Legislature(2007 - 2008)BUTROVICH 205

03/15/2007 03:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 7 FELONS' RIGHT TO VOTE TELECONFERENCED
Heard & Held
+= SB 36 SENTENCING FOR ALCOHOL-RELATED CRIMES TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 64 DISCLOSURES & ETHICS
Moved CSSB 64(JUD) Out of Committee
= SB 89 ELECTRONIC MONITORING OF GANG PROBATIONER
Moved CSSB 89(JUD) Out of Committee
          SB  36-SENTENCING FOR ALCOHOL-RELATED CRIMES                                                                      
                                                                                                                              
4:01:23 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 36.                                                                              
                                                                                                                                
DAVE STANCLIFF,  staff to Senator  Therriault, explained  that SB
36 is based  on three points. The first is  the premise that some                                                               
members  of  society  are  transformed  under  the  influence  of                                                               
alcohol,  predisposing  them  to  violence  that  can  result  in                                                               
criminal  activity.  In  such circumstances  SB  36  would  allow                                                               
judges the discretion to remove alcohol  for some period, up to a                                                               
lifetime, as  part of  the sentence. Another  aspect of  the bill                                                               
deals with  people who  have more  than two DUIs  on record  or a                                                               
single DUI  that has  resulted in a  serious physical  injury. He                                                               
noted  that when  legislation similar  to  SB 36  was before  the                                                               
Senate  Judiciary Committee  last year,  Chair French  added this                                                               
language.                                                                                                                       
                                                                                                                                
MR. STANCLIFF said the purpose of  SB 36 is to protect people. He                                                               
asked members  to imagine  someone who  is released  on probation                                                               
after having served  time for committing a  violent offense while                                                               
under  the  influence of  alcohol.  Alcohol  is prohibited  as  a                                                               
condition of probation and everything  works well until probation                                                               
is over. At  that point the individual returns to  his or her old                                                               
pattern of drinking,  which leads to the same old  violent and or                                                               
criminal behavior. Follow the papers  and see the great role that                                                               
alcohol  plays in  so many  of today's  violent crimes,  he said.                                                               
What isn't  reported is  that there are  volumes of  studies that                                                               
connect  alcohol  and the  way  certain  people react  when  they                                                               
drink.  For some  people  there is  a  physiological change  that                                                               
occurs. "Something as basic as  a massive amounts and releases of                                                               
testosterone  for some  males  that consume  alcohol,  to a  very                                                               
subtle  changes   in  brain  activity."  Clearly,   when  certain                                                               
individuals  use alcohol,  they  have a  propensity  to do  great                                                               
violence.                                                                                                                       
                                                                                                                                
MR. STANCLIFF said the protective  provision of the bill provides                                                               
an  opportunity  for  interdiction  before  a  crime  occurs.  If                                                               
someone who has served time for  a crime that was committed while                                                               
under  the  influence of  alcohol  begins  to drink  again,  that                                                               
person  could be  taken into  custody. "This  is not  a mandatory                                                               
option. It is  one we don't see will be  used very frequently. We                                                               
do  see it  in some  cases  as an  alternative to  a much  longer                                                               
prison sentence  if the person  agrees, is willing to  go through                                                               
treatment."  He noted  that the  Senate  State Affairs  Committee                                                               
added  a provision  to use  Therapeutic  Courts in  lieu of  this                                                               
option.                                                                                                                         
                                                                                                                                
MR. STANCLIFF  described SB  36 as  a way to  change the  way our                                                               
culture and our young people  view alcohol. "Young people grow up                                                               
thinking of alcohol  and drinking as a right  and not necessarily                                                               
as a privilege." This is a  novel and serious approach that would                                                               
be used infrequently, but it would  be a sentencing option in the                                                               
toolbox.  Recidivism  and  violence   related  to  alcohol  is  a                                                               
tremendous  problem  and  Senator Therriault  feels  that  judges                                                               
ought to have this option.                                                                                                      
                                                                                                                                
4:07:05 PM                                                                                                                    
SENATOR WIELECHOWSKI directed  attention to page 3,  line 15, and                                                               
asked if, in  a criminal case, a finding of  clear and convincing                                                               
evidence  is  more  appropriate  than   a  finding  of  beyond  a                                                               
reasonable doubt.                                                                                                               
                                                                                                                                
CHAIR FRENCH  said the  short answer is  yes. The  guilty verdict                                                               
must be supported by the  beyond a reasonable doubt standard, but                                                               
there  are  other sentencing  factors  that  sometimes come  with                                                               
different standards of proof. He  asked Ms. Carpeneti to give her                                                               
perspective.                                                                                                                    
                                                                                                                                
4:07:56 PM                                                                                                                    
ANNE  CARPENETI, Criminal  Division, Department  of Law,  advised                                                               
members she  and Doug  Kossler discussed  the bill  and concluded                                                               
that it  probably would not  be a  Blakely factor. The  clear and                                                               
convincing evidence standard of proof could be supported.                                                                       
                                                                                                                                
MS.  CARPENETI informed  members that  Mr. Kossler  litigates the                                                               
validity  of  legislation and  he  suggested  that the  committee                                                               
consider  adding to  subparagraph (A)  the standard  of proof  of                                                               
protecting the public  that is in subparagraph  (B). Although she                                                               
isn't lax  on drunk  drivers, there could  be a  first-time drunk                                                               
driver  who is  convicted of  a felony  third degree  assault for                                                               
breaking  someone's  leg, for  example.  It  is serious  physical                                                               
injury and  it would  fit under this  provision unless  the court                                                               
found that it was necessary for  protection of the public to have                                                               
this long time condition imposed.                                                                                               
                                                                                                                                
CHAIR   FRENCH   rephrased   the  suggestion,   which   is   that                                                               
subparagraph  (A),  on  page  3,   lines  14-17,  would  be  more                                                               
defensible if it  included the requirement that the  judge make a                                                               
finding  that imposition  of  the condition  was  to protect  the                                                               
public. He agreed to take that under advisement.                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI  said he  didn't track  why not  having that                                                               
standard might be problematic.                                                                                                  
                                                                                                                                
MS. CARPENETI elaborated that a  condition of probation must have                                                               
some  rational  relationship to  the  crime  that was  committed.                                                               
There  could a  drunk driver  who assaults  someone and  does not                                                               
cause death  but it is a  felony against a person.  "You wouldn't                                                               
want  a court  to be  able to  impose a  lifetime prohibition  of                                                               
drinking  on   somebody  under  circumstances  where   it  wasn't                                                               
necessary to protect the public."                                                                                               
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  it would  be  a  constitutional                                                               
problem.                                                                                                                        
                                                                                                                                
MS. CARPENETI said assault in the  third degree is class C felony                                                               
with a  maximum 5 years  imprisonment. A lifetime  prohibition of                                                               
drinking is a lot  longer than 5 years in jail.  It would be more                                                               
defensible and make more sense if  there were a protection of the                                                               
public standard.                                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI  posed the  hypothetical example  of someone                                                               
who rapes  a person  while under  the influence.  It was  a first                                                               
time offense  and there  wasn't much proof  that it  would happen                                                               
again. He questioned  why policy makers couldn't  say that person                                                               
has lost the right to drink for  the rest of their life. "I guess                                                               
I'm just  not tracking why  we wouldn't be able  to do that  as a                                                               
policy call," he stated.                                                                                                        
                                                                                                                                
MS.   CARPENETI  responded   the  courts   generally  hold   that                                                               
punishment should  be somewhat proportional  to the act  that was                                                               
committed. "Even in a first-time  rape case it would certainly be                                                               
more defensible."  It just  makes sense to  require the  court to                                                               
make a  finding that prohibiting  drinking for a lifetime  is for                                                               
the protection of the public in both (A) and (B).                                                                               
                                                                                                                                
CHAIR FRENCH recapped that if  the most severe penalty is imposed                                                               
for  the least  severe felony,  the  imbalance is  so great  that                                                               
without the finding that it  was necessary to protect the public,                                                               
it would  be difficult  to defend  the sentence  in the  court of                                                               
appeals.                                                                                                                        
                                                                                                                                
MS. CARPENETI said it's a question of proportionality.                                                                          
                                                                                                                                
CHAIR FRENCH  said he is  sure Mr.  Kossler is thinking  ahead to                                                               
the time when  he has to defend  this law. It would  be easier if                                                               
the  judge  has  made  a  more specific  finding  about  why  the                                                               
condition is being imposed.                                                                                                     
                                                                                                                                
MS. CARPENETI said that is correct.                                                                                             
                                                                                                                                
4:13:40 PM                                                                                                                    
SENATOR  WIELECHOWSKI  continued  to  express  concern  with  the                                                               
suggested  change.  He is  reluctant  to  restrict a  judge  from                                                               
prohibiting  someone from  using alcohol  for a  heinous offense.                                                               
"You're always going to  have that constitutional proportionality                                                               
issue, but  I think  we're taking away  something else  by adding                                                               
what  you're  requesting   that  we  add  and  I'm   not  sure  I                                                               
necessarily want to do that."                                                                                                   
                                                                                                                                
MS. CARPENETI gave her perspective  that the two sections will be                                                               
compared and  she believes  the finding  would be  more necessary                                                               
under subparagraph  (A) than subparagraph  (B), So, she  said, if                                                               
it's  included just  once  it ought  to be  under  (A). Also,  if                                                               
someone  is  on  their  third  time driving  drunk,  it  is  more                                                               
defensible to have a lifetime prohibition.                                                                                      
                                                                                                                                
CHAIR FRENCH suggested that Mr.  Kossler write up his feelings so                                                               
they could  be part of  the record and  help the members  to form                                                               
their thinking.                                                                                                                 
                                                                                                                                
4:15:26 PM                                                                                                                    
CHAIR FRENCH  asked Mr.  Stancliff if  other states  have adopted                                                               
this approach of criminalizing the consumption of alcohol.                                                                      
                                                                                                                                
MR. STANCLIFF replied as far as  he knows Alaska would be totally                                                               
unique.                                                                                                                         
                                                                                                                                
4:16:07 PM                                                                                                                    
MaSHELLE  HESS,  Division  of Behavioral  Health,  Department  of                                                               
Health and  Social Services (DHSS),  stated support for  the idea                                                               
of  increasing public  safety  and the  intent  of the  committee                                                               
substitute.  However,   the  division  and  the   department  are                                                               
concerned that  the bill doesn't  address the issue  of dwindling                                                               
dollars  in  the prison  system  resulting  in reduced  substance                                                               
abuse treatment.                                                                                                                
                                                                                                                                
CHAIR FRENCH  acknowledged it is  a valid concern. He  added that                                                               
the  Department of  Corrections is  asking for  a budget  of $241                                                               
million to cover  5,500 inmates and an equal  number of parolees,                                                               
which is basically $22,000 per  year per inmate/parolee. This has                                                               
made  him mindful  that every  time a  law is  passed that  makes                                                               
someone a convict, the state gets a bill for $22,000.                                                                           
                                                                                                                                
SENATOR WIELECHOWSKI asked what  currently happens to someone who                                                               
is incarcerated and has a substance abuse problem.                                                                              
                                                                                                                                
MS  HESS  said prison  treatment  programs  are limited  to  non-                                                               
existent. If alcohol  or another drug was a part  of the crime, a                                                               
condition  of  probation  might include  the  requirement  to  go                                                               
through   a  community-based   substance  abuse   program.  Those                                                               
programs  are grant-funded  through  the  Division of  Behavioral                                                               
Health. "If they  are convicted of a violent crime  and then this                                                               
bill passes where  a judge can as a tool  in his toolbox sentence                                                               
them to  a lifetime ban  on alcohol,  they will just  continue to                                                               
cycle through the  system." When these people are  in prison they                                                               
won't  use  alcohol  and  this  is the  ideal  place  to  receive                                                               
treatment.                                                                                                                      
                                                                                                                                
SENATOR  WIELECHOWSKI restated  that  she  envisions a  revolving                                                               
door scenario.                                                                                                                  
                                                                                                                                
MS.  HESS said  right  adding  that in  her  previous  life as  a                                                               
probation officer she  used to tell her clients:  "Lack of access                                                               
does not constitute treatment."                                                                                                 
                                                                                                                                
4:20:09 PM                                                                                                                    
SENATOR  WIELECHOWSKI   asked  if   there  is  a   Department  of                                                               
Corrections fiscal note.                                                                                                        
                                                                                                                                
CHAIR  FRENCH  said  the  fiscal  note  from  the  Department  of                                                               
Corrections is indeterminate. The  analysis says: "The Department                                                               
of  Corrections   can  not  determine  fiscal   impacts  of  this                                                               
legislation.  Data  is  not  available   for  the  department  to                                                               
calculate the number of offenders  that would not comply with the                                                               
sentencing requirements.  There is  a zero  fiscal note  from the                                                               
Department  of Law  and  an indeterminate  fiscal  note from  the                                                               
Public  Defender  Agency.  The  latter was  prepared  by  Quinlan                                                               
Steiner and  the analysis says:  "The Agency... can  not reliably                                                               
predict the fiscal impact of this legislation."                                                                                 
                                                                                                                                
CHAIR  FRENCH  found  no  further   questions  of  testimony  and                                                               
announced he would hold SB 36 in committee.                                                                                     
                                                                                                                                

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