Legislature(2015 - 2016)CAPITOL 120
03/23/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB15 | |
| HB11 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 15 | TELECONFERENCED | |
| + | HB 123 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 11 | TELECONFERENCED | |
HB 15-CREDITS FOR TIME SERVED/GOOD TIME
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 15, "An Act relating to credits toward a sentence
of imprisonment and to good time deductions."
1:04:26 PM
REPRESENTATIVE KELLER moved to adopt proposed Committee
Substitute for HB 15, Version 29-LS0102\I, Gardner/Martin,
3/19/15 as the working document. There being no objection,
Version I was before the House Judiciary Standing Committee.
1:04:49 PM
REPRESENTATIVE TAMI WILSON, Alaska State Legislature, pointed to
page 2, lines 5-6, and advised the current committee substitute
reads "rehabilitative activity" as opposed to the previous
version which read "counseling." She opined that she spoke with
public defenders who believe this bill offers more tools to the
court in determining assistance the person in pretrial requires.
Under current law, she explained, the offender waiting in
pretrial receives credit for sitting in jail, and this bill
offers electronic monitoring, of which a business is attached.
During the pretrial hearing the judge orders what is required of
the offender while on electronic monitoring and those orders may
include, certain types of treatment, employment, [educational
training], and community service. She pointed out that
treatment is not available in many of the jails in Alaska, and
especially not in pretrial. The offender receives the same
credit [on electronic monitoring] as someone sitting in jail in
pretrial if they follow the [judge's orders and obey the laws of
the land], she explained. She specified that the bill solely
discusses pretrial and that electronic monitoring cannot be
performed out-of-state.
1:08:15 PM
REPRESENTATIVE GRUENBERG referred to the term "medical
appointment" on page 2, line 6, which read:
(3) ...activity or medical appointment.
REPRESENTATIVE GRUENBERG said he assumed she is using it in a
broad sense, in that it could be a nurse practitioner,
chiropractor, naturopath or physical therapist, all of which
would be interpreted by the Department of Corrections (DOC).
REPRESENTATIVE WILSON advised the judge would order exactly what
[entity] the offender could receive services.
REPRESENTATIVE GRUENBERG referred to the language on page 1,
lines 9-12, which read:
(d) ... a sentence of imprisonment for time spent [IN
A PRIVATE RESIDENCE OR] under electronic monitoring if
the person has not committed a criminal offense while
under electronic monitoring and the court imposes
substantial restrictions ...
REPRESENTATIVE GRUENBERG advised that he literally read that to
include "electronic monitoring 15 years ago in Rhode Island,"
yet he understands the intent of the sponsor is to have a
narrower focus. He stated it was his hope to look into this
issue further.
REPRESENTATIVE WILSON advised that the phrase was included by
the Department of Law (DOL) because there was an incident where
a defendant on electronic monitoring committed another crime.
She shared "They didn't necessarily say that, they felt it
needed to be there." She confirmed that she will have further
discussions with DOL and reiterated that the intent is that
during the time an individual is on electronic monitoring they
must abide by the rules and cannot commit crimes.
1:11:08 PM
RICK SNOBODNY, Deputy Attorney General, Criminal Division,
Alaska Department of Law (DOL), requested Representative
Gruenberg to restate his question.
1:11:44 PM
REPRESENTATIVE GRUENBERG again referred to the language on page
1, lines 10-11, and requested clarification on the concept of a
criminal offense under electronic monitoring that is somehow
related to "this" case, or in the recent future. For example,
he offered, "you" couldn't use a 1985 situation from Rhode
Island, "that would make them ineligible for life."
MR. SVOBODNY answered that Ms. Schroeder [DOL] worked with the
sponsor on this language and he opined it would be for "this"
offense. He noted that if the state is giving credit under the
present case law pretrial, and the offender is in the
"functional equivalent of incarceration" the offender will
receive credit for that time whether a crime is committed or
not. He offered that the principle is credit for time that is
served either in jail or the functional equivalent of
incarceration.
1:14:00 PM
REPRESENTATIVE GRUENBERG highlighted his belief that contours
need to be defined down the line.
1:14:42 PM
REPRESENTATIVE CLAMAN assessed that the way the bill is
currently written, a defendant released on electronic monitoring
pretrial would be treated the same as a defendant who was
released pretrial to a treatment program.
MR. SVOBODNY replied "Yes, that is my understanding."
REPRESENTATIVE CLAMAN asked for confirmation that this bill does
not get into "good time" credit.
MR. SVOBODNY said that good time is for good behavior in jail
and [on electronic monitoring] the individual is not in jail, so
it was dropped out of the bill.
REPRESENTATIVE CLAMAN determined that all parties in the
courtroom must come to an agreement that is converted into a
Pretrial Release Order allowing electronic monitoring. He
explained that at sentencing the judge determines whether the
defendant performed as ordered and orders whether the defendant
will receive credit for time served.
MR. SVOBODNY agreed that Representative Claman described the
scenario accurately, but that there are nuances not in the
premise of Representative Claman's comments.
1:17:05 PM
REPRESENTATIVE CLAMAN asked Mr. Svobodny to explain.
1:17:09 PM
MR. SVOBODNY responded that "everybody, I think, is not paying
attention to, or forgot, or didn't know, the default is you get
out of jail." He further responded that the default in the
statute ... unless it is an unclassified or class A felony, the
person is released on their "own recognizance." He opined there
are individuals released on their own recognizance that must go
to a treatment program that has the equivalency of being in
jail. Or, he noted, the court could order that it is also a
condition of a monetary bail. He said he assumed it wouldn't be
a third party custodian, as a third party custodian is not going
to go to the functional equivalency of jail pending trial. He
disputed the statement that when a defendant goes to the
[pretrial] hearing that everyone is on board, as only the judge
needs to be on board.
1:19:00 PM
MR. SVOBODNY then presented his testimony that there is a major
public policy question in that "should we let people buy their
way out of jail," because that is what this [bill] is. He
questioned what individual facing a mandatory three days in jail
for driving while intoxicated (DWI) wouldn't beg the judge to be
put on electronic monitoring. [The bill] defeats the principle
that an individual must serve a mandatory three days in jail for
the first DWI, and twenty days for the second DWI. He offered
concern for the word "counseling," as it reminds him of a woman
in Juneau who committed perjury in a trial, was sentenced to
jail time, and claimed that going to Weight Watchers was the
functional equivalent of a rehabilitative program and that she
should get credit for going to Weight Watchers appointments.
The judge did not allow that argument, but the focus was changed
from rehabilitative program to counseling.
1:21:04 PM
CHAIR LEDOUX noted that Mr. Svobodny testified previously on
this bill and asked whether he was testifying that the
administration and DOL are officially opposed to this bill,
because it sounded like he was.
MR. SVOBODNY responded that he testified previously and made
these same points, but now the [language] is down to specific
examples. He said he does not believe his testimony has
changed, but that the current language is a different iteration.
He expressed that the fundamental question is still the same,
"if you let people pay for electronic monitoring to get out of
jail, what you've done is say ... you've moved us back to the
Middle Ages where somebody can do their jail time ... I can have
somebody ... I can pay somebody to do my jail time for me, or I
can pay the king to not have me go to jail." For example, he
noted, will the victim be at the [pretrial hearing] when
electronic monitoring is imposed as they have a right to be
heard. "Now, you've kind of flipped the whole process around,
where do that victim show up? When either he or she shows up at
sentencing to say now this guy should go to jail, judge. And
the judge is going to say, 'Oh sorry, we already did ... we did
that at the bail hearing.'"
1:22:58 PM
REPRESENTATIVE CLAMAN offered that this bill would not change
the victim's right to be present at every bail and sentencing
hearing to offer their view, recognizing that the ultimate
decision is left to the judge.
1:23:35 PM
MR. SVOBODNY agreed with Representative Claman and stated there
is a substantial difference when the district attorneys' (DA)
office calls the victim advising there is a bail hearing or
sentencing ....
CHAIR LEDOUX interjected that it would be the responsibility of
DOL to give the victim the information of what will take place
at the bail hearing.
MR. SVOBODY agreed and said DOL will inform the victim that the
defendant will be living in his own home, will wear an ankle
monitor, and it will count as though he was in jail. He also
agreed that they have a right to be at the bail hearing and
judges often give them the right to speak, they don't
necessarily have the right to speak at the bail hearing, but do
have the right to speak at sentencing.
1:24:46 PM
REPRESENTATIVE GRUENBERG referred to Mr. Svobodny last statement
that a defendant doesn't have a right to speak at a bail
hearing, and questioned that if the defendant and his lawyer are
asking for electronic monitoring, they must have the right to
speak to make that argument.
MR. SVOBODNY said he misspoke as he meant to say the victim.
REPRESENTATIVE GRUENBERG related that if the victim has a right
to be notified and present at a bail hearing, doesn't it follow
that if the victim or the victim's advocate had an objection to
the proposal they would have a right to be heard.
MR. SVOBODNY acknowledged he may be wrong as victims may have a
right to speak at bail hearings. He noted that in Anchorage the
first bail hearing is set before the victim is "even" home, they
are set by committing magistrates over the phone." He opined
that is probably not going to happen where people are released
to these programs at that point, but there is a hearing the next
day. He further opined "it's not like you can sit down and
write out your thoughts, or even be out of the hospital."
1:26:45 PM
REPRESENTATIVE GRUENBERG said that certainly DOL can accomplish
this, or is DOL not capable of executing.
MR. SVOBODNY expressed that the issue is whether the committee
is willing, as a public policy, to create the legal fiction that
[staying home and wearing an ankle monitor] is the same as being
in jail.
1:27:55 PM
CHAIR LEDOUX read [Sec. 2, AS 12.55.027(d)], page 1, line 12-14,
which read:
(d) ... 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
except for a ...
CHAIR LEDOUX referred to "including" court appearances, meeting
with counsel during a period which the person has to do X, Y,
and Z. She pointed out that those are just the things that this
bill says that "you" wouldn't think about giving a person credit
if they haven't met those three requirements, and that the court
could impose other restrictions.
MR. SVOBODNY said "That is absolutely correct."
CHAIR LEDOUX continued that the court has to find that it
imposes restrictions which are equivalent to substantially
restricting the movement of the person.
MR. SVOBODNY agreed, but stated that substantially restricting
the movement of a person ... the individual can go to work, go
to Weight Watchers ...
1:29:23 PM
CHAIR LEDOUX argued that if the court views that Weight Watchers
as more of a social event, they cannot attend.
MR. SVOBODNY further agreed with Chair LeDoux and said that the
judge can create situations where living in a person's own home
meets the functional equivalent of jail. He reiterated the
issue is that a person can stay home and wear an ankle bracelet
... as the bill states "shall give credit" for that being the
same as jail. He opined that it appears to be creating a
situation where people who can pay are allowed to wear an ankle
bracelet and take three days off if a first DWI, twenty days off
for the second DWI, and not receive any jail time for that
offense. He said, "That's within your prerogative, that's
within a judge's prerogative. Now if the judge ratchets it down
more than just saying that it is ... I don't know, curfew at
night and an ankle monitor." He described it as a public policy
question and expressed there could be a potential increase in
the delay in going to trial because a good defense lawyer would
drag it out to the point the individual meets whatever sentence
the attorney believes the court is going to give.
1:31:59 PM
CHAIR LEDOUX reiterated her question of whether the
administration and DOL officially oppose this bill.
MR. SVOBODNY related that he has advised what he sees as issues
with the bill, and further related that he does not believe the
administration has a position on the bill. From the
prosecutor's point of view, he advised is that the committee
determines whether staying at home and wearing an ankle bracelet
is the same as being in jail.
1:33:05 PM
REPRESENTATIVE CLAMAN referred to the topic Mr. Svobodny raised
having to do with financial access to electronic monitoring
typically in the private criminal defense client, and not
typically in the public defender client has been discussed
previously. He noted another issue is geographic in that within
certain parts of Alaska the technology doesn't exist, but could
be more available to defendants in larger communities. He
surmised that DOL's position is that if the committee wants to
allow it to be more available in certain communities that
committee can make that choice.
MR. SVOBODNY agreed, and opined legislators make decisions all
the time on where programs are, or are not, available.
1:34:28 PM
REPRESENTATIVE GRUENBERG opined that when the legislature first
considered ignition interlocks the financial ability of someone
was not discussed, but there was a discussion of geographical
issues regarding installation.
CHAIR LEDOUX asked whether that was a question.
REPRESENTATIVE GRUENBERG responded that the equal protection
issues were discussed and asked whether Mr. Svobodny had any
comment.
MR. SVOBODNY offered that the system treats people with money
better than the people without money, and noted that a judge can
weigh financial circumstances, determine flight risk, and the
danger to the community when ordering bail.
1:38:09 PM
CHAIR LEDOUX remarked that currently a person receives credit
for time spent in an overnight rehabilitation program.
MR. SVOBODNY advised he was not sure whether that was the only
requirement whether they would, as restrictions must be similar
to being in jail.
CHAIR LEDOUX argued that allowing someone with money to enter a
pleasant treatment facility could discriminate against someone
who cannot afford the pleasant treatment facility. But, she
said, the state still does not say they do not get credit toward
their time served.
MR. SVOBODNY responded that assuming the [treatment facilities]
have the equal equivalencies of being incarcerated, because
under present law the judge could fashion an order for the
"fancy" facilities. He related there are exceptions in present
law for meetings with counsel, [court appearances, and court
ordered appointments]. He described a history of one of the
members of this body went to alcohol treatment at the "Maui
Hilton, right?"
1:40:47 PM
CHAIR LEDOUX responded that she was not aware of that, and
questioned whether, assuming the "Maui Hilton" has a residential
treatment program, would that be allowed.
MR. SVOBODNY answered, yes.
CHAIR LEDOUX referred to Mr. Svobodny's statement wherein he
noted that this wouldn't be fair in that a person with money can
receive electronic monitoring; a person without money cannot
receive electronic monitoring and; therefore, cannot receive
credit. She expressed that people without money should be able
to participate in electronic monitoring and remarked that the
problem could be corrected within DOC as there is nothing
inherently wrong with giving credit for electronic monitoring.
MR. SVOBODNY reiterated that if the legislature concludes a
person going to a treatment program offering the equivalency of
incarceration, is [identical] to staying in the person's own
home and wearing an electronic monitoring device, is the
legislature's choice.
1:43:16 PM
REPRESENTATIVE WILSON responded that Legislative Legal and
Research Services worked with Mr. Svobodny and she was surprised
to hear his testimony. In reading the bill, [the treatment
program] must be as if the person was in jail and cannot be on
electronic monitoring sitting in front of the TV as there are
other [stipulations] to meet. She pointed out that the bill
requires receiving that a person receive treatment, is employed,
performs community service, attempts to get their life back on
track, and avoids the revolving door. She explained that
currently DOC can offer electronic monitoring in any community
in Alaska as the Department of Health & Social Services (DHSS)
places money into [the program]. What is not currently
available is the incentive of going to jail for $158 per day, as
opposed to electronic monitoring for approximately $20 per day,
she noted. She posited that the goal of [electronic monitoring]
is putting the person on the road to recovery. She described
the bill as exceptional and advised she has worked with all of
the parties involved.
1:46:29 PM
CHAIR LEDOUX noted concern that someone charged with a three-day
mandatory prison sentence for DWI [is allowed to use electronic
monitoring]. She remarked that part of that three-day sentence
is to cause people who may not normally see the inside of a
jail, actually see the inside of jail. She is not sure that
spending three-days on an electronic monitoring device and
staying home watching TV, even though they are restricted for
those three-days, is quite the same as going to jail.
REPRESENTATIVE WILSON answered that the bill is a tool in the
toolbox and not a requirement as the judge can order the person
to jail. "As far as the three-days goes, if that worked, I
don't think we'd have so many people coming through the jails
all the time," she opined.
1:49:23 PM
REPRESENTATIVE CLAMAN said he intends to propose an amendment on
page 1, lines 5 and 9, which changes the language from "shall"
to "may." He pointed out that under Title 28, on the first DWI
the court has to impose a sentence of 72-hours consecutive
imprisonment. He said that when the language in the statute
reads "shall," the judge would be required to let the person
spend time at home on electronic monitoring. Whereas, "may"
offers the judge discretion to say "no" to one person, and "yes"
to everyone else.
1:51:40 PM
REPRESENTATIVE CLAMAN moved Amendment I.1 to CSHB 15, [Amendment
1], labeled 29-LS0102\I.1, Gardner/Martin, 3/20/15, which read:
Page 1, line 5:
Delete "shall [MAY]"
Insert "may"
Page 1, line 9:
Delete "shall [MAY NOT]"
Insert "may [NOT]"
There being no objection, Amendment 1.1 passed.
1:53:00 PM
REPRESENTATIVE KELLER moved to report proposed CS for HB 15,
Version 29-LS0102\I, Gardner/Martin, 3/19/15, as amended, from
committee with individual recommendations and the accompanying
fiscal note. There being no objection, CSHB 15(JUD) was
reported from the House Judiciary Standing Committee.
1:53:24 PM
The committee took an at-ease from 1:53 to 1:56 p.m.
1:56:21 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB15 Ver I.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 15 |
| HB123-DCCED-ABC-03-09-15.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 123 |
| HB123 Ver A.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 123 |
| HB 123 Transmittal Letter.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 123 |
| HB 123 Sectional Analysis.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 123 |
| HB11 Fiscal Note - DOC.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 11 |
| HB15 Fiscal Note - DOC 3-21.pdf |
HJUD 3/23/2015 1:00:00 PM |
HB 15 |