ALASKA STATE LEGISLATURE  SENATE STATE AFFAIRS STANDING COMMITTEE  February 12, 2019 3:34 p.m. MEMBERS PRESENT Senator John Coghill, Vice Chair Senator Scott Kawasaki Senator Peter Micciche Senator Lora Reinbold MEMBERS ABSENT  Senator Mike Shower, Chair COMMITTEE CALENDAR  CONFIRMATION HEARING(S) Lieutenant Governor Successor Dr. Michael A. Johnson - Juneau - CONFIRMATION ADVANCED 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." - HEARD & HELD PREVIOUS COMMITTEE ACTION  BILL: SB 34 SHORT TITLE: PROBATION; PAROLE; SENTENCES; CREDITS SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR 01/23/19 (S) READ THE FIRST TIME - REFERRALS 01/23/19 (S) STA, FIN 02/07/19 (S) STA AT 3:30 PM BUTROVICH 205 02/07/19 (S) Heard & Held 02/07/19 (S) MINUTE(STA) 02/11/19 (S) JUD REFERRAL ADDED AFTER STA 02/12/19 (S) STA AT 3:30 PM BUTROVICH 205 WITNESS REGISTER DR. MICHAEL JOHNSON, PhD., nominee Lieutenant Governor Successor and Commissioner, Department of Education and Early Development Juneau, Alaska POSITION STATEMENT: Testified as the nominee for Lieutenant Governor Successor. JOHN SKIDMORE, Director Criminal Division Department of Law Anchorage, Alaska POSITION STATEMENT: Answered questions related to SB 34. JEN WINKELMAN Director Division of Probation and Parole Department of Corrections Juneau, Alaska POSITION STATEMENT: Answered questions related to SB 34. JEFF EDWARDS, Executive Director Division of Probation and Parole Department of Corrections Anchorage, Alaska POSITION STATEMENT: Answered questions related to SB 34. ACTION NARRATIVE  3:34:26 PM VICE CHAIR JOHN COGHILL called the Senate State Affairs Standing Committee meeting to order at 3:34 p.m. Present at the call to order were Senators Kawasaki, Micciche, and Vice Chair Coghill. Senator Reinbold arrived soon thereafter. ^CONFIRMATION HEARING(S) CONFIRMATION HEARING(S)  Lieutenant Governor Successor  3:36:06 PM VICE CHAIR COGHILL announced that the first order of business would be consideration of the governor's appointment of Michael Johnson as Lieutenant Governor Successor under AS 39.05.080. 3:36:41 PM DR. MICHAEL JOHNSON, PhD., nominee, Lieutenant Governor Successor, and commissioner for the Department of Education and Early Development said it is a privilege to be selected as the lieutenant governor successor, but he hopes to never serve in that role. He related that he came to Alaska one summer and fell in love with the kids. This led to a job with the Copper River School District as a teacher's aide, then an elementary teacher, and finally as the superintendent. In 2016 he was selected to be the commissioner of education and he is continuing in that role under the current administration. VICE CHAIR COGHILL thanked Dr. Johnson for stepping forward and for the work he has done to address the opportunities and challenges of education in Alaska. VICE CHAIR COGHILL asked Dr. Johnson to comment on his view of the statutory responsibilities of the lieutenant governor and what he would bring to that office. COMMISSIONER JOHNSON offered his understanding that in addition to upholding the oath of office, the lieutenant governor is primarily responsible for elections; public notaries; the state seal; and the signing, publishing, and filing of regulations. What he would bring to the position is his experience leading a multi-division state department, a complex school district, and the confidence of the governor. 3:39:58 PM SENATOR REINBOLD joined the committee. VICE CHAIR COGHILL asked if he had looked at the limitations and flexibilities of the regulations, this governor's perspective of them, and how he would approach them as lieutenant governor. COMMISSIONER JOHNSON replied he had not looked at the limitations or flexibilities, but he would follow the law and the constitution. VICE CHAIR COGHILL commented that he has found the Department of Law to be a good counselor, but their guidelines are often very narrow and could be challenged. 3:41:35 PM SENATOR KAWASAKI, noting that he brought up following the law, highlighted that the governor introduced SB 39 in the supplemental budget to remove $20 million from the base student allocation. He asked Dr. Johnson if he believes the law the 30th Legislature passed last year will be enforced and when that money will be allocated to the school districts. VICE CHAIR COGHILL said that while the hearing is primarily about the lieutenant governor successor, the question was appropriate based on Dr. Johnson's statement about following the law. COMMISSIONER JOHNSON agreed that the question was appropriate. He offered his understanding that it would be up to the legislature to decide whether or not to pass [SB 39] which would change the law the legislature passed last year. Responding to the second part of the question, he added, "I heard the OMB director speak and as soon as the legislature makes a decision, then the money would go out to the school districts." SENATOR KAWASAKI asked when the money would go out to school districts if this legislature does not pass the governor's proposal. VICE CHAIR COGHILL cautioned against turning this into a budget hearing. 3:45:19 PM COMMISSIONER JOHNSON said the process to disburse the funds will start immediately if the legislature votes down the supplemental budget. SENATOR KAWASAKI asked if the money would not be appropriated to the school districts if the legislature fails to pass the bill. VICE CHAIR COGHILL, responding to a further question from Senator Kawasaki, clarified that the money was already appropriated so it is a distribution question. 3:46:57 PM SENATOR MICCICHE said this hearing is about Dr. Johnson's nomination as lieutenant governor successor and while he shares some of the concerns that have been voiced, he would like to ask questions about the position. VICE CHAIR COGHILL responded that the question relates to following the law. COMMISSIONER JOHNSON said he would work with the Office of Management and Budget (OMB) on the terms for disbursing the money. VICE CHAIR COGHILL explained why he has allowed the breadth of the questioning. 3:48:56 PM SENATOR KAWASAKI expressed appreciation for the latitude. He said he would not have thought this is such an important appointment but over the last decade someone has had to step into the position. The point is that this is an appointed position and there is a chance that this appointee could become governor without going through the rigors of a campaign. He said the legislature is the only vetting process and he wants assurance that the laws will be followed. SENATOR MICCICHE agreed the questions were fair. With regard to the appointment, he offered his perspective that departments push the limit on legislative intent when writing regulations and the last few lieutenant governors have rubber-stamped them. This has resulted in unacceptable mission creep that the legislature has had to correct with clarifying statutes. He asked Dr. Johnson to talk about the process he would use to better match regulations to the intent of the statutes that the legislature passed. COMMISSIONER JOHNSON said he fundamentally believes that there should be very clear lines between the three branches of government. In the event that he becomes lieutenant governor, he would like to send a clear message that the executive branch knows its role is to execute the law, not make it. VICE CHAIR COGHILL noted that election integrity is and will continue to be a topic that receives much scrutiny. He asked if he had talked to the lieutenant governor and was keeping an eye on that office so that he could transition to the position seamlessly, should that become necessary. COMMISSIONER JOHNSON said he has not had a specific conversation about elections, but he has read the relevant part of the state constitution and the mission statement for the Division of Elections. The mission is well stated, and it means that every Alaskan matters so their vote matters. Should he need to step into that role, he said it would be a large priority of his time and office. 3:54:08 PM SENATOR REINBOLD, noting that regulations are administrative law, ask his overall view of regulations. COMMISSIONER JOHNSON said his overall view would be in keeping with what he said to Senator Micciche earlier, which is that the executive branch role is to implement laws. Thus his view of regulations is the effective implementation of the laws the legislature passes. SENATOR REINBOLD spoke of her frustration in years past with the Board of Education failing to write and implement regulations to ensure the law was followed. She asked his view of the legislature's role in ensuring regulations are written for laws that passed. COMMISSIONER JOHNSON deferred to the Department of Law to say what mechanisms the legislature may have to force regulations to be written. He also suggested the legislature look carefully at the wording in the laws it passes to ensure they accomplish what is intended. Doing so provides an easy path to writing the regulations, he said. VICE CHAIR COGHILL commented that the compromise and consensus process of lawmaking can potentially result in ambiguity. 3:59:32 PM SENATOR REINBOLD asked what he believes the legislature's role is regarding regulation oversight. COMMISSIONER JOHNSON replied, "To pass good laws. And then through your balance of powers, make sure those laws are effectively implemented." SENATOR REINBOLD clarified that she was talking about regulations to implement the law. COMMISSIONER JOHNSON said his responsibility in overseeing regulations would be in keeping with the guiding principle that the legislature makes the laws and the executive branch implements those laws. If a law needs regulations to be implemented effectively, he would work with the departments to ensure that happens. He would also work with the departments to ensure that ineffective regulations were not implemented. VICE CHAIR COGHILL noted that the legislature has the ability to remedy an ineffective regulation. SENATOR REINBOLD shared that she is a proponent of allowing regulations to be written to explain the legislative intent. She added that if he because lieutenant governor, she would work with him on the issue. 4:03:29 PM VICE CHAIR COGHILL asked if he is well aligned with the current governor. COMMISSIONER JOHNSON said yes; it would be his responsibility to work in alignment with the governor who was elected by the people. VICE CHAIR COGHILL asked if he'd thought about how he might use his much larger voice as lieutenant governor for the wellbeing of Alaska. COMMISSIONER JOHNSON replied his character and values would not change. He would serve with humility, character, and integrity and enjoy every Alaskan he would have the opportunity to serve. VICE CHAIR COGHILL commented that the people of Alaska need the most noble of leaders and he would expect that of Dr. Johnson. 4:06:22 PM SENATOR MICCICHE offered his view of the definition of hypocrisy which is "the lack of willingness to defend the rights of free speech of those with whom we most vehemently disagree." He asked if he would spend the same effort approving or disapproving an initiative on constitutional grounds whether it was an abortion issue on the right or an extreme environmental issue on the left. COMMISSIONER JOHNSON replied his responsibility would be to follow the laws that guide the process that respectfully protects the voice of all Alaskans. "I would not apply the law differently based on my own political preferences or opinions about a particular initiative," he said. SENATOR KAWASAKI asked his view on changing parts of law that might have passed by initiative but didn't. He cited House Bill 44 that passed the legislature last year dealing with many things including conflicts of interest, lobbyists, and lobbyist reforms. The bill mirrored an initiative that was removed from the ballot when the bill passed. Now it appears that the law needs to be changed somewhat but those changes did not appear in the initiative. VICE CHAIR COGHILL offered Dr. Johnson the opportunity to decline to answer because it was highly speculative. 4:09:09 PM COMMISSIONER JOHNSON said he was not very familiar with the issue but would be happy to meet and learn more about the question and why it would be important to understand should he become lieutenant governor. VICE CHAIR COGHILL said the question is legitimate to the extent that the lieutenant governor works in the political arena. SENATOR KAWASAKI noted the administration's intention to clean up the voter registration lists by purging the names of people who had not voted in the last two general elections. He questioned whether there might be a way to do that without disenfranchising voters. COMMISSIONER JOHNSON said he has not looked into that situation, but he believes that every Alaskan and their vote matters. He would go through whatever process or procedure is necessary to ensure all eligible Alaskans have the opportunity to vote. VICE CHAIR COGHILL suggested he contemplate these and similar questions as he fulfills his duties as commissioner. SENATOR KAWASAKI asked if he were lieutenant governor and Governor Dunleavy ran for a second term, if he would run as lieutenant governor. COMMISSIONER JOHNSON replied he had no intention of running for lieutenant governor, whether he becomes lieutenant governor or not. SENATOR MICCICHE cautioned him against saying he would never run for office because the future is an unknown. COMMISSIONER JOHNSON thanked him for the counsel and reiterated that running for statewide office was not his intention. SENATOR MICCICHE said that's fair. VICE CHAIR COGHILL asked if he had any closing comments. COMMISSIONER JOHNSON said he was honored to serve in this contingency role and would be ready to step in if the need arises, but he hopes that won't happen. He appreciates the questions and the advice that comes with them. 4:15:24 PM VICE CHAIR COGHILL stated that in accordance with AS 39.05.080, the Senate State Affairs Standing Committee reviewed the following and recommends the appointments be forwarded to a joint session for consideration: Lieutenant Governor Successor Dr. Michael A. Johnson - Juneau Signing the reports regarding appointments to boards and commissions in no way reflects individual members' approval or disapproval of the appointees; the nominations are merely forwarded to the full legislature for confirmation or rejection. 4:16:00 PM At ease SB 34-PROBATION; PAROLE; SENTENCES; CREDITS  4:18:18 PM VICE CHAIR COGHILL reconvened the meeting and announced that the final order of business would be consideration of 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." He asked Mr. Skidmore if he agrees that the repealers deal with administrative sanctions. 4:21:03 PM JOHN SKIDMORE, Director, Criminal Division, Department of Law, Anchorage, advised that the primary categories the repealers address are administrative sanctions and the caps placed on technical violations. Responding to a question from the chair, he explained that administrative sanctions are things a probation or parole officer within DOC can do without intervention from the court or the parole board. An officer would need to file a petition for things like returning a probationer or parolee to jail or adding conditions. VICE CHAIR COGHILL recalled that the administrative sanctions were intended to ensure swift action without the need to go before the court. His understanding from previous testimony is that those administrative sanctions were never implemented. MR. SKIDMORE clarified that when he testified during the last hearing, he said the swiftness for the petitions did not occur. Whether swiftness was achieved for the sanctions is a question for the Department of Corrections. He did say that regulations were not adopted. VICE CHAIR COGHILL asked him to walk through what has come to be and what has not been put in place. 4:25:28 PM JEN WINKELMAN Director, Division of Probation and Parole, Department of Corrections (DOC), Juneau, explained that when the administrative sanctions and incentives became law, DOC developed a policy to categorize the behavior and determine the sanction based on a grid. The administrative sanctions and incentives were developed based on an internal policy, not through regulations. VICE CHAIR COGHILL asked why regulations weren't written, as directed by the law. MS. WINKELMAN said she didn't know; she wasn't in this position at that time. VICE CHAIR COGHILL recalled that the administrative sanctions were intended to be a tool to accomplish the swift and certain action. He asked what was done administratively that was different than what had to happen before the court. MR. SKIDMORE said there are two levels. The first is the administrative sanctions and the second level is if a petition was filed then it was capped at 3, 5 and 10 days. Those 3, 5, and 10 day caps were intended to be swift. The December 2015 Justice Reinvestment Report specifically talks about the concept of making the sanction swift. The failure in the way that Senate Bill 91 presented this and the way it was implemented is there was no legislative expression of how swift it needed to be. He recalled that the Court System expressed concerns about being able to do adjudications that quickly in every single case. It was possible to do in some cases - those cases where offenders had opted in the program, but for all the others it was not possible to do it that quickly. They would try but it still has not happened very quickly, which is one of the key components to all the research that said this would be an effective tool, he said. Without that component it is not an effective tool. VICE CHAIR COGHILL asked for the information to be laid out to show where the failure occurred. He said he continues to think that swift action is a worthy goal. The principle is good, but implementation failed as infractions and petitions mounted up. "There was no certainty because the swiftness didn't happen," he said. MR. SKIDMORE said he would be happy to talk more about maintaining the caps, but he was not involved with the administrative sanctions. He said it sounds as though you're interested in maintaining the administrative sanctions and that discussion should be with the Department of Corrections. VICE CHAIR COGHILL asked Ms. Winkelman, as the policy was implemented, what was successful and what needed more work. 4:32:30 PM MS. WINKELMAN opined that implementation of the administrative sanctions has been swift. She described the process when an offender is in front of the probation officer due to some sort of behavior. The officer looks at a grid to determine where the behavior falls and the appropriate response. She posited that the lack of swiftness referenced here relates to when the behavior elicits a court petition. The sanctions and incentives over which probation and parole officers have purview are administered swiftly and based on the grid previously described. VICE CHAIR COGHILL asked if the administrative sanctions have increased the workload for probation and parole officers. MS. WINKELMAN said she did not have supporting data, but she believes that the grid has trained probation and parole officers on the options available when responding to violations. What has increased the workload is trying to apply the grid's structured responses to individuals who have very different backgrounds and behaviors. It removes the human element, she said. VICE CHAIR COGHILL recalled that the administrative sanctions program intended to focus effort on the most dangerous behavior. Individuals with less dangerous behavior would receive less attention. He asked if that has worked. MS. WINKELMAN said she believes that the individuals that exhibited the most dangerous behavior, based on the sanction grid, generally had a petition filed and they became subject to the 3, 5, and 10-day caps. VICE CHAIR COGHILL opined that the petition created the revolving door problem. He asked Mr. Skidmore if that is what he was describing. 4:37:05 PM MR. SKIDMORE said the rationale for implementing the caps was that people didn't think the 0-30 days on a first offense was appropriate for the wide variety of technical violations. The decision was to reduce that but, in the process, discretion was eliminated, and a range was established. The range considers the underlying offense and the type of violation that has occurred but setting the caps where they are does not consider the layering of allegations. Thus it does not allow the system to appropriately respond to a particular circumstance in a particular case. VICE CHAIR COGHILL asked where he could find data for the last year about the number of petitions filed, the number of violations that involved multiple allegations, and whether they were misdemeanor or felony level infractions. "How would I find that information to find out how close we hit the mark and how far we missed the mark?" he asked. MR. SKIDMORE said it would not be difficult to find how many petitions were filed, but it would be problematic to get information on the number of allegations in a petition, the substance of the allegations, and information on the underlying crime. The reports he has seen failed to look at those concepts. What the reports have indicated is that the number of petitions filed has decreased. Unfortunately, that doesn't mean much when there has been no substantive analysis. That would require going through every case file looking for particular criteria, which would be very labor intensive. What he's heard uniformly from his employees statewide who prosecute these cases is that this is a problem. VICE CHAIR COGHILL said he understands the provision will be removed from the statutes, but there was some benefit and he was looking for a better way to do it. 4:42:19 PM SENATOR REINBOLD asked Ms. Winkelman if she was the head of pretrial, probation, and parole. MS. WINKELMAN said yes. Responding to another question, she explained that she had been with the department since 2001 and in this role since the new administration came into office. SENATOR REINBOLD described the pretrial risk assessment tool as "unbelievable." She added, "It's one of those tools that I just couldn't even imagine that being applied to people in Alaska." VICE CHAIR COGHILL requested she maintain focus on SB 34, probation, parole and sentencing. The pretrial matter is addressed in SB 33. 4:43:57 PM SENATOR REINBOLD highlighted the wave of crime that Alaskans are experiencing. She asked Ms. Winkelman if she defines parole as "the temporary release before the completion of a sentence for good behavior." MS. WINKELMAN said yes. SENATOR REINBOLD defined probation as "the release under supervision before the completion." MS. WINKELMAN clarified that probation is defined as a term over which a probation officer supervises an individual based on their court sentence. For example, a person who is sentenced to five years with two years suspended and five-years supervised probation would have the two years suspended term hanging over his/her head during the five years of probation as a response to a violations. SENATOR REINBOLD asked if her understanding was correct that under the prior law a person with one or multiple felony convictions was not eligible for parole, whereas under the current law they are eligible for parole. MS. WINKELMAN deferred questions about the change in parole eligibility to Mr. Edwards. 4:46:09 PM JEFF EDWARDS, Executive Director, Alaska Board of Parole, Department of Corrections, Anchorage, explained that Senate Bill 91 provided a discretionary system whereby multiple felons became eligible for early release on discretionary parole. SENATOR REINBOLD asked if that is for class A, class B, and class C felonies. MR. EDWARDS confirmed that is what existing law provides. Responding to a subsequent question, he said that includes prior convictions. VICE CHAIR COGHILL asked what the requirements are to qualify for parole. MR. EDWARDS said the presumption of release statute mandates the parole board release those individuals on discretionary parole if they meet requirements such as complying with their case plan, receiving no write-ups while in prison, and following the rules. There are provisions for circumventing the presumption of release statute if the board feels the individual represents an extreme danger to the public. SB 34 removes that section of law. VICE CHAIR COGHILL said Mr. Skidmore explained the difference between the directive presumption to release and the discretionary ability to release based on conditions. He recalled that the presumption in current law came about to incentivize the best behavior out of someone on probation and parole. 4:50:39 PM SENATOR REINBOLD asked for an explanation of mandatory minimums. Her understanding is that for class A, class B, and class C felonies the mandatory minimum is one-quarter of the sentence. MR. SKIDMORE asked for clarification that she was talking about the time served to be eligible for discretional parole. SENATOR REINBOLD said yes. 4:51:30 PM MR. EDWARDS explained that unclassified felonies have a mandatory minimum attached to the sentence that must be served. Under current law, individuals convicted of class A, class B, and class C felonies would become eligible after serving one- quarter of their sentence. SENATOR REINBOLD called that astonishing. 4:52:14 PM SENATOR KAWASAKI said the fiscal notes are indeterminate and said he needed to see the number of people who were eligible but would not be eligible in the future and how that number has changed over the last couple of years. He referenced Section 10 relating to the parole board considering applications. He asked how the process works now and why a change is necessary. 4:53:18 PM At ease 4:53:29 PM VICE CHAIR COGHILL reconvened the meeting. MR. SKIDMORE said Section 10 returns the language to what was in statute prior to Senate Bill 91. The parole board had the discretion to evaluate whether or not a person was a good candidate for discretionary parole immediately or sometime in the future, whereas current law requires the board to hear those cases within a year. The latter increases the number of hearings when someone applies repeatedly when the outcome may already be known. He described it as a resource issue. He deferred questions about the operation to Mr. Edwards. 4:56:55 PM MR. EDWARDS said he agrees with Mr. Skidmore. The bill gives the board discretion to continue or deny a hearing indefinitely for those offenders that it has no intention of releasing. The current internal policy is to review those cases in 10 years at maximum. SENATOR KAWASAKI asked for an example where there has been an excess of requests. MR. EDWARDS replied he wouldn't say there have been excessive applications; it's more about the board controlling when they would hear a case in the future. The individual may not be a good candidate now, but they may be after completing some programs. SENATOR KAWASAKI asked if he agrees that a person may "have a better shot" with a different parole board. MR. EDWARD agreed that the board can change because one member comes up for reappointment every year and they may or may not apply. They are appointed by the governor and as that position changes the board may as well. SENATOR KAWASAKI commented that a person who is incarcerated would be denied asking for parole if a board says no today and the board switches the next year. SENATOR REINBOLD said she would post on Facebook the different felony crimes under discussion today that are eligible for discretionary parole after the offender has served one-quarter of their sentence. VICE CHAIR COGHILL asked for a follow-up discussion on the change made on good time to see where that failed or could be made more successful. MR. SKIDMORE asked for clarification he was referring to earned compliance credit. VICE CHAIR COGHILL said that's correct. He noted that no one signed up to testify on SB 34 today, but he would leave it open and hopefully take public testimony on both SB 33 and SB 34 on Thursday. 5:04:57 PM SENATOR MICCICHE said the public was not aware of the public testimony today and he would like to get the word out to his constituents if public testimony will in fact be open for both bills on Thursday. VICE CHAIR COGHILL replied his intention was to start taking public testimony but for it to be meaningful, he wanted to hear the sectional analysis on SB 33. MR. SKIDMORE estimated that the sectional analysis for SB 33 would take about 45 minutes. 5:06:19 PM SENATOR KAWASAKI expressed concern about taking public testimony before the bill is fully vetted and understood. Without all the facts there may be testimony on things that are not in the bill, he said. VICE CHAIR COGHILL replied he was following the chair's directions. 5:08:17 PM VICE CHAIR COGHILL held SB 34 in committee. 5:08:21 PM There being no further business to come before the committee, Vice Chair Coghill adjourned the Senate State Affairs Standing Committee meeting at 5:08 pm.