SENATE BILL NO. 34 "An Act relating to probation; relating to a program allowing probationers to earn credits for complying with the conditions of probation; relating to early termination of probation; relating to parole; relating to a program allowing parolees to earn credits for complying with the conditions of parole; relating to early termination of parole; relating to eligibility for discretionary parole; relating to good time; and providing for an effective date." 9:50:51 AM Co-Chair von Imhof stated that the committee's intent was to hear an overview of the bill. She noted that public testimony would be taken on all crime bills at the 1:30 pm meeting. JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF LAW, addressed the bill. He informed the committee that the bill focused on probation and parole and would highlight how balance was returned to the criminal justice system to ensure that the sanctions that were imposed were appropriate. He said that he would discuss the ability for someone to end their probation early, as well as who was eligible for discretionary parole. He relayed that these issues were important because when someone was placed on parole the courts had already found that that person was guilty of a crime, these were the efforts to keep individuals in compliance with the law as they returned to society. He spoke to the sections of the bill: Section 1 Eliminates language related to caps on technical violations of probation under AS 12.55.110. Section 2 Eliminates language related to caps on technical violations of probation under AS 12.55.110. Mr. Skidmore stated that when someone was placed on probation the court sets conditions on them: dont consume alcohol, report to your probation officer, dont have contact with certain people, maintain employment, and other conditions set in probation. He said that when someone violated those conditions, they needed to face the consequences. He said that technical caps had been implemented in order to limit the amount of time that could be imposed as a penalty, modeled after the Probation Accountability with Certain Enforcement (PACE) program that supported swift and certain sanctions. He lamented that the caps had not worked as hoped; people would be released before hearings occurred and then go on to commit further violations. Without the hearing, violations that happened subsequent to release but prior to a hearing, would not carry proper weight for accountability. He lamented that people were not being held accountable for their crimes. 9:55:00 AM Senator Wielechowski asked whether the department agreed that had the system worked properly, it would have been retained. He asked whether there was a way to fix the problem rather than abandon caps altogether. Mr. Skidmore stated that the program was resource intensive and successful only when applied to a small number of people. He did not believe that the program could be resourced to the point where it could work on the statewide level. He added that the PACE program would still exist for certain offenses, selected by the courts, but would not be applied uniformly for all probationers across the state. 9:56:38 AM Mr. Skidmore addressed Section 3: Section 3 Makes the recommendation of a probation officer for early termination of probation permissive and at the discretion of the probation officer. Also eliminates the timeline for when such a recommendation must be made. Maintains requirement that the probationer is in compliance with their conditions of probation and has completed all of the required treatment programs. Also maintains the prohibition on unclassified felony, sexual felony, and domestic violence offenders from being recommended for early termination. Mr. Skidmore claimed that recent criminal justice reform had taken discretion away from probation officers. He said that the bill would rectify the issue. 9:58:11 AM Mr. Skidmore spoke to Section 4 and Section 5: Section 4 Allows a person to obtain a driver's license if they have been convicted of felony driving while under the influence and has not also been convicted of a crime against a person, if the license has been revoked for 10 years and in the preceding 10 years the person has not been convicted of a driving related criminal offense or a felony.   Section 5 Allows a person to obtain a driver's license if they have been convicted of felony refusal to submit to a chemical test and has not also been convicted of a crime against a person, if the license has been revoked for 10 years and in the preceding 10 years the person has not been convicted of a driving related criminal offense or a felony. Mr. Skidmore said that the sections would allow for a path for a person to get their driver license back. He noted that the administration supported the sections. 9:59:20 AM Mr. Skidmore discussed Sections 6 and 7: Section 6 Reduces amount of time that a probationer may decrease their length of probation for good behavior to 1/3. Also requires the credit to be awarded up front similar to statutory good time for prisoners.   Section 7 Prohibits those convicted of a sex offense, unclassified felony, felony crime against a person, and domestic violence crime against a person from earning credit against their period of probation. Mr. Skidmore lamented that under the current law the 1/1 ratio was significant when combined with other changes made to probation by past reform efforts, additionally, the way that the earned compliance credits were currently written into statute had resulted in significant litigation that occurred in time accounting. 10:01:14 AM Mr. Skidmore addressed Section 8 of the bill: Section 8 Amends duties of a probation officer to require that a probation officer consider recommending early termination of probation. Also eliminates the requirement to use administrative sanctions before filing a petition to revoke. Mr. Skidmore said that the section made clear under the law that the recommendation from a probation officer was supported and authorized under the law. 10:02:42 AM Senator Wielechowski thought Section 8 seemed to be counter to the department's philosophy. He thought that the elimination of administrative sanctions limited responses to positive or negative behavior. Mr. Skidmore stated that the issue was still under discussion within the department. Senator Wielechowski asked about the possibility of giving probation officers the ability to impose administrative sanctions without having to go to a judge. Mr. Skidmore did not think there would be an objection to give parole and probation officers the ability to impose administrative sanctions. He noted that the bill simply removed the requirement. He thought that the department could support probation officers using their own discretion. 10:04:17 AM Co-Chair von Imhof let the committee know that Jeff Edwards, Director of the Parole Board, would be available for questions. 10:04:30 AM Mr. Skidmore discussed Sections 9 through 15: Section 9 Requires an application for discretionary parole to be submitted to the parole board before a person can be considered for discretionary parole.   Section 10 Clarifies that a person who is ineligible for a good time deduction from their sentence is also ineligible for discretionary parole. Also, prohibits certain crimes from being considered for discretionary parole. These are the same crimes that were ineligible for discretionary parole prior to January 1, 2017: .notdef Non-sex class A felonies (Robbery 1, Assault 1, Arson 1); .notdef B felonies if the person had one or more prior felony convictions; .notdef C felonies if the person had two or more prior felony convictions; and .notdef B and C sex felonies (Sexual Assault 2, Sexual Abuse of a Minor 2, Distribution of Child Pornography).   Section 11 Raises the amount of time a person sentenced for an unclassified offense (murder, kidnapping) before they are eligible for discretionary parole from one-third to one-half of the active term of imprisonment or the mandatory minimum whichever is greater. Also requires persons convicted of B felony level drug distribution to serve one-half of the active term of imprisonment before they can be considered for discretionary parole.   Section 12 Eliminates a presumption of release and thereby returns discretion back to the parole board when determining release on discretionary parole.   Section 13 Allows the parole board to make a person, who does not meet the factors in section 10, ineligible for further consideration of discretionary parole or to have the person serve additional time before they can be considered again for discretionary parole.   Section 14 Conforming language regarding the requirement that a person fill out an application for discretionary parole.   Section 15 Outlines application process for discretionary parole. Ensures that the prisoner is furnished with a copy of the prepare report. Mr. Skidmore grouped them together as the sections pertained to discretionary parole. He stated that criminal justice reform had affected discretionary parole in several ways. First, the crimes that were eligible to be considered for discretionary parole were expanded. When a person was sentenced by the courts, there was mandatory or discretionary parole. Discretionary parole was not automatic but at the discretion of the parole board. He referenced the movie "Shawshank Redemption." He shared that mandatory parole meant that a person had been released on parole because they had behaved while in custody. He said that mandatory parole was used for population management. He reiterated that here had been restrictions on the people eligible to apply for discretionary parole, which was expanded through criminal justice reform. Secondly, the way in which the Parole Board exercised discretion was altered; under criminal justice reform, when an individual reached a certain period of incarceration, and application was no longer necessary, and parole was an automatic consideration. Thirdly, the Parole Board was directed to presume that everyone that reached a certain date of incarceration should be released unless there was clear and convincing evidence that they were a danger to society. 10:08:01 AM Mr. Skidmore summarized that all these issues would be resolved by the legislation be returning them to where they had been before the reform legislation. 10:08:21 AM Mr. Skidmore noted that there were additional things that changed in the bill in other committees. He highlighted Section 11, which discussed discretionary parole. He pointed to Section 7, which identified certain crimes that had different parameters for discretionary parole eligibility. 10:09:21 AM Co-Chair Stedman had some concerns with the issue of discretionary parole. He wondered about discretionary parole for people convicted of murder. JEFF EDWARDS, EXECUTIVE DIRECTOR, ALASKA BOARD OF PAROLE, ANCHORAGE (via teleconference), addressed Co-Chair Stedman's question. He stated that the change meant that before any inmate convicted of a classified crime was eligible to appear before the board, they had to serve half of their prison term. Co-Chair Stedman asked how many individuals were incarcerated for the crime of murder that would be subject to the change proposed in the bill. He asked how often discretionary parole was granted to murderers. Mr. Edwards did not have the information available. He recalled that individuals convicted of murder, that had been considered for early release, had been found to have served at least half of their sentence. 10:11:51 AM Co-Chair Stedman maintained his concern for early release of murderers. He referenced a notorious criminal that could have been considered a nice guy. He asked how a first- degree murderer could ever be qualified good time or mandatory parole. Mr. Edwards thought Mr. Skidmore had accurately differentiate between discretionary and mandatory parole. The average murder in the first-degree sentence was around 80 years. Under mandatory release, the inmate would be released after serving two-thirds of the sentence; under the current law they could be eligible after serving only one-third, the legislation changed that to one-half. He said that under the statutory good time clause, every eligible inmate shall receive good time for good behavior while in prison. 10:13:55 AM Co-Chair Stedman asked about Second Degree murder charges and eligibility for discretionary parole. He asked about the different charges for murder. Mr. Skidmore noted that the categories for murder were murder in the first degree, murder in the second degree, manslaughter, and criminally negligent homicide. Co-Chair Stedman asked to concentrate on second degree murder. Mr. Edwards replied that concepts were the same. Under Section 11 of the bill, the required time served was increased to one-half of time served. He noted that the mandatory parole did not change in SB 34, only the eligibility to apple for discretionary parole. He found the average sentence length for murder in the second degree was 40 years; under current law, the person would be eligible for mandated release after serving two-thirds of the 40. The maximum sentence for murder in the second degree was 99 years. 10:16:01 AM Co-Chair Stedman presumed that 40 years was the average for second degree murder, with eligibility for discretionary parole after 20 years, mandatory after 26 years, with good time. Mr. Edwards replied in the affirmative. Co-Chair Stedman thought that releasing a murderer early for good behavior was problematic, particularly for the families of victims. He thought that tighter requirements for parole should be considered. 10:17:37 AM Senator Wielechowski was curious about recidivism rates for those released on parole. He had seen charts that showed the age at which people committed crimes. He thought the age peaked in the 20s and then decreased. He was interested in the cost of keeping elderly inmates in jail. 10:18:57 AM Senator Micciche asked about unclassified crimes and discretionary parole eligibility. Mr. Skidmore stated that previous criminal justice reform had expanded the categories of those that were eligible for discretionary parole. He said that the intent of SB 34 was to revert to what the law said prior to SB 91. He stressed that the legislature had the power to adjust the eligibility crimes within the bill. 10:20:53 AM Senator Micciche agreed with Co-Chair Stedman that all the crimes removed from discretionary parole were serious crimes, which he thought seemed counter to logic. 10:21:53 AM Senator Hoffman followed up on Co-Chair Stedman's concerns. He asked where the state stood on parole for first- and second-degree murder. Mr. Skidmore said he could provide the information later. Senator Hoffman the requested the information could help in comparing Alaska with other states. Co-Chair von Imhof thought it was fair to give Mr. Skidmore and the department some time to gather information. She wanted to continue moving the bill forward. She stressed that significant policy change needed to be discussed within the next ten days. 10:23:40 AM Senator Wilson pondered whether the state was too tough on crime or not tough enough. 10:23:51 AM Senator Wielechowski referenced Section 9. He had heard that 40 percent to 50 percent of prisoners were beneficiaries of the Alaska Mental Health Trust Authority (AMHTA). He asked whether eligible people could be left sitting in prison just because they failed to fill out an application. Mr. Skidmore thought the question was best addressed to the department. Mr. Edwards noted that there would be an assigned parole officer to assist inmates in the completion of applications. If a prisoner could not fill out their own application, their assigned parole officer would help them fill out the application. 10:25:41 AM Co-Chair von Imhof understood that parole was a contentious issue. She asked to return to the topic at another time and continue discussion of the rest of the bill. Co-Chair Stedman commented that he would like information on what the federal penalties were for some of the topics discussed. 10:26:55 AM Senator Micciche considered toughness on crime and wondered about what state had the worst results. He referenced FBI data that put Alaska at 829 violent crimes per 100,000, which was 7 times the lowest state of Maine and twice the national average. 10:27:32 AM Co-Chair von Imhof appreciated the robust discussion. She thought Sections 9, 10, and 11 called for further discussion in the future. 10:27:47 AM Mr. Skidmore addressed Section 16:   Section 16 Gives a parole officer the discretion to make a recommendation to the parole board that a person's parole be terminated. Maintains requirement that the probationer is in compliance with their conditions of probation and has completed all of the required treatment programs. Also maintains the prohibition on unclassified felony, sexual felony, and domestic violence offenders from being recommended for early termination. Mr. Skidmore discussed Section 17: Section 17 Eliminates language referencing technical violations of parole under AS 33.16.215. Mr. Skidmore spoke to Section 18: Section 18 Allows the parole board to toll time while the parolee is in violation status. This is similar to how probation works when a probationer is in violation status. Under this provision, the parolee's parole time will not continue to run while the parole violation is under consideration by the parole board. Mr. Skidmore highlighted Sections 19 and 20:   Section 19 Reduces amount of time that a parolee may decrease their length of parole for good behavior to 1/3. Also requires the credit to be awarded up front similar to statutory good time for prisoners. Section 20 Prohibits those convicted of a sex offense, unclassified felony, felony crime against a person, and domestic violence crime against a person from earning credit against their period of parole. 10:29:56 AM Mr. Skidmore spoke to Section 21:   Section 21 Prohibits a person from earning good time for time spent on electronic monitoring post-sentence. He asserted that electronic monitoring was a different scenario, and good time was not needed in the same way for people in hard beds (in a facility) in order to incentivize good behavior. Mr. Skidmore discussed Section 22: Section 22 Eliminates the requirement that the Department of Corrections submit a report to the Alaska Criminal Justice Commission regarding the sanctions imposed under the administrative sanctions program which is repealed in this bill. 10:31:14 AM Mr. Skidmore addressed Section 23: Section 23 Repealer section. He stated that the section dealt with repealers in the bill. There were several repealers that dealt with technical caps and administrative sanctions. Mr. Skidmore continued to Section 24:   Section 24 Requires the Department of Corrections to develop a needs assessment of all rehabilitative services for each institution, including education, treatment, vocational education, secular and faith- based, and pro-special program and report that information to the legislature. He felt that rehabilitative services should be discussed in future policy concerning criminal reform. 10:32:33 AM Senator Bishop appreciated Mr. Skidmore's comments about Section 24. He relayed that he did not want to waste money. 10:33:12 AM Mr. Skidmore addressed Section 25 and Section 26: Section 25 Applicability.   Section 26 Effective date. This bill takes effect on July 1, 2019. He noted that any adjustments that were made in the legislation would not apply to those currently incarcerated. 10:34:08 AM Senator Hoffman understood the people lost the PFD after commission of certain crimes. He wanted a list of provisions that would result in the loss of PFD eligibility. Mr. Skidmore stated that individuals sentenced to felonies lost eligibility for the PFD. He believed that it would be for every year that they were incarcerated. Senator Hoffman understood that once an individual was a felon, they lost their dividend for life. Mr. Skidmore agreed to provide the information. 10:35:41 AM Senator Micciche thought that changes to discretionary parole would affect individuals that had already been sentenced. Mr. Skidmore stated that in the applicability section there were five different subsections that indicated that the subsections would apply to sentences imposed on or after the effective date of the sections. The crime itself had to be committed after the effective date of the bill. 10:37:58 AM Co-Chair Stedman thought the bill was like a constitutionally protected benefit plan. He understood that sentences would not be changed but felt the legislature would have no control over adjusting parole classifications once an individual was sentenced. Mr. Skidmore affirmed that ex post facto was a Constitutional provision; punishment on an individual could not be increased. He reiterated that the law could be guidance as to how discretion should be exercised. 10:39:28 AM Mr. Skidmore addressed FN 1 from Department of Law, OMB Component 2202. The note was a zero-fiscal note. 10:40:59 AM Co-Chair von Imhof noted that time was of the essence. 10:42:15 AM Senator Wielechowski asked about the age distribution of incarcerated individuals and asked about recidivism of those on parole. Mr. Edwards thought that the recidivism rate was approximately 20 percent. He said in 2018 there were 27 inmates, between 61 and 80, who were discretionary parole candidates; 328 inmates were between 18 and 30. 10:44:23 AM Senator Wielechowski asked about the 80 percent success rate with recidivism. He asked about the details of the 20 percent who recidivated. Mr. Edwards noted that most violations were technical violations: alcohol use, drug use, or failure to report to a parole officer. 10:45:11 AM Senator Bishop asked what could be done to get the recidivism rate to 10 percent. 10:45:55 AM Senator Shower expressed confusion with the 80 percent success rate. He asserted that the recidivism rate was higher. He was concerned that he was not receiving accurate information concerning recidivism. 10:47:50 AM Mr. Edwards affirmed that Senator Shower was correct in that recidivism rates were currently higher. He revealed that he had been quoting for discretionary parolees only. The 80 percent was not reflective of the global inmate population. Senator Shower appreciated the clarity. 10:48:58 AM Senator Wielechowski thought this was an important distinction, since the bill contemplated changing the time of which a prisoner might be eligible for discretionary parole. He thought that if there was an 80 percent success rate under current statute, with 20 percent recidivating under benign technical violations, the result was fairly successful. He was curious to see a breakdown of the technical violations of the 20 percent recidivism for discretionary parole, as well as a breakdown in the violations for recidivism for those under mandatory parole. Mr. Edwards offered to find Senator Wielechowski more data. He shared that the mandatory release individuals had a much higher recidivism rate. He reiterated that those people were released under mandate and were not interviewed or vetted before being released. 10:50:40 AM Senator Micciche thought that information on recidivism for those on discretionary parole should be broken down by type of crime. SB 34 was HEARD and HELD in committee for further consideration. Co-Chair von Imhof thought there was more discussion needed. She reminded the committee that amendments could be delivered to her office. She reiterated that public testimony would be taken at the 1:30 pm meeting.