02/01/2012 01:00 PM House JUDICIARY

       HB 296 - CRIME OF ESCAPE/DEF. OF CORRECT. FACILITY                                                                   
                                                                                                                                
1:16:57 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO announced  that the final order of  business would be                                                               
HOUSE BILL  NO. 296, "An  Act relating  to service of  process on                                                               
prisoners;  relating to  the  crime of  escape;  relating to  the                                                               
definition of  'correctional facility';  amending Rule  4, Alaska                                                               
Rules of Civil Procedure; and providing for an effective date."                                                                 
                                                                                                                                
REPRESENTATIVE  GRUENBERG,   to  introduce  HB  296,   which  was                                                               
sponsored by  the House  Judiciary Standing  Committee, explained                                                               
that HB 296 was introduced in  order to address issues that arose                                                               
in two  court cases:   Hertz v.  Carothers, 225 P.3d  571 (Alaska                                                             
2010); and Bridge v. State, 258  P.3d 923 (Alaska App. 2011).  In                                                             
Hertz, the Alaska  Supreme Court held that  prison officials were                                                             
not  considered peace  officers  for purposes  of [serving  legal                                                               
summons  and   complaints  on  incarcerated  prisoners,   and  so                                                               
Section 1  of  HB  296  -  by adding  a  new  subsection  (c)  to                                                               
AS 09.05.050 specifying that the  term "correctional facility" as                                                               
used in  AS 09.05.050 has  the meaning  given in AS  33.30.310] -                                                               
would allow  prison officials  to be  designated by  the facility                                                               
superintendent  to   serve  legal   summons  and   complaints  on                                                               
incarcerated prisoners.   In Bridge, the Alaska  Court of Appeals                                                             
held  that  under AS  11.56.310(a)(1)(A),  a  person may  not  be                                                               
convicted of escape  in the second degree if  he/she escapes from                                                               
a facility that isn't  secure, and so [Sections 2, 3,  and 4 - by                                                               
clarifying what  constitutes the  crime of  escape in  the second                                                               
degree under  AS 11.56.310(a)(1)(A),  what constitutes  a "secure                                                               
correctional  facility" under  a proposed  new subsection  (c) to                                                               
AS 11.56.310,  and  what  constitutes a  "correctional  facility"                                                               
under  AS  11.81.900(b)(9),  respectively]  -  would  codify  the                                                               
court's ruling.  [Section 5  would specify in uncodified law that                                                               
AS  09.05.050,  including Section  1's  proposed  change to  it,]                                                               
constitutes  an indirect  court  rule  change to  Rule  4 of  the                                                               
Alaska Rules of Civil Procedure.                                                                                                
                                                                                                                                
1:21:23 PM                                                                                                                    
                                                                                                                                
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section, Criminal Division, Department  of Law (DOL), referred to                                                               
an  amendment  labeled  27-LS1199\D.2, Gardner,  1/28/12,  [which                                                               
later became known as Amendment 1 and] which read:                                                                              
                                                                                                                                
     Page 1, line 2, following "'correctional facility';"                                                                     
          Insert "deleting the repeal of a provision                                                                          
         relating to electronic monitoring as a special                                                                       
     condition of probation and parole for offenders whose                                                                    
     offense was related to a criminal street gang;"                                                                          
                                                                                                                                
     Page 2, following line 23:                                                                                                 
          Insert a new bill section to read:                                                                                    
           "* Sec. 5. Section 3, ch. 27, SLA 2007, is                                                                       
     repealed."                                                                                                                 
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
REPRESENTATIVE GRUENBERG explained that  Amendment 1 would repeal                                                               
the  sunset  on  a  law  allowing a  judge,  as  a  condition  of                                                               
[probation/parole],  to   require  a  gang  member   to  wear  an                                                               
electronic  monitoring device.   In  response to  a question,  he                                                               
indicated  that  the sunset  was  added  to  that law  simply  to                                                               
satisfy a concern of the then-committee chair.                                                                                  
                                                                                                                                
1:24:28 PM                                                                                                                    
                                                                                                                                
QUINLAN  STEINER,  Director,   Central  Office,  Public  Defender                                                               
Agency (PDA),  Department of  Administration (DOA),  referring to                                                               
Section  4 of  HB 296,  cautioned that  attempting to  codify the                                                               
court's  ruling in  Bridge could  result in  the very  unintended                                                             
consequences that the court warned  about, that of broadening the                                                               
definition  of what  constitutes a  correctional facility  to the                                                               
point where it  could potentially impact a lot  of other criminal                                                               
statutes.   For  example,  currently  the statutes  [prohibiting]                                                               
contraband  in [correctional  facilities] don't  address behavior                                                               
occurring  in  camps,  halfway houses,  group  homes,  and  other                                                               
placements,  but under  Section 4's  proposed definition  of what                                                               
constitutes  a correctional  facility, those  contraband statutes                                                               
might  be applied,  possibly resulting  in criminal  prosecutions                                                               
for things  like bringing tobacco into  a group home.   And there                                                               
might also be other impacts to the criminal code, he concluded.                                                                 
                                                                                                                                
REPRESENTATIVE   GRUENBERG,  remarking   that   that  isn't   the                                                               
sponsor's  intent, indicated  that if  Section 4  is retained  at                                                               
all,  it  would  be  narrowed so  that  its  proposed  definition                                                               
wouldn't apply  to the entire  criminal code,  thereby addressing                                                               
Mr.  Steiner's  concern.   Furthermore,  consideration  is  being                                                               
given to possibly including a  "purposes" section in the bill, or                                                               
providing  a letter  of  intent,  in order  to  clarify that  the                                                               
bill's intended purpose is to codify the Bridge decision.                                                                     
                                                                                                                                
MS.  CARPENETI said  HB 296  does  clarify the  Bridge case,  and                                                             
mentioned that the  DOL agrees that providing a  letter of intent                                                               
specifying that  point would be  a good  idea.  However,  the DOL                                                               
shares Mr. Steiner's concern with  Section 4's proposal to change                                                               
the definition  of "correctional facility"  as that term  is used                                                               
in Title  11, to something  similar to the broader  definition of                                                               
that term  as it's  used in Title  33.  "We  really need  to make                                                               
sure that  there aren't  consequences that ...  we don't  like or                                                               
we're not  expecting ...,"  she opined, adding  that a  search of                                                               
the   term,  "correctional   facilities"  in   Alaska's  statutes                                                               
resulted  in four  pages worth  of references  to that  term, and                                                               
that   each   of   those  references   should   be   scrutinized.                                                               
Furthermore,  Section  3's  proposed   definition  of  the  term,                                                               
"secure  correctional facility"  should also  be scrutinized  and                                                               
perhaps amended,  she opined, because  although it  reflects what                                                               
the  court said  in  Bridge,  as currently  written  it might  be                                                             
construed to  mean that simply  having a  lock on the  front door                                                               
would suffice to render a correctional facility secure.                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  a  preference  for adding  a                                                               
"purposes"  section to  HB 296,  rather than  merely providing  a                                                               
letter of intent, which might never be seen.                                                                                    
                                                                                                                                
MS. CARPENETI,  in response  to questions,  said the  DOL doesn't                                                               
have a problem  with Amendment 1, and relayed that  the DOL would                                                               
like  some time  to research  how  [the Bridge  decision and  the                                                             
bill's  proposed definition  changes] might  impact the  statutes                                                               
pertaining to "good time" credit.                                                                                               
                                                                                                                                
1:35:14 PM                                                                                                                    
                                                                                                                                
LESLIE   HOUSTON,   Director,   Central   Office,   Division   of                                                               
Administrative  Services,  Department  of Corrections  (DOC),  in                                                               
response to  questions, indicated that  the DOC is  supportive of                                                               
HB 296;  characterized the use  of community  residential centers                                                               
as a fairly critical component of the reentry process; and said                                                                 
the DOC doesn't have a problem with Amendment 1.                                                                                
                                                                                                                                
1:43:08 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1                                                                     
[text provided previously].  There being no objection,                                                                          
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
CHAIR GATTO relayed that HB 296 [as amended] would be held over.