Legislature(2015 - 2016)HOUSE FINANCE 519
04/06/2015 01:30 PM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| HB135 | |
| HB155 | |
| HB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 135 | TELECONFERENCED | |
| *+ | HB 155 | TELECONFERENCED | |
| *+ | HB 15 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE BILL NO. 15
"An Act relating to credits toward a sentence of
imprisonment and to good time deductions."
REPRESENTATIVE TAMMIE WILSON, SPONSOR, discussed the intent
of the bill. She announced that the bill dealt with the
period of pre-trial; before possible conviction and
sentencing. She explained that currently if an individual
served the time awaiting trial in jail and was convicted
credit was given for time served. The legislation would
grant credit for time served under electronic monitoring.
She read the following from page 1, beginning on line 10 of
the bill:
…if the person has not committed a criminal offense
while under electronic monitoring and the court
imposes substantial restrictions on the person's
freedom of movement and behavior while under the
electronic monitoring program, including requiring the
person to be confined to a residence…
Representative Wilson specified that the bill changed the
definition of residence from strictly a private home to a
halfway house, residential treatment center, or other type
of residential rehabilitative housing.
Representative Wilson continued to read from page 1, line
14 of the bill:
…except for a
(1) court appearance;
(2) meeting with counsel; or
(3) period during which the person is at a location
ordered by the court for the purposes of employment,
attending an educational or vocational training,
performing community volunteer work, or attending a
rehabilitative activity or medical appointment.
Representative Wilson communicated that very little
opportunity to receive treatment existed during the pre-
trial period and many individuals lost their jobs or homes.
She elaborated that the bill had no effect on a person
qualified for electronic monitoring. Conversely, HB 15
would not change the prohibition against allowing
electronic monitoring for sex offenders. She provided a
scenario regarding how the bill would work. An individual
charged with a crime would appear in court and be placed on
electronic monitoring and other conditions of pre-trial
release. If subsequently convicted, and the individual was
compliant during pre-trial credit would be received for
time served. She believed that the scenario was preferable
over placing the individual in jail pre-trial without
receiving rehabilitative treatment or services.
2:19:43 PM
Vice-Chair Saddler wondered whether one day served under
electronic monitoring was worth one day's credit against
incarceration. Representative Wilson confirmed that the
credit was a 1 to 1 ratio.
Co-Chair Neuman asked how a person who was technically not
guilty during the pre-trial time but was subsequently found
guilty could legally be granted the time served before
sentencing.
Representative Wilson responded that the system already
gave credit against time served before sentencing. When a
person was charged with a crime and was jailed during pre-
trial, the individual was collecting time served against
sentencing time. She shared that HB 15, under strict
conditions metered out by judge, would allow counseling,
employment, treatment, etc. during the pre-trial time under
electronic monitoring and receive credit for it if
sentenced. She opined that doing something constructive
like counseling or employment was preferable over
languishing in jail at much higher costs to the state. She
reiterated that the bill allowed for pre-trial electronic
monitoring under very strict conditions and that currently
electronic monitoring was only permitted post sentencing.
2:26:24 PM
Representative Gara commented that the language in the bill
mattered. He expressed concern over the words "[while under
electronic monitoring and the court imposes] substantial
restrictions on the person's freedom." He wondered what the
definition of "substantial restrictions" was. He suggested
that an individual who acted exemplary in carrying out his
pre-trial conditions under electronic monitoring but was
"just short of substantial restrictions" could be denied
credit for pre-trial time served. He wondered what would
happen to the person with "almost substantial
restrictions." He wondered why the language was included in
the bill.
Representative Wilson clarified that the court would
determine the substantial restrictions placed on the
individual; therefore, that the person would know exactly
what conditions to comply with during the pre-trial period.
She informed the committee that the Department of Law (DOL)
suggested the substantial restriction language.
Representative Gara stated that it was not "good enough for
him" that the language was inserted in the legislation
under the direction of DOL. He believed that the department
tended to be "harder" on defendants than other agencies. He
provided an example of a person living at home with an
ankle monitor working to get their GED, obtaining
employment, and abiding by other conditions imposed by the
court. He did not think that the scenario would meet the
definition of substantial restrictions. He wanted the
person under his scenario to receive credit for time served
while monitored.
Representative Wilson understood that a previous court case
set precedent that mandated substantial restrictions or the
"equivalent of being in jail."
Representative Gattis agreed with Representative Gara. She
thought that "people with bad behavior should be given the
opportunity to "rehabilitate;" if the person reoffended
then at least the opportunity was offered. She saw people
in her district who had "made a mistake and recognized
their mistake, but could not get out of the hole." She
claimed that the state was not providing the opportunity
for rehabilitation and inmates were merely "existing" in
prison at high financial costs to the state. She wanted the
system to help convicted "citizens" work their way into
becoming productive members of society and "move forward."
She believed that "sitting in jail was not the answer" nor
was replicating jail because the current system was
failing.
2:33:06 PM
Vice-Chair Saddler asked about the meaning of "substantial
restrictions on movement" and asked how the language was
interpreted. He inquired whether it was confined to what
was listed as allowable in HB 15 or whether the court could
impose other activities or restrictions. Representative
Wilson answered that the court system would decide what
restrictions on movement to impose within the provisions
listed in the bill.
Co-Chair Neuman observed that different judges imposed
different sentences for the same crime and "was not a fair
system." He wanted a clear definition of "substantial
restrictions." He suggested that the bill list what
substantial restrictions were as opposed to leaving the
definition open to interpretation.
Representative Wilson pointed out the difficulty in
achieving consensus among the Department of Corrections
(DOC), public defenders, district attorneys, and the Court
System when crafting the legislation. She shared that the
bill was a compromise between the entities within the
confines of the court case precedent. She expressed concern
over the public's safety and thought that sufficient
restrictions were needed to safeguard the public. She
agreed that having the definition in writing would help but
wanted to wait and see how HB 15 would play out in the
courts, if adopted. She surmised that substantial
restrictions would act as a deterrent for the individual
under electronic monitoring while allowing the opportunity
for reform.
2:38:30 PM
Representative Guttenberg stated his concern about the
definition of substantial restrictions. He was also
concerned about court imposed restrictions that were not
criminal offenses i.e., restricting drinking or smoking
marijuana, and wondered how the bill was dealing with those
restrictions.
Representative Wilson referred to lines 11 through 12 on
page 1 and interpreted the language to mean that during the
period of electronic monitoring a person may not commit
another crime and receive credit for time served. She cited
that the definition of substantial restrictions was listed
on page 2 and that the court would impose definitive
restrictions around where and when the person was expected
to be at all times.
Representative Gara understood the bill to read that the
allowances listed on page two: court appearances,
employment, rehabilitative activity, etc., were exceptions
to court restrictions.
2:43:26 PM
Representative Gara interpreted the legislation to mean
that the items listed on page 2 were exempted from
substantial restrictions and wanted to clarify the
interpretation for the committee.
Representative Wilson responded that she understood the
bill to read that unless the monitored person was at one of
the locations listed in the bill they would be restricted
to their place of residence.
Representative Gara opined that it was "mind boggling" that
someone who committed a minor crime would be denied credit
for time served if they were not placed under substantial
restriction than a person who committed a more serious
crime and remained in jail during pretrial and received
credit for time served. He added that he was certain the
list on page two contained exemptions and not restrictions.
Representative Wilson agreed that the term "substantial"
made the bill "more difficult to understand." She restated
that the term was necessary due to a court case the state
lost that determined that in order to allow pretrial
monitoring the restrictions had to be equivalent to being
in jail. The bill attempted to define what that equivalent
meant.
Vice-Chair Saddler requested to hear from DOL or DOC to
answer the question whether electronic monitoring was more
restrictive than confinement in jail presentencing whether
it was known how many people were eligible for monitoring
and took advantage of the opportunity.
REMOND HENDERSON, DEPUTY COMMISSIONER, DEPARTMENT OF
CORRECTIONS, reported that 457 people were on electronic
monitoring post-sentencing and that currently 1875 people
were in pre-trial status. He did not know how many of the
pre-trial individuals would be eligible for electronic
monitoring. He detailed that the department's goal was to
move more post-trial convicts onto monitoring when
possible.
Representative Wilson interjected that most of the
monitoring was performed by private entities.
Vice-Chair Saddler asked how many people post-conviction
were eligible for electronic monitoring and accept it
versus those that choose incarceration. He wondered whether
convicts viewed electronic monitoring as an easier sentence
than confinement.
2:49:48 PM
CARRIE BELDEN, DIRECTOR, DIVISION OF PAROLE AND PROBATION,
DEPARTMENT OF CORRECTIONS (via teleconference), declared
that she could not answer the question because it was a
matter of the convict's personal preference and capability
to accept electronic monitoring.
Representative Wilson indicated that it was not possible to
compare post-trial to pre-trial. She explained that if a
person in jail during pre-trial was convicted the credit
they received for time served was called "good time" versus
a person choosing electronic monitoring who would receive
day for day credit. Presently, more incentive existed to
remain in jail post-conviction than choose electronic
monitoring. She stated that her bill was attempting to
"even out" the incongruity.
Representative Gara asked whether the bill was limited to
individuals prior to conviction and sentencing or also
applied to offenders post-sentencing.
KACI SCHROEDER, LEGISLATIVE LIAISON, DEPARTMENT OF LAW,
responded that the legislation applied to pre-trial
sentencing.
Representative Gara asked whether Section 1 and Section 2
of HB 15 only applied to pretrial sentencing. Ms. Schroeder
responded in the affirmative. She added that a post-trial
offender was under the jurisdiction of DOC. The department
decided on convicts placements, which could include
electronic monitoring with restrictions.
2:54:22 PM
Representative Gara described a scenario where an
individual was sentenced pre-trial with an ankle monitor
and conditions that fell short of substantial restrictions
on freedom of movement. He questioned why the individual
would not receive credit for time served.
Ms. Schroeder indicated that the language, "substantial
restrictions on the person's freedom of movement and
behavior" was derived directly from case law. Case law
defined criteria "like incarceration" and the judge would
be familiar with the criteria. She cited AS.12.55.027,
which was not included in the bill that referred to
residential treatment and delineated the restrictions
necessary to qualify for jail credit.
Representative Gara asked whether including or removing
"substantial" was a policy call for the legislature.
Representative Wilson understood that if substantial
restrictions was removed the law would be challenged in
court. She reiterated that the bill was shaped through
compromise between the four entities. She emphasized that
"substantial restrictions" was a big issue in drafting the
HB 15. She wanted the legislation to be effective and
utilized.
Representative Gara directed the question to DOL and
wondered whether removing substantial restrictions would
render the policy invalid.
Ms. Schroeder explained that pre-trial jail credit was
"very well fleshed out in the court system." Additionally,
many cases support disallowance of time served under pre-
trail electronic monitoring. However, the bill was
countering the precedent by stating that electronic
monitoring could be the equivalent to jail under the
conditions specified in the bill. The language in HB 15
reflected a policy shift and nothing prohibited the
legislature from making another policy call, which
eventually would be considered in the courts.
Co-Chair Thompson invited Nancy Meade to testify clarifying
the judge's role in pre-trial sentencing.
2:58:52 PM
NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM,
explained that judges refrain from ordering electronic
monitoring "per se." Pre-trial defendants received specific
bail conditions; one condition required a third party
custodian. Therefore, some defendants cannot find a
suitable custodial guardian. Subsequently, the defendant
can hire a company that provided custodial guardianship via
an ankle monitor. She voiced that the defendant must
convince the judge the method was appropriate under the
bail conditions and the company must establish its
capability of responsible guardianship. She reported that
DOC was not involved in pre-trial monitoring. Upon the
judge's approval, an order specifying the defendant's
monitoring conditions was written by the judge, who was
placed on notice by the defendant that he would request
credit for time served under monitoring when sentenced.
Representative Gara asked whether substantial restrictions
must be imposed in order to receive credit for time served.
Ms. Meade thought that the substantial restriction language
was included specifically for receiving credit for time
spent in residential treatment. She related that the
court's position was that the legislature could create any
policy it wanted in regards to pre-trial time served and
electronic monitoring and the court would apply it.
3:03:17 PM
Representative Gara thought that a defendant who did not
have a drug and alcohol problem and was placed on pre-trial
electronic monitoring but was not subject to substantial
restrictions on his freedom of movement should gain credit
for time served. He asked for Ms. Meade's thoughts.
Ms. Meade responded that bill did exclude the person in the
described scenario and reiterated that the committee could
include any type of policy call it desired in regards to
the issue and the court would apply the law.
Vice-Chair Saddler asked what percentage of people placed
on electronic monitoring complied with the restrictions.
Ms. Meade replied that she did not have the exact statistic
but compliance was "quite high." She elaborated that the
defendant was paying a high fee for the monitoring service.
The electronic monitoring companies acted swiftly to file a
petition when a defendant transgressed and were trusted by
the courts.
Representative Wilson maintained that the bill was a change
in policy and reminded the committee that Alaska's prisons
were at "101 percent" capacity and she hoped the
legislation was a first step to stop the "revolving door"
of incarceration.
HB 15 was HEARD and HELD in committee for further
consideration.
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