Legislature(2015 - 2016)GRUENBERG 120
03/18/2016 12:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB205 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 205 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 205-CRIMINAL LAW/PROCEDURE; DRIV LIC; PUB AID
12:37:16 PM
CHAIR LEDOUX announced that the only order of business would be
HOUSE BILL NO. 205, "An Act relating to conditions of release;
relating to community work service; relating to credit toward a
sentence of imprisonment for certain persons under electronic
monitoring; relating to the restoration under certain
circumstances of an administratively revoked driver's license,
privilege to drive, or privilege to obtain a license; allowing a
reduction of penalties for offenders successfully completing
court- ordered treatment programs for persons convicted of
driving under the influence; relating to termination of a
revocation of a driver's license; relating to restoration of a
driver's license; relating to credits toward a sentence of
imprisonment, to good time deductions, and to providing for
earned good time deductions for prisoners; relating to early
termination of probation and reduction of probation for good
conduct; relating to the rights of crime victims; relating to
the disqualification of persons convicted of certain felony drug
offenses from participation in the food stamp and temporary
assistance programs; relating to probation; relating to
mitigating factors; relating to treatment programs for
prisoners; relating to the duties of the commissioner of
corrections; amending Rule 32, Alaska Rules of Criminal
Procedure; and providing for an effective date."
[Before the House Judiciary Standing Committee was CSHB 205,
labeled 29-LS0896\H, adopted 3/14/16.]
12:37:47 PM
GRACE ABBOTT, Staff, Representative Charisse Millett, Alaska
State Legislature, turned to the Power Point slide [page 1,
bottom slide], "Limit the use of prison for lower-level
misdemeanor offenders, Recommendation Five," advised that the
commission recommended that the state limit the use of prison
for lower-level misdemeanor offenders and that the use of prison
and longer sentences does not necessarily reduce and correct
recidivism. She advised that the sections addressed in this
recommendation deal with misdemeanor offenses, and some that are
being transitioned into violations. She advised that this is
not the entirety of misdemeanor offenses, especially class B
misdemeanors which were looked at specifically that exist within
statute. She referred to the packet of class B misdemeanors in
front of her, and noted that these misdemeanors were identified
as those that could safely be reduced to the level of a
violation.
12:39:53 PM
CHAIR LEDOUX commented she did not realize some of the
misdemeanors were crimes. For example, if a person wants to go
down a street and there is something blocking the way and
removes it, she remarked she did not know the person would be
guilty of a misdemeanor.
MS. ABBOTT offered that the recommendation also changes the
presumptive range for class A misdemeanors to zero to 30 days,
and it changes the way the state manages first time driving
under the influence (DUI) and first time refusal to submit to a
chemical test, as the sentence would be served under electronic
monitoring. The data shows that non-violent misdemeanants are
the vast majority of admissions to prisons with a lower number
of violent misdemeanants, although those are not touched upon
quite as much within the recommendations. She offered that
approximately 6,600 non-violent misdemeanants are serving time
in jail currently, which is both costly and the state is not
necessarily seeing the outcomes desired from these sentences.
The commission recommended that the state limit the use of
prison for lower-level misdemeanor offender by emphasizing
alternatives to prison, including first and second time theft
under $250, because the data does not show that their recidivism
goes down with longer sentences. Therefore, she pointed out,
the recommendation suggests diverting them from prison and
requiring first time DUI offenders to spend their sentence on
electronic monitoring, and also reclassifying certain lower
level misdemeanors as violations. Also, lowering the penalty
for misdemeanor class B offenses to 10 days in jail, and
presumptively setting a zero to 30 day sentencing range for
misdemeanor class A offenses, but allowing the court discretion
to sentence above this range if an aggravating factor is proven.
12:42:45 PM
REPRESENTATIVE CLAMAN referred to lowering the penalty for a
class B misdemeanor, and asked whether it is lowering it from 90
days to 10 days, and whether the maximum sentence a judge could
impose would be 10 days in any class B misdemeanor.
MS. ABBOTT replied that is her understanding, with the caveat
that she may be corrected.
12:43:09 PM
MS. ABBOTT turned to [page 3, bottom slide] "Revise drug
penalties to focus severe punishments on higher-level drug
offenders, Recommendation Six," and said this is an issue the
nation has been attempting to address for years and the
commission recommends that drug penalties be revised to focus
severe punishments on higher-level drug offenders. The
commission recommended that Alaska address the issue that adding
longer sentences and putting drug offenders into jail is not
resulting in the state's desired outcome. She offered that for
some people the outcomes are worse as a result of connections
and networking opportunities within prison, especially with drug
offenses. The recommendation also addresses ways in which the
state can help drug offenders change their behavior through
rehabilitation. It is known that many of the state's drug
offenders are truly addicts and by utilizing options for
rehabilitation over simply through corrections, the state is
addressing behaviors and correcting them for the future.
Sections 33-35 deal with misconduct involving a controlled
substance in the third degree, and it would change manufacture
or delivery of over 2.5 grams of 1A, 11A, or 111A drugs, or
manufacture of methamphetamine or methamphetamine precursors,
and those would now fall into the misconduct in the third
degree, she explained. Sections 36-37 deal with manufacture and
delivery of less than 2.5 grams of a 1A, 11A, or 111A controlled
substance, or any amount of an IVA or VA controlled substance,
and that would classify down as misconduct involving a
controlled substance in the second degree. Sections 38-39
consolidate simple possession of 1A, 11A, 111A, IVA and VA
controlled substance to misconduct involving a controlled
substance in the fifth degree, she further explained.
12:45:23 PM
MS. ABBOTT turned to [page 4, bottom slide] "Over Last Decade,
More Offenders Entering Prison for Drug Crime, Staying Longer,"
and advised there has been a 35 percent growth in admission to
prison for drug offenses and their stay has increased by 16
percent. She expressed that long prison sentences are largely
ineffective due to two factors: a low deterrent value in that
people are not afraid of going to prison, especially for
participating in a drug transaction because approximately 1 in
15,000 transactions are detected; and, it has little impact on
recidivism. In the event the state is not correcting behaviors
and dealing with the crux of the issue which many times is
addiction, the state is not necessarily preventing them from
getting out and committing another crime. It is known that
longer prison stays have a criminogenic effect and it allows
people to network, but also to be out of their homes, out of
their communities, and really have no life to return to other
than that of crime after prison. She pointed to the
recommendation and noted that it recommends revising these
penalties to focus on the higher-level offenders, those who pose
the biggest public safety risk. The commission found that
simple possession does not pose a large public safety risk and
limiting the maximum penalty for first and second time
possessions to one and six month suspended sentences,
respectively, allows the people to focus on rehabilitation as
opposed to simply prison time. The recommendation creates a
tiered commercial drug statute which points to more than 2.5
grams, obviously being the more serious offense, than a sale of
less than 2.5 grams, and aligning penalties for sale of heroin
with sale of other serious drugs, such as methamphetamine and
cocaine. She related that some of the statutes were put
together in response to issues and; therefore, have turned out a
bit piece-meal and this was one of the situations in which
serious drugs could be classified similarly. Currently, Alaska
does have a heroin epidemic, and in previous years it was a
methamphetamine epidemic and the state should be targeting all
of these drugs and their use and sale the same way.
12:48:22 PM
CHAIR LEDOUX asked whether previously heroin was treated
differently than methamphetamine or cocaine.
MS. ABBOTT responded yes, it was dealt with more stringently and
it was a more serious penalty than the sale of methamphetamine
or cocaine.
MS. ABBOTT turned to [page 6, top slide] "Utilize inflation-
adjusted property thresholds, Recommendation Seven," and she
said Sections 14-19 increase the felony theft threshold for
various crimes such as, criminal mischief, criminal simulation,
misapplication of property, and defrauding creditors. Sections
20-21 set up the way in which inflation will be adjusted, and
that is by the Alaska Judicial Council that would refer to
various resources in calculating what an inflation adjustment
should be, if necessary. She noted that the research behind
this points to people entering prison for property crimes and
staying longer in prison. Similar to drug crimes, admissions
are growing for property offenses, and in the last 10 years have
grown by 16 percent, and people are staying 13 percent longer in
jail. The felony theft threshold has not kept pace with
inflation, and she referred to 1978 when the felony theft
threshold was set at about $500 and Alaska really didn't
experience a change, it didn't adjust at all other than back a
couple of years ago under Senate Bill 64 when it was adjusted up
to $750.
12:50:27 PM
REPRESENTATIVE MILLETT pointed out that the threshold is a
policy call and that she has been contacted by store owners and
police departments that are uncomfortable with raising the theft
threshold amount.
CHAIR LEDOUX remarked that the entire bill is a policy call.
REPRESENTATIVE CLAMAN surmised that the felony theft level is
being raised but it doesn't mean that it is still not theft at
the lower levels, he explained, it is just the difference
between felony and misdemeanor.
MS. ABBOTT agreed that it is not decriminalizing all other forms
of theft, it would just be shifting the felony threshold
according to the commission.
12:51:51 PM
CHAIR LEDOUX asked whether one of the sentences for theft would
involve an emphasis on restitution.
MS. ABBOTT deferred to Nancy Meade.
CHAIR LEDOUX commented that subsequent to this presentation
there are a number of people available for questions.
12:52:25 PM
MS. ABBOTT turned to [page 8, top slide] Raising the Felony
Theft Threshold Does Not Increase Crime Rate," and said the data
has shown that raising the felony theft threshold has not
increased crime rate. The data was based on approximately 23
other states that raised their felony theft thresholds, and the
change in threshold had no impact in raising or lowering the
state's overall property crime rate. She said that in some
states, property and larceny crimes actually fell slightly at a
higher rate than those states that did not change their
threshold.
REPRESENTATIVE CLAMAN referred to the second arrow on the slide
regarding larceny rates falling in the states that raised their
threshold and asked whether someone is available to address that
research finding.
MS. ABBOTT advised that Ms. Mary Geddes, Alaska Criminal Justice
Commission staff attorney, is online and she has background in
this research.
12:53:35 PM
MS. ABBOTT turned to [page 8, bottom slide] "Align non-sex
felony presumptive ranges with prior presumptive terms,
Recommendation Eight," and noted that it is addressed in
Sections 76-78, dealing with class A, B, and C felony
presumptive ranges. She advised that the commission discussed
prior presumptive terms and the difference between presumptive
terms and ranges. Ms. Abbott said that in 2005, Alaska had
presumptive terms which was a strict minimum sentence from 5-20
years, for example, with the first class A felony, and this was
changed as a result of Blakely v. Washington, [542 US 296
(2004)] where it was determined that ranges were more
appropriate when setting the low threshold. The legislative
intent in 2005 was that these ranges should have no effect on
raising the time spent incarcerated. However, it did have that
effect and sentences became longer, from 2004-2014 class A
felonies grew by 80 percent, class B felonies by 8 percent, and
class C felonies by 17 percent. Clearly, she pointed out,
despite legislative intent the sentences did grow as a result of
those ranges being set. The recommendation was to align those
ranges with prior terms such that the terms for first class A
felony was set at about five and the recommendation from the
Alaska Criminal Justice Commission was to use that as middle
point, as opposed to the base for a range. She turned to [page
10, bottom slide] and said as opposed to having it be from five
to eight years, looking at the top line, it would change from
three to six. She stated that having the presumptive term serve
as the middle point would bring the state back to its intent to
not have sentences grow and align more reasonably with the
presumptive terms the state had in the pre-2005, pre-Blakely
time period.
12:56:25 PM
MS. ABBOTT turned to [page 11, top slide] "Expand and streamline
the use of discretionary parole, Recommendation Nine," and noted
that numerous sections are addressed: Section 59 deals with
administrative parole; Section 62 deals with probation
revocation; and it continues on to Section 124, which reduces
the period of time before a parolee becomes eligible for
unconditional discharge from parole. The commission found that
parole eligibility was applied inconsistently [page 123, bottom
slide] and, as seen on the slide there are clear eligibility
requirements; however, for those who are eligible parole is
vastly underutilized. On any given month in 2014, an average of
463 inmates were eligible for discretionary parole and an
average of 15 inmates applied and received hearings. She noted
that reasons an inmate chose not to apply for parole includes:
long waits for parole hearings, fairly confusing application
procedures, and not receiving the assistance inmates needed to
apply. The commission recommended that discretionary parole be
expanded so more people apply for parole, and that the process
be streamlined to assist people in understanding their sentences
and rights. She explained that discretionary parole under this
bill would be extended to all felony offenders, except class A
and unclassified felony offenders with prior felony convictions.
Parole hearings would be streamlined for lower-level felonies
and include a requirement that any parole eligible inmate's
sentence would trigger a hearing at least 90 days before the
eligibility date. Therefore, inmates would not have to go
through a confusing application process and a parole hearing
would be triggered, she explained.
12:59:16 PM
MS. ABBOTT turned to [page 14, top slide], "Implement a
specialty parole option for long-term geriatric inmates.
Recommendation 10," and noted that it received significant
discussions with the goal of reducing costs and understanding
the low rate of recidivism with inmates 55 years and older after
having served 10 years of their sentence, located in Section 105
of the bill.
CHAIR LEDOUX offered concern regarding Section 105, and said
that for the people 55 years of age having served 10 years is
one thing, but in the guise of cost-savings and being nice to
people - throw an 80 year old out into the street because he
qualified for geriatric parole after he's been in jail for 50
years, possibly he doesn't necessarily want to be released at
that age.
1:01:03 PM
REPRESENTATIVE KELLER offered that this doesn't set the policy
on that and it reads that a geriatric inmate must have a hearing
in order to set the policy.
REPRESENTATIVE MILLETT said that it would not require them to
have a parole hearing, they would still have to go through the
parole process.
REPRESENTATIVE CLAMAN referred to Representative Lynn's prior
question about people who are serving sentences, are they really
behind bars, in a half-way house, or where are they. He said he
often has a vision of an 80 year old geriatric in terrible
health receiving 15 different medications paid by the state,
whereas, if that person was in custody and not eligible for
discretionary parole they would probably be in the half-way
house and be less costly to house. The idea of discretionary
parole, given the medical issues, would probably be much more
focused on where the person can actually go, would it save
money, or would the state be able to monitor him effectively.
With any discretionary parole decision the committee is leaving
a lot of discretion to the Department of Corrections about how
they manage that, but this is recognizing that it is expensive
to house people on high medical needs that no longer present a
meaningful danger to the community, and how to most effectively
manage that population, he said.
1:02:59 PM
MS. ABBOTT agreed and said that it is discretionary parole and
the Parole Board has the opportunity to determine the public's
safety risk and weighs the costs and benefits of that person
rejoining the community. Clearly, many people ages 55 and older
are fit and potentially not accruing medical costs. She offered
that this recommendation looks at that age group broadly and
understands that as a broad category, people ages 55 and older
do tend to have more medical costs, and noted that the
recidivating numbers are substantially lower for geriatric
inmates. This would be an automatic trigger for offenders 55
and older that have served 10 years of their sentence, she said.
1:04:19 PM
MS. ABBOTT turned to [page 16, bottom slide], "Incentivize
completion of treatment for sex offenders with an earned time
policy, Recommendation Eleven," and noted that it is found in
Section 136, and acknowledged that the science is difficult to
accept. The length of stay for Alaska's felony sex offenders
has increased by 86 percent, and the sex offender population has
grown by 38 percent. She stated that this is in no way saying
that it is a bad thing because it could be that those are
important sentences levied for good reasons.
1:05:27 PM
CHAIR LEDOUX expressed that she is still waiting for an answer
to her question with respect to whether there are categories of
sex offenders, and stressed that she is having a hard time
accepting that any sort of treatment program can change someone
that has raped two year old.
MS. ABBOTT offered that members of the Department of Corrections
(DOC) can speak to the actual treatments offered, but she has
been told the treatment is not so much a cure for their
impulses, but rather a behavioral cure and how people act upon
heinous thoughts. This is one of the recommendations for which
reinvestment is important because currently there is a deficit
of treatment beds within the Alaska Department of Corrections
(DOC) and outside of DOC, such that when someone receives a
condition of release ordering sex offender treatment there is a
lack of available options outside of prison, she said. The data
showed that in-prison sex offender treatment had a cost benefit
ration in that for every $1 spent on treatment, there is a $1.87
benefit returned to the state and state residents. She opined
that it is nearly impossible to quantify the feeling of safety
people have, but if treatment is completed and successful there
is that cost benefit. The need for treatment far outweighs
Alaska's current supply and the wait list for in-prison sex
offender treatment is nearly four years long. She said that to
implement this recommendation in any real way, the number of
beds in prison would need to go up which is part of reinvestment
1:08:43 PM
CHAIR LEDOUX listed the people available to answer questions.
1:10:11 PM
REPRESENTATIVE LYNN requested examples of treatment for sex
offenders outside of prison.
MS. ABBOTT opined that out of prison sex offender treatment is
only located in Anchorage, and it is an intensive residential
treatment often taking 18-30 months to complete.
REPRESENTATIVE LYNN asked whether the people are confined within
the residential treatment center, or as in-house patients.
MS. ABBOTT opined that it is residential and the people are
confined. Although, she pointed out, a person may have been
released and is waiting to receive treatment based on a wait
list, and at that point she does not believe them to be
confined.
1:11:48 PM
JEFF EDWARDS, Executive Director, Parole Board, Department of
Corrections, advised that on behalf of the Parole Board, and as
head of the paroling authority, they support the bill. He
pointed out that the Parole Board has been trying to move in
this direction on many items mentioned in the bill for a few
years. The bill locks down the Parole Board's process,
incentivizes people to come before the board, streamlines the
application process, increases the amount of people that come
before the Parole Board, and allows the board to have a greater
impact in the justice system. The Parole Board recognizes that
there are only a few legal ways to be released early from prison
and parole is one, and the Parole Board takes it very seriously.
Public safety risk is considered to the highest level as the
board's first priority, and this bill allows the board to do
that. Also, he said, it allows the Parole Board to target a
certain group, and with geriatric parole there is not an
automatic release for the aging inmate as there will be a review
process.
1:14:12 PM
REPRESENTATIVE CLAMAN referred to his statement that the Parole
Board has been trying to move in this direction in terms of more
discretionary parole. He offered that 15 years ago he was last
in front of the Parole Board and related that he had the
following two impressions: An inmate would apply for
discretionary parole and almost every time the board turned
inmates down the first time because it wanted inmates to try
twice in order to appreciate it more; and also the Parole Board
didn't have many hearings so there was a long wait to ever even
get considered for discretionary parole. He asked whether
things have changed, and how so.
MR. EDWARDS responded that the first question is somewhat of a
myth because the first time an inmate appears before the board,
and especially for long-term inmates that have been in prison
for decades, the board attempts to guide inmates in their
release and ensure that they have the correct programming, the
board wants to see that their risk has been reduced in the
public safety aspect, and sometimes those applicants haven't
fully addressed their risk and need. The board, in an attempt
to minimize those risks, grants a continuance after the first
time to do some programming, really knock down the reentry, and
have them a solid resident. In the event they need transition
the board moves them to a CRC or EM. The plan often takes time
to be certain the inmate has fully addressed the risk, has the
support they need in the community, and works closely with their
institutional parole officer. The board will see them again to
be certain the plan is in place and oftentimes grant release.
He asked for a repeat of the second question.
1:17:00 PM
REPRESENTATIVE CLAMAN asked how things have changed in the
frequency the Parole Board meets to hear cases because his
impression is that the board moves fairly slow to hear cases and
slow to decide discretionary parole matters.
1:17:16 PM
MR. EDWARDS replied that the Parole Board sets an annual
schedule in advance, the schedule for 2016 has been set, and the
Parole Board attempts to travel to each sentenced prison with
all eligible inmates at least twice a year. He advised that the
schedule is set far in advance in order to offer the parole
officers an opportunity to work with the victims and the
surviving families, and to process packets of information and,
he noted, the process starts well in advance of the inmate's
eligibility date. He asked that the committee to keep in mind
that the Parole Board hearings are open to the victims and
surviving families and many must plan for travel; therefore, and
a lot of advanced planning goes into it. He restated that the
Parole Board does go to each institution for the large sentence
facilities at least twice a year.
1:18:36 PM
REPRESENTATIVE CLAMAN offered that he understands the Parole
Board is only going twice a year to the regional facilities,
such as Anvil Mountain in Nome, but does that also mean the
Parole Board is meeting twice a year at places such as the Mat-
Su and Anchorage with more prisoners and families. He commented
that it seems a little light for the more populous areas.
MR. EDWARDS explained that he was specifically speaking to the
Parole Board's discretionary hearings, and with Anchorage being
mostly a pretrial facility the board does not conduct a lot of
discretionary hearings.
1:19:27 PM
REPRESENTATIVE CLAMAN rephrased his question, and noted that
where there is a lot of discretionary population, it appears
that twice a year is not very often if the Parole Board is
trying to pick up the pace in taking up these matters. He said
he was referring to the population as opposed to the geography
and asked whether the Parole Board is able to hear them more
often.
MR. EDWARDS responded that the board will have to take a serious
look at that, especially with the potential of HB 205. He asked
the committee to keep in mind that the Parole Board is part-time
which is dissimilar to a superior court judge with their own
courtroom. This legislation will move their job duties and
responsibilities more to three-fourths to full time and the
appears eager and excited to expand the calendar in order to
target eligible inmates with more frequent hearings and
increased visits to facilities.
1:20:54 PM
CHAIR LEDOUX asked the type of paperwork involved for the inmate
attempting to get discretionary parole.
MR. EDWARDS replied that inmates are asked to fill out a packet
of information with specific targeted questions such as, the
inmate's reentry plan, where they plan to live, who they will
associate with, employment opportunities, and the programming
they've completed while incarcerated.
CHAIR LEDOUX requested a copy of the application forms so the
committee could determine whether it would be helpful to modify
the forms.
MR. EDWARDS said he would provide the information, and offered
that within the last year the Parole Board has basically cut the
number of questions in half to make the process easier for the
inmates and the parole officers.
1:22:29 PM
CHAIR LEDOUX asked at what point, in an inmate's sentence, they
are eligible for parole, currently.
MR. EDWARDS replied that it is a difficult question to answer
because it depends upon the number of crimes a person has
committed and the level of crime. He explained that parole
eligibility is a complex calculation at times so it is difficult
to specifically answer. Generally speaking, he offered, it will
either be one-third or one-fourths of the sentence when an
inmate becomes eligible for parole.
1:23:21 PM
CHAIR LEDOUX surmised that determining an inmate's eligibility
for discretionary parole is somewhat complex, and asked how an
inmate would determine their eligibility, and who they would
ask.
MR. EDWARDS responded that subsequent to sentencing, the time
accountant, within the inmate's facility, prepares the
mathematical calculation, a time sheet, wherein the eligibility
for parole date is listed and the inmate receives a copy. In
the event the inmate disagrees with the calculation or has a
question they can ask for clarification from the time
accountant, and if they still disagree the inmate can appeal to
the chief time accountant for DOC, he explained.
1:24:44 PM
CHAIR LEDOUX asked whether the inmate is allowed to keep the
time sheet in their cell and tape it up so they know the date,
and what happens if they lose the document.
MR. EDWARDS advised that DOC is required to give the individual
a copy of the document and they can tape it up in their cell if
they wish. As a failsafe measure prior to the eligibility of
each inmate and prior to the Parole Board going to the
institution, in most cases DOC will post a list of eligible
inmates and contact each inmate eligible to appear before the
Parole Board well in advance of the Parole Board's arrival. He
said that with specific notification requirements the eligible
inmate will be notified that they are eligible to apply for
parole. They are then given a form that says check the box
whether you want to apply, no apply, or apply in the future at
some point but not at this particular time the board is coming.
1:26:13 PM
REPRESENTATIVE LYNN pointed out some inmates may have a limited
reading and comprehension ability, and asked whether inmates
receive assistance with someone to guide them in filling out the
forms correctly. He advised that he previously taught special
education students and they would definitely need assistance
filling out the complicated form, and he also requested a copy
of the forms the inmates are expected to fill out.
MR. EDWARDS answered that the form is simplified to a 4th or 5th
grade level of reading and comprehension. Specifically, he
said, the institutional parole officer is tasked with guiding
inmates through any confusing language and to make time for one-
on-one sessions, but he is not certain there is a counselor to
walk them through the process.
CHAIR LEDOUX pointed out that research shows that many people
within the prison system are not capable of reading at the 3rd
grade level so while she applauds his efforts to simplify the
forms to the 4th and 5th grade level, it may need to be
simplified beneath those levels.
1:28:38 PM
REPRESENTATIVE KELLER requested more information as to why it is
complex to keep track of the parole date because it is
calculated in court at sentencing, and asked whether DOC has the
authority to unilaterally change the eligibility date.
MR. EDWARDS replied that the Department of Corrections (DOC)
does not have the authority to change the eligibility
requirement as stated within the Alaska Statutes. He related
that based upon the defendant's sentence and the sentencing
guidelines the defendant falls into, the court makes or does not
make the defendant eligible. He explained that the complication
he spoke to earlier pertains to offenders that have been
convicted of multiple crimes, such as felony after felony after
felony. The complex calculation arrives in determining which of
those cases are eligible for parole, and not eligible for
parole, and there are presumptive consecutive cases with two or
three cases stacked together the inmate is serving time on. He
agreed that the simple one case that goes to court and gets
sentenced by the judge should be a fairly easy calculation.
Although, he reiterated, when it is the 3rd, 4th, 5th, or 6th
felony and DOC is tasked with making those calculations and some
of those cases are not eligible for parole, some are, is where
it gets complicated. He described the time accounting class as
probably the most difficult training class within DOC, it is a
40 hour class and specifically targets the ability to make these
calculations.
1:31:17 PM
CHAIR LEDOUX noted that his description of the process as
complicated for the typical prisoner to calculate, and she
assumed that under this bill it would be radically simplified.
MR. EDWARDS responded that the calculations will not be
simplified. He opined that the intent of the bill is that the
process be simplified but the actual number crunching of
eligible inmates may not be as simplified. He further opined
that the bill is more targeted to ensure that eligible inmates
will appear before the Parole Board, and that the Parole Board's
process for release will be simplified. He extended that the
Parole Board's hope and direction is to make and streamline the
process and once the committee reviews the application, it can
work on simplifying that process and make it easier to apply.
Although, it is not necessarily referring to the calculations
for when an inmate is, or is not, eligible for application to
parole.
1:32:34 PM
REPRESENTATIVE CLAMAN referred to AS 33.16.090 regarding
eligibility for discretionary parole and minimum terms to be
served, and opined that within the early days of the state there
was "statutory good time," which is different than discretionary
parole. The initial automatic good time credit was changed from
25 percent to 33 1/3 percent and within the older statutes the
discretionary parole was generally available after serving one-
third of the sentence, he advised. Currently, there are many
different variations regarding the calculation depending upon
the crime, the presumptive sentence, where 180 days fits in, how
many prior offenses, and it is a more complicated calculation.
In broad terms, he said, there was a time when a defendant
entered prison with a three year sentence, they knew they would
be released after two years if they followed the rules. In the
event the inmate did not follow the rules a portion of their
good time could be lost and the inmate would be required to
serve part of the third year.
1:34:12 PM
REPRESENTATIVE CLAMAN continued that the average prisoner would
be released upon the completion of two years and this prisoner
would be up for discretionary parole after one year and, he
offered, that the calculation has changed in terms of how to
calculate when eligible. He said that unless something has
changed, once a defendant was sentenced and entered prison,
within the first day or first week, their in-house probation
officer sat down with them and calculated [time] based upon when
they were sentenced and whether it was the 25 percent good time
or 33 1/3 percent good time. The probation officer "did all
these calculations like you would do now under the existing
statute," and the inmate received a document depicting their
sentence, good time credit, and the date the inmate was eligible
for parole. In the event the inmate was unhappy with the
calculations they could ask someone to take another look ask
their fellow inmates whether the calculations were correct. He
assured the committee there is a tremendous amount of knowledge
amongst those incarcerated regarding these calculations. He
offered, that the notion that once the calculation is done and
there is confusion is actually not that big of a risk. He
remarked that the prisoners know exactly the day they will be
released and if the calculation was incorrect there are three
inmates advising them how the calculation was performed
incorrectly. It is certainly is more complicated, he added,
because as he read through the statutes it made his eyes cross,
and asked Mr. Edwards whether his description was accurate.
MR. EDWARDS agreed with his description and clarified that the
institutional parole officer no longer calculates the dates. He
advised that the inmate's complete file and history is forwarded
to a certified time accountant, usually a sergeant or criminal
justice technician, designated by DOC to make the calculations
and that time accountant has attended the class he previously
described.
REPRESENTATIVE CLAMAN surmised that currently there are
specialists performing the calculations.
1:37:33 PM
CHAIR LEDOUX requested information regarding the inmates that
are never eligible for parole, and whether HB 205 will change
that.
MR. EDWARDS opined that HB 205 will expand the number of
eligible inmates, and there are specific groups that now will
become eligible to apply.
CHAIR LEDOUX asked the type of group that is not eligible to
apply currently.
MR. EDWARDS further opined that there are groups of sex
offenders and repeat sex offenders not eligible to apply, those
who have committed a second felony and it becomes a consecutive
sentence, and a class of unclassified inmates such as murderers.
He advised he will provide a specific crime list.
CHAIR LEDOUX advised that she would like the list.
1:39:17 PM
GREG RAZO, Chairman, Alaska Criminal Justice Commission,
referred to the parole eligibility section and the chart
depicting inconsistencies within current Alaska Statutes for
inmates eligible for parole. The chart shows the statute
inconsistencies such that while unclassified felony offenders,
on their first felony, or even with two prior felonies have
eligibility for parole, whereas, class A felony offenders across
the board do not, nor do class B felony offenders. He suggested
that the legislature consider correcting that situation. He
referred to the next slide, and agreed that parole is a complex
system when 463 inmates are eligible and only 15 receive a
hearing. The simple deduction is that something must be
interfering with that eligibility and the actual getting to the
hearing and, he related that it is probably the complexity. He
said if the state incentivizes corrections officers in the
institution to assist in getting parole hearings it may be more
productive.
1:42:07 PM
MR. RAZO turned to the policies developed by the Alaska Criminal
Justice Commission, and advised that the commission took the job
seriously. The commission insisted on unanimous consensus in
order to bring recommendations to the legislature. He related
that the commission was stunned by the large number of
misdemeanor offenders, even low-level misdemeanants sentenced to
prison every year and that 67 percent of all admissions to
prison in 2014 were for non-violent misdemeanors. He referred
to another chart that depicted the state prison system clogged
with the least serious offenders and pointed out that the state
is spending money on the least serious sorts of crimes and not
on the most dangerous people. He said that when adding in all
of the misdemeanors combined, 82 percent of admissions to prison
are for misdemeanor offenses and, he said, this cycling in and
out of misdemeanors translates to millions and millions of
dollars and DOC dollars, court dollars, and public safety
dollars, it affects local communities and local jails, and it
clogs the corrections system in that it does not produce
dividends. Compared to defendants sentenced to probation,
numerous studies have found that jail terms make offenders no
less likely to commit crime upon release. The point being, he
advised, is that there are prison alternatives to jail for
misdemeanants that are more effective such as, probation,
treatment, community supervision, and there are simply more
effective things to do with state correctional dollars than
imprison people. To address this issue, he explained,
originally the commission's recommendation was to reclassify all
of the class B misdemeanors to violations - the non-criminal
offenses, and set a threshold of $250 fine for those offenders
and get them out of the system, but the recommendation was met
with skepticism. He offered that when he was a young zealous
prosecutor he was referred a case by the police for taunting a
police dog that he actually took to trial and after being
laughed out of court by the judge and jury, realized that the
state has class B misdemeanors on the books that are simply
ridiculous. He opined that taking a hard look at class B
misdemeanors is important and that is why the recommendation was
to make those violations.
1:45:34 PM
MR. RAZO referred to the notion that the first-time DUI be
served on electronic monitoring and explained that currently
electronic monitoring is very sophisticated, as it can track the
location of a person, whether they've left their zone, their
consumption of alcohol, and a number of things can be monitored.
These days, the commission's recommendation to allow people to
serve time on electronic monitoring is happening for the most
part across the state when electronic monitoring is available
and the utilization of a prison alternative "saves the state
money by not having to spend that $154 a day for imprisonment,"
he explained. The commission also recommended a 30 day cap on
class A misdemeanors ensuring that the majority of defendants
would see their sentences reduced to under one month. He stated
that there was still the opportunity for argument for those most
serious misdemeanors, the serious aggravated misdemeanors to
have a sentence longer than the 30 day recommendation. Mr. Razo
then referred to the drug penalties and offered that the
commission reviewed many documents depicting the benefits of
prison versus the benefits of alternatives to prison. He said
that the consensus within the commission was that Alaska has an
epidemic of addiction and prisons are filled with addicted
people. He repeated the story he previously testified to
regarding Anvil Mountain Correctional Center and Alaska Native
people. Addiction fills Alaska's prisons but it is not a
criminal justice problem, it is a health problem affecting the
entire state and the reinvestment money should be spent on the
treatment of addiction, he stressed. Frankly, he said, this
serious heroin epidemic fits squarely into those categories, and
it is not the first time a popular drug has been a scourge and
pariah in this state. Thirty years ago the drug scourge was
cocaine, then crack cocaine, then methamphetamines, and as those
drugs became more popular the state ratcheted up the sentences
on each of them and now the state has a prison system filled
with drug offenders without treatment in prison for the most
part. The commission recommended treatment in prison, more
treatment available upon reentry, and reclassification of drug
penalties. He pointed to the fact that the state is not
treating this situation as the health problem it actually is.
1:50:07 PM
MR. RAZO offered that one drug recommendation relates to the
differentiation between high-level commercial dealers and low-
level dealers. He related that the intention was to simplify
the statutes so a law enforcement officer did not have to carry
a scale to determine whether it is one gram or 16 ounces, or a
pound. Originally, he advised, a majority of commissioners
thought that 5 grams of a serious controlled substance would be
the correct amount, but consensus was the 2.5 grams reflected in
the bill. He offered that it created a simpler system that
focused the state's dollars and the state's resources on the
most serious offenders, the commercial dealers. He advised that
the felony theft threshold recommendations arrived through
research, and said that the evidence shows it actually makes no
difference as to the level of theft threshold in terms of
reducing crime. There is no correlation between the two and,
statistically, he pointed out, it cannot be said that raising
the theft dollar threshold will result in more crime and that 23
other states have raised the theft threshold and have not seen
an increase in felony theft. He offered that this is a prime
opportunity to determine whether the state's statutes correlate
with the intended result of less criminal behavior, and in this
case the statutes don't and now is the opportunity. He related
that he understands the business community is up in arms about
this and that he has been a businessman, but in business it is
important to understand the numbers and the numbers in this case
do not support the state's current laws.
1:52:44 PM
CHAIR LEDOUX surmised that research shows that the states that
have passed laws regarding the number for the felony have not
seen an increase in felony theft, and asked whether these states
have seen an increase in misdemeanor theft.
MR. RAZO clarified that they have not seen an increase in crime.
1:53:17 PM
REPRESENTATIVE CLAMAN recalled the slide regarding states that
had increased the theft thresholds in comparison to those that
had not, and that the states that had increased the theft
thresholds actually saw a reduction in overall larcenies. He
asked him to speak to that research finding.
MR. RAZO deferred to Susanne DiPietro of the Alaska Judicial
Council, and advised the Alaska Judicial Council provided
technical advice, as well as representatives from The PEW
Charitable Trust.
1:54:11 PM
SUSANNE DIPIETRO, Executive Director, Alaska Judicial Council,
Alaska Court System, advised that nationwide and in Alaska as
well until the last few months, there has been a general overall
decrease in property and larceny crime. She pointed out that 19
of the 23 states that have raised their felony threshold have
continued to experience property crime decreases that had been
the trend over the last 10 years or so.
REPRESENTATIVE CLAMAN asked whether there were different trends
in the states that did not their felony threshold.
MS. DIPIETRO offered that the PEW study compared the 23 states
that had raised their felony theft thresholds to states that had
not, and there was no difference between the two in the rates of
property and larceny crimes.
1:55:35 PM
REPRESENTATIVE CLAMAN referred to some of the responses Mr. Razo
had heard from the business community regarding concerns in
raising the felony theft threshold which sounds like store
owners and others. He offered that the most common complaint he
has heard from business owners in Anchorage with regard to low-
level thefts of up to $1,000 or more, is that when they receive
a shop lift and call the police department, it is rare the
police have the time and resources to respond. He asked within
Mr. Razo's experience as a prosecutor in terms of businesses,
were they satisfied with the prosecution of relatively low
dollar thefts at that time, or has this been a long time pattern
wherein businesses would like a more aggressive prosecution of
shoplifting but the state does not have the resources.
1:56:09 PM
MR. RAZO responded that the prevalence of shoplifting, low-level
theft in retail stores is fairly significant and it is something
that businesses abhor because they don't make any money when
someone steals from them. He advised that Representative Claman
is correct in that those cases are very rarely prosecuted or
even investigated by police officers, and the cases are disposed
of through plea negotiations well before anyone goes to jail.
He concluded that, based upon his experiences, repetitive
thieves generally have some reason for the fact that they are
stealing and generally it involves their addiction problem. The
people are using the money gained from stealing to support a
drug or alcohol habit and, he opined, if the state starts
dealing with the underlying cause for the criminal behavior, the
state's money is better spent. Thereby, simply throwing someone
in prison and not dealing with what brought them to prison in
the first place doesn't make as much sense as spending less
money for more effective treatment, he expressed.
REPRESENTATIVE CLAMAN referred back to the issue of raising the
felony theft threshold and opined that the frustration of the
business community is the shortage of resources to prosecute
those crimes and, he indicated, that will not change whether the
felony theft threshold is raised or left the same.
MR. RAZO responded that much of frustration is the repetitive
nature of the criminal conduct. He said he did not have an
answer to whether the frustration is due to lack of resources.
1:59:42 PM
REPRESENTATIVE KELLER asked whether the business community
responded to the data that the commission's recommendations were
based upon, and whether there is dueling data out there. He
further asked whether it is Mr. Razo's opinion that the business
community is ignoring the fact that it won't do any good anyway
to keep the threshold low, is it viewed as a disincentive for
crime or is there more to it than that.
MR. RAZO responded that the Alaska Statutes aim to achieve a
number of goals in sentencing, such as community condemnation,
and the business community believes that community condemnation
is more significant than the potential for rehabilitation of
someone that steals from them over and over again, so that
becomes the focus. He opined that it is not consciously or
intentionally disregarding evidence suggesting there is no
correlation. He further opined that the business community in
general believes community condemnation is such an important
goal that regardless of the evidence, it is worthwhile to spend
money on these low-level offenses that are not dangerous to
anyone. With regard to raising the felony theft threshold, he
said that while the commission was in Kotzebue an attorney
within the court system testified that if a young person in
Kotzebue steals a Rock Star and a candy bar from a grocery store
it is a felony theft, yet in Anchorage it is not. He pointed
out that it simply speaks to the vast difference in value across
the State of Alaska for the same crimes.
2:02:24 PM
CHAIR LEDOUX related a concern voiced by the business community
having to do with misdemeanors and the balance of what will be
prosecuted, such that if it is a misdemeanor it may not be
prosecuted at all, whereas if it is a felony it will be
prosecuted. She asked whether that would affect the statistics
on the thefts because if they are not being prosecuted then
possibly the crimes are still being committed and possibly even
more thefts are committed, but if they're not being prosecuted
they will not show up in the statistics.
MR. RAZO replied that he does not have personal knowledge of the
level of prosecution of felony theft or misdemeanor theft. He
opined that Chair LeDoux is accurate in her reporting of the
concerns of the business community, but in reviewing the statute
the focus from the very beginning was to achieve greater public
safety by targeting the most dangerous offenders. At the end of
the day, he remarked, the property offenses are contained in
separate part from the statutes than the offenses against people
for a reason. He opined that when there is no correlation
between the intended effects of reducing crime with the dollar
level of theft, that it makes more sense to at least consider
that that is an alternative for the committee's judgement.
2:04:45 PM
MR. RAZO referred to the recommendation to align non-sex felony
presumptive ranges with Alaska's prior presumptive ranges, and
remarked that this issue is important to understand. In 2005,
he pointed out, the laws were completely different because
presumptive sentencing existed and he could tell a client that
if they were convicted for this offense the presumptive sentence
for their class C felony was five years. Shortly after Blakely
v Washington, 542 US 296 (2004), it all changed and the
legislature changed the statutes to conform with the
requirements of the findings in Blakely. As a result, the
presumptive sentence in 2005 became the floor of a sentencing
range that was developed into the new statutes. The legislature
was clear at the time that they were not intending to increase
the length of sentence, but the fact is that that's exactly what
happened by this change in the felony sentencing statutes. He
advised that the consequence has been a substantial change in
the length of time people spend in prison. The proof is in the
data, average felony sentence lengths are up 31 percent since
presumptive ranges went into effect, and even though it was not
the legislature's intent to have this happen, it happened and
the commission felt this is the time to correct that. The
commission recommended putting the state's sentencing back to
what it was 10 years ago, and to allow for the range of
sentences that includes the prior presumptive term. The
commission believes the recommendation will substantially
achieve the desire to increase public safety and hold people
accountable, and the evidence shows that lengthy prison
sentences simply do not reduce recidivism, he advised.
2:07:18 PM
MR. RAZO referred to discretionary parole and advised the
commission's intent was to expand and streamline the use of
discretionary parole in Alaska. He advised that when the
commission reviewed discretionary parole in Alaska they were
surprised by how few offenders were eligible for parole, and of
those few eligible how few even applied for it. Many of the
commission members reported the fact that the parole application
process was so confusing that many offenders simply chose to opt
out and serve their sentence out in full. The commission
recommended addressing it in two ways: dumping Alaska's current
confusing parole eligibility statutes, whereby, the most serious
unclassified offenses are eligible for parole but offenders
convicted of the sale of heroin, for example, are not; and,
expanding eligibility to all but the most serious class A or
unclassified felony offenders with prior convictions, otherwise,
the inmate would be eligible for parole. The commission sought
to create an administrative parole process that would allow
first time felony class B, and class C, offenders to be
presumptively paroled at their eligibility date, only if they
had complied with their case plan, a victim had not requested a
hearing, and they were a model prisoner, he said.
Administrative parole was built into the commission's
recommendations and, he said, the commission would argue that
having that automatic administrative parole for someone that is
compliant just makes sense.
2:09:06 PM
MR. RAZO referred to the recommendation regarding specialty
parole release for long-term geriatric inmates wherein the data
revealed that the population of old inmates has increased by
times two over the last 10 years. He described it as a
population statistic in that baby boomers are aging and that
older people are not the healthiest people in the world in
general. The idea, he explained, was to not summarily let the
geriatric population out of jail, but to at least offer the
possibility of parole at an earlier date if they had served a
substantial term of sentence. This is the consensus of the
commission that made sense to all members, including the
attorney general, public defender, court system, and judges, he
advised.
2:10:19 PM
MR. RAZO referred to the final sentencing recommendation and
advised the recommendation is to incentivize completion of
treatment for sex offenders with an earned time credit. In
2006, the state got "Tough on Crime" with regard to the very
serious problem of sexual abuse of a minor and sexual assault
and the legislature doubled and in some instances tripled or
quadrupled sex offender sentence lengths. Due to the increased
sentence lengths, the sexual offender population in prison has
grown by 38 percent over the last decade and is currently nearly
one-quarter of the sentenced inmate population. He pointed out
that without changes to safely reduce sex offender lengths of
stay this prison population will continue to grow and is growing
the fastest. The commission debated whether to recommend
reducing sex offender sentences and decided "No," instead the
commission recommended making some sex offenders eligible for
discretionary parole. He stressed that the recommendation is
simply parole eligibility and that parole eligibility was not
extended to the most serious class A and unclassified sex
offenders. Discretionary parole is not an automatic release but
rather creates an opportunity for the inmate to put before the
Parole Board their behavior and whether the programming they
received in prison is sufficient. Thereby, the Parole Board can
review each inmate on a case-by-case basis and determine what is
appropriate for that inmate in terms of release.
2:12:22 PM
MR. RAZO pointed out that rehabilitation for sex offenders is
not about curing them or about making sure they no longer have
deviant thoughts, but rather it is [changing their] behavior and
ensuring that they make better choices regardless of what they
think. Yes, sex offenders can be rehabilitated, he said,
through programming based upon appropriate boundaries and
cognitive behavioral programming that identifies thinking errors
such as, justifications that place blame for anti-social
behavior on someone else or something else. He explained that
behavioral group therapy holds offenders accountable for their
thinking errors and builds the offender's ability to make better
choices. He expressed that evidence has proven that with
therapy together with strict community supervision by the
community probation officers, restrictions on residency,
restrictions on travel, restrictions on internet use, and public
condemnation associated with sex offender registration, that
sexual offenders in general are seeing the lowest level of
recidivism of the entire prison population.
2:14:08 PM
REPRESENTATIVE LYNN asked Mr. Razo to restate the percentage of
the prison populations that are sex offenders, and further asked
whether the discussion had been about extreme sexual offenses as
compared to the 18 year old with a 12 year old.
MR. RAZO said he would have to look through his notes.
CHAIR LEDOUX opined that it was 38 percent of the prison
population.
MR. RAZO offered that due to the increase in sentence lengths,
the sex offender population in prison has increased 38 percent
over the last 10 years.
REPRESENTATIVE LYNN verified that Mr. Razo said it increased 38
percent and not that 38 percent of the prison population are sex
offenders.
MR. RAZO clarified that almost 25 percent of the prison
population are sex offenders.
MR. RAZO, in response to Chair LeDoux, responded 25 percent,
one-quarter.
2:16:08 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), said he was available for
questions.
CHAIR LEDOUX asked Mr. Skidmore to speak directly to the
question of felony theft limits and the prosecutions for theft,
and further asked that if the committee changes the felony
levels will people be less likely to be prosecuted.
MR. SKIDMORE stated that there is not an easy straightforward
answer, but answered that within the last three years the
criminal division's budget has been cut by greater than six
percent and those reductions meant they had to reduce their
personnel by six percent. He advised that while preparing
information for the budget realized that six percent is,
interestingly enough, the exact same percentage of cases they
declined. In reviewing those numbers, advised that the
prosecutors have tried to focus on what they deem to be the most
important cases and crimes by evaluating everything based on the
evidence and whether they can prove it. Although, when their
resources are limited they also have to determine where it is
best they devote those resources. He offered that his office
did see a greater increase in the declining of misdemeanors than
of felonies due to the fact that if they have to choose between
prosecuting a felony versus prosecuting a misdemeanor, they will
usually choose the prosecution of the felony because it is a
more serious crime. He stressed that it does not mean his
office would automatically decline misdemeanor thefts, although,
if they have a difficult choice between a felony and a
misdemeanor there may be an impact on the decision that they
have to make with limited resources and he left it to the
committee to determine where the threshold should be set.
Anecdotally, he remarked, during his 18 years of prosecuting he
supervised the Anchorage Property Unit and the felony crime
threshold was $500. He noted that there was an internal policy
that unless a person stole more than $2,000, they were offered a
misdemeanor resolution and that did not mean no jail. There are
provisions in this bill that would actually reduce the
sentences, even for misdemeanor property offenses, which is a
policy call and recommended by the commission. He continued
that many places within the Department of Law having been
following that general guideline and that is where inflation has
been. It would not materially change what happens in the way in
which they handle cases, he opined but he doesn't know what
happens with Alaska's budget or the criminal division's budget,
overall. He acknowledged that his answer is not clear cut as he
does not think there is a clear cut answer to the question.
2:20:02 PM
CHAIR LEDOUX pointed out that it appears the business community
might have a reason to be concerned.
MR. SKIDMORE noted that in Anchorage, most of the misdemeanors
are now prosecuted by the municipal prosecutor's office and they
do not engage in that same analysis from the standpoint that
they don't prosecute felonies, and only misdemeanors. People in
the business community could be upset if his office declined a
case and, he offered that earlier this year he had conversations
with folks in the Kenai office regarding the fact that they were
prosecuting $5 shoplifts. Mr. Skidmore advised them that it is
very difficult for the department to expend resources on $5
shoplifts when there are serious sexual assaults that need their
time and attention, and he was concerned about whether or not
they were receiving that attention. He expressed that they
would not automatically decline those cases, but that their
resources are something they take into consideration.
2:21:12 PM
REPRESENTATIVE CLAMAN surmised that when Mr. Skidmore was the
director of the property unit there was a $2,000 cutoff that
even though it was technically a felony, they never charged them
as felonies and charged them as misdemeanors. He asked whether
that is still the policy in the criminal division.
MR. SKIDMORE stressed that was not his testimony, and clarified
that when cases came to his office and were charged as felonies
they would resolve them by engaging in plea negotiations and
resolve them as a misdemeanor if it was under $2,000. He could
not say whether that is still the way in which that unit is
operating, and pointed out that at the time of those policies he
was one of two people in the unit and it was supposed to be
staffed by four people, and explained that they engaged in those
practices to try to focus their resources where they most needed
to be focused. Currently, he explained, the Anchorage office no
longer has a theft unit because the Anchorage office has been
reorganized to be focused on individual judges for a whole host
of reasons that he did not want to take up the committee's time
to analyze now. He related that he does not know whether felony
theft cases under $2,000 are being resolved as misdemeanors and
he would have to talk with folks about that. He expressed that
the Department of Law as a whole supports the increase of the
felony theft threshold because it is consistent with what
inflation has done, and it is consistent with the division's
view of how resources should be handled. That does not mean
that no one should be prosecuting misdemeanors, and they do
still prosecute misdemeanor thefts. Although, in terms of
resources put into misdemeanor thefts, this is a resource
analysis they've already been engaged in and for that reason
support this change in the law.
2:23:28 PM
REPRESENTATIVE CLAMAN referred to an Anchorage Fred Meyer store
with a shoplift charge of $1,500, and asked whether it will be
referred to the municipal prosecutor's office to go forward, and
not be prosecuted by the state.
MR. SKIDMORE answered that if the changes in HB 205 are enacted
and placed into law, the answer to his question would be yes,
because it would be a misdemeanor case and prosecuted by the
municipality as opposed to the Anchorage D.A.'s office.
REPRESENTATIVE CLAMAN noted that his question was specifically
today under existing law.
MR. SKIDMORE responded that that was the second part he was
about to answer, and said it would be referred to the Anchorage
District Attorney's Office because it would be a felony level
crime above the current threshold of $750. It would be charged
as a felony, referred to the Anchorage office and they would
evaluate the case in terms of what was stolen, the criminal
history of the person with a greater emphasis placed on repeat
offenders, and if the office deemed it appropriate to prosecute
as a felony they would continue to do so, he explained. In the
event it was deemed appropriate to resolve as a misdemeanor they
would make that offer and continue to handle the case and not
simply just dismiss it. He said he doesn't know that they would
refer to the municipality because it came in as a felony and the
division sees those cases through to the end resolution.
2:25:39 PM
REPRESENTATIVE CLAMAN said in broad terms on a policy level in
terms of discussions with the business community being unhappy
that the prosecutor's office, based on resource realities, is
electing to prosecute some felonies by today's standards as
misdemeanors. He noted, "At some level that unhappiness, the
response is 'Well, I guess they're telling us that we need to
fund more prosecutors to be able to prosecute more cases.' And
our response to the business community might very well say,
'Well, we've kind of got this financial problem and if you,
business community, want to fund a bunch of prosecutors to
prosecute these thefts, we're certainly happy to come up with
ways to tax the business community." His prediction, he said,
is that they probably won't be that interested in that proposal.
So at some level the question becomes more resources that we're
willing to dedicate to prosecution as the big budget question
and not really the question of raising the theft threshold." He
asked whether that would be a fair description of reality the
state is looking at, knowing that Mr. Skidmore is not asked to
make decisions about allocations of money.
MR. SKIDMORE opined that Representative Claman is accurate to
say that that is not something that is appropriate for him to
comment on, because those are larger policy matters that he
leaves to the legislature and its wisdom.
2:27:15 PM
CHAIR LEDOUX asked whether Mr. Skidmore had anything further he
would like to comment on.
MR. SKIDMORE advised that he is the director of the criminal
division and he has served the people of Alaska for 18 years as
a prosecutor. He has worked in Kenai, Bethel, Dillingham, and
Anchorage in supervising the Property and Violent Crimes Unit,
as well as the supervisor of Special Prosecution before becoming
the director of the criminal division. He related that he was
not a member of the Alaska Justice Criminal Commission, but the
attorney general was, and he attended a number of the meetings
and tried to follow much of what they did. He thanked a number
of individuals. He said that HB 205 adopts many of the
recommendations if not all of the recommendations made by the
commission and he will broadly describe a couple of concepts.
The commission found that the current rate of incarceration
would result in having to build a new prison and that the
policies currently found in many aspects of the criminal justice
system have not resulted in the rate of recidivism that many
would like to see. The PEW Charitable Trust, early on in his
conversations with them, also acknowledged that the work of the
commission and that PEW could help focus on reducing recidivism
rates and lowering the prison population. They do not have
metrics for analyzing public safety, per se, or community
condemnation and those were not focused on, but the commission
kept those things in mind. This was supported by the fact that
both the governor and legislative leaders asked the commission
to make recommendations that could reduce the prison population
by as much as 25 percent. In sentencing, the commission looked
at low-level offenses and lowering class B misdemeanors from 90
days to 10 days as the maximum sentence; and creating a
presumptive maximum of 30-day sentences, with some exceptions,
for class A misdemeanors. He noted that the exceptions in the
bill attempt to be consistent with current case law, such as
Blakely, and that refinements need to be made to those sections.
The refinements are not due to any recommendations from the
commission but just understanding how that law works. He
extended that the Department of Law (DOL) is committed to
working with the sponsor's office to ensure that the bill is
drafted in a manner that is consistent with current case law.
2:30:27 PM
MR. SKIDMORE offered that the commission also worked on reducing
theft crimes, both in terms of the threshold for felonies as
well as how they were sentenced. With regard to misdemeanors,
the commission created the presumptive range of 30 days for
class B misdemeanors, a maximum of 10 days. He referred to
other theft crimes and said the commission would not send these
people to jail and would put them on probation because that was
just as effective at reducing recidivism and perhaps more
effective than putting people in jail. He pointed out that it
runs counter to what many people think of in the criminal
justice system but those are the recommendations of the
commission, and if the issue is spending less money, focusing on
theft crimes is an appropriate way to do that. The commission
looked at narcotics and made recommendations for changes there
and also lowered sentences, and beyond that the commission
turned to presumptive sentencing on all felonies, other than sex
felonies, and reduced those ranges. He said he agrees that the
legislature originally intended to create ranges and the
evidence suggests that the amount of sentences imposed did in
fact increase. Previous testimony related 13 percent for the
property offenses and 16 percent for drug offenses. Therefore,
the commission recommended reducing those presumptive ranges
and, he expressed, that he sees nothing wrong with that, and
advised it is strictly a policy call and given the amount of
money having been spent that seems to appropriate overall. From
that point, the commission asked how else could they reduce the
number of people in prison and they then turned to probation and
parole. He noted that, although, he is not the expert on parole
he agrees that having greater eligibility for discretionary
parole makes sense. There was one area in which it is not
discretionary and he wanted to be certain folks understood that.
He said this is consistent with the recommendation from the
commission and that is administrative parole. He explained that
administrative parole is a "shall release," and the Parole Board
does not get discretion if someone is eligible "they shall
release them." That's the recommendation of the commission and
that's the way HB 205 addresses it.
2:32:52 PM
MR. SKIDMORE advised that the commission then turned to the idea
of using "stick and carrot," and from a logical standpoint that
certainly makes sense. If there are misbehaving folks and the
goal is to change that behavior it must be approached both from
offering rewards when they do positive things as well as
penalties for negative actions. He said those are the overall
concepts that they attempted to adopt, and he cannot say that
every prosecutor will be thrilled with all of those changes but
when reviewing the overall problem presented, many of these
solutions certainly make sense logically and the evidence
appears to support many of them.
2:34:32 PM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), Department of Administration (DOA), said he is the
public defender for the State of Alaska and the commission asked
him to attend the committee meeting to discuss and answer
questions regarding the drug recommendations and the changes in
HB 205.
MR. STEINER noted an issue that had not been discussed with
regard to the felony theft reductions and said there does remain
a recidivist provision for misdemeanors such that a person's
third class A misdemeanor prosecution remains a felony so there
is a recidivist statute. He said he cannot speak for DOL but he
knows that each community is different across the state, and in
Anchorage many of the misdemeanors are prosecuted by the
municipality. Within small communities, the prosecutors often
know the individuals involved and he opined that those things
are factored in when cases are screened in if someone is
repeatedly getting into trouble, it may be something that
factors into their decision to screen something in.
2:35:51 PM
REPRESENTATIVE KELLER asked for clarification, "It's a third
misdemeanor but it would be, if this were to pass, it would be
at the higher threshold."
MR. STEINER answered correct, the thresholds would be raised.
He turned to the recommendations involving the drugs, and was
struck by the data on the impact of incarceration, that jail in
fact increases recidivism in many cases and it has a negative
effect on what the state is trying to achieve in terms of
rehabilitation. He said he was also struck by the fact that
jurisdictions handling possession as a misdemeanor had slightly
lower rates of crime in terms of property crime, violent crime,
and drug use. He explained that, based upon those data points
and other supporting data, the recommendation was made to reduce
possession to a misdemeanor across the board for all drugs with
a graduated scheme for first, second and third possession to
increase the penalty and the incentive to complete treatment or
participate in treatment. The goal being not just to save
money, but to promote rehabilitation, promote opportunities for
drug and alcohol treatment, and for individuals to address
whatever the underlying issues are that are driving their drug
use. The scheme has been changed, and in a sense treats all
drugs the same, possession is a misdemeanor, low-level sales is
a low-level felony, and sales of larger quantities merits a much
larger response. The data across the board suggested that the
longer jail sentences didn't do anything to reduce recidivism.
He reminded the committee that primarily the focus of the
commission was to ensure a reduction in recidivism and that
public safety was paramount through all of these discussions.
The commission was trying to save money, and in fact wanted to
be certain the public was safe and the crime went down, he
related.
2:39:29 PM
DEAN WILLAMS, Commissioner Designee, Department of Corrections
(DOC), advised he was available to answer questions.
CHAIR LEDOUX asked whether he would like to discuss the sex
offender treatment program, and opined that committee members
may have concerns.
COMMISSIONER WILLIAMS deferred to Laura Brooks, DOC Health Care
Administrator.
CHAIR LEDOUX noted that her office would be in touch to schedule
Ms. Brooks' testimony.
2:41:01 PM
REPRESENTATIVE CLAMAN referred to Section 61, the 120 day
restriction on electronic monitoring for pretrial release, and
noted that he had previously asked the actual percentage of
cases that go to trial versus cases that are dismissed or pled
out. He said he would like to get the statistic and asked
whether Chair LeDoux would like the information distributed to
the entire committee.
CHAIR LEDOUX responded in the affirmative.
[HB 205 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 205 Memo - RE Committee Questions from 3.16.16.pdf |
HJUD 3/18/2016 12:30:00 PM |
HB 205 |
| HB 205 - Backup Documents - Discussion of ACJC drug recommendations.pdf |
HJUD 3/18/2016 12:30:00 PM |
HB 205 |
| Sentencing Presentation 3.18.16.pdf |
HJUD 3/18/2016 12:30:00 PM |
HB 205 |