03/05/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB7 | |
| SB89 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| SB 7 | |||
| * | SB 89 | ||
| SB 36 | |||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 5, 2007
1:33 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski
Senator Lesil McGuire
Senator Gene Therriault
MEMBERS ABSENT
Senator Charlie Huggins, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 7
"An Act relating to the voting rights of felons."
HEARD AND HELD
SENATE BILL NO. 89
"An Act relating to requiring electronic monitoring as a special
condition of probation for offenders whose offense was related
to a criminal street gang."
HEARD AND HELD
SENATE BILL NO. 36
"An Act relating to sentencing for the commission of certain
offenses influenced by alcohol and to the offense of consumption
of alcohol in violation of sentence."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 7
SHORT TITLE: FELONS' RIGHT TO VOTE
SPONSOR(s): SENATOR(s) DAVIS
01/16/07 (S) PREFILE RELEASED 1/5/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) STA, JUD, FIN
01/25/07 (S) STA AT 9:00 AM BELTZ 211
01/25/07 (S) <Above Bill Hearing Canceled>
02/22/07 (S) STA AT 9:00 AM BELTZ 211
02/22/07 (S) Moved CSSB 7(STA) Out of Committee
02/22/07 (S) MINUTE(STA)
02/23/07 (S) STA RPT CS 1DP 2NR SAME TITLE
02/23/07 (S) DP: MCGUIRE
02/23/07 (S) NR: FRENCH, GREEN
03/05/07 (S) JUD AT 1:30 PM BELTZ 211
BILL: SB 89
SHORT TITLE: ELECTRONIC MONITORING OF GANG PROBATIONER
SPONSOR(s): SENATOR(s) WIELECHOWSKI
02/21/07 (S) READ THE FIRST TIME - REFERRALS
02/21/07 (S) JUD, FIN
03/05/07 (S) JUD AT 1:30 PM BELTZ 211
WITNESS REGISTER
Thomas Obermeyer, Aide
to Senator Bettye Davis
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 7 on behalf of the sponsor
Margaret Pugh, Former Commissioner
Department of Corrections
Juneau, AK
POSITION STATEMENT: Spoke in support of SB 7
Michael Macleod-Ball, Executive Director
American Civil Liberties Union of Alaska
Anchorage, AK
POSITION STATEMENT: Spoke in support of SB 7
Natalie Landreth, Staff Attorney
Native American Rights Fund
Anchorage, AK
POSITION STATEMENT: Spoke in support of SB 7
Daniel Levitas, Consultant
Alaska Civil Liberties Union of Alaska
No address provided
POSITION STATEMENT: Spoke in support of SB 7
Dwayne Peeples, Deputy Commissioner
Department of Corrections
431 N. Franklin, Suite 400
Juneau, AK 99801
POSITION STATEMENT: Answered questions about the Department of
Corrections fiscal note for SB 89
ACTION NARRATIVE
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:33:39 PM. Present at the call to
order were Senator McGuire, Senator Wielechowski, and Chair
French. Senator Therriault arrived during the course of the
meeting.
SB 7-FELONS' RIGHT TO VOTE
CHAIR FRENCH announced the consideration of SB 7.
1:34:24 PM
THOMAS OBERMEYER, aide to Senator Davis, read the sponsor
statement into the record as follows:
It is essential to a democracy that every citizen who
wishes to be a productive member of society be
afforded the right to vote. Art. I, Sec. 12 of the
Alaska Constitution provides that criminal
administration is based on the "principle of
reformation" in addition to protecting the public,
community condemnation of the offender, and the rights
of victims. Political participation helps with
rehabilitation and reintegration into the community.
SB 7 grants felons the right and opportunity to vote
if they wish to exercise that right immediately after
having served their time. In Alaska 5,000 Alaskans
have lost their right to vote because of felony
convictions. Current Alaska law bars the vote to
persons convicted of felonies of moral turpitude until
the expiration of a post-incarceration period of
parole or probation, which is often years after they
have reentered society as productive citizens and tax
payers. While Vermont and Maine do not disenfranchise
felons at all, other states are reforming their laws
to allow felons to vote either after release (13
states), after release and completion of probation or
parole (21 states including Alaska), or permanent
disenfranchisement to certain felons (14 states).
Harsh sentencing laws over the past 30 years have
allowed the prison population to burgeon, while
reducing the rehabilitative model to an anachronism.
Over 4.7 million Americans or 1 in 43 adults cannot
vote due to felony convictions, with 1/3 or more of
them due to alcohol and drug offenses. Of those
incarcerated in Alaska 47 percent are white; 37
percent Alaska Native; 11 percent African American; 2
percent Hispanic; and 3 percent Asian/Pacific
Islanders. Minority felons are disproportionately
disenfranchised under current law and the harm of
continued disenfranchisement after release is
exacerbated by stigma and other forms of
discrimination as they try to reenter society.
SB 7 will help rehabilitate released felons by
welcoming them back into the voting community
immediately after release and encouraging them to
become good citizens. Studies show that felons who
vote have a lower rate of recidivism. SB 7 will
streamline the process by which the state restores
voting rights to felons and thus will save money.
1:39:17 PM
SENATOR WIELECHOWSKI recapped that if someone is released from
prison and is still on probation, that person is not eligible to
vote. Under SB 7 that person would be entitled to vote upon
release.
MR. OBERMEYER said correct and a primary reason for the bill is
that enfranchisement is rehabilitative. Get them back into the
community because they are with us anyway, he said.
SENATOR WIELECHOWSKI asked how house arrests would figure in.
MR. OBERMEYER replied the Department of Corrections and the
Division of Elections would need to establish rules to handle
such circumstances.
CHAIR FRENCH opened public testimony.
1:41:22 PM
MARGARET PUGH, Former Commissioner of the Department of
Corrections and retired state employee, stated strong support
for SB 7 and described the issue as emotional for some and
political for others. Amendment 14 of the US Constitution gives
each state the right to determine who votes and who does not
vote and clearly there is not just one American way to restore
voting rights, she stated.
Some states never restore the right; some restore the right upon
petition of the governor for a pardon; some restore the right
after incarceration regardless of probation or parole; and some
states, like Alaska, restore the right after probation and
parole have been served. She noted that in Alaska almost all
felons have some period of probation and/or parole following
release from incarceration.
MS. PUGH said American democracy is an evolving process. In the
early days the elite governed and as a result disabilities were
visited on women, slaves, illiterates, and non-property owners.
Those legal disqualifications continued for years and some
states, notably in the south, instituted other disabilities such
as the poll tax. Ms. Pugh relayed that her great-grandfather had
to pay poll taxes and her great-grandmother could not buy her
own sewing machine.
The purpose of these disabilities was clearly discriminatory and
fortunately most of those practices have been overcome. She
pointed out that today her great-grandmother could purchase a
sewing machine on her own and she could vote. Today there is no
more slavery, there are no more poll taxes, voters are not
required to be literate, and vision or hearing is not a
requirement. However, she said, a disability that many states
have not revisited, is the one that is visited upon convicted
felons.
MS. PUGH said she views SB 7 as a first step because all it does
is restore voting rights to persons convicted of felonies upon
release from custody; they could vote before probation and
parole is complete. Because the Alaska constitution says that
voting rights are surrendered by people convicted of felonies of
moral turpitude, and because most felonies in Alaska are, by
definition, considered to be crimes of moral turpitude, SB 7
would not restore voting rights to very many people, she stated.
SB 7 does not restore other forfeited civil rights. For example
a convicted felon on probation and/or parole must submit to
search of a person, home, or property of any sort without
protection of a warrant; must provide urine samples; must
continue treatment; can not work in certain fields; and can not
bear arms.
MS. PUGH pointed out that restoring voting rights does not
present a threat to any person, place or thing. This is a very
small thing for the legislature to do, she said, but it's a huge
leap for American democracy. In her view the current practice is
blatant racial discrimination and it is time for change.
1:50:58 PM
SENATOR McGUIRE agreed with the previous testimony and said she
has never understood why restoring a felon's right to vote would
be problematic.
She asked Ms. Pugh to comment on testimony last year from the
Department of Corrections suggesting that it would be difficult
to maintain a registry of the different conditions of release to
show the people who have their voting rights restored and those
who do not.
MS. PUGH replied it is an issue, but the Department of
Corrections (DOC) and the Permanent Fund Division already
exchange data bases for forfeited permanent fund dividends so
the technology is available for DOC and the Division of
Elections to exchange data. There will always be a few issues,
but there is no reason they can't be overcome, she said.
SENATOR McGUIRE asked if she believes that rehabilitation is
still a tenet of the penal system. If so, how large a part does
restoring voting rights play in the rehabilitation process.
MS. PUGH said the very definition of correction means to change
and correct and not punish. "I believe that corrections should
have treatment programs of all types and offenders should be
able to vote when they are released from custody," she stated.
1:57:34 PM
NATALIE LANDRETH, Staff Attorney, Native American Rights Fund
(NARF), stated strong support for SB 7. The most critical reason
is that the current law disproportionately impacts Alaska
Natives because they comprise a disproportionate part of the
felon population. In 2004 a study by the Alaska Judicial Council
concluded: that Alaska Natives were overrepresented in the felon
population; that Alaska Natives receive longer sentences than
non-Natives; that Alaska Natives typically have lower per capita
incomes than non-Natives and can not afford private attorneys;
and that people with private counsel generally served less time
in prison and on parole and were generally more successful in
getting reduced charges.
MS. LANDRETH said Alaska Judicial Council statistics highlight
the following: 83 percent of all felons are male, almost 50
percent are under 30 years of age, 50 percent are Caucasian, 37
percent are Alaska Native, 63 percent have alcohol problems, 45
percent have drug problems, more than 33 percent have
identifiable mental health problems, and almost 80 percent
financially qualified for a public defender.
MS. LANDRETH, responding to a question from the state affairs
hearing, relayed that "65 percent of felons were convicted of
class C felonies with property crimes comprising 30 percent and
drug crimes 20 percent. Murder and sexual assault by the way are
only 2 percent and 12 percent of these felons respectively."
In conclusion she said that the people most likely to benefit
from the bill are young men who need help reintegrating into
society. Re-enfranchising these people after they have served
their sentence is a positive and empowering way to achieve that.
2:02:16 PM
MICHAEL MACLEOD-BALL, Executive Director, American Civil
Liberties Union of Alaska (ACLU), noted that he had submitted
written testimony. He asked the committee to think of the issue
of restoring voting rights in the larger context of the right to
rehabilitation under the state constitution. The people who
would benefit from this law are the ones that the court system
has said are ready and worthy of reentering society. The scope
and context of rehabilitation should encompass the notion of
giving these people a vote of confidence to exercise a basic
right of citizenship - the right to vote.
He suggested committee members refer to the December 2006 issue
of the Alaska Law Review. It contains a relevant article by
Christopher R. Murray titled "Felon Disenfranchisement in Alaska
and the Voting Rights Act of 1965."
2:05:24 PM
DANIEL LEVITAS, American Civil Liberties Union (ACLU), said he
submitted written testimony. His work focuses on the issue of
felon enfranchisement and in the last 10 years 16 states have
taken positive steps in this direction. Of the 11,000 Alaskans
who are disenfranchised as a result of felony convictions,
roughly 54 percent would be reenfranchised if SB 7 were to pass.
MR. LEVITAS said the issue enjoys bipartisan support because it
is a fundamental issue of democratic participation, rights and
community safety. It's axiomatic that giving former offenders a
stake in society will make them feel less inclined to repeat
their behavior. In fact, one study shows a clear link between
voting behavior and lower re-arrest rates.
MR. LEVITAS echoed Ms. Pugh's point that SB 7 simply restores
the right to vote in a narrow and specific context. It does not
restore full civil rights to people on parole/probation or
parole. In conclusion he said SB 7 will reduce risks to
communities by promoting the reintegration of ex-offenders.
CHAIR FRENCH noted that Deputy Commissioner Peeples sent a
letter dated March 1 responding to a question raised at the
previous hearing. The data shows the numbers of probationers and
parolees whose last conviction was a felony crime of moral
turpitude. Unclassified felonies are the most serious and C
felonies the least.
Unclassified Felony: 101
A Felony: 200
B Felony: 728
C Felony: 1,640
He asked Mr. Levitas if he is aware of any state that conditions
the right to vote upon the severity of the crime.
MR. LEVITAS replied the majority of states use the simplest
scheme of not distinguishing between particular crimes, but it
is not unheard of to make a distinction and set aside
enfranchising people who commit violent crimes or crimes against
persons until release from probation or parole. The patchwork
approach can be quite confusing and perhaps it contributes to
the fact that most felons who are released from jail believe
they can never vote again, he said.
2:15:47 PM
CHAIR FRENCH found no further public testimony and announced he
would hold SB 7 in committee to look at possible modifications.
At ease
SB 89-ELECTRONIC MONITORING OF GANG PROBATIONER
2:16:42 PM
CHAIR FRENCH announced the consideration of SB 89 by Senators
Wielechowski and McGuire.
SENATOR WIELECHOWSKI, Co-Sponsor of SB 89, explained that the
bill is in response to burgeoning gang-related activity,
particularly in Anchorage. Anchorage has had 20 gang-related
crimes this year and in 2006 the municipality had 122 gang-
related cases. Thus the issue is a legislative priority for both
the Anchorage Police Department and the Municipality of
Anchorage.
Basically SB 89 requires gang members who are on probation to
wear electronic ankle monitors. This would help police to
monitor violent offenders' movements and to supervise their
activities. He noted that San Bernardino California initiated a
similar program that has been very successful.
SENATOR WIELECHOWSKI referenced the fiscal note and suggested it
is a little high. He understands the cost for each unit is about
$8 per day so most of the cost in the fiscal note is for
personnel services, which increase in successive years. The
question to address, he said, is whether the monitoring should
be active or passive.
CHAIR FRENCH asked for an explanation of the difference between
active and passive management.
SENATOR WIELECHOWSKI said his understanding is that there is a
continuum for management, but typically one person is able to
monitor 15 people. Under active monitoring, which is what the
fiscal note assumes, all movement would be monitored
continually. If a person is shown visiting a place that is off
limits, a police officer could be sent to investigate. Under a
more passive option, someone would check the monitor several
times a day. If the monitor showed that a person visited some
place that was off limits, a probation officer or police officer
would possibly be sent out to investigate.
CHAIR FRENCH asked if there are known vendors that supply this
service.
SENATOR WIELECHOWSKI said he couldn't speak to specifics, but he
understands that electronic monitoring is currently used and
that there are different management levels.
2:21:57 PM
SENATOR McGUIRE, Co-Sponsor of SB 89, added that this may seem
like an unusual step, but indications from other states are that
electronic monitoring is a successful way to contain activity.
"We want to stop the deaths. We want to stop these young people,
in particular young people, from getting involved in these gangs
and ending up losing their lives and this is one step toward
it," she stated.
CHAIR FRENCH opened public testimony.
2:24:41 PM
CAROL COMEAU, Superintendent of the Anchorage School District
and member of a task force on gang and youth violence, voiced
support for the legislation if the courts have adjudicated the
person as a gang member. She said the district already has
students who are on probation and wearing electronic ankle
bracelets in school. SB 89 would give the authorities another
tool and would allow students to go to school and get an
education.
MS. COMEAU referenced active and passive monitoring and opined
that the judge should decide which method to use for a
particular individual.
SENATOR WIELECHOWSKI asked if the task force she is on had
recommended either active or passive monitoring.
MS. COMEAU said the policy task force did not make a
recommendation, but Chief Heun would probably have that
information.
2:27:20 PM
KEN GARDNER COBB, Anchorage Police Department, explained that
part of his job is to coordinate a response to gang activity and
SB 89 would be an asset in that effort. He has done some
Internet research and has learned that the ankle monitors have
Global Positioning System (GPS) tracking capabilities. Also they
have software so that inclusion and exclusion zones can be
established. An inclusion zone might be a school or a place of
employment and an exclusion zone might be a night club, movie
theatre or a certain part of town. If the device works as
described and is cost-effective there is reason for great
enthusiasm.
He said the bill calls for adjudicating gang members who have
been involved in gang motivated crimes. Those are crimes that
are for the benefit of a gang or in association with a gang. In
Anchorage a majority of the crimes are what are called gang
related, which is where a gang member or associate is involved
in a fight over a girl, over property, or over a showing of
disrespect.
Initially the bill will not affect many people so it would be a
cost-effective trial. If it is effective the program could be
expanded to include gang related crimes. "That is where we will
see the real value in the future," he said.
2:31:17 PM
RICK SVBODNY, Chief Assistant District Attorney General,
Criminal Division, stated support for SB 89. Gang violence,
particularly in Anchorage, is a major problem and is a difficult
area to prosecute. SB 89 would provide a tool that could benefit
law enforcement and the prosecution, he opined.
MR. SVBODNY, responding to previous testimony, said that under
the current structure it is probable that Blakeley would be
implicated. That is the state would be required to prove that
the individual is a gang member or has gang involvement. He
suggested that a way to get around that is to require wearing an
ankle monitor as a general condition of probation. He noted that
that gives the judge discretion, which is absent under the
current structure. If the judge does not exercise that
discretion he or she would have to make written findings to
explain why an ankle bracelet is not appropriate.
If wearing an ankle monitor is a condition of probation, the
prosecution would not be required to prove gang involvement
beyond a reasonable doubt at trial. At a sentencing hearing the
prosecution would have to prove, by a preponderance of the
evidence, that there was gang involvement. That is another and
easier way that the underlying purpose of the bill can be
fulfilled, he stated.
MR. SVBODNY said just two district attorneys responded to a
statewide query and they told him that the aggravating factor
necessary for this to be implemented has rarely, if ever, been
found. He suggested that given that history this would not be
implemented very often.
MR. SVBODNY referenced the discussion regarding active versus
passive monitoring and opined that technology is ahead of what
is recognized here. In fact parents are able to monitor their
children's movements using GPS tracking devices that are
implanted in their kid's shoes. The idea behind SB 89 is to keep
gang members from congregating and technology isn't too far from
helping that to happen in a cost effective way, he said.
He relayed that he is a member of the Policy Board of the
Western States Information Network, a regional intelligence
sharing system that deals with gang members and drugs. Part of
that includes running a watch center in Sacramento to avoid
conflicts or shootouts when different agencies end up working on
different cases in the same general area. Basically the officers
wear ankle monitors and that information goes to the center for
deconfliction. In that system one person is able to monitor the
entire state of California and the entire state of Hawaii.
Clearly, it can be cost-effective, he stated.
MR. SVBODNY pointed out that judges continue to rule that
electronic monitoring is the functional equivalent of jail time.
To address that he would suggest that the bill specifically say
that someone who is on probation and wearing an ankle monitor
does not get credit for serving jail time. In addition he asked
the committee to consider allowing the parole board to make this
a condition of parole.
Responding to Ms. Comeau's comment about wearing ankle monitors
to school, he advised that the bill applies to adults. In his
view it would not include juveniles.
2:40:28 PM
SENATOR WIELECHOWSKI responded that he does not believe this
legislation is the appropriate vehicle to define incarceration
so he does not favor incorporating the suggestions.
MR. SVBODNY clarified he was not suggesting the bill define
incarceration. Simply say that under this bill electronic
monitoring does not count as incarceration.
CHAIR FRENCH asked for confirmation that his canvas of district
attorneys found that this aggravator is rarely used.
MR. SVBODNY replied he was told that it has never been found. He
understands that it has been stipulated to a couple of times in
the Anchorage Superior Court.
CHAIR FRENCH added "as a course of agreed upon disposition."
MR. SVBODNY replied it would be that or with other aggravating
factors having been found or stipulated to.
CHAIR FRENCH responded, "Stipulated to, but not found. Not after
a contested hearing."
MR. SVBODNY agreed.
CHAIR FRENCH remarked that making it a general condition that
every convicted felon is subject to takes care of the problem of
proof, but then someone would have to review 2-3 thousand felony
cases every year to decide who would wear the expensive ankle
monitors.
MR. SVBODNY replied it isn't that onerous because there must be
a nexus between a condition of probation and the crime that was
committed. "A judge may decide if a person has shoplifted 80
times from Fred Meyer that they are going to monitor you to see
that you don't go to Fred Meyer. But they would have to be
making that nexus."
CHAIR FRENCH questioned what the nexus is between an ankle
monitor and criminal street gang activity.
MR. SVBODNY replied "You presume that if a court makes a finding
that this is gang related - that is by preponderance of evidence
because it is a condition of probation - that it is necessary
for there to be electronic monitoring unless the court finds a
reason not to do it."
CHAIR FRENCH mused he can see the defense argument already. That
is that the first ankle monitor is of no value whatsoever; it
will provide no information about whom the individual is
associating with. Not until a number of monitors are out in the
community will it be possible to see whether people wearing
ankle monitors are spending time in the same proximity.
SENATOR WIELECHOWSKI said one rationale is to keep gang members
from congregating, but it's also a powerful tool to track gang
members and keep them from going to prohibited places.
SENATOR McGUIRE opined that wearing an ankle monitor might help
some people get out of a gang and on with their lives. Certainly
other gang members wouldn't want someone around who was wearing
an ankle monitor and was under scrutiny.
2:47:12 PM
CHAIR FRENCH noted that he received a letter from Fairbanks
Police Chief Daniel P. Hoffman supporting the bill.
DWYANE PEEPLES, Deputy Commissioner, Department of Corrections,
stated that the department supports the concept of SB 89. He
explained that to develop the fiscal note he worked with the
prime sponsor of the companion House bill [HB 133]. It assumes
that there would be a fairly large body of offenders that would
be monitored this way. Coming up with a number has been
difficult, but right now about 96 people with gang related
associations have been identified.
CHAIR FRENCH said he would be interested to know whether all the
people are from Anchorage.
2:49:50 PM
SENATOR THERRIAULT joined the meeting.
MR. PEEPLES said juvenile justice has about 75 individuals in
that would fall under this issue and the Municipality of
Anchorage has identified 122 individuals. The fact that there
are people in both the juvenile and the adult system is an
indication that this is a pervasive issue, he said. And the
fiscal note assumes that the numbers will build by about 15 to
20 per year. According to the people running the San Bernardino
system, this is a very tough group to monitor, which is part of
the argument for having GPS tracking.
MR. PEEPLES reported that system vendors are currently available
in Alaska so that isn't a big issue.
CHAIR FRENCH, noting the high and escalating fiscal note, asked
if the fiscal note compensates for population growth or assumes
that more and more people will be placed on probation.
MR. PEEPLES responded he calculated 15 additions each year.
CHAIR FRENCH asked if he was saying that the cost to monitor 15
probationers for a year is $174,000.
MR. PEEPLES said yes and most of the cost is staff time. He
elaborated that the original interpretation was for active
continuous monitoring - 24/7. The computer software that
monitors the GPS would notify whoever is responsible if someone
exits or enters an exclusion zone. Individuals could also be
monitored in the field using a laptop. He noted that the
California program, which is fairly intensive, has a 1:20
monitoring ratio and that is inadequate. After looking at other
models he chose a 1:15 ratio.
SENATOR WIELECHOWSKI asked what a passive system would entail
and how much it would save.
MR. PEEPLES replied there are various models, but the system
could be set up with large inclusion zones. "If it went off you
could go pick somebody up and not be too concerned about how
much movement they had. Or you could just download the GPS on a
daily basis, review what they've done and then do some
reinforcement on if they are deviating out of an inclusion
zone." Under the least active model one person could probably
monitor 50 people, he said.
SENATOR WIELECHOWSKI asked if he had prepared a fiscal note for
a passive system.
MR. PEEPLES said no, but it would be fairly easy to do.
SENATOR WIELECHOWSKI said he'd like to see that so the options
could be evaluated.
SENATOR McGUIRE commented she appreciates the work that has been
done on the fiscal note and she looks forward to seeing one for
a passive model.
CHAIR FRENCH found no further questions or testimony and
announced he would hold SB 89 in committee to allow time to get
some questions answered.
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:55:54 PM.
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