SB 34-PROBATION; PAROLE; SENTENCES; CREDITS    2:41:10 PM CHAIR HUGHES reconvened the meeting and announced that the final order of business would be 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." 2:42:35 PM JOHN SKIDMORE, Director, Criminal Division, Central Office, Department of Law, Anchorage, stated that this bill considers probation and parole and tries to improve on the system. He summarized it as an attempt to return appropriate discretion to probation officers, judges, and to the parole board. He said that the bill touches on five major areas, including caps for technical violations, earned compliance credits and how the state uses them for probation and parole. It also considers early termination and when it should be recommended or required, discretionary parole in terms of eligibility and the presumptions for discretionary parole, and whether good time should be allowed when offenders are serving time on electronic monitoring. He offered to transition to the sectional analysis of SB 34. 2:44:06 PM MR. SKIDMORE turned to pages 1-2, to Sections 1 and 2 of SB 34. 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. He said that these are conforming amendments for technical violations. 2:44:36 PM CHAIR HUGHES asked for further clarification on parole and probation and to define discretion versus mandatory for the public. 2:45:32 PM MR. SKIDMORE answered that probation and parole relates to offenders who are sentenced in Alaska to serve a period of time in jail. The offender can be released from jail earlier for parole. For example, if offenders are sentenced for three years to serve, the individuals would be eligible for the parole board to consider eligibility for discretionary parole after serving one year. Once offenders reach the two-year mark, they shift from discretionary parole, where the parole board considers applications and determines whether candidates are a good risk to be released into the community to begin the transition to a productive member of society. Mandatory parole is also referred to as good time, which relates to the concept that individuals in a Department of Correction's facility who have followed the rules and behave or are "good," and then they are released after they have served approximately two-thirds of the sentence. He recapped that describes discretionary parole, and mandatory parole also known as good time. That is juxtaposed or in contrast to probation. MR. SKIDMORE explained that probation refers to individuals who have served all of their sentence in a correctional facility or while on parole and the court has also suspended time. For example, a judge may sentence offenders to five years, with two years suspended, with three years to serve. He said that offenders with three years to serve, as just described, would be placed on parole. Once the individuals are back into the community and off parole, they are on probation. He highlighted that the probationary period could range from one to five years, depending on the offense and the allowable probation time by law. During probation, using the above scenario, the two years that were suspended is the potential sanction that could be imposed. Each time a probation officer files a petition to revoke probation, the court would hold an arraignment. The court would hear the allegations, hold an adjudication or fact-finding phase, and ultimately would hold a disposition hearing and impose a sanction if a violation is found. It is the imposition of this sanction that would amend some or all of the two-year period. The court can also impose additional sanctions, including amending or altering probation conditions. For example, the court may add additional reporting requirements or other requirements. He acknowledged parole and probation are two different concepts. 2:49:48 PM CHAIR HUGHES summarized that she thinks of parole as being in lieu of jail time and probation as in addition to jail time. MR. SKIDMORE agreed. 2:50:24 PM SENATOR MICCICHE asked whether it would be possible for someone to be released early for discretionary or mandatory parole but still have probation associated with a suspended sentence. MR. SKIDMORE answered yes. 2:50:56 PM CHAIR HUGHES, with respect to probation and parole provisions in SB 34, asked him to estimate the percentage of repeal of Senate Bill 91. MR. SKIDMORE answered that the provisions in Senate Bill 91 related to probation and parole are touched on and most are repealed. One exception is for earned compliance credits that did not exist prior to Senate Bill 91, he said. He added that in SB 34 the amount of earned compliance credits is reduced but not eliminated. CHAIR HUGHES asked whether geriatric parole is maintained. MR. SKIDMORE answered that parole for those who are incarcerated who reach an advanced age and have certain medical conditions is maintained. In response to Chair Hughes, he estimated about 95 percent of the 2016 crime bill is rolled back or repealed. 2:53:17 PM MR. SKIDMORE turned to Section 3 of the sectional analysis for SB 34 and referred to pages 2-3 of the bill. 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. He explained that prior to Senate Bill 91, the probation officer could recommend a minimum supervision bank or recommend the court end probation. He explained that Senate Bill 91 changed it from a recommendation to a mandatory requirement. This removed probation officers' discretion and required them to make a "recommendation" to the court that someone's probation be ended after 12-18 months if the person had met certain conditions. This removed the case-by-case consideration, but SB 34 will return it to the probation officers' discretion. He pointed out that crimes such as assault, drug, sexual, and theft cases have a wide range of conduct that can occur. Further, the offenders vary substantially, in terms of ages, prior criminal histories, support networks and other factors, so it is important that probation officers have discretion to consider these factors. He recapped that Section 3 allows probation officers to make a true recommendation about when someone should be terminated from probation early. 2:56:17 PM SENATOR KIEHL asked for further clarification on training probation officers on identifying recidivism and community risk and to assess how the training works and is delivered. 2:57:04 PM JENNIFER WINKELMAN, Director, Division of Probation and Parole, Department of Corrections (DOC), Juneau, answered that probation officers must do a risk needs assessment called an LSI-R [Level of Service Inventory-Revised] to identify the caseload risk needs. She explained that probation officers receive training through the academy and ongoing training to ensure the risk assessments are being addressed appropriately. SENATOR KIEHL asked whether statistical data or reviews inform the department on how well that works. MS. WINKELMAN answered that the Department of Corrections (DOC) just received the results of a validation study in the last few weeks that examined the risk needs assessment of the Alaska population. She said this is normed to the Alaska population and ensuring an inter-rater officer reliability amongst the officers and in terms of recidivism. 2:59:12 PM SENATOR KIEHL asked whether the recommendations are made to the court or to the parole board. CHAIR HUGHES commented that probation is involved with the court and the parole board is the decision maker. She asked Mr. Skidmore if that was correct. MR. SKIDMORE answered yes. He said that probation [recommendations are made] to the court and parole [recommendations are made to the parole board. 3:00:09 PM SENATOR KIEHL asked where the discretionary loss has occurred if lawyers are coming before the court just as they did previously. He asked for further clarification on the reason for this change. CHAIR HUGHES paused to asked members to hold questions and dig in later to allow Mr. Skidmore to continue with the sectional analysis. MR. SKIDMORE answered that the discretion being discussed in this section is not the discretion of the court but of the probation officer, who would determine whether a recommendation is appropriate. Currently, the law requires probation officers to make a recommendation even if the officer does not think it is a good idea. This change would return the discretion to the probation officer. 3:02:13 PM MR. SKIDMORE turned to Section 4 of SB 34. Section 4: Reduces amount of time that a probationer may decrease their length of probation for good behavior to one day for every three days without a violation. MR. SKIDMORE said this section relates to earned compliance credits for probation. Prior to Senate Bill 91 earned compliance credits did not exist. Offenders were placed on probation and served the probation period unless the probation officer recommended early termination. He said that earned compliance credits provides the concept of a carrot in addition to a stick. He explained this is designed to provide an incentive to behave. For example, for every 30-day period that individuals did not incur any violations, probation could be reduced by an equal 30- day period. Essentially, those who served the first half of their probation without any violations would be off probation. This section would shift the calculation from one day for each day to one day for every three days without a violation. It would also require the DOC to consult with the Department of Law (DOL) and the Department of Public Safety (DPS) in establishing an earned compliance credit program. In response to Chair Hughes, he agreed that a third could be shaved off instead of half of the probation time. CHAIR HUGHES pointed out that earned compliance credit is time off from probation and parole, but good time credit is time trimmed from the jail sentence. MR. SKIDMORE agreed. 3:04:09 PM SENATOR KIEHL asked for further clarification on the calculation and if it would be the same if it read 10 days for each 30 days or if it works differently. MR. SKIDMORE said it is similar, but it is altered to one to three days to assist the DOC in its calculations. 3:04:48 PM MR. SKIDMORE turned to Section 5. Section 5: Prohibits a sex offender from earning credit against their period of probation. Also mandates that a probationer lose all of the credits they have accrued if they are found in violation of probation, requiring the accrual to start over. MR. SKIDMORE said this also relates to earned compliance credits for probation. This provision would first limit earned compliance credits so as not to apply to sex offenses. He explained that the department uses a containment model for probation to carefully monitor offenders, but it only works while the offender is on probation. However, earned compliance credits allow a probationer to be removed from probation earlier for compliance. In other types of cases this is appropriate; however, for sex offenses the department wants to maintain the containment model as much as possible to reduce recidivism. He said that it would also consider when a person has accrued earned compliance credits over time for time without violations. If the person violates, the person would still retain all of the earned compliance credits that had accrued up to that point. This provision would mandate that the probationer would lose all of the credits that had accrued if the person had a subsequent probation violation. He explained that this would keep the incentive building to stay in compliance. In response to Chair Hughes, he said that earned compliance credits would not apply to sex offenders, but it would apply to everyone else. 3:07:10 PM SENATOR MICCICHE said some people have expressed concern. It does not seem to have a scale about the type of offense. He related a scenario that a probationer could have two years of probation and at the end of probation, perhaps the probation officer did not like the person, if the probationer had a slight violation, the probationer could lose all credits. He asked whether it would be possible to identify the types of violations to avoid abuse. MR. SKIDMORE explained that the committee could discuss this issue and the Department of Law would review any suggested language. He this concept is that any violation would be determined by the court, not the probation officer. He agreed if a probationer had a violation, the person would lose all credit. He has heard concepts or proposals discussed to allow the court to decide. However, the bill is not currently drafted in that way, but he understands the concept. SENATOR MICCICHE suggested that he would review the concept of a model prisoner who has a reset for a minor violation to see if it is worth evaluating. 3:09:29 PM MR. SKIDMORE turned to pages 4-5, to Section 6. Section 6: 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 this requires probation officers to consider if early termination should be considered at any point in time. 3:10:12 PM MR. SKIDMORE turned to Section 7. Section 7: Requires an application for discretionary parole to be submitted to the parole board before a person can be considered for discretionary parole. MR. SKIDMORE stated that this is the point in the bill that shifts from probation to parole. Previous to Senate Bill 91, if an inmate wanted to be released on discretionary parole, the person would apply to the parole board. He explained that under Senate Bill 91, the requirement that an inmate apply for parole was removed and it required that the parole board automatically hold parole hearings. This resulted in a significant increase in the number of parole hearings, which made it difficult for the board. This provision would ensure the inmate is interested in applying for parole. 3:11:39 PM MR. SKIDMORE turned to Section 8. Section 8: Returns discretionary parole eligibility to where it was prior to January 1, 2017. Makes the following crimes ineligible: • Non-sex class A felonies (Robbery 1, Assault 1, Arson 1); • B felonies if the person had one or more prior felony convictions; • C felonies if the person had two or more prior felony convictions; and • B and C sex felonies (Sexual Assault 2, Sexual Abuse of a Minor 2, Distribution of Child Pornography). MR. SKIDMORE explained that the law was expanded in Senate Bill 91 in terms of the types of crimes for discretionary parole. He likened it to the scenes in Shawshank Redemption in which the character comes before the board time and time again. Some crimes simply are not eligible for discretionary parole, which he read. [Due to technical difficulties the testifier was disconnected.] 3:12:33 PM At-ease. 3:12:57 PM CHAIR HUGHES reconvened the meeting. 3:13:11 PM SENATOR KIEHL asked whether an increase has occurred for a percentage of parolees who committed crimes and made new victims. 3:13:36 PM At-ease. 3:14:47 PM CHAIR HUGHES said the committee was experiencing technical difficulty. [SB 34 was held in committee.]