserted that the public was with the committee
regarding the provision that the committee addressed with the
Division of Public Assistance. He said he hoped that the
provision does not get swallowed up through the bicameral
process and spit out. He added that should the Administration
not like the provision, he hoped that there would be an
explanation as to why they desire additional welfare benefits
for criminals.
[SB 91 was held in committee.]
10:02:56 AM
There being no further business to come before the committee,
Chair Stoltze adjourned the Senate State Affairs Committee at
10:02 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SSSB 91 CS(STA) Work Draft Version P - 3-2-2016.pdf |
SSTA 3/3/2016 8:30:00 AM |
SB 91 |
| SSSB 91 Summary of Changes Version N to P 3-2-16.pdf |
SSTA 3/3/2016 8:30:00 AM |
SB 91 |
| SSSB 91 DHSS Response to SSTA Question - Data on Food Stamps & Drug Felons 2-26-16.pdf |
SSTA 3/3/2016 8:30:00 AM |
SB 91 |
| SSSB 91 DOC Response to SSTA - Data on Petition to Revoke Probation 3-2-16.pdf |
SSTA 3/3/2016 8:30:00 AM |
SB 91 |
| SSSB 91 DOC Response to SSTA - Data on Petition to Revoke Parole 3-3-16.pdf |
SSTA 3/3/2016 8:30:00 AM |
SB 91 |