Legislature(2007 - 2008)BUTROVICH 205
03/15/2007 03:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB64 | |
| SB89 | |
| SB7 | |
| SB36 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 7 | TELECONFERENCED | |
| += | SB 36 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 64 | ||
| = | SB 89 | ||
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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