Legislature(2019 - 2020)BELTZ 105 (TSBldg)
02/06/2019 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB32 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 32 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 32-CRIMES; SENTENCING;MENT. ILLNESS;EVIDENCE
1:33:24 PM
CHAIR HUGHES announced that the only order of business would be
SENATE BILL NO. 32, "An Act relating to criminal law and
procedure; relating to controlled substances; relating to
probation; relating to sentencing; relating to reports of
involuntary commitment; amending Rule 6, Alaska Rules of
Criminal Procedure; and providing for an effective date."
1:33:36 PM
CHAIR HUGHES asked Commissioners designee Clarkson, Dahlstrom,
and Price to provide an overview and reasons for the bill. Many
members have reviewed crime statistics that indicate crime is on
the rise. The committee needs an update on the overall status of
crime and for the departments to articulate the reasons the
committee will be addressing crime with through the governor's
four crime bill. These bills are intended to reduce crime and
make Alaska a safer place. She remarked that this is a serious
matter and the committee will deliberate on the crime bills to
"get it right," which Alaskans deserve. She further acknowledged
the committee must understand the changes being made given the
complexity of criminal law.
1:34:34 PM
SENATOR SHOWER joined the meeting.
1:36:39 PM
KEVIN CLARKSON, Attorney General Designee, Department of Law,
offered to give a broad overview of SB 32 and the reasons this
bill accomplishes good things for Alaska. He said SB 32 is the
first of four bills designed to reset the stage and give judges,
prosecutors, and law enforcement the tools they need to respond
to and address the state's rising crime trends. He said [Senate
Bill 91] eliminated too many tools. Senate Bill 91 also severely
limited the amount of discretion judges had when imposing a
sentence. He emphasized the importance of focusing on the victim
and the community and not solely on the offender and
rehabilitation.
He said that Senate Bill 91 focused on reducing overall prison
sentences and created systems to supervise and treat offenders
in the community and not within a correctional facility.
Although admirable, being focused on rehabilitation alone
ignores other important sentencing goals. By Alaska Supreme
Court decision, and by statute, during sentencing a trial judge
considers multiple factors, including some that focused on
victims and the community.
For example, judges were to consider the comparative seriousness
of the offense, the prior criminal history of the offender, the
need to protect the public by confining the offender, the harm
incurred by the victim and the danger posed to the public,
deterrence of the offender and others, the expression of
community condemnation of the offense, and restoration for
victims and the community. He emphasized that all of these
factors were to be considered. He said that SB 32 focuses on
crime, classification, and sentencing.
1:39:09 PM
ATTORNEY GENERAL DESIGNEE CLARKSON said first, SB 32 will
strengthen Alaska's drug laws. Drug seizures are increasing each
year and the amount of illegal drugs feeding the opioid epidemic
is unacceptable. With respect to drug possession, SB 32 makes it
a felony to possess the most dangerous drugs, including heroin,
methamphetamine, and cocaine. This change of classification will
help incentivize drug treatment, he said
He said secondly, with respect to drug trafficking, SB 32 would
return the distribution of the most dangerous drugs to class A
and B felonies, increased from the current class B and C felony
levels established by Senate Bill 91. Further, SB 32 would
remove quantity as an element of trafficking. Currently, drug
traffickers can deliberately minimize the amount of drugs in
their possession to avoid apprehension. He said, "If they're
trafficking drugs, they're trafficking drugs." These changes
will ensure that judges can impose significant periods of
incarceration for those engaging in drug trafficking, he said.
ATTORNEY GENERAL DESIGNEE CLARKSON said that third, with respect
to methamphetamine manufacturing and distribution, SB 32 would
reenact the enhanced sentencing provisions necessary to combat
the manufacture and distribution of methamphetamine in Alaska.
It would also enhance sentences in situations in which
methamphetamine is being manufactured in close proximity to
children. This bill will strengthen Alaska's criminal code by
returning all sentencing ranges to pre-Senate Bill 91 levels for
felonies and misdemeanors to ensure that judges can impose the
appropriate sentence under the circumstances for each case.
ATTORNEY GENERAL DESIGNEE CLARKSON said SB 32 will also create a
new crime of terroristic threatening. The bill would create a
generalized threat statute to enable law enforcement to act
sooner when a person threatens to harm others. For example,
these provisions would apply in the case of a school shooting,
he said. Current law has a significant gap within it that makes
it difficult to intervene before the person actually takes a
substantial step to carry out the harm that the person intended.
He said that SB 32 will create a separate criminal felony
offense for the unauthorized removal of an electronic monitoring
ankle bracelet during pretrial or when in custody on a
misdemeanor offense. The bill will make it a class A misdemeanor
for a person to refuse to provide a DNA [blood or oral] sample
upon arrest. This will ensure that DNA samples can be entered
into the [NCSL] DNA database and potentially solve other crimes,
such as when DNA assisted prosecutors to solve the Bonnie Craig
murder. It would also increase the maximum level of general
probation to ensure that offenders are sufficiently monitored.
1:42:51 PM
ATTORNEY GENERAL DESIGNEE CLARKSON summarized that the
governor's crime package resets the stage on criminal justice
reform. He remarked that Alaskans cannot continue down the path
of Senate Bill 91 with rising crime rates in all categories. The
state must be responsive to the public and to the victims of
crime and SB 32 is the first step in that process.
1:43:36 PM
AMANDA PRICE, Commissioner Designee, Department of Public
Safety, agreed that crime rates are rising in Alaska. She said
that SB 32 serves to give the department, Alaska State Troopers
(AST) and law enforcement across the state the tools they need
to do their job and keep our communities safer. Mr. Clarkson
mentioned that SB 32 enacts a generalized threat statute, which
is a critical tool for law enforcement to intervene at the
inception of the real threat of harm. She said she is glad to be
part of the public safety team. She offered her belief that the
inter-departmental collaboration on these bills will serve to
inform the committee effectively.
1:44:48 PM
NANCY DAHLSTROM, Commissioner Designee, Department of
Corrections said she is pleased to be part of the public safety
team. She said that SB 32 will remedy some current problems. The
goal is to keep everyone safe. She said she was especially
pleased that removing an electronic monitor will become a
felony, which she hoped would be a deterrent.
1:45:49 PM
SENATOR REINBOLD asked for further clarification how tampering
with electronic monitoring devices or not plugging them in would
be handled.
ATTORNEY GENERAL DESIGNEE CLARKSON deferred to Deputy General
Rob Henderson to respond.
1:46:21 PM
CHAIR HUGHES asked whether the public safety team has heard
their staff express frustrations. She asked for further
clarification on how this bill will help solve some issues, such
as restoring tools and resources to judges, prosecutors, and law
enforcement officers.
1:47:17 PM
COMMISSIONER DESIGNEE DAHLSTROM offered her belief that the
crime bills will give employees the tools to do their jobs. The
proposed changes will also give first time offenders a chance to
realize they have other options, that they can get help and move
in a more positive direction, she said. She pointed out that
correctional and parole officers have felt constrained due to
weakened criminal laws.
1:48:13 PM
COMMISSIONER DESIGNEE PRICE said that troopers provide a "face"
that the public responds and interacts with on a daily basis.
She stated that troopers experience frustration and distress
when they cannot make arrests, especially when the public
expects them to do so. In those instances, the public trust is
completely eradicated, she said. This not only affects
communities, but it also makes it difficult for the state to
hire and retain talented law enforcement officers. She was
unsure if the state could link the exodus of non-retirement
separations to specific bills, but anecdotally she suggested it
is one factor.
She outlined aspects of SB 32 that provide strong tools for law
enforcement, including the generalized threat statute. This
authority will allow law enforcement to respond to threats.
Further, it will give the Alaska Court System (ACS) the ability
to transmit information to prohibit those with involuntary
commitments from access to firearms. This transfer of
information could prevent access to lethal weapons by those who
may wish to harm themselves, she said. She offered her belief
that these tools will improve public safety and law enforcement
morale.
1:50:56 PM
ATTORNEY GENERAL DESIGNEE CLARKSON said that the combination of
Senate Bill 91 and the budget cuts the Department of Law
experienced in the criminal division had an impact on morale. He
related his understanding that prosecutors felt constrained,
that they were deprived of resources, and the "catch and
release" dynamic was extremely frustrating. He said that this
bill supports prosecutors with resources so they can accomplish
their mission and protect the public.
1:52:03 PM
SENATOR SHOWER said he tracks the Uniform Crime Reports (UCR)
and has done so for a number of years. He has twice been a
victim of a crime in his own house so he can relate to people's
frustration. He stated that crime has been high in Alaska for
some time, that Senate Bill 91 is not the cause of much of the
crime, but it has contributed to some of the spikes. For
example, "catch and release" inability to prosecute, lowering
felonies to misdemeanors, and misdemeanors to violations, he
said. He said the bill has had an adverse impact and the mantra
of the people is that the bill should be repealed. The omnibus
bill was part of the downfall of Senate Bill 91, that it tried
to accomplish too much too soon, and it had too many unintended
consequences, he said. He asked whether the governor's four
crime bills will effectively repeal and replace Senate Bill 91.
COMMISSIONER DESIGNEE DAHLSTROM said that the four bills will
attack the problems and will answer the public's demands. Some
good provisions in Senate Bill 91 are being retained in the
process. For example, provisions that increase the sentencing
time for crimes such as murder. She related that two previously
passed crime bills corrected some issues and those will remain
in law.
1:54:20 PM
ATTORNEY GENERAL DESIGNEE CLARKSON agreed that breaking the
bills into four categories, sex offenses, pretrial and bail,
classification and sentencing, and probation and parole will
give the legislature and the people a more palatable package and
allow them to see how the problems in Senate Bill 91 are being
addressed. He agreed that Senate Bill 91 did not create all the
problems. However, it was an exacerbator and it made the
problems the state has been experiencing much worse.
1:55:18 PM
COMMISSIONER DESIGNEE PRICE said that the governor has never
wavered from his commitment to the public, that he will seek a
repeal and replacement of Senate Bill 91. She said she believes
the effect of this bill and the subsequent crime bills will
successfully meet that obligation.
1:55:41 PM
SENATOR MICCICHE requested that at some point the administration
provide an analysis of the four bills to demonstrate to the
public the specific areas that have been addressed. He said he
noticed several gaps. One gap is that revoked license provisions
were not changed from a violation to a crime. There may be
others, too. He said that this will return drug distribution to
class A and B felonies which are pre-Senate Bill 91 levels. He
asked whether the administration was looking at ways to impact
some drugs, such as opioids and methamphetamines. He suggested
there were two ways to negatively impact the market. One is to
address demand, and the other is deterrence by reducing the
supply. He asked whether the administration was open to changes
to the bill to address these issues.
ATTORNEY GENERAL KEVIN CLARKSON answered yes, that these bills
represent a starting point and the governor welcomes the
legislature's work.
1:58:04 PM
CHAIR HUGHES provided some statistics Mr. Clarkson gave at the
press conference on the crime bills. She said that between 2013
and 2017, the state saw a 34 percent increase in violent crimes,
22 percent increase in property theft, and 24 percent overall
increase in crime. She said that SB 91 was at the tail end since
much of it was not implemented. She cautioned that much work
needs to be done, that the public needs to understand a simple
repeal would still result in an upward trend on crime. She
offered her belief that this bill is a good start towards a
downward trend in crime.
1:59:11 PM
SENATOR MICCICHE asked for further clarification on the logic
for the four crime bills.
ATTORNEY GENERAL DESIGNEE CLARKSON said they were broken into
natural categories for the criminal justice system. He noted the
categories of pretrial and bail services, classification and
sentencing, and probation and parole. Sex offenses seemed like
its own category, so it is the fourth category. He suggested
that one issue with Senate Bill 91, was that it was hard to keep
track of what changes were being made.
CHAIR HUGHES said it was difficult for the public and for
legislators, too.
2:00:49 PM
SENATOR KIEHL asked a broad stroke question about the approach.
Several members have mentioned that crime has been on the rise.
He stated that in the past few years, Senate Bill 54 and House
Bill 312 rolled back pieces Senate Bill 91. He referred to the
fiscal note of approximately $40 million each year. He asked
what makes the administration think this approach will change
things.
ATTORNEY GENERAL DESIGNEE CLARKSON said no one can guarantee
that these changes will reduce crime rates. The prosecutors'
experience has been that the upward crime trends are continuing.
It is not simply during the timeframe of 2013-2017, but crime
rates in Alaska are on the rise. The state needs to do
something, the public wants something done, and rolling back to
pre-Senate Bill 91 seemed appropriate. The governor has sensed
that the public did not want to continue to be a Guinea pig and
wait to discover if Senate Bill 91 will have the intended
effects it is supposed to have. He said he thinks the state
needs to act now to roll back to [pre-Senate Bill 91], and then
rethink what changes need to be made.
2:03:12 PM
SENATOR KIEHL said he is not asking for guarantees, given that
this deals with human behavior, but he would like some
reasonable likelihood that crime will decrease. He said has no
objection to spending funds if the state thinks it will reduce
crime. He recalled Mr. Clarkson mentioned that Senate Bill 91
increased the penalties for violent crime and violent crimes are
on the rise. The one thing the public likes less than being a
Guinea pig is throwing money at a problem with no expectation
that it will work. He was looking forward to any changes that
need to be made to the law that will work and will drive down
crime. He expressed concern that the state will just throw money
at the problem. He said that will be his focus as the committee
reviews SB 32 and the other crime bills.
2:04:15 PM
CHAIR HUGHES said perhaps the deputy commissioners who have been
here the past few years could speak to what has happened, that
it was not just anecdotal. She said that newspapers reported
that some offenders were released and repeated offenses on the
same day as release. She offered her belief if people are put
behind bars that communities will be safer. She agreed there
will be a cost to do so. The state can work to lower the
recidivism rate by the things it does behind the bars, which she
has discussed with Commissioner Dahlstrom. She said she believes
that the state can affect positive change. No one on the
committee wants to experiment with the public, and the committee
intends to get this right, to have safer communities and address
the crime problem, she said. Yesterday, the DPS provided data
that showed a significant spike of 49 percent in vehicle theft
since January 2016. That illustrates and is consistent with the
outrage she has heard in her community. She asked whether he
could elaborate on some of the issues hidden in this large crime
spike that SB 32 that intends to address. She suggested
reviewing the current crime problem, the goal of reducing crime,
and the tools that can help do so might give Senator Kiehl a
little more peace of mind that this is not an experiment but is
the right thing to do. For example, she pointed to the
outrageous statistics on vehicle theft and asked how SB 32 would
bring the statistics down.
2:06:21 PM
COMMISSIONER DESIGNEE PRICE stated that specific to vehicle
theft she did not see a correlation. However, in terms of
Senator Kiehl's point, she suggested that as Rob Henderson works
through the bill, he will find areas that can be linked to
reduction goals. She related a scenario in which law enforcement
officers are constrained under current law if they encounter
drug dealers carrying a couple of grams. She suggested that
returning that specific drug possession to a felony will give
law enforcement the leverage to identify other dealers and
traffickers. She suggested that tools are inherently imbedded in
SB 32. The overarching goal of SB 32 is to reduce crime. In this
instance, it would reduce not only the drug deal but all of the
ancillary crimes. She acknowledged his concern but suggested
that this bill and others can reduce crime.
2:07:49 PM
SENATOR MICCICHE referred to vehicle theft and said that his
constituents and many others have voiced concern. He offered his
belief that the bill would reinstate the class C felony penalty
of 0-2 years, which would increase with the second offense. He
asked if the governor has considered raising the peripheral
crimes related to drug trafficking to the next highest
classification. He suggested that repeat offenses being
increased to a class B felony or an aggravator could separate
first-time offenders from those who have essentially "entered
the business."
ATTORNEY GENERAL DESIGNEE CLARKSON responded that these bills
are designed to be the beginning of a discussion. He said that
the governor welcomes all comments and suggestions on ways to
improve the bills.
2:09:07 PM
SENATOR MICCICHE acknowledged that the public has been very
frustrated with plea bargaining. He directed his question to the
Department of Law (DOL) and asked whether the department has a
new directive for a higher standard and if it will push harder
to gain a higher level of conviction on some crimes.
ATTORNEY GENERAL DESIGNEE CLARKSON answered yes. He said in
discussions with Deputy Attorney General Rob Henderson and John
Skidmore, Director, [Criminal Division, DOL], he has established
his expectation, in particular, on sex offense cases related to
plea bargains. He said he must approve any cases in which the
plea bargain reduces penalties that might trigger public
concern. He characterized this as setting himself up as a filter
to avoid problems, such as the one encountered in the Justin
Schneider case. He said that the Schneider case was principally
a problem created by the law. However, the sex offense bill that
the committee will consider later addresses all of the problems
that arose in the Schneider case.
SENATOR MICCICHE said he did not want to argue the case.
However, he said he is thrilled to hear that going forward
sexual assault cases being plea bargained down must be approved
by the attorney general.
2:11:35 PM
SENATOR REINBOLD provided a brief recap, that Senate Bill 64
established the Criminal Justice Commission (CJC) [when Governor
Parnell signed the bill into law] in 2014. The CJC's
recommendations were incorporated into Senate Bill 91, which she
strongly opposed. She described the bill as a complete revision
of criminal law. Alaska's criminal justice reform went beyond
revisions made in California under Proposition 8. She recalled
one city in California related that crime was so out of control
that it could not figure out how to remedy the system.
She said due to some factors in Alaska, including the recession,
and the marijuana initiative, law enforcement tools were
stripped [in Senate Bill 91], and morale was deeply affected.
She said that in some parameters Alaska became the most
dangerous state in the nation. She expressed alarm at rising
crime, such as vehicle theft. She expressed concern about parole
and probation, especially early release.
SENATOR REINBOLD expressed her concern about the overall cost to
the public, businesses, and the overall sense of a lack of
personal safety. She offered her belief that a complete repeal
of SB 91 would dramatically reduce the crime rate. She
acknowledged that crime statistics in Alaska were bad prior to
Senate Bill 91. However, crime has ramped up since then, she
said. She asked whether repealing Senate Bill 91 would
significantly empower law enforcement officers and reduce crime.
She further asked if that was a true statement.
2:15:21 PM
ATTORNEY GENERAL DESIGNEE CLARKSON agreed it was a true
statement. He stated that the crime bills clearly have a cost,
which is why fiscal notes are attached to them. He clarified
that it is a question of priorities. One of the governor's
priorities is to ensure that the public does not pay the entire
cost of increased crime rates, that the state undertakes the
necessary cost to address the problem, and if that leads to more
people in correctional facilities, so be it.
2:16:05 PM
CHAIR HUGHES acknowledged, as Senator Reinbold mentioned, the
public bears the brunt of the cost of crime in the state. She
recalled hearing figures estimated at $50 million, although she
was unsure if that spanned several years. She asked him to
provide the estimated figures. She agreed the state will take on
additional costs to keep the public safe, but that those costs
would be offset by property losses and destruction currently
being absorbed by the public.
2:16:40 PM
SENATOR REINBOLD said it is more than just the financial costs
since people do not feel safe in their neighborhoods. She
recalled one report, perhaps in the [2017 Alaska State Troopers'
Statewide Drug Annual Report] that showed significant vehicle
theft was to transport drugs. She asked for clarification that
tightening up the drug laws will significantly improve public
safety and reduce car thefts. She further asked whether a
comparison between SB 32 and Senate Bill 91 can be made. She
said the attorneys at Legislative Legal Services indicate they
did not draft Senate Bill 91 but estimated that the current
crime bills will repeal approximately 85 percent of the bill.
She said she would like to know what is left of Senate Bill 91.
ATTORNEY GENERAL DESIGNEE CLARKSON responded that the DOL can
provide documentation charts to identify individualized changes
in specific categories so the committee can make those
comparisons. He offered to provide that documentation soon.
2:18:25 PM
COMMISSIONER DESIGNEE PRICE agreed that the bills as presented
will reduce crime. She acknowledged that it is not possible to
make any guarantees, but it is possible to see that strengthened
laws will result in fewer ancillary crimes. She said, "Drugs is
without question a huge category that will have an impact on
reducing other crimes." She said that addressing drugs in a
holistic and significant capacity will reduce car thefts and
violent offenses.
2:19:29 PM
ATTORNEY GENERAL DESIGNEE CLARKSON, in terms of car theft,
suggested that people steal vehicles for a variety of reasons,
including joyriding, drug activities, or to break down vehicles
and sell the parts. He related a scenario to illustrate the
point. He acknowledged some correlation relates to drug
activity; however, he did not think it was totally the reason.
He was unsure of the amount of Senate Bill 91 being repealed. He
said [the crime bills] represent the beginning of the
conversation. He assured members that the governor is open to
including other provisions in the [crime bills].
CHAIR HUGHES commented that these things are all related.
2:21:28 PM
SENATOR SHOWER said he heard members mention that people are
frustrated. He said he would go beyond that and say that people
are furious and outraged. He said his son-in-law had his truck
broken into a few days ago. People do not just want some
"fixes." People want Senate Bill 91 repealed and they want it
done right. He agreed that throwing money uselessly at problems
is not acceptable, but the cost savings to the state in the past
few years has been shifted to its citizens. Citizens have their
cars stolen, but they cannot get insurance reimbursements, or
their private property is stolen and resold and they cannot get
it back, he said. He said that monetary, psychological, and
damage to families has been shifted to the citizens. He
emphasized the importance of getting this right. He said he was
not [in the legislature] when Senate Bill 91 was passed.
However, he has heard that a Lower 48 group had pushed the
process almost as a social justice reform, to try it out in
Alaska. He agreed that the process of breaking the criminal
justice reform into chunks was the right move. He suggested that
it might be necessary to slow the bill down in order to amend it
or have a longer debate in order to get this done right. He
offered his desire to get this done right for the people.
2:24:05 PM
SENATOR KIEHL agreed it should be done right. He related his
understanding that a series of situations occurred in which law
enforcement was not able to make arrests or to "have the tool of
arrest specifically." He asked for further clarification if this
relates to the general threat statute or if other situations
exist in which law enforcement officers respond to situations
but cannot make arrests.
COMMISSIONER DESIGNEE PRICE deferred to Deputy Commissioner
Duxbury.
2:25:18 PM
MICHAEL DUXBURY, Deputy Commissioner, Office of the
Commissioner, Department of Public Safety (DPS), after
clarification on the question, stated that SB 32 returns drug
possession charges to pre-Senate Bill 91 law and gives law
enforcement the ability to arrest people on drug possession
charges. More than anything, this bill gives law enforcement the
same discretion that has been bumped up to prosecutors and
district attorneys. He said someone could bring 2.5 grams, or 25
doses of an illicit controlled substance like heroin to the
villages. He mentioned that heroin often contains fentanyl in
Alaska. He characterized it as 25 individual opportunities to
harm someone. However, under Senate Bill 91, the person could
just receive a "ticket" for doing so.
MR. DUXBURY, in terms of showing compassion for someone with
addiction, pointed out that he has been involved in drug
enforcement as an investigator and supervisor. In his
experience, a person possessing 25 doses of heroin, would likely
save a few doses and sell the rest. However, it is possible to
help someone get into treatment if the person is arrested]. He
recalled a 2016 federal survey linked methamphetamine and heroin
to property crimes and assaults. He offered his belief that SB
32 would give law enforcement the ability to impose sanctions on
small-time dealers possessing 2.5 grams of illegal drugs to get
to the strategic level of drug traffickers and also improve the
quality of life for residents.
2:29:26 PM
SENATOR KIEHL asked for further clarification that under current
law, law enforcement cannot arrest someone for simple
possession.
MR. DUXBURY said that the possibility exists to arrest, that it
is discretionary, but more often than not it does not lead to
arrest. He related a newspaper account about a year ago, in
which two young men were left for dead in Hatcher Pass. Both
individuals would have been better off had they been arrested
for the small amount of heroin in their possession since they
could have received help from the court. Instead, they were
given tickets and ancillary crime led them to be left for dead.
2:30:35 PM
CHAIR HUGHES appreciated the overview of the problems.
2:31:16 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Central Office, Department of Law, offered to provide a
sectional analysis of the bill and to reference any changes from
Senate Bill 91.
2:32:49 PM
MR. HENDERSON turned to Sections 1 and 2, which read as follows:
Section 1: Clean up language. Aligns murder in the
second degree when a person dies during the course of
a drug deal with the changes made to the drug statutes
later in the bill.
Section 2: Clean up language. Same change that is made
in sec. 1 is made in sec. 2 for murder of an unborn
child in the second degree.
MR. HENDERSON said these are both conforming changes that relate
to misconduct involving a controlled substance in the second
degree found in Section 30. He said that misconduct involving a
controlled substance in the second degree is incorporated in the
"felony murder rule," or murder in the second degree [AS
11.41.110(a)], and murder of an unborn child [AS 11.41.150(a)].
2:33:24 PM
MR. HENDERSON said Sections 3-10 and Sections 12-18 would repeal
the automatic inflation adjustment that Senate Bill 91 created.
Under Senate Bill 91, the decision to adjust the property and
criminal mischief thresholds for criminal conduct was delegated
by the legislature to the Alaska Judicial Council (AJC).
Beginning in 2020, the AJC was obligated to issue a report every
five years to adjust the property and theft thresholds. These
sections would eliminate the automatic inflation adjustment, and
read as follows:
Section 3 10: Removes inflation adjustment from
property crime statutes
.
Section 12 18: Removes inflation adjustment from
property crime statutes.
MR. HENDERSON said that Sections 3-10 and Sections 12-18
eliminate the automatic inflation adjustment. He explained why
that happens. One problem is that it is mandatory.so it is not
permissive. The AJC would issue a report based on the
information on the Department of Labor & Workforce Development's
inflation rate and issue a notice to the respective affected
agencies, including the Alaska Court System (ACS), which would
become a new element of the offense.
He said several legal issues arose. First, in its bill review
letter, the DOL cautioned that this provision may have a
separation of powers or improper delegation concern. Generally
speaking, delegations can come from the legislature; however,
the delegation must come from the executive branch and not the
judicial branch. He said, "The second legal issue that we
identified was a potential notice issue, to ensure that those
who are impacted by this property threshold have adequate notice
as to what that amount is." Third, providing adequate public
participation is the final reason to remove this provision.
During debate on Senate Bill 91, the legislature found that
business owners want to be involved in the discussion on the
amounts.
Senate Bill 91 raised the felony threshold amount from $750 to
$1,000. Subsequently, based on public input, Senate Bill 54
reduced the felony threshold to $750. this provision was removed
from SB 32 since the felony threshold is an important public
policy decision.
2:36:57 PM
SENATOR MICCICHE related his understanding that no felony
threshold amount is established in current statute.
MR. HENDERSON clarified that this bill would remove the
automatic inflation adjustment. Under current law, the threshold
amount for felony theft in the second degree is $750, and the
automatic inflation adjustment would increase that amount every
five years.
2:37:53 PM
MR. HENDERSON turned to Section 11, which read as follows:
Section 11: Defines "prior convictions" when
evaluating the existence of prior convictions in the
recidivist theft statutes.
He explained that Section 11 is a conforming amendment or
"identified omission" to correct an error that occurred during
the drafting of Senate Bill 91 and Senate Bill 54. For the
purposes of considering prior convictions, this bill would add
the crime of theft in the third degree, during prosecution for
recidivist theft. Under current law, a person who commits the
fourth offense of theft in fourth degree would be charged with
theft in the third degree or a class A misdemeanor. Section 11
would add a reference to AS 11.46.140 (a)(4), theft in the third
degree, as a conforming amendment.
2:38:48 PM
MR. HENDERSON referred to page 10 of SB 32, Section 19, which
read as follows:
Section 19: Adds to the crime of escape in the second
degree persons who are under the jurisdiction of the
Commissioner of Health and Social Services for a
felony and restricted to the residence then leave
their residence without permission.
2:39:05 PM
SENATOR SHOWER asked for further clarification of prior
convictions in Section 11.
MR. HENDERSON explained this is not a change in law, but a
clarifying amendment to AS 11.46.140(a)(4), which read, "the
value of the property is less than $250 and, within the
preceding five years, the person has been convicted and
sentenced on three or more separate occasions "
He characterized it as the "recidivist death statute." This
provision of law currently exists, and Section 11 would provide
a clarifying amendment.
2:40:33 PM
MR. HENDERSON turned to Sections 19-20, related to amendments to
the escape statutes. In response to Chair Hughes, he affirmed he
already reviewed Sections 12-18 related to an automatic
inflation adjustment.
2:41:27 PM
MR. HENDERSON referred to page 10, Section 19, which read as
follows:
Section 19: Adds to the crime of escape in the second
degree persons who are under the jurisdiction of the
Commissioner of Health and Social Services for a
felony and restricted to the residence then leave
their residence without permission.
MR. HENDERSON explained that that under current law, a person in
custody for a felony offense, who is placed on electronic
monitoring and removes, tampers, or disables it would be charged
with a class B felony. Section 19 would amend it to include
those in custody under the jurisdiction of the Department of
Health and Social Services, Division of Juvenile Justice.
2:42:32 PM
CHAIR HUGHES related her understanding that Section 20 would
make removing an electronic monitoring device a class C felony.
She asked for the penalty for tampering with an electronic
device under Senate Bill 91.
MR. HENDERSON agreed it would be a class C felony. He explained
that Section 19 relates to the crime of escape in the second
degree. Pre-Senate Bill 91, the penalty for removing an
electronic monitoring device while in official detention was a
class B felony. However, if the person was in DOC custody for a
misdemeanor, the penalty for removing the electronic monitoring
device would remain a misdemeanor.
Under Section 19, the penalty remains the same for a person
charged with escape in the second degree, which is a class B
felony; however, it would add the Division of Juvenile Justice
(DJJ) to the list covered by this provision, thereby creating a
class B felony offense for those in DJJ custody for a felony.
Thus, if the DJJ elected to use an electronic monitoring device
for someone in custody outside a secure facility for a felony,
and the person removed, tampered with or disabled the electronic
monitoring device, the person would be charged with a class B
felony offense. He suggested it may make more sense to review
these sections together [since Sections 19, relates to escape in
the second degree, and Section 20, relates to escape in the
third degree. Both sections are amended to include removing an
electronic monitoring by those in DJJ custody].
MR. HENDERSON referred to Section 20, which read as follows:
Section 20: Makes it a class C felony to remove an
electronic monitoring device or leave a person's
residence while under official detention for a
misdemeanor regardless if under the jurisdiction of
the Department of Corrections or the Department of
Health and Social Services. Also makes it a class C
felony if the person is on conditions of release
before trial and ordered to electronic monitoring or
house arrest by the court and the person removes the
electronic monitoring device or leaves one's residence
without permission.
He reviewed Section 20, which would amend [AS 11.56.320 (a)] to
add the crime of escape in the third degree, which is a class C
felony offense. This would elevate the crime of cutting an
electronic monitoring device for a person under detention for a
misdemeanor crime to a class C felony. Under current law, a
person charged with a misdemeanor who tampers with an electronic
monitoring device would be charged a misdemeanor. Further, this
provision would create a new offense for removing, tampering
with, or disabling an electronic monitoring device while on
bail, he said.
2:45:58 PM
SENATOR SHOWER related his understanding that the Division of
Pretrial Services would be dismantled. He asked whether this
language has been matched so a gap does not exist.
MR. HENDERSON answered yes. He recalled that SB 34 removed the
Division of Pretrial Services (DES); however, that authority is
being shifted to the Division of Probation and Parole (DPP). He
affirmed that the DOC would still have the ability to use tools
such as the electronic monitoring devices. Section 20 of SB 32
would elevate the crime of tampering with an electronic
monitoring device to a class C felony for persons incarcerated,
whether they are incarcerated at a private facility, the DOC, or
DJJ. In further response, he agreed it would apply to all
facilities.
2:47:31 PM
SENATOR KIEHL asked for clarification on the reason to elevate a
bail issue [under AS 11.56.320 (a)(4), which adds language
"while on release under AS 12.30"] to a felony offense and if
this is consistent with how bail issues are handled.
MR. HENDERSON answered that it is to provide incentives for the
DOC and private companies to use electronic monitoring devices
in lieu of incarceration. This provision would also establish a
significant consequence and sanction to meet the goal of
deterrence, he said. This gives someone who is incarcerated an
opportunity to be on electronic monitoring, but it would provide
deterrence by adding a new criminal offense if the person
removes, tampers with, or disables the device. In further
response, he offered to cover violating conditions of release
and failure to appear later.
2:49:28 PM
SENATOR MICCICHE related his understanding that currently the
DOC cannot locate about 30 percent of those on pretrial release.
He wondered why the bill does not match felony to felony; for
example, if a person charged with a class B felony skips town,
the person would only be charged with a class C felony. He
wondered why the penalties were not linked to the original
felony charge.
MR. HENDERSON responded that the administration sought to find a
balance. He related that post-sentencing a class B felony
offense has a maximum penalty of 10 years, and a class C felony
has a maximum penalty of 5 years. He related his understanding
that Senator Micciche's question referred to, for example,
whether someone on bail for an assault in the first degree, a
class A felony, should be charged a class A felony for a bail
offense. He said that is a policy call for the legislature to
make.
2:50:57 PM
At-ease.
2:53:29
CHAIR HUGHES reconvened the meeting. She asked Mr. Henderson if
he would like to make any comments.
2:53:58 PM
MR. HENDERSON said the next section touches on failure to appear
and violating conditions of release. He offered to take it up at
the next scheduled meeting.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SJUD Agenda 2.6.19.pdf |
SJUD 2/6/2019 1:30:00 PM |
SB 32 |
| SB32 - Version A.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM |
SB 32 |
| SB 32 Transmittal Letter.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 32 |
| SB 32 - Classification and Sentencing Sectional.pdf |
SJUD 2/6/2019 1:30:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB32-DOA-PD-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-DOA-OPA-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-DOC-PopMgmt-IDO-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-DPS-CJISP-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-HSS-PS-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB32-Law-CrimDiv-FN.pdf |
SJUD 2/6/2019 1:30:00 PM SJUD 2/8/2019 1:30:00 PM SJUD 2/9/2019 1:00:00 PM |
SB 32 |
| SB 32 - Classification and Sentencing Highilghts.pdf |
SJUD 2/6/2019 1:30:00 PM SSTA 3/5/2019 3:30:00 PM SSTA 4/4/2019 1:30:00 PM SSTA 4/9/2019 3:30:00 PM SSTA 4/11/2019 3:30:00 PM SSTA 4/15/2019 6:00:00 PM SSTA 4/16/2019 3:30:00 PM SSTA 4/18/2019 1:30:00 PM |
SB 32 |
| SB91-GOA Bills Matrix 1-30-19.pdf |
SJUD 2/6/2019 1:30:00 PM |
|
| SB32-JUD-ACS.pdf |
SJUD 2/6/2019 1:30:00 PM |
SB 32 |