HB 50-ARREST;RELEASE;SENTENCING;PROBATION    [Contains discussion of HB 51.] 3:13:24 PM CO-CHAIR FIELDS announced that the final order of business would be HOUSE BILL NO. 50, "An Act relating to pretrial release; relating to sentencing; relating to treatment program credit toward service of a sentence of imprisonment; relating to electronic monitoring; amending Rules 38.2 and 45(d), Alaska Rules of Criminal Procedure; and providing for an effective date." 3:14:31 PM JOHN SKIDMORE, Director, Criminal Division, Department of Law (DOL), relayed that HB 50 and HB 51 represent an ongoing conversation about criminal justice reform in the State of Alaska. He stated that the legislature has been considering reform since 2014; statistics were presented to the legislature demonstrating Alaska's increasing prison population; the understanding was that if Alaska continued in the same path, it would have to build another prison. He said that by the year 2016, the legislature decided that action was urgent; therefore, it passed sweeping criminal justice reform in order to make changes and have them be enacted as quickly as possible. He reported that it is the belief of the [Governor Michael J. Dunleavy] administration that the action was premature. He pointed out the following: Alaska's crime rates rose dramatically in the five-year period - 25 percent overall, 34 percent for violent crime, and 22 percent for property crime; however, these statistics were only through 2014. After 2014, there was a decline in Alaska's prison population and a reduction in recidivism. This happened prior to the changes enacted by Senate Bill 91 [passed during the Twenty-Ninth Alaska State Legislature, 2015-2016]. 3:17:30 PM CO-CHAIR KREISS-TOMKINS asked Mr. Skidmore whether he had any notion or research explaining why there was a decline in recidivism at that time. MR. SKIDMORE replied that he was not aware of any such research but being involved in the criminal justice system throughout that period, he credited former commissioner of the Department of Corrections (DOC), Ron Taylor, for initiating changes in the way DOC programs were handled. Some of the concepts discussed by the Alaska Criminal Justice Commission (ACJC) [created under Senate Bill 64, passed during the Twenty-Eighth Alaska State Legislature, 2013-2014] already were being implemented by DOC. He reiterated that there was a decrease both in recidivism and the jail population prior to the passage and implementation of Senate Bill 91. CO-CHAIR KREISS-TOMKINS asked if Mr. Skidmore attributes the decline in recidivism circa 2014 primarily to DOC related policies. MR. SKIDMORE responded that he cannot definitively say that the programmatic changes were the reason the decrease occurred; however, it represented a change in the system, thus, could be a potential explanation. He said that he is not aware of any other changes in the system. CO-CHAIR FIELDS referred to a 7 percent decline in the recidivism rates shown on the slide [slide 3 of the PowerPoint presentation, entitled "Reentry Services: Promoting Safer & Healthier Communities," presented during the 3/14/19 House State Affairs Standing Committee meeting]. He explained that on the slide, the most recent year is 2015; however, the data shown for [CY2015] on the chart is based on data from 2018, demonstrating recidivism three years out from 2015. MR. SKIDMORE answered that Co-Chair Fields explanation is correct. Regardless of the criteria used to define recidivism - by arrests or by convictions - when evaluating recidivism, one must look at additional conduct into the future. CO-CHAIR FIELDS offered that currently it can be accurately said that felony recidivism appears to be declining steadily at least into 2018, recognizing the three-year look-back. MR. SKIDMORE stated that he cannot report on recidivism rates for 2018 for the very reason Co-Chair Fields offered - he cannot predict what will happened in the future. He said that for those people released today, he does not know what offenses they will be committing in the next three years. CO-CHAIR FIELDS stated that recidivism appears to be continuing to decline currently. MR. SKIDMORE answered, "Yes." 3:21:19 PM REPRESENTATIVE WOOL offered that DOC is looking at cohorts with a three-year look-back; therefore, if there was a decline in 2015, it refers to the recidivism of people released in 2012. Anyone recidivating in 2018, is from the 2015 cohort. REPRESENTATIVE LEDOUX asked, "Recidivism is going down, but crime is going up. Does that mean we have a whole new ... generation of criminals as opposed to the old criminals ... repeating the stuff that they did in the past?" MR. SKIDMORE replied that one of three things could be occurring: 1) a change in what is considered as recidivism, for example, decriminalizing what was previously considered a crime; 2) new people coming into the correctional system not there previously; or 3) crime rates calculated based on reports from victims and not prosecutions. Another explanation is that there are fewer people prosecuted or arrested, but the greater amount of crime is based on victim reports. More crime is occurring, but less people are being held accountable. CO-CHAIR FIELDS mentioned that the report, entitled "Alaska Recidivism and Reentry," [not included in the committee packet], makes the distinction between new crimes and technical violations; there is a steep decline in both. REPRESENTATIVE LEDOUX asked for clarification: she has heard testimony both that there is a decline in crimes and an increase in crimes. 3:24:43 PM QUINLAN STEINER, Director, Public Defender Agency (PDA), Department of Administration (DOA), responded that the recidivism data that was presented to ACJC was based upon data published by DOC. The overall recidivism rate had been hovering in the upper 60s; in 2013 it was reported to be 67.02 percent. The cohort with 67.02 percent recidivism was released in 2013; the recidivism data was measured using the subsequent three years; therefore, the data overlapped criminal justice reform. He said that in 2014, the overall recidivism rate dropped to 65.07 percent, and in 2015, it dropped to 61.33 percent. He relayed that the 2015 cohort was substantially supervised under the parole and probation reform under Senate Bill 91. He offered that the indicators are that the decline started under the early stage of reform and has continued with an even sharper drop in 2015. He maintained that the next cohort that will be measured will have been fully supervised under the reform measures [of Senate Bill 91]. REPRESENTATIVE LEDOUX suggested that the 2015 rate of 61.33 percent had nothing to do with criminal justice reform unless there was an element of reform separate from Senate Bill 91. CO-CHAIR FIELDS maintained that the 2015 rate on the chart reflects crimes that have or have not occurred through 2018, because of the three-year cohort period. MR. SKIDMORE reiterated Mr. Steiner's testimony that in 2015 there was an even sharper decline, and probation and parole [violations] were counted in the recidivism rate. He said that HB 51 would alter the circumstances under which a person is arrested for probation violations; some violations would be handled through administrative sanctions. He said that the number of administrative sanctions is significant - 20,000 in the first two years. He relayed that administrative sanctions were not counted in the recidivism rates that have shown a decline, because they were not arrests. Recidivism was defined as being arrested for a violation. He maintained that there were many violations, for which there previously would have been arrests, that now are not arrests; therefore, the recidivism appears to have declined. He asserted that in order to compare recidivism rates, the administrative sanctions would need to be considered along with all the arrests that were made. He offered that there were reductions in recidivism prior to the [administrative sanction] changes; therefore, there were changes made in the system that were effective. He emphasized that there were some measures under Senate Bill 91 that the legislature - with all good intentions - rushed to adopt. 3:29:05 PM CO-CHAIR FIELDS clarified that cohort year 2015 (CY2015) on the chart represents 2015-2018 because of the three-year window; therefore, it does include activity during criminal justice reform. He added that CY2012 represents the years 2012-2015. MR. SKIDMORE continued by saying that to address the concept of "pretrial release" he will discuss the changes that were made and the intent of the governor's bill. He mentioned that there were reports that the pretrial population had increased dramatically - by as much as 80 percent. He maintained that the higher rate included the number of bed days used as the pretrial detainment number. If a trial is delayed for a prisoner and the number of detainment days doubles, then it appears that the pretrial population has doubled. He maintained that the 80 percent increase does not signify an increase in individuals, but only an 80 percent increase in the number of bed days. REPRESENTATIVE WOOL asked what the increase in the number of people was, separate from the bed day count. He mentioned the possibility of increased stay due to the courts being closed on Fridays. MR. SKIDMORE replied that he did not know. He maintained that other factors were not considered in the pretrial detainment numbers. He said that to adjust the number of the pretrial population, the state decided to release more people from jail; and to do so, the state tried to adopt the use of a risk assessment tool. REPRESENTATIVE LEDOUX expressed her desire to know the answer to Representative Wool's question regarding the increase in the number of individuals in the pretrial population. She maintained that she would like to see the statistics backing up his analysis before considering statutory changes. MR. SKIDMORE answered that the precise numbers would have to be requested from DOC; it is an excellent question and should be determined. 3:33:07 PM MR. SKIDMORE continued by saying that the risk assessment tool that the state wanted to adopt was one that looked at a series of questions that could be answered from a person's criminal history to determine his/her risk level. The risk level score was then tied to what happened with the pretrial release. He added that the tool had not been developed by the time Senate Bill 91 passed; therefore, the presumptions for release on bail returned to the presumptions before Senate Bill 91. The reason that occurred is because the tool that was developed was flawed in several ways. MR. SKIDMORE began with slide 1 of the PowerPoint presentation, entitled "Alaska Pretrial Risk Assessment," [included in the committee packet] and relayed that the slides presented are from a presentation developed by the Crime and Justice Institute (CJI) at the Community Resources for Justice (CRJ) to describe the pretrial assessment tool developed in June 2017. He commented that June 2017 was after Senate Bill 91 was passed. MR. SKIDMORE turned to slide 2, entitled "New Criminal Arrest Scale," and said that CJI developed a series of questions specifically for Alaska using Alaska data. The questions looked at six risk factors: the age at first arrest; the total number of prior arrests in the past five years; the total number of prior convictions in the past three years; the total number of prior probation sentences; the total number of prior probation sentences in the past five years; and the total number of prior incarcerations in the past three years. He pointed out that the questions were limited because the totality of a person's criminal history was not considered. He maintained that three arrests in the past five years was weighted the same as 20-30 arrests in the past five years. He pointed out that two or three convictions in the past three years was weighted the same as 20-25 convictions. MR. SKIDMORE moved on to slide 3, entitled "NCA Rate by Total Score," and explained that NCA stands for new criminal arrest. The chart shows that of people with a total risk score of 0, 14 percent had an NCA; of those with a total risk score of 1, the NCA rate was 23.8 percent; of those with the maximum total risk score of 10, 58.1 percent were released [and had an NCA]. MR. SKIDMORE referred to slide 4, entitled "NCA Rate by Total Score Ranges," and stated that under Senate Bill 91, there were three categories of risk - low, medium, and high; however, after CJI performed the risk assessment, which was done after the law passed, it found that Alaska's risk scores fell into five categories, not three. He turned to slide 5, entitled "NCA Total Score," and said that because the three risk categories were already in statute, the assessment results had to be "crammed" into those three categories created by statute. He detailed the three categories: those with a very low score of 0 - 3,219 individuals - were combined with those with a low score of 1-5 - 7,002 individuals - to create a new "low" category; those with a moderate score of 6-8 - 3,808 individuals - were combined with those with a moderately high score of 9 - 2,116 individuals - to create a new "moderate" category; the third category - labeled "high" - consisted of the 3,043 individuals with the maximum score of 10. 3:38:26 PM REPRESENTATIVE LEDOUX referred to slide 4 and suggested an alternate grouping: a 0 score would remain categorized as "very low"; 1-8 as "moderate"; and 9-10 as "high." She maintained such a grouping would have made more sense and avoided the problems that were encountered. MR. SKIDMORE responded that he understood her point, but he is merely describing how the categorizations were done. He referred to the chart on slide 3 and pointed out the dotted lines over the scores of 1 and 8 and the solid lines over the scores of 5 and 9. He explained that everything below the score 5 solid line is categorized as "low"; everything between the score 5 and 9 solid lines is categorized as "moderate"; the dotted lines show the two additional categories - 1-5 and 6-8 - resulting from the risk assessment. He reiterated that the assessment tool was developed after Senate Bill 91 was passed creating three categories; thus, the five categories were forced into three categories. He maintained that among the studies cited justifying risk assessments, a 2011 report by the Bureau of Justice Assistance (BJA) [entitled "State of the Science of Pretrial Risk Assessment," by Cynthia A. Mamalian, Ph.D., document not provided] discusses pretrial risk assessment tools and other states that have used them - Kentucky, Virginia, and Ohio. In each of these states, the assessment tool was developed, implemented, and tested in one county in order to validate and adjust it before implementing it statewide. 3:40:56 PM REPRESENTATIVE SHAW asked for a copy of the study validating the pretrial risk assessment tool. MR. SKIDMORE replied that the study could be made available through the ACJC. REPRESENTATIVE SHAW asked whether having that study would be a benefit to the committee members for clarification. MR. SKIDMORE expressed his belief that policy makers should be looking at as much data as possible when implementing policies. CO-CHAIR FIELDS offered to bring Susanne Dipietro [Executive Director, Alaska Judicial Council (AJC), Alaska Court System (ACS)] back before the committee to discuss the broader criminal justice issues. He pointed out the summary of HB 50, included in the committee packet. REPRESENTATIVE WOOL referred to slide 4 and asked whether his understanding is correct that the first bar in the chart shows that 14 percent of the people in the "very low" category - those with 0 NCAs - will commit a new crime. He gave an example: out of 100 people, 14 would commit a new crime. MR. SKIDMORE responded that it would be described as a 14 percent chance that a person being released would commit a new crime. He agreed that in order to arrive at the 14 percent chance, out of 100 people, 14 would have had to have been re- arrested. He reiterated that it would be a "new criminal arrest" - or NCA. REPRESENTATIVE WOOL mentioned that he understands that people with different criminal pasts tend to follow certain patterns of behavior; statistics demonstrate that for someone who hasn't committed a crime for five or six years after release, the odds of recidivism is low. He offered that since the range of weights for the risk factor is small - 0-3 - the total scores of 9 and 10 would be quite similar. He pointed out that the difference in the [NCA] rates for scores 9 and 10 is only 5 percent; therefore, of all the percentages on the bars in the chart, those are the two closest, and the scores are the two closest, as well. MR. SKIDMORE responded that the 9s were grouped in the "moderate" not "high" category. 3:45:23 PM CO-CHAIR FIELDS asked Mr. Steiner why he was not at the hearing in person. MR. STEINER replied that he requested travel for the hearing, and the request was denied. He stated, "I've been told that I traveled enough to Juneau, and that I couldn't travel for the rest of the session actually, so I'm participating telephonically." CO-CHAIR FIELDS asked whether Mr. Steiner has been allowed to travel for other committee hearings on similar bills this year. MR. STEINER responded that he traveled twice at the expense of the state - once to attend an ACJC meeting; he also traveled on behalf of ACJC - and paid for by ACJC - to attend a House Judiciary Standing Committee hearing. CO-CHAIR FIELDS expressed his belief that it is important for Mr. Steiner to be present for the hearing. REPRESENTATIVE LEDOUX asked Mr. Steiner, as the head of PDA, who he must ask for permission to travel and who denied him that permission. MR. STEINER answered that he makes his travel requests to the DOA. He was told that his travel request was forwarded to the governor's office and denied by [Chief of Staff Tuckerman Babcock]. CO-CHAIR FIELDS asked Mr. Steiner to offer his comments on any issues related to the proposed legislation. MR. STEINER explained the reasoning behind dividing the scores into the categories shown [on slide 5]: the score groupings were related to the rates of likelihood of failure; the score itself does not designate the risk but is associated with the risk. He offered that the real explanation is much more complicated than has been presented and suggested committee members consult professionals for a full explanation. He offered to provide more information. He stated that attorneys are reporting that their clients are getting released in greater numbers and succeeding under Pretrial Enforcement Division (PED) [DOC] supervision; the data backs that up. He said that the re- arrest data produced by the University of Alaska (UA) clearly supports the view that re-arrests are not increasing as a result of [criminal justice] reform; in fact, the trend is flat; the number of arrests before reform, during the reform process, and post-reform has not changed. He maintained that the larger number of people being released is an indicator that people being released in greater numbers are low risk and succeed. He added that although the data meant to verify the validity of the tool is not complete - and even ambiguous at times - there is some indications that NCAs are declining. The percentage of the population in custody is smaller for non-violent cases than previously. He asserted that all these results indicate that the tool and the pretrial reforms may be doing what is intended - releasing low risk people who will not reoffend. He added that [pretrial] supervision is helping. He suggested that what is contained in HB 50 undermines those efforts and those measures. He offered to detail the provisions that would undermine the stated goals. 3:51:22 PM MR. STEINER relayed that HB 50 attempts to address a presumption previously found unconstitutional - "no bail being necessary depending on the level of offense." He maintained that the new presumption under HB 50 - "somebody will fail on bail provided there's a certain charge" - slightly alters the one found unconstitutional but is almost identical. He continued by saying that Section 4 eliminates the "clear and convincing" standard for setting monetary bail for someone; the prior bail system had a "preponderance" standard, which made it very easy with any limited showing for the court to set a monetary bail for individuals. He maintained that reverting to a monetary bail system would result in people being incarcerated simply because they are poor. He stated that the ACJC found that the primary factor for release was monetary, not risk-based; adding the requirement for a third-party custodian resulted in people - without a support network and who are poor - finding it difficult to be released. He asserted that HB 50 would eliminate the pretrial risk assessment that was aiding in making the determinations [for release], which appears to have been successful. 3:55:21 PM CO-CHAIR FIELDS relayed that the fiscal note (FN) analysis for HB 50 [Identifier: 0030-DOA-PDA-01-18-19, OMB Component Number: 1631] states that elimination of pretrial services will result in increased litigation, case processing costs, and incarceration. He expressed his belief that incarcerating low- risk offenders increases criminality. He asked whether eliminating pretrial services, rather than reforming the pretrial risk assessment tool, would increase criminality. MR. STEINER opined, "I think that's exactly what the risk is here." He continued by saying that as you hold low-risk people in jail for even 24 hours, it increases their recidivism. It is very easy to sever someone from his/her job and family in a very short period. A person who works at a job, in which not showing up once or twice can cause the loss of that job, can lose that job quickly. He maintained that the fundamental question is this: "Are you going to hold people in jail because they [don't] have money or are you going hold people in jail because they present a risk?" He offered that HB 50 reverts to an old system that eliminates reevaluation of the bail terms based upon one's inability to pay. He emphasized, "How much money you have and how that affects you on bail is part of the bail statute." He maintained that the theory of monetary bail is that one will reform his/her behavior because his/her money is at stake. He said that not being able to reevaluate bail when it is determined that someone doesn't have enough money to post bail does not make much sense. He relayed that the data shows no difference in outcomes between unsecured bail and secured bail, therefore, poverty does not affect the outcome. He asserted that a fundamentally fair system does not incarcerate people because they are poor. 3:55:42 PM DAVE LOVELL, University of Washington, stated that he endorses Mr. Steiner's testimony; Mr. Steiner is positioned to know the details about how pretrial bail and pretrial risk assessment work in Alaska. He warned against focusing too much on the pretrial risk assessment instrument and not enough on the principles behind successful use of pretrial release. He said that King County [Washington] was able to decrease its [prison] population by 30 percent without relying on a risk assessment but by adopting various policies, procedures, and principles, which he summarized by saying, "Don't lock people up unless you have a good reason to, unless they fail before unreleased or they commit a violent offense." He maintained that could be done with or without relying on the instrument. It is the process, the procedure, the values, and the communication among the players that determine a successful or unsuccessful outcome. He said that whatever risk assessment technique that is used or purchased, it is the local process that will drive down the numbers [of prisoners] and maintain community safety at the same time. CO-CHAIR FIELDS shared that the FN for HB 50 projects an increased inmate count of 205 people per day. 3:58:06 PM REPRESENTATIVE VANCE asked for an overview of the HB 50 as proposed before addressing the details. CO-CHAIR FIELDS mentioned that one of the impacts of HB 50 is increased inmate count; tied to this impact is the proposal to transfer inmates out of state due to the increased number. He asked to hear public interest issues associated with sending inmates out of state to for-profit institutions. 3:59:16 PM VERI DI SUVERO, Executive Director, Alaska Public Interest Research Group (AKPIRG), referred to an opinion editorial (op- ed) piece co-authored by AKPRIG ["Budget benefits Arduin's friends, not Alaskans," by Kevin McGee and Veri di Suvero, Anchorage Daily News, 3/5/19], which focused on the proposed budget for DOC, stating that most funding allocations for DOC would be cut or maintained except for the "Out of State Contractual" budget line, which would be increased from $300,000 to over $17 million - extending the private prison industry in Alaska to out-of-state private prisons. She said that along with the governor, the budget was authored by Office of Management & Budget (OMB) Director Donna Arduin. Ms. Arduin has very close ties to the private prison industry and to specific private prisons; the proposal to move incarcerated Alaskans out of state would serve to benefit her, not Alaskans. Ms. Di Suvero stated that it is well documented that private prisons increase recidivism rates, bring gangs back to Alaska, and are detrimental to Alaska safety. She maintained that increasing the prison population 205 inmates per day, prompting prisoners to be moved out of state, would be unfortunate for Alaska communities, as well as Alaska's budget, since private prisons have not been shown to decrease costs. 4:03:11 PM MR. SKIDMORE reviewed the "HB 50 Pretrial Release Highlights," [included in the committee packet] and said HB 50 would shift the time for arraignment; instead of being within 24 hours, the proposed legislation would provide greater discretion allowing 48 hours in some instances. He explained that this change is designed for those few cases that are complicated; for cases in which a person is unavailable or information is still being gathered; or to give prosecutors more discretion to manage weekend and holiday arraignments. REPRESENTATIVE LEDOUX stated that statute now reads "24 hours" and asked whether the circumstances that Mr. Skidmore cited would not be included under the "compelling circumstances" currently in statute [AS 12.25.150(a)]. MR. SKIDMORE replied, "No." He said that "compelling circumstances" refer to the time for setting bail, not for the time of arraignment. He explained by giving an example: A person is arraigned for assault in the fourth degree because he/she injured someone. The extent of the injury is not yet known. Additional time could be requested to set bail in this case because of the presence of compelling circumstances; that is, injuries are far more extensive than originally believed. Instead of filing a misdemeanor assault 4, it may be determined to be a higher level of assault or even a murder charge. He maintained that the change from 24 hours to 48 hours is regarding arraignment, not setting bail. REPRESENTATIVE LEDOUX referred to Section 2 of HB 50, [page 1, line 13, to page 2, line 1] and cited current statute [AS.25.150(a)] which read in part: "A person arrested shall be taken before a judge or magistrate without unnecessary delay and in any event within 24 hours after arrest, absent compelling circumstances ...." She offered that it appears to be referring to arraignment, not bail. MR. SKIDMORE replied that Representative LeDoux is correct; there appears to be a provision allowing alternate hours in certain circumstances. He added that the statute also states, "delay in the transmittal of that report to the parties ...", which refers to the report that discusses the risk assessment but does not include the ability to adjust for Sundays or holidays. 4:07:04 PM MR. SKIDMORE, in addressing pretrial services, stated that additional monitoring for defendants pretrial has been widely regarded as appropriate; having supervision by DOC provided more tools to the courts. He offered that HB 50 is designed to provide greater discretion to the courts to identify the appropriate circumstances. He mentioned that he agreed with Mr. Steiner's testimony that monetary bail should not be the primary or only way of setting conditions of release. He said that HB 50 would shift the responsibility for the pretrial services within DOC, thus, allowing it to better manage its resources. 4:08:07 PM REPRESENTATIVE WOOL asked about the status of monetary bail. He asked if the ability to pay is still a criterion for pretrial release. MR. SKIDMORE responded that under current law, it is possible to set monetary bail; however, the law also says that if someone cannot or has not posted bail, he/she is afforded another hearing in which the court must alter the conditions of release to give the person greater opportunity to be released from jail. REPRESENTATIVE WOOL cited an article in the Anchorage Daily News [3/7/19] about a woman who was arrested, and because she couldn't pay the $500 bail, was held in jail for three months. He asked whether that occurs. MR. SKIDMORE answered that he cannot comment on that case, but in answer to the question about monetary bail, he said, "Yes, monetary bail can be set." He offered that the woman being held for three months seems unusual because current law stipulates that there must be another bail hearing in the event the defender cannot post bail, and the judge is required to change the condition to facilitate release from jail. REPRESENTATIVE STORY asked whether currently the second hearing before the judge must happen within a certain amount of time. MR. SKIDMORE, after consulting the statutes, confirmed that the hearing must occur within 48 hours. 4:12:39 PM MR. SKIDMORE continued reviewing the pretrial release highlights to address video-teleconference ("video-conference"). He said that currently by law video-teleconferencing is only used in very limited circumstances. The proposed legislation would encourage greater use of video-teleconferencing in all pretrial court hearings, thus, reducing the amount of transportation between jail facilities and courthouses. He maintained that doing so would have multiple beneficial efforts both in costs to troopers of transporting defendants and in reducing the likelihood of contraband coming into the facility. CO-CHAIR KREISS-TOMKINS asked for the reason why incentivizing video-conferencing for pretrial hearings has not been previously proposed or adopted and why it was not included in Senate Bill 54 [passed during the Thirtieth Alaska State Legislature, 2017- 2018] or Senate Bill 91. MR. SKIDMORE responded that he does why know why it had not been included in previous bills. He said that it is a concept that has been discussed among criminal justice stakeholders for some time. He offered that one benefit of an in-person meeting is that it gives the defense lawyers an opportunity to meet their clients. He suggested that some may have resisted video- conferencing because they don't like change. He maintained that it is DOL's position that encouraging video-teleconferencing is appropriate, therefore, is included in the proposed legislation. 4:15:16 PM NANCY MEADE, General Counsel, Office of the Administrative Director, Alaska Court System (ACS), replied that the concept for using video-conferencing for pretrial hearing is one in which the Alaska Supreme Court is extremely interested. She said that ACS has court rules regarding it, which are constantly being reviewed; the criminal rules committee, which makes recommendations to the supreme court, has examined this issue several times; not everyone agrees with the use of video- conferencing. She stated that there are certain hearings in which defendants need to see witnesses who are providing evidence or testifying against them. She offered that there are many issues in play, and recently the supreme court faced making the decision of which pretrial hearing would be appropriate for video-conferencing. Differing arguments were presented, and the supreme court ultimately adopted a rule requiring certain pretrial hearings to occur by video-conference. Under HB 50, DOL has suggested that others may as well. She acknowledged that there are many logistical, broadband, and equipment issues. She added that there are issues with DOC facilities having defendants appear; there must be a correctional officer in a designated room; and there must be separate phones lines for the defense attorney to communicate with the defendant. She stated that ACS has installed the needed equipment in all the jails; however, there are equipment failures and other logistical restraints. REPRESENTATIVE STORY asked whether a person has the constitutional right to appear in person. MS. MEADE answered that in many cases the answer is "yes," and in other cases the answer is "not necessarily." She explained that for trial and for hearings in which evidence is presented, a defendant has the right to appear in person. She continued by saying that for the other proceedings, the court must decide when physical presence is required and when video presence is enough. She offered that the difference of opinion on this matter is the reason video-conferencing is not used "wholesale" for every single pretrial hearing. 4:18:20 PM REPRESENTATIVE LEDOUX asked, "With the advent of the supreme court now saying that there's certain hearings that the defendant shall appear by videoconference, do you actually need this or ..." MS. MEADE replied that the supreme court stipulated that the defendant shall appear by video-conference if equipment is in place and if it is logistically feasible. She expressed her belief that the proposed legislation states the following: "Not only shall certain hearings be ... held by video when we have the logistics in place, but other ones also may ... if the court orders in specific circumstances." REPRESENTATIVE LEDOUX asked, "Couldn't the court order it in specific circumstances right now if it wanted to?" MS. MEADE replied that it is not entirely clear. She explained that in some instances, the defendant has the right to request to be physically present. CO-CHAIR KREISS-TOMKINS asked whether there are arguments against video-conferencing beyond the logistical concerns. MS. MEADE answered, "Yes, there are pros and cons." She offered that Mr. Steiner could articulate them better than she. MR. STEINER stated that the criminal rules committee discussed at great length appearance [for hearings] and transportation costs. He articulated the two competing views: The defendants could be and should be required to appear by telephone conference over their objections, thus, cutting cost. It was a proposal made by the presiding judges. The completing view - one he shares - was that appearance by telephone or video- conference should be done only with the consent of the defendant. That mechanism would more likely result in a reduction in transport. He said that because of the struggles regarding communications with clients, transportation becomes a mechanism by which clients speak with their lawyers and lawyers speak with their clients. He maintained that most defendants do not want to appear in court if "nothing's going to happen." With adequate communication, the need for transportation is cut. He relayed that there were two proposals under Criminal Rule 38; the supreme court ultimately adopted the majority view - the one he favors - which is that it should be the defendant's option. He reiterated that the criminal rules committee was looking to cut transportation, and a majority of the committee was persuaded that this option provided the best method. He added that the majority included judges and the prosecutor on the criminal rules committee. 4:22:59 PM REPRESENTATIVE WOOL referred to testimony that Mr. Steiner was not allowed to appear at the House State Affairs Standing Committee meeting in person and pointed out the differences and advantages of a person appearing in person versus communicating through technolgy. He maintained that seeing someone live offers far more impressions and a better "read" of that person. MR. SKIDMORE stated that the second proposal mentioned by Mr. Steiner was one made by the presiding judges of the four different judicial districts of Alaska. He said that the four judges were looking for efficiency within the courthouse. He said that Mr. Steiner believes that by allowing the defendant to control whether he/she is transported to the hearings, there will be a decrease in transportation. He relayed, "That's not what has been borne out." He maintained that defendants repeatedly request to be transported for hearings for which there is not substantive issues being addressed. It has turned into a way for defense attorneys to meet with their clients at the expense of the Department of Public Safety (DPS). He emphasized that no one disputes that attorneys should meet with their clients, and no one disputes that the best way to accomplish that is in person; however, putting that burden [of in-person consultations] on DPS, in turn causes court hearings to last longer in order to allow attorneys the opportunity to consult with their clients before the hearing occurs. He reiterated that everyone agrees that consultation is necessary; the discussion is about the method for achieving the consultation. He maintained that HB 50 does not mandate that a defendant always must appear by video-teleconference; rather it gives the court the discretion to determine the circumstances for that to occur. He emphasized that under HB 50, the judge - not the defendant - would decide when it is appropriate for the defendant to appear in person. He added that DOL has supported this provision for many years and advocated for it in the criminal rules committee; he cannot explain why it has not been included in previous criminal justice bills; and he cannot explain the views of the prosecutor on the criminal rules committee. MR. SKIDMORE stated that the electronic monitoring (EM) provision under [HB 50] refers to allowing someone credit against his/her jail sentence for the length of time he/she has been on EM pretrial. He said that HB 50 prohibits that practice. He mentioned the Justin Schneider case [Justin Schneider was convicted of kidnapping and assault for an August 15, 2017, incident in Anchorage] in which Mr. Schneider had been on EM for a year by the time his change of plea was made; when the judge imposed a year in jail, Mr. Schneider was spared prison time, because he had already served a year under EM. MR. SKIDMORE said that for anyone sentenced, DOC assesses where it is appropriate for the person to serve his/her sentence - in a halfway house, on EM, in a minimum-security prison, or in a higher security prison. He maintained that the assessment for where a person serves his/her sentence is very different than the assessment that determines if the person is a flight risk or at risk for committing a new crime. He said that currently under law, the court assesses whether the person needs to be in jail pretrial because he/she is a risk to the community or a flight risk; the law is obligated currently to use the risk assessment tool, which is not yet fully developed, to make this decision; consequently the results of the risk assessment tool is applied in determining the ultimate sentence. He maintained that sentencing thus neither meets the Chaney criteria [sentencing standards adopted by Alaska as a result of State v. Chaney] nor the type of risk assessment DOC uses to determine where someone should serve his/her sentence. He concluded that HB 50 would eliminate the possibility of pretrial EM being used as credit towards the ultimate sentence. 4:29:08 PM REPRESENTATIVE LEDOUX asked whether granting credit for EM towards a person's sentence predated Senate Bill 91. MR. SKIDMORE responded, "That is a concept that has been ... evolving over the years." He said that he would have to research the legislative history to answer that question, but he knows that it is currently in statute. MR. SKIDMORE moved on to the last bullet point on the document describing the pretrial release highlights. He said that unlike EM, there is good reason to provide incentive for treatment even pretrial. He maintained that EM encourages pretrial delay due to the hope [of the defender] that whatever sentence is ultimately imposed, the EM time will be credited towards it. He added that treatment time is similarly credited; however, treatment serves a much more beneficial purpose, which is to help individuals with substance abuse or any other issues contributing to their criminality. He stated that HB 50 would cap the amount of jail credit based on treatment at 180 days; the intent is to find a balance between encouraging treatment pretrial but still respecting the need for finality in a criminal case. He offered that victims are also impacted and want closure. He said that most treatment programs are 180 days or less; if it is a treatment program requiring more than 180 days, treatment may be received by the defendant after sentencing. He maintained that six months is an appropriate length of time for a person to be in treatment before the case goes to trial and is resolved. 4:31:34 PM RON WILSON, Chair, Alaska Therapeutic Court Alumni Group (AKTCA), relayed that the therapeutic court is an alternative to traditional justice; it allows non-violent offenders to participate in an 18-month program. He shared that the therapeutic court allowed him a chance to break his cycle of crime - which lasted from 1996-2008. Under sentencing guidelines, he was looking at six years in prison; he opted into the therapeutic court program, which helped him to receive a diagnosis of anxiety disorder. Once his disorder was identified, he completed the [therapeutic court] program. He could complete the program outside of custody and, therefore, was able to continue work as an electrician and be home with his wife and four children. He said that upon completion of the program, he developed an alumni group and continues to be involved with that organization offering peer support to "process" groups. He has seen several dozens of participants of the program whose lives have changed. He offered that many jobs require a valid driver's license and obtaining one can be a barrier for offenders; he maintained that under Senate Bill 91, a felony limited license was available for graduates of the therapeutic court, allowing them to secure sustainable employment. He stated that the cost of the therapeutic court program for an individual is about one-sixth of the cost for the same time period - 18 months - [in prison]. He maintained that the recidivism rate for individuals who have completed the program is significantly lower than rates for those subject to the traditional court process. He asked for continued support for the alternative court program, for housing funds to provide offenders with housing for the first couple months after release, and for Medicaid funds to pay for treatment. He emphasized that therapeutic court was a life-changer for him: since he entered the therapeutic court program in 2008, he has not had another arrest; he is currently a business owner; he remains involved with therapeutic courts through AKTCA helping individuals navigate the court system. 4:36:31 PM CO-CHAIR FIELDS asked Mr. Lovell to provide context for Alaska's criminal justice reform in terms of what other states have done and the implication of "walking back" some of the reforms. [The committee was provided with Appendix I of the Board of State and Community Corrections (BSCC) report, entitled "Performance Metrics for Community Corrections." Appendix I was entitled "Functional Model of a Community Corrections System."] MR. LOVELL relayed that he had a 40-year career in and around prisons - as a professor, teacher, counselor, and policy analyzer - in the states of Washington, New York, Connecticut, and California. He stated that he has a connection with Alaska: his wife is an Alaska Native who grew up in Southeast Alaska, and he spent his first year of retirement in Alaska. He mentioned the move to privatize Alaska prisons and the massive reversals of the type of reforms that he has observed in California over a six-year period. He said he finds this action puzzling. He offered that he is confident that Alaska can develop its own abilities and solve its own problems regarding criminal justice; however, it may need advice on modeling from those who have worked in other states. He gave the example that Alaska can build its own risk assessment tool using Alaska data. He expressed that Alaska should resist the temptation to rely on an outside entity to solve its problems, especially regarding private prisons. He maintained that criminal justice reform works; it doesn't work always as expected; and it is not always easy to measure success. He said that he has observed criminal justice reform very closely in California over a six-year period - looking both at the county and state levels. He relayed that some broad-minded county executives decided that there was a jail population crisis; instead of expanding the jails, they tried evidence-based practices as alternatives to incarceration - ones that Alaska has also considered. He said that counties began to track who was in jail, length of incarceration, and reasons for incarceration. The ensuing discussions from that data resulted in decisions about who should be kept in jail and who should be released. He offered that the result was a decline in jail population without any effect on public safety. He stated that from his observation in Washington and California, whenever reforms are introduced that will decrease the number of people incarcerated, the public anticipates that crime will rise; however, it does not. He offered that Alaska has a crime problem; however, one can see from the model in the document that the idea that it would be affected directly by tinkering with the sanctions is not realistic. He emphasized that the model is very complicated; there are many points for intervention; and there are many different factors affecting outcome. He asserted that in order to find out if recidivism is working, one must keep records on what is being done and the outcomes. He said, "If crime is going up, ask "Who is committing it? Whose crime?" He maintained that it is faulty thinking to assume that when crime goes up, incarceration must go up as a response; the connections [between the two] are far more complicated than that. He reiterated that Alaska needs to determine who is committing the crimes, why they are committing the crimes, and whether incarceration is the solution; and Alaska needs to use its own resources, people, and values, and not rely upon an outside entity. 4:43:30 PM REPRESENTATIVE LEDOUX referred to the 3/7/19 Anchorage Daily News article mentioned by Representative Wool relating to the case in which someone was in jail as a result of not being able to pay the $500 bail amount. She expressed her belief that Senate Bill 91 had eliminated that possibility. She added that ultimately all the charges against the woman in the article were dismissed. MR. SKIDMORE responded that he was not familiar with the case but would investigate it. REPRESENTATIVE LEDOUX clarified that it was a 3/7/19 Anchorage Daily News article by Michelle Boots. CO-CHAIR FIELDS offered that [HB 50], by eliminating credit for pretrial EM, would add about 14,000 person-days of detention. He asked for a cost estimate for that. 4:45:32 PM KELLY GOODE, Deputy Commissioner, Department of Corrections, responded that this year the system wide average cost per day per inmate is $168.74. She said that she could provide more detailed information on other fiscal impacts upon request. CO-CHAIR FIELDS stated that for 14,000 person-days, the cost would be about $2.3 million. REPRESENTATIVE WOOL referred to Mr. Skidmore's testimony that Alaska is looking for ways to reduce its jail population. Mr. Skidmore also said that other states might have tested the pretrial risk assessment tool in a county before implementing it statewide. Representative Wool offered that a county in California might have a similar population to the State of Alaska. He added that for evaluation of programs, one would need substantial data. He asked the following questions: Couldn't Alaska learn much from another state's program - one that has been in place for eight to ten years? How important it is for Alaska to develop and customize its own risk assessment tool? How different is Alaska's behavior of criminals and the criminal justice system from other states? MR. SKIDMORE summarized the 2011 BJA report, previously discussed, as follows: States took varying approaches to implement pretrial risk assessment tools; some used a tool from another state; his research revealed that using another state's tool is not the preferred method. The preferred method is for a state to develop a tool based on its own data. He maintained that Alaska was attempting to do that. Other states tested and adjusted their tools using a focused group before implementing it statewide. He said that every other state offered the tool as a factor for the court to consider; they did not write the tool into statute, so that the presumptions that the courts used were tied to an individual's score on the risk assessment tool. He gave an example using Class C felonies: "We took a concept that other states had used, that seemed to be successful, and got so excited about it, we went further than what anybody else had done, and then all of a sudden we started to have problems." He said that Alaska's tool did not take into consideration out- of-state criminal history; it only took into consideration limited prior criminal history; it was tied to the statutes, which restricted the state's ability to respond and give the courts discretion for adjustment. He stated that currently Alaska's tool is being validated; many states with risk assessment tools did not validate or update their tools. He maintained that validation is "a good thing"; however, Alaska put it into statute before validation. He reiterated that research supports starting locally with an adequate research sample. He asserted that Anchorage, Fairbanks, or Southeast Alaska would have provided a statistically significant population. He reiterated the importance of a state having its own pretrial assessment tool due to the nuances of statutes, populations, and issues of a state. He agreed that developing a tool poses challenges for Alaska, because it is so large and diverse. He maintained that HB 50 is in reaction to Alaska having implemented criminal justice reform too fast; it does not propose eliminating criminal justice reform; it proposes slowing it down. He said that unlike other states that implemented criminal justice reform and achieved reduced crime rates, Alaska did not; its rates have increased. 4:51:46 PM REPRESENTATIVE WOOL asked whether Alaska adopted another state's [pretrial assessment tool] model or developed its own. He also asked whether other states use the preassessment tool score as a factor in the judge's decision and not as a determinant. MR. SKIDMORE answered that Alaska was unable to gather the data to be included within the tool; the inclusion of the data should have occurred; however, it was not possible; and there was no way the legislature could have anticipated that problem when the law passed. He continued by saying there were problems with the implementation of the tool, and there are still issues. He maintained that HB 50 offers a "reset." He referred to Mr. Steiner's testimony that the rate of re-offense - before Senate Bill 91 and currently - is the same. He maintained that the percentage - not the number - of offenses has remained unchanged. He gave a hypothetical example: Before Senate Bill 91, 30 percent of the people released were re-offending; after Senate Bill 91, 30 percent are re-offending; because more people are being released, a greater number of re-offending people have been released. Thirty percent of 100 is different than 30 percent of 1,000. REPRESENTATIVE LEDOUX asked for confirmation of her understanding that in 2017, Alaska passed the "reform bill to the reform bill," which gave discretion back to the judges, allowing them to use the pretrial assessment tool as a tool. MR. SKIDMORE replied that she is referring to House Bill 312 [passed during the Thirtieth Alaska State Legislature, 2017- 2018]. He said that the legislation limited one of the more damaging aspects of Senate Bill 91, which was removing all discretion from judges; however, it did not change tying the presumptions of the courts to the tool. That provision is still in law today. REPRESENTATIVE LEDOUX acknowledged that a pilot program would most likely have been the better path, but since the state did not implement one, the entire state became the pilot program three years ago. She asked if information was gleaned from the state's data. MR. SKIDMORE responded that Senate Bill 91 passed three years ago, but the pretrial provisions were not implemented until 2018; therefore, it is about month 15 for those changes. He acknowledged that more data could be gathered; however, issues have been identified and it would be negligent to continue with the provisions knowing that the problems exist that put people at risk. CO-CHAIR FIELDS responded that there have substantial changes to Senate Bill 91. REPRESENTATIVE LEDOUX asked Mr. Steiner to respond to the question of whether he was referring to rates or absolute numbers [of re-arrests] when he mentioned they have not changed, even though more people are being released from jail. 4:57:25 PM MR. STEINER answered that the data that he referenced was from UA, which stated that the absolute numbers of re-arrests for people who have been released has not changed. The number of individuals who have been released has increased, as well as the number of people who have been arrested initially. He said that raises the possibility that the re-arrest rate has dropped since the tool has been implemented; however, that would have to be confirmed. MR. STEINER added that the pretrial risk assessment tool never eliminated all discretion from judiciary, nor does it eliminate discretion from the judiciary currently; it changes the nature of the discretion as far as the burden of proof required. He explained that in the original version, the court could not set a monetary bail on a low-risk defendant; it could set conditions, supervision, or unsecured bonds; it could not force the defendant to remain in jail due to inability to post bail. He stated that this provision was changed; the court now, with a clear and convincing finding may now set monetary bail. This can result in the outcome described in the article: someone can stay in jail for lengthy periods of time due to a modest amount of bail money and later have their case acquitted at trial or dismissed. He emphasized, "Somebody who sits in jail for that long loses everything." He asked, "Is the public substantially protected by a $500 bail?" He said, "The answer to that question is "No. They're not protected at all." He maintained that the data informs that setting an unsecured bail and releasing the person results in the same outcomes. He reiterated that setting monetary bail [for the low-risk defendant] results in incarcerating someone who potentially is innocent; it undermines the person's ability to maintain his/her pro-social contacts, take care of his/her family, and remain productive. He asserted that monetary bail also increased recidivism; people who spend time in jail have higher rates of recidivism than people who do not. He added that people who spend time in jail pre-trial have longer sentences than people who are released. People who are released can make positive changes, which makes a difference in sentencing. CO-CHAIR FIELDS offered that MR. Steiner has provided an accurate summary of the unintended consequences of HB 50; more people may be unintentionally entrapped in the criminal justice system making them more likely to commit crimes in the future due to losing their jobs and the other consequences. CO-CHAIR FIELDS, in response to Representative Story's questions about how best to proceed with the proposed legislation, offered his desire to have more hearings and greater exploration of the subject. CO-CHAIR FIELDS stated that HB 50 would be held over.