Legislature(2007 - 2008)BUTROVICH 205
03/15/2007 03:30 PM Senate JUDICIARY
Audio | Topic |
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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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