Legislature(2017 - 2018)GRUENBERG 120
10/24/2017 09:00 AM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB54 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 54 | TELECONFERENCED | |
SB 54-CRIME AND SENTENCING
9:01:28 AM
CHAIR CLAMAN announced that the only order of business would be
CS FOR SENATE BILL NO. 54(FIN), "An Act relating to crime and
criminal law; relating to violation of condition of release;
relating to sex trafficking; relating to sentencing; relating to
imprisonment; relating to parole; relating to probation;
relating to driving without a license; relating to the pretrial
services program; and providing for an effective date."
CHAIR CLAMAN advised that Nancy Meade, Alaska Court System,
would explain the Alaska Court System's bail schedule, and
advised that the bail schedule is not part of the legislature's
action on criminal justice reform.
9:02:33 AM
NANCY MEADE, General Counsel, Administrative Staff, Office of
the Administrative Director, Alaska Court System, advised that
there may have been a misunderstanding about the bail schedule
and explained that the bail schedule is the courts "sort of" set
of presumptive bails that take place when someone is arrested,
and there have "always, always" been court bail schedules. She
further explained that at the time an arresting officer brings
someone into a correctional facility, they look at the bail
schedule, and follow it. For example, she advised, releasing
someone on their own recognizance (OR) or charging the bail
amount listed on the bail schedule. Under court rule, the bail
schedule does not apply to felonies such that when someone is
charged with a Class C felony vehicle theft and brought to jail,
the person cannot be released. The bail schedule does not apply
to any crimes of domestic violence, or violating conditions of
release set in a crime of domestic violence. Statutorily, she
advised, those people must be held until they see a judge the
next day at arraignment. The bail schedule does have a list of
things that are presumptively "OR releases" which means the
person should be released on their own recognizance. She
explained that, in several places, the bail schedule includes
provisions that in the event an arresting officer or
correctional officer believes the dollar amount or the "OR
release" set in the bail schedule are inappropriate in a
particular situation, that officer can call an on-call judge.
The Alaska Court System has on-call judges on duty 24/7 for that
purpose, she said.
9:05:30 AM
MS. MEADE referred to the current bail schedule and explained
that about the time Senate Bill 91 [passed in the Twenty-Ninth
Alaska State Legislature] was being debated in the Spring of
2016, more information had come forward. Social science and
research from the Alaska Criminal Justice Commission showed that
Alaska's pretrial population had grown 81 percent over the last
10 years, and in response to that information, under Senate Bill
91, the legislature enacted all of the reforms to pretrial
decision-making which will go into effect January 1, 2018.
These reforms, she explained, include the new pretrial services
division under the Department of Corrections (DOC), and a
completely revised bail statute the judges use to determine
whether someone should be released, under what conditions and
bonds, and what kind of bail should be set. The clear intent of
the legislature on the record is that these changes were made
because it was deemed that too many people were in jail
pretrial. She said she has heard different numbers as to the
percent of pretrial individuals waiting in Alaska's prisons, and
explained that these individuals have not yet been found guilty
or pled guilty, and are awaiting a determination of their case.
9:07:23 AM
MS. MEADE remarked that this information was considered by the
Alaska Criminal Justice Commission, and this legislature, that
this was not the best use of prison beds and not the best way to
handle pretrial defendants. The presiding judges reexamined the
bail schedules and prior to March 2016, each individual
presiding judge had their own bail schedule for their own
district reflecting community norms and other differences around
the state. The presiding judges determined that it may be wiser
to have a statewide uniform bail schedule, so they put together
a bail schedule that would recognize this latest research, and
also would more closely adhere to the existing bail statute.
The existing statute will not change until January, she
explained, and it has a clear presumption for releasing someone
OR unless something more is needed to prevent the person from
not appearing in court, or to protect the victim, the community,
and others, from that person. Unless a judge finds that
something more is needed to prevent a failure to appear or
because the person is a threat, the presumption in the existing
statute is to release the person OR. In recognition of the
research, and of the clear statutes, she said, the judges
revised the bail schedule and issued a statewide bail schedule.
The presiding judges provided that more misdemeanors would
qualify for an OR release, which had been taking place all along
for different types of misdemeanors, and the judges set dollar
amounts of established bail for certain [alleged crimes]. For
example, she said, under the statewide bail schedule, first time
driving under the influence (DUI) is an OR release because the
legislature determined that for the first DUI, a person cannot
spend any of the three-day mandatory prison time in jail, and
that person's time would be spent on electronic monitoring, or
house arrest. Therefore, she advised, according to legislative
intent, that person should not spend any time in a jail bed, so
a judge is hard-pressed to hold that person for 24-hours in a
jail bed until they see a judicial officer, she said.
9:10:37 AM
MS. MEADE advised that, subsequent to March, the presiding
judges revised the bail schedule because most of its problems
were with regard to the violating conditions of release
provision. She pointed out that Senate Bill 91 changed that
misdemeanor into an arrestable violation, so there was confusion
about what happens when someone is arrested for violating
conditions of release, taken to a correctional facility, and the
law says they cannot spend any time in jail because violations
do not include jailtime. She said that the presiding judges
tried to revise that provision a few times, and one revision was
made in response to feedback from law enforcement personnel
dissatisfied with the fact that a misdemeanor assault was an OR
release under the initial drafts of the bail schedule. In
response, the judges revised the bail schedule, and currently a
misdemeanor assault is not an OR release and a dollar amount is
attached.
MS. MEADE commented that she has heard dissatisfaction among
some people about the fact that law enforcement would like the
ability to retain custody of drunk individuals or those who
possibly have a drug problem. For example, she explained, when
law enforcement arrests someone for a low-level misdemeanor,
such as trespassing, if the person is intoxicated, the bail
schedule does not read that the person should be held. In
response to that issue, she reiterated that in any particular
case, if law enforcement is not happy with the release called
for under the bail schedule, they can call a judge at 2:00 a.m.
and explain the problems, and the judge would in all likelihood
hold the person or impose a bail amount. Also, she said, the
presiding judges "really did not agree" there was a basis for
holding someone in jail until they were sober. She pointed out
that there were "great discussions" about that issue and the
judges could not find a legal basis for holding an intoxicated
individual because it is not against the law to be drunk.
9:14:06 AM
REPRESENTATIVE MILLETT referred to the "sober law, and advised
that she performed research last night and pointed to a woman in
Fairbanks being released on her own OR release while
intoxicated, and "went out and died." Also, she said, a man in
Eagle River was charged with two DWIs in the same day. She
noted that [previously] this was "standard operating procedure"
and asked what stopped public safety from holding someone until
they were sober. She stressed that she would like that tool to
be in law enforcement's toolbox, especially when it comes to
rural Alaska.
MS. MEADE responded that the procedure to hold someone until
they were at a certain level of sobriety was not the case
statewide. For example, the First Judicial District had never
had a provision saying to hold someone until a certain
drug/alcohol level, but it had been in Anchorage, and the APD
and the state troopers were used to that provision. The four
presiding judges did not agree whether that was appropriate or
not, and at the same time, the legislature was saying to be
careful about who the state was keeping in hard beds. There was
disagreement between the four presiding judges about having a
provision that basically made the DOC the detox center because
there was not a different place to put these intoxicated people,
and that did not seem justified by the law. She pointed out
that the legislature could write a law that read, "If the court
has a bail schedule, it must provide that people shall be held
until their BAC is at a certain level." She reiterated that the
presiding judges did not, as a group, reach agreement that that
was valid under the existing law.
9:16:55 AM
REPRESENTATIVE MILLETT stressed her concern about public safety,
and asked whether it is safe to release someone, over the legal
limit of alcohol, to go out and possibly harm another
individual. She related that she struggles because she believes
it is a good policy, and asked whether Ms. Meade would oppose an
amendment that added that provision back into statute.
MS. MEADE clarified that that provision was never in statute,
and if Representative Millett wanted to add that amendment to SB
54, the court system would be neutral. She reiterated that with
respect to public safety, if there is any perceived safety
threat in any particular situation, law enforcement can call the
judge and the judge would impose a bail to retain the person.
She remarked that, statistically, the people with first time
DUIs do appear in court and are not a threat to the community.
She offered that an amendment reading that anyone with an
alcohol amount above a certain level should not be released, is
the committee's policy call but there are two ways to look that
the issue.
9:18:04 AM
REPRESENTATIVE MILLETT noted that this is solely about someone
being released on their OR release without a third-party person
picking them up, and that [the provision] for a third-party to
pick someone up after their release is always available.
MS. MEADE said she was uncertain she understood Representative
Millett, but it would depend upon how the statute was worded.
She said that if it read that a person must be detained in
custody until their blood alcohol concentration (BAC) is at .08
or below, then they would stay in jail whether a third-party
could pick them up after the DUI, or not. Although, she
related, it could read, "or is released to a responsible sober
adult" which would cover the situation where a person's BAC was
too high, but someone responsible could pick them up.
9:19:02 AM
CHAIR CLAMAN explained that part of the confusion with the
question is that there are third-party court-approved custodians
that provide supervision, which is distinct from a third-party
who happens to be sober and takes the person home. The sober
third-party distinction would not be subject to review by the
court as to whether that person met the criteria for a court
approved third-party.
9:19:39 AM
REPRESENTATIVE KREISS-TOMKINS asked that Ms. Meade comment
further as to the degree to which the on-call judges are engaged
with law enforcement, and to the degree to which law enforcement
is aware of this option.
MS. MEADE advised that she does not have the data on the number
of times [judges] are called, and she has heard different things
from judges. She opined that in the First Judicial District,
law enforcement calls the judges "all of the time," and if the
officer believes a person is a threat or there is an issue, by
and large the judges agree with the officer and establish a bail
amount. In Anchorage, she explained, the magistrates are
present in the courthouse 24/7, and the law enforcement officer
can bring a person in front of the magistrate and if the
magistrate believes the person should not be released, bail can
be set routinely. In other judicial districts she was not
certain, but she thought that in Fairbanks it was fairly
routine, and in Bethel people are on call and they receive
calls.
9:21:39 AM
CHAIR CLAMAN referred to yesterday's discussion regarding Title
47 holds versus Titles 11 and 12 holds, and explained that Title
47 is Welfare, Social Services, and Institutions; Title 11 is
Criminal Law; and Title 12 is the Code of Criminal Procedure.
He asked Ms. Meade to comment about those particular issues and
how they relate to the question of holding someone who may be
intoxicated [until their BAC reaches the .08 level].
MS. MEADE answered that a Title 47 hold has a much higher
standard for retaining someone or having someone sent to a
mental health facility because the individual must be severely
intoxicated and a danger to themselves. The judge can hold a
specialized hearing to determine whether that person should be
committed against their will and hospitalized for three days to
be examined. Those are not extremely common, and she explained
that the person must be in a "very bad state" to have a Title 47
hold because it is like a mental commitment with severe
restrictions on the person's rights, and doctors must be
involved. Short of that, she said, people can be arrested and
be quite intoxicated, but they have not quite reached the level
where psychologists and substance abuse providers are involved
to determine whether this person should be hospitalized to save
themselves from themselves, or are a threat to society. Under
the bail schedule, short of the Title 47 commitments, and a
certain level of intoxication, is the statement that if a person
is considered to be a present danger to the public through a
level of intoxication, the arresting officer shall contact a
judicial officer for a different bail. Those are quite
different proceedings, and a Title 47 hold is quite a high
hurdle to reach in order to detain someone, and a crime need not
be attached, she explained.
9:24:46 AM
REPRESENTATIVE FANSLER asked whether she would say there has
been proper training and proper discussion as to how to handle
these cases. It appears there is some disparity throughout the
different judicial districts as to how to handle a situation,
and he asked whether there is a way to have better training for
public safety and court system to have better results.
MS. MEADE answered, "Yes," probably there is a way to have
better training. When the presiding judges revised the bail
schedule, it was distributed to every clerk of court advising
that court to send it to all of the law enforcement agencies in
their area, but she does not know how those agencies handle the
bail schedule. She advised that when sending out the latest
bail schedule the court system included a one-page chart with an
easy reference that the officers could tape next to their
telephone. The court system tried to make it simple, and she
offered that she is always available to answer questions, and
that she receives questions from law enforcement officers from
various areas. More training is always better, and she pointed
out that a state trooper and an officer from the Anchorage
Police Department (APD) sit on the Alaska Criminal Justice
Commission and they know to call her with questions, but she did
not know if everyone was aware that she is always available for
questions. She related that she is happy to travel to
communities to help explain the bail schedule.
9:27:31 AM
The committee took an at-ease from 9:27 p.m. to 9:37 p.m.
9:37:42 AM
CHAIR CLAMAN advised that the committee had received 22
amendments at this point and he would recess the committee to a
call of the chair.
9:38:53 AM
[Chair Claman and Representative Millett discussed the rules
Chair Claman set around the committee's debate process.]
9:40:20 AM
CHAIR CLAMAN recessed the committee to a call of the chair at
9:40 a.m.
10:53:52 AM
CHAIR CLAMAN called the House Judiciary Standing Committee
meeting back to order at 10:53 a.m. Representatives Claman,
Fansler, Eastman, Kreiss-Tomkins, Kopp, and Millett (alternate
for Representative Reinbold) were present at the call to order.
Representative LeDoux arrived as the meeting was in progress.
CHAIR CLAMAN advised that he had asked the Department of Law
(DOL) to explain the recommendations contained within Appendix F
of the 10/22/17, Alaska Criminal Justice Report [pages F1
through F10].
10:54:59 AM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), advised he would walk through
each recommendation contained within Appendix F in terms of SB
54. Mr. Skidmore explained as follows:
Recommendation 1-2017, titled "Return VCOR to Misdemeanor
Status" returns violations of conditions of release to a
misdemeanor status with up to five-days in jail, and it is found
in SB 54 currently;
Recommendation 2-2017, titled "Increase penalties for repeat
Theft 4 offenders" discusses a maximum of five-days suspended
for a third or subsequent offense. He then paraphrased the
language found on page F3, as follows:
The Commission therefore recommends that for a third-
time Theft 4 offender, that the offense should be
punishable by up to 10 days in jail.
MR. SKIDMORE opined that it is five-days for second time
offenders, and that the general concept of increasing penalties
for repeat theft offenders is currently found in SB 54.
10:56:31 AM
MR. SKIDMORE continued explaining the recommendations contained
in Appendix F, as follows:
Recommendation 3-2017, titled "Allow municipalities to set
different non-incarceration punishments for non-criminal
offenses that have state equivalents" was contained in Senate
Bill 55 [passed during the Thirtieth Alaska State Legislature]
and signed into law, but he could not recall whether the
recommendation is in SB 54 currently.
CHAIR CLAMAN commented that while the recommendation may be
contained in SB 54 as a duplicate of SB 55, it was in SB 55 and
passed into law.
MR. SKIDMORE agreed, and he continued explaining the
recommendations contained in Appendix F, as follows:
Recommendation 4-2017, titled "Revise the sex trafficking
statute" lays out the manner in which that would be
accomplished, and is found within SB 54 currently;
Recommendation 5-2017, titled "Enact a 0-90-day presumptive
sentencing range for first-time Class C Felonies" discusses
changing the presumptive range for Class C felonies and the
commission recommended 0-90 days after a split vote with a one-
vote difference, currently found in SB 54 is 0-365-days;
Recommendation 6-2017, "Enact an aggravator for Class A
Misdemeanors for defendants who have a prior conviction for
similar conduct" this recommendation is found in SB 54
currently, and that this recommendation was offered before a
court of appeals opinion that "changed the landscape a little
bit on it;"
Recommendation 7-2017, titled "Clarify that ASAP is available
for Minor Consuming Alcohol," clarified that the Alcohol Safety
Action Program (ASAP) was available for minor consuming alcohol
cases, and a change to the ASAP requirements is found in SB 54
currently.
Recommendation 8-2017, titled "Enact a provision requiring
mandatory probation for sex offenders" is found in SB 54
currently;
Recommendation 9-2017, "Clarify the length of probation allowed
for Theft 4" is addressed in SB 54 currently;
Recommendation 10-2017, titled "Require victim notification only
if practical" was contained in SB 55 and passed into law;
Recommendation 11-2017, titled "Felony DUI sentencing provisions
should be in one statute" is found in SB 54 currently;
Recommendation 12-2017, titled "Clarify who will be assessed by
Pretrial Services" is found in SB 54 currently;
Recommendation 13-2017, titled "Fix a drafting error regarding
victim notification" was contained in SB 55 and passed into law;
Recommendation 14-2017, titled "Enact the following technical
corrections to SB 91" dealt with inflation adjustments for Class
B felonies, "not all inflation adjustments, just those four
Class B felonies," and it was contained in SB 55 and passed into
law.
11:00:57 AM
MR. SKIDMORE referred to the several technical corrections to SB
91, listed under Recommendation 14 [pages F8-F10] and said he
would explain in the order of bullets, as follows:
Bullet 1, inflation adjustment for Class B felonies is located
in SB 55 and passed into law;
Bullet 2, recommends that the crime of driving without a valid
license be reduced to an infraction and is located in SB 54;
Bullet 3, recommends deleting the reference to subparagraph (B)
in Title 11.71.060(a)(2)(B), it was a technical correction found
in SB 55 and passed into law;
Bullet 4, cleans up some of the language found there to make it
clear that it was a person charge with, rather than convicted
of, because a suspended entry of judgement (SEJ) does not end in
a conviction if they are successfully completed, and is located
in SB 55 and passed into law;
Bullet 5, aligns the penalties for posting and sending explicit
images to a minor, and it is located in SB 54 currently;
Bullet 6, deals with probation terms and is found in Senate Bill
55 and is passed into law;
Bullet 7, recommends adding language to Senate Bill 91, Sec.
164, page 105, line 7, so that the data on earned compliance
credits would extend that requirement to parolees and not just
probationers, is located in Senate Bill 55 and passed into law;
Bullet 8, the commission amends Senate Bill 91, Secs. 148 and
151 for clarity as to their applicability, those adjustments are
located in Senate Bill 55 and passed into law.
11:04:06 AM
REPRESENTATIVE MILLETT referred to Recommendation 13-2017, page
F8, administrative parole, and surmised that a victim has a
right to object to administrative parole, and asked how the
victim is notified when the person is eligible under Senate Bill
91.
REPRESENTATIVE MILLETT responded to Mr. Skidmore that her
question was specifically about victim notification as it
relates to administrative parole, and she referred to Bullet 2,
under Recommendation 12-2017, which read as follows:
Section 132: 33.16.120(h) "A victim who has a right to
notice under (a) of this section may request a hearing
before a prisoner is released on administrative parole
under 33.16.089."
REPRESENTATIVE MILLETT, noting her understanding of
administrative parole, said that there is no requirement to
notify the victim. Therefore, a victim would have to be
diligent, and she pointed out that victims are notified about
other parole hearings and they can speak to the Parole Board.
11:05:59 AM
CHAIR CLAMAN surmised that the question was that for other forms
of parole there is a requirement of victim notification, which
was part of Senate Bill 91. He asked whether that same notice
requirement applies to administrative parole as with the other
forms of parole.
REPRESENTATIVE MILLETT clarified her question and asked whether
there is victim notification under administrative parole, and if
there is not, "what does this do?"
MR. SKIDMORE responded that there is supposed to be a victim
notification for administrative parole, the victim should have
the opportunity to be notified when someone will be paroled. He
explained that the concept in Senate Bill 91 is that an
administrative parole would move forward unless the victim
objected and asked for a hearing, they do need to be notified.
Although, he said, he is unaware of the mechanics of the
notification that the Department of Corrections (DOC) would use
to accomplish the notification.
11:06:57 AM
REPRESENTATIVE MILLETT asked whether municipalities can have
their own misdemeanors in response to local problems.
MR. SKIDMORE replied that the quick answer is, yes; however,
when [Senate Bill 91] passed, it limited what a municipality
could do because it required that any punishment for any
misdemeanor could not exceed the maximum punishment that state
law would authorize. For example, a maximum penalty authorized
is up to one year for a DUI, but for a first time DUI, under
criminal justice reform, it was zero to thirty days. The
municipality could enact a municipal ordinance making it illegal
to drive under the influence of alcohol, but the punishment
could not exceed what is authorized under state law. The reason
for the recommendation, he explained, was that some courts had
interpreted the provision under criminal justice reform to apply
to infractions and not just crimes, such as a speeding ticket.
The intent had been that the limitation was on criminal offenses
and not on infractions, which was clarified in a recommendation
from the commission in SB 55.
11:08:46 AM
REPRESENTATIVE MILLETT referred to Mr. Skidmore's 6/17/16
[letter], page 2, where he discussed administrative parole, and
she paraphrased as follows: "It allows certain individuals to
automatically be released." She reiterated concerns about
victim notification pertaining to administrative parole because
if the person is automatically released, she could not see an
avenue for victims to be notified.
MR. SKIDMORE explained that page 2 would have been the
[Overview] describing "things generically," and he turned the
committee's attention to administrative parole, pages 19-20, B-
1, titled "Administrative parole (secs. 120 and 122). January 1,
2017." and pointed to the first paragraph on page 20, which read
as follows:
A victim in a case may request a hearing in a
case where an inmate would otherwise be eligible for
administrative parole. The request would result in a
hearing by the parole board to determine if the inmate
should be released.
MR. SKIDMORE reiterated that there is a requirement in the law
that the victims can object, which would require that there be
victim notification.
11:11:33 AM
REPRESENTATIVE LEDOUX asked whether he had read an opinion piece
in the 10/22/17, Anchorage Daily News, titled SB 91 Isn't
Working, Serious Amendments Needed, written by John Papasodora,
the Nome Chief of Police, and also the President of the Alaska
Association of Chiefs of Police.
MR. SKIDMORE advised that he had read the opinion piece.
REPRESENTATIVE LEDOUX asked whether SB 54 adopts the
recommendations made by that police chief and the other
concurring police chiefs.
MR. SKIDMORE pointed out that the first recommendation is to
adopt SB 54, and other recommendations are described, but the
first and foremost recommendation is to adopt SB 54.
REPRESENTATIVE LEDOUX agreed that it is the first, but was
unsure whether it was the foremost recommendation. She asked
Mr. Skidmore's reaction to the other recommendations.
MR. SKIDMORE answered that a number of things were discussed,
some require statutory changes, and some do not, and that he had
not come to a final policy analysis of the remaining
recommendations.
REPRESENTATIVE LEDOUX inquired as to when Mr. Skidmore could
make a policy analysis on the remaining recommendations.
MR. SKIDMORE responded that coming to a policy analysis on any
sort of amendment is not a process the DOL takes lightly.
Fortunately, he said, he works in a department with many smart
and talented individuals, and the process is to consult with
other lawyers with many people analyzing and reviewing the
issues before the department decides to make any sort of policy
decision. He estimated that it could take several weeks.
11:14:32 AM
REPRESENTATIVE LEDOUX questioned whether any of the suggestions
were bandied about, or thought about, by the DOL previous to the
publication of this opinion piece.
MR. SKIDMORE advised that he knows Mr. Papasodora quite well,
but he did not speak with Mr. Papasodora about this opinion
piece prior to its publication, and he has not consulted with
Mr. Papasodora about the ideas listed in the opinion piece. He
advised that some of the suggestions are not new or novel, but
he would have to review each suggestion carefully.
REPRESENTATIVE LEDOUX asked for a break to allow Mr. Skidmore
the option of reviewing the recommendations contained within the
opinion piece.
11:15:29 AM
CHAIR CLAMAN advised that the committee would not take a break
at this time, but Mr. Skidmore's testimony could be taken up
after the lunch break.
11:15:56 AM
REPRESENTATIVE FANSLER surmised that the committee had just
reviewed 14 recommendations with some subparts by the Alaska
Criminal Justice Commission, and that various experts from
around the state have considered this for a good long time.
MR. SKIDMORE responded that these recommendations came from that
commission.
11:17:01 AM
REPRESENTATIVE FANSLER asked that, of the 14 recommendations,
whether every one of them had been touched upon in some manner
via either the enacted SB 55, or the currently pending SB 54.
MR. SKIDMORE answered in the affirmative.
REPRESENTATIVE FANSLER stated that, in fact, SB 54 goes further
than the recommendations, especially with regard to
Recommendation 5-2017, in which the commission spent more than
one-year reviewing, and the commission recommended that a zero
to 90-day presumptive sentencing range would be correct. He
pointed out that SB 54 reads one-year.
MR. SKIDMORE pointed out that Recommendation 5-2017 discusses
Class C felonies, which was significantly debated at the
commission level and recalled there was a one-vote difference
between adopting "90 days to one-year." He said that
Representative Fansler is correct in that the ultimate
recommendation from the commission was 90 days, and SB 54
currently read "zero to one year." There was significant
support on the commission for that one-year as well, although
not the majority, he said.
11:18:04 AM
REPRESENTATIVE MILLETT referred to the 10/22/17 Alaska Criminal
Justice Commission Annual Report, Executive Summary, page v, and
said that prior to the passage of Senate Bill 91, Alaska's
prison population was decreasing at "a pretty robust rate," and
asked whether Alaska's prison population was on a downward trend
prior to the enactment of Senate Bill 91.
MR. SKIDMORE said that assuming Representative Millett was
referring to Figure 1: Average Daily Prison Population, answered
that in 2015, the prison population started on a downward
trajectory below what was the projected average daily prison
population (ADP). It appears the prison population began to
decrease, according to the chart, prior to Senate Bill 91.
11:19:42 AM
REPRESENTATIVE MILLETT questioned what started the downward
trend prior to Senate Bill 91, and whether non-statutory
internal actions took place in the DOL, the DOC, and the court
system that caused that downward trend to begin.
MR. SKIDMORE responded that he did not have a definitive answer,
but the DOC had begun efforts, prior to Senate Bill 91 being
implemented, that focused on the same sort of concepts as the
provisions in Senate Bill 91. He referred to the above-
mentioned annual report, page 10, and noted that the prison
population changed, and the report acknowledges that "some of
these things" were trying to be implemented prior to the
implementation of Senate Bill 91. He opined that that is what
the conclusion of the report is about, and why it happened.
From the DOL's perspective, the only thing that changed around
that timeframe is that he told people in the department to start
to utilize pretrial diversion to a greater degree. He could not
recall any statistics suggesting the department's use of that
was as robust as he would have liked, nor that he would conclude
that was what caused this decrease, he said.
11:22:29 AM
REPRESENTATIVE MILLETT said there is a theory that the
legislature passed Senate Bill 91 because the state's prison
population was going up, when it was actually in a decline one
and one-half years before the bill as passed. Therefore, she
stated, the theory of the legislature's need to pass Senate Bill
91 or the state would need to build more prisons is not true.
11:22:47 AM
REPRESENTATIVE LEDOUX asked whether the prison population may
have declined due to the fact prosecutors were cut from the
DOL's budget and less people were being prosecuted.
MR. SKIDMORE responded the department's budget reductions began
in 2014, with further reductions in 2015, but he could not offer
the impact those cuts may, or may not, have had on the downward
decline.
11:23:38 AM
REPRESENTATIVE KOPP noted that state troopers, statewide police
agencies, the APD cut their budgets to fewer officers, the
Palmer Correctional Center closed, and some inmates were either
eligible for parole or close to flat-timing out, which would
also account for the decline at that time.
CHAIR CLAMAN asked whether there were any statutory changes from
the criminal justice reform process, beginning with Senate Bill
64 [passed in the Twenty-Eighth Alaska State Legislature], and
continuing to Senate Bill 91, and continuing to Senate Bill 55,
that had caused prosecution problems and made legal changes
wherein the DOL could not prosecute cases.
MR. SKIDMORE responded "No," and stated that he does not think
there were changes in the law that caused the department to
decline cases it had previously accepted, the law did not make
that change. He advised that for the cases the department had
previously accepted, it was about resources, and not about
changes in the law.
11:25:21 AM
REPRESENTATIVE MILLETT noted that under Senate Bill 91, if a
person shoots a uniformed officer "you have one sentence," but
"we carved out" that if a person shoots an officer and puts them
in a wheelchair, the sentence is reduced for that crime. Murder
stayed the same, but when shooting and wounding an armed
officer, the sentence was reduced as the legislature did with
everything else. She asked whether she was correct.
MR. SKIDMORE explained that Senate Bill 91, with the exception
of sex offenses and murder, took the presumptive sentencing
ranges and adjusted them in all categories downward, which would
include any type of assault. However, he said, the difference
when it comes to a law enforcement officer is that the
presumptive range is the range prosecution must stay within if
there is not an aggravating factor available. In the case of a
uniformed officer being shot, there is an aggravating factor
available which means it would be up to the court's discretion
how to sentence the person. The presumptive ranges are still
reduced, but that aggravator would allow a court to go above the
presumptive range before and after any criminal justice reform
occurred, and the maximum penalties did not change.
11:27:01 AM
REPRESENTATIVE MILLETT asked, from the DOL's perspective,
whether carving out that uniformed officer and putting it back
to seven to eleven years was reasonable. The legislature has
carved out for uniformed officers in other places, and she asked
why not carve out this provision.
MR. SKIDMORE advised that the numbers Representative Millett
just listed are not presumptive ranges. There are standard
presumptive ranges and there are aggravators, but in addition to
aggravators there are "special circumstances" in sentencing. He
explained that the special circumstances can adjust the
presumptive range up slightly, but that is different than the
aggravating factor. He said he could not recall that special
circumstances dealt with uniformed officers, but rather it was
being in possession of a firearm, the dangerous instrument. He
explained that the way those two things interact is that there
cannot be a special circumstance that enhances a sentence when
the element of that special circumstance, the use or possession
of that dangerous instrument, is also an element in the
underlying crime. He further explained that prosecution cannot
stack these together to create something that is more, and the
same concept exists with aggravators. He related that he was
not sure the special circumstances apply to Representative
Millett's scenario, and that he would need to sit down with the
statutes and walk through this issue again.
REPRESENTATIVE MILLETT advised that she would send Mr. Skidmore
that question as she would like to see it carved out and the
statute go back to where it was previously.
11:29:17 AM
CHAIR CLAMAN referred to the question regarding police officers,
fire fighters, EMTs, paramedics, essentially anyone who is a
first responder, and asked, in Mr. Skidmore's experience,
whether there had ever been a time in which an assault was
directed at a uniformed first responder and the department
declined to pursue the aggravating factor that would give the
judge the fullest range of sentencing discretion.
MR. SKIDMORE answered that he is unaware of a circumstance in
which there was a first responder that the department would not
file and attempt to pursue the aggravator.
11:30:25 AM
REPRESENTATIVE LEDOUX referred to aggravating factors, and asked
whether one would have to knowingly endanger an officer in order
for the aggravating factor to apply, as opposed to recklessly
endangering an officer. She commented that obviously it is
harder to prove knowingly than recklessly.
MR. SKIDMORE replied that recklessly versus knowingly is the
mental state otherwise known as the mens rea, and agreed that
knowingly is a higher standard, and whether it is harder to
prove depends upon the facts of the case.
REPRESENTATIVE LEDOUX, at the request of Mr. Skidmore, repeated
her question and asked whether a person must knowingly [endanger
an officer] for the aggravator to apply.
MR. SKIDMORE, in response, referred to AS 12.55.155(c)(13),
which read as follows:
(13) the defendant knowingly directed the
conduct constituting the offense at an active officer
of the court or at an active or former judicial
officer, prosecuting attorney, law enforcement
officer, correctional employee, firefighter, emergency
medical technician, paramedic, ambulance attendant, or
other emergency responder during or because of the
exercise of official duties;
11:32:32 AM
REPRESENTATIVE LEDOUX returned to her question regarding the
higher bar versus easier or harder to prove, and asked whether
the fact that something is a higher bar is "pretty darn
suggestive" that it is more difficult to prove "because that is
what a higher bar is, I think."
MR. SKIDMORE responded that he understands that what
Representative LeDoux is describing is to show that something
that is knowingly seems like it would be more difficult. It may
well be, he said, but he looks at the facts in any given case to
determine whether he could show it as knowingly or recklessly.
11:33:18 AM
REPRESENTATIVE LEDOUX offered a scenario wherein Mr. Skidmore
was prosecuting someone and all he had to prove was reckless
rather than knowing, and he had to choose one. She asked which
one he would go for, and the results would be the same, would he
go for reckless or knowing.
MR. SKIDMORE reiterated that it would depend on the crime and
whether reckless or knowing was more appropriate.
CHAIR CLAMAN stated that Representative LeDoux's point was well
taken, and she could ask another question.
11:34:02 AM
REPRESENTATIVE LEDOUX advised that last year she read about an
extremely tragic case where a young girl was sitting in her
apartment in Mountain View, and someone was having a "wild
party" in the apartment below her and someone was playing around
with guns, a [bullet] struck the young girl and she was
paralyzed. Representative LeDoux asked whether there is any
difference in the sentence or crimes in which those people may,
or may not, have been charged with under Senate Bill 91, and
prior to Senate Bill 91.
MR. SKIDMORE answered "Yes," and the difference is that the
presumptive ranges were lowered ...
CHAIR CLAMAN interjected that he believes the question was
elements of the crime to prove the crime, not the punishment.
REPRESENTATIVE LEDOUX stated that it was both.
MR. SKIDMORE noted that the elements to that crime have not
changed at all, and there was nothing in Senate Bill 91 that
touched on the elements of assault. In terms of sentencing, he
offered, the presumptive range would be lowered, and to say
whether or not that impacts the ultimate sentence imposed would
require a detailed factual analysis to determine if any other
aggravators or mitigators were available that could affect that
presumptive range. The presumptive ranges themselves were all
lowered and that would impact the case, he said.
11:36:05 AM
REPRESENTATIVE LEDOUX inquired as to what the presumptive ranges
were prior to Senate Bill 91, and what the presumptive ranges
are subsequent to the enactment of Senate Bill 91, with respect
to that particular crime.
CHAIR CLAMAN noted that unless Representative LeDoux could
advise the committee what the actual charges were and what the
person was convicted of, the committee should not try to go down
this path today.
MR. SKIDMORE advised that he would have to perform an analysis
of the crime to sort that out. He said that shooting someone,
hitting someone, or causing serious physical injury, would
either be an assault in the first degree or second degree and he
would have to look at the statutes. In either situation, he
offered that the presumptive ranges were adjusted downward. The
other factors that would play into that, is that the presumptive
range is also dependent upon the person's previous criminal
history, and whether they had prior felonies, he advised.
11:37:27 AM
CHAIR CLAMAN advised the committee that it would now begin the
amendment process, and he explained the committee's amendment
process.
11:38:03 AM
REPRESENTATIVE MILLETT moved to adopt Amendment 1, Version 30-
LS0461\N.32, Martin, 12/23/17, which read as follows:
Page 1, line 3, following "probation;":
Insert "relating to the duties of the
commissioner of corrections;"
Page 11, following line 21:
Insert a new bill section to read:
"* Sec. 19. AS 33.30.011(a) is amended to read:
(a) The commissioner shall
(1) establish, maintain, operate, and
control correctional facilities suitable for the
custody, care, and discipline of persons charged or
convicted of offenses against the state or held under
authority of state law; each correctional facility
operated by the state shall be established,
maintained, operated, and controlled in a manner that
is consistent with AS 33.30.015;
(2) classify prisoners;
(3) for persons committed to the custody of
the commissioner, establish programs, including
furlough programs that are reasonably calculated to
(A) protect the public and the victims of
crimes committed by prisoners;
(B) maintain health;
(C) create or improve occupational skills;
(D) enhance educational qualifications;
(E) support court-ordered restitution; and
(F) otherwise provide for the
rehabilitation and reformation of prisoners,
facilitating their reintegration into society;
(4) provide necessary
(A) medical services for prisoners in
correctional facilities or who are committed by a
court to the custody of the commissioner, including
examinations for communicable and infectious diseases;
(B) psychological or psychiatric treatment
if a physician or other health care provider,
exercising ordinary skill and care at the time of
observation, concludes that
(i) a prisoner exhibits symptoms of a
serious disease or injury that is curable or may be
substantially alleviated; and
(ii) the potential for harm to the prisoner
by reason of delay or denial of care is substantial;
and
(C) assessment or screening of the risks
and needs of offenders who may be vulnerable to harm,
exploitation, or recidivism as a result of fetal
alcohol syndrome, fetal alcohol spectrum disorder, or
another brain-based disorder;
(5) establish minimum standards for sex
offender treatment programs offered to persons who are
committed to the custody of the commissioner;
(6) provide for fingerprinting in
correctional facilities in accordance with
AS 12.80.060;
(7) establish a program to conduct
assessments of the risks and needs of offenders
sentenced to serve a term of incarceration of 30 days
or more and provide to the legislature, by electronic
means, by January 15, 2017, and thereafter by
January 15, preceding the first regular session of
each legislature, a report summarizing the findings
and results of the program; the program must include a
requirement for an assessment before a prisoner's
release on parole, furlough, or electronic monitoring
from a correctional facility;
(8) establish a procedure that provides for
each prisoner required to serve an active term of
imprisonment of 30 days or more a written case plan
that
(A) is provided to the prisoner within 90
days after sentencing;
(B) is based on the results of the
assessment of the prisoner's risks and needs under (7)
of this subsection;
(C) includes a requirement to follow the
rules of the institution;
(D) is modified when necessary for changes
in classification, housing status, medical or mental
health, and resource availability;
(E) includes participation in programming
that addresses the needs identified in the assessment;
(9) establish a program to begin reentry
planning with each prisoner serving an active term of
imprisonment of 90 days or more; reentry planning must
begin at least 90 days before release on furlough or
probation or parole; the reentry program must include
(A) a written reentry plan for each
prisoner completed upon release on furlough or
probation or parole that includes information on the
prisoner's proposed
(i) residence;
(ii) employment or alternative means of
support;
(iii) treatment options;
(iv) counseling services;
(v) education or job training services;
(B) any other requirements for successful
transition back to the community, including electronic
monitoring or furlough for the period between a
scheduled parole hearing and parole eligibility;
(C) coordination with the Department of
Labor and Workforce Development to provide access,
after release, to job training and employment
assistance;
(10) for offenders under electronic
monitoring, establish
(A) minimum standards for electronic
monitoring, which may include the requirement of
active, real-time monitoring using global positioning
systems; and
(B) procedures for oversight and approving
electronic monitoring programs and systems provided by
private contractors; [AND]
(11) assist a prisoner in obtaining a valid
state identification card if the prisoner does not
have a valid state identification card before the
prisoner's release; the department shall pay the
application fee for the identification card; and
(12) conduct a chemical test of a
prisoner's breath at the time of the prisoner's
release and may release the prisoner only if the test
result indicates that the prisoner's breath has less
than 0.08 grams of alcohol for each 210 liters of
breath."
Renumber the following bill sections accordingly.
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
11:38:32 AM
REPRESENTATIVE MILLETT reminded the committee that it had
previously discussed the "sober law," and this amendment directs
the commissioner of the Department of Corrections (DOC) to hold
someone, who has committed a crime, until they reach the legal
blood alcohol content (BAC) limit of not being intoxicated.
11:39:10 AM
GRACE ABBOTT, Staff, Representative Charisse Millett, Alaska
State Legislature, said that Amendment 1 requires the DOC to
perform a blood alcohol test prior to an intoxicated person's
release, and this would apply to misdemeanants as well as people
who have committed felonies.
11:40:02 AM
REPRESENTATIVE MILLETT commented that she has articles that
discuss the risks to the public, and the risks to prisoners when
they are released with high alcohol content. She reiterated her
previous testimony as to the death of a woman in Fairbanks who
was released while intoxicated and then was hit by a car, and
the gentleman in Eagle River who committed two DUIs in one day.
REPRESENTATIVE MILLETT noted that after listening to the
testimony of Ms. Meade, there may be the better solution of
putting it into the bail schedule. She advised that the Alaska
State Troopers (AST), law enforcement agencies, and the
Anchorage Police Department (APD) would like to see this tool
replaced.
REPRESENTATIVE MILLETT, in response to Chair Claman, said that
Amendment 1 is withdrawn.
CHAIR CLAMAN advised that with regard to Amendment 1, he had
just received an opinion from Legislative Council. He then
offered a scenario of his child being arrested for a DUI, was
being held under this provision, and his child could not be
released to him as a sober adult. He commented that that is
another issue Ms. Meade had mentioned, sober third-parties.
REPRESENTATIVE MILLETT related that they will work on those
issues.
11:44:51 AM
REPRESENTATIVE MILLETT moved to adopt Amendment 2, Version 30-
LS0461\N.35, Martin, 10/23/17, which read as follows:
Page 11, following line 12:
Insert a new bill section to read:
"* Sec. 18. AS 33.07.020, enacted by sec. 117, ch.
36, SLA 2016, is amended to read:
Sec. 33.07.020. Duties of commissioner; pretrial
services. The commissioner shall
(1) appoint and make available to the
superior court and district court qualified pretrial
services officers;
(2) fix pretrial services officers'
salaries;
(3) assign pretrial services officers to
each judicial district;
(4) provide for the necessary supervision,
training, expenses, including clerical services, and
travel of pretrial services officers;
(5) develop [APPROVE] a risk assessment
instrument that is objective, standardized, and
developed based on analysis of empirical data and risk
factors relevant to pretrial failure, that evaluates
the likelihood of failure to appear in court and the
likelihood of rearrest during the pretrial period, and
that is validated on the state's pretrial population;
the commissioner shall obtain the approval of the
Department of Law, the Department of Public Safety,
and the Alaska Court System before implementing the
risk assessment instrument; and
(6) adopt regulations in consultation with
the Department of Law, the public defender, the
Department of Public Safety, the office of victims'
rights, and the Alaska Court System, consistent with
this chapter and as necessary to implement the
program; the regulations must include a process for
pretrial services officers to make a recommendation to
the court concerning a pretrial release decision and
guidelines for pretrial diversion recommendations."
Renumber the following bill sections accordingly.
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 30:
Delete all material and insert:
"* Sec. 25. Sections 17 and 18 of this Act take
effect January 1, 2018."
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
11:44:58 AM
REPRESENTATIVE MILLETT explained that Amendment 2 deals with the
risk assessment tool and that there would be input from all
departments, and the DOC was ultimately responsible for the data
based risk assessment tool. She suggested, with the nuances
within Alaska, within the criminal code, and within experiences
with the criminal justice system, that the legislature broaden
its scope to have the Department of Law (DOL), Department of
Public Safety (DPS), and the Alaska Court System look at the
risk assessment tool and offer their approval before the
commissioner of the DOC implements the assessment tool.
Amendment 2, she explained, assures that these entities have the
opportunity to optimize the risk assessment tool and offer their
approval.
MS. ABBOTT added that the amendment creates parity between the
creation of the tool and the adoption of regulations for the
implementation of the tool. The above-mentioned entities are
involved in the regulation process and it follows that including
them in the creation process would make sense. She pointed out
that it also fairly closely follows the recommendation from the
12/2015 original justice reinvestment report created by the
Alaska Criminal Justice Commission, Recommendation 2.
11:47:50 AM
REPRESENTATIVE KOPP asked whether adding the Alaska Court System
could be a separation of powers issue when seeking the court
system's approval for an executive branch risk assessment tool.
MS. ABBOTT advised that, at this point, Representative Millett's
office had not been alerted to a problem, and she deferred to
the attorneys in the room.
11:48:45 AM
REPRESENTATIVE KOPP asked whether the DOL, the DPS, and the
court system are represented on the Alaska Criminal Justice
Commission currently.
MS. ABBOTT responded that she believes they are represented both
in their representatives and staff.
CHAIR CLAMAN confirmed that the above-mentioned entities are
represented on the Alaska Criminal Justice Commission.
MS. ABBOTT related that it falls under the DOC to create and
develop the risk assessment tool at this point.
11:49:31 AM
REPRESENTATIVE EASTMAN said he would like to hear the Alaska
Court System's perspective about Amendment 2.
CHAIR CLAMAN advised that no one from the court system was
available at this time.
REPRESENTATIVE MILLETT requested that the Department of Law
(DOL) comment on this amendment.
CHAIR CLAMAN advised that the question is whether having the
Alaska Court System formally approve the risk assessment tool
creates a separation of powers issue.
MR. SKIDMORE responded that his short answer is that he does not
know whether it necessarily is a problem. Although, he
commented, he could see how it would be a possibility where one
branch must approve what another branch is doing, but he would
have to review the question more thoroughly.
11:51:27 AM
REPRESENTATIVE EASTMAN asked the DOL's thoughts about Amendment
2.
MR. SKIDMORE answered that, from a legal standpoint it is
requiring that the DOC develop the tool, and the tool must be
approved by the DOL, the DPS, and the court system. From a
policy standpoint, when he considers making final decisions as a
manager, he said he thinks about whether he wants to have three
different people required to make the final decision. From the
standpoint of the risk assessment tool itself, he advised that
both the DOL and the court system have been involved in
consulting with the DOC on the development of the tool. In that
regard, he offered, if this change were made, certainly the DOL
would approve the tool as it currently exists because it has
been involved in the consultations up to this point. From the
legal standpoint of whether this is good policy or not, he
related that he had not had an opportunity to go through the
vetting process of vetting he had described earlier.
11:53:10 AM
REPRESENTATIVE KREISS-TOMKINS asked, under this amendment, what
would happen if the court system or the DOL, hypothetically,
withheld approval for the tool.
MR. SKIDMORE said that if any one of the three entities listed
did not approve the tool, it would not be allowed to be used.
11:54:07 AM
REPRESENTATIVE MILLETT asked why the state would want a risk
assessment tool out there without the DOL's approval.
MR. SKIDMORE advised that it ultimately comes down to a policy
question of who the committee wants to make the final approval,
and whether the sponsor wants prosecutors to be deciding whether
an assessment tool is appropriate for the release of a person
that is incarcerated.
11:55:34 AM
REPRESENTATIVE EASTMAN asked Ms. Meade the court system's
position on the policy.
MS. MEADE responded that the court system is neutral, and it
does not have a position. In the event Amendment 2 passes, the
court system would then take a different look at the risk
assessment tool and decide whether to approve the tool.
REPRESENTATIVE EASTMAN commented that the court system has a
great interest in having a good risk assessment tool, and asked
whether it has any concerns or possible objections to the
current tool, or whether those concerns had already been
addressed and resolved.
MS. MEADE answered that the risk assessment tool was recently
developed, and it was unveiled to a group of interested
participants, including her, as well as two judges who were
asked to work on the pretrial services implementation. She
related that it was unveiled with a lot of explanation, data,
and scientific explanation as to why it was developed in this
manner, and that she found it to be quite an impressive piece of
work. The tool was tested using State of Alaska data on
different populations, such as how it will affect different
genders and different races. She commented that whether the
court system would approve of the tool as written is a decision
for the Supreme Court, and it had not yet seen the tool.
Currently, the court system is actively working to educate the
judges about the tool, and that they are trained as to what went
into the tool, and what the new bail statute will require. She
advised that she feels certain that for most of the judges and
most of the Supreme Court, this training will be the first time
they see the tool, and understand what is to be done with the
tool, and how it will impact judges.
CHAIR CLAMAN noted that Supreme Court Chief Justice Joel H.
Bolger is a member of the Alaska Criminal Justice Commission and
he has seen the tool in his status on the commission.
11:58:23 AM
REPRESENTATIVE KREISS-TOMKINS asked whether Ms. Meade was
familiar with any linkages or articulations between the
executive and judicial branches in law currently wherein the
executive branch "shall" require approval from the judicial
branch, and whether there is any precedent for the type of
relationship Amendment 2 proposes.
MS. MEADE said she is not familiar with any precedent, and
pointed to the language from Senate Bill 91 contained within
Amendment 6, page 1, beginning line 19, Sec. 33.07.020(6), and
paraphrased as follows:
The implementation of this tool is to be done ... I
mean it says it in so many words, that the DOC shall
adopt regs in consultation with Law, PD, DPS, OBR, and
the court system in order to implement this.
MS. MEADE pointed out that it is the direction of paragraph (6)
that led to what she referred to as "this very large pretrial
services implementation group." The Department of Corrections
(DOC) has clearly taken the lead and hired its 20 or 30
staffers, and a very capable woman to oversee the division, with
top-notch folks to supervise each judicial district. She
pointed out that almost her full-time job is going to the
meetings to see how all is moving along. People from the
judicial branch give input, her included, and the input is
"considered and done, they are very accommodating." Again, she
said, she is not aware that anything would be sunk if the
Supreme Court said "sorry, no approval," and she is not aware of
that happening in any other area in the statutes. Currently, it
appears to be a group that is operating effectively, under
paragraph (6), she advised.
12:00:45 PM
REPRESENTATIVE KREISS-TOMKINS asked for confirmation whether Ms.
Meade is aware of any articulation between the executive and
judicial branch that requires judicial branch approval in order
to do something.
MS. MEADE stated that she is fairly certain that does not exist
elsewhere, although there are other suggestions to consult with
the other branches.
12:01:19 PM
REPRESENTATIVE KREISS-TOMKINS said he does like the idea of
collaboration and coordination between branches, and suggested
revising the amendment to instead require consultation.
12:02:09 PM
CHAIR CLAMAN said that in "Sec. 5" under current law, the DOC
comes up with an assessment tool using regulations that have not
been adopted, but they include a bunch of agencies. He asked
whether separation of powers issues come up if the court system
is essentially approving the assessment tool, and formally
taking that step of asking a judge to independently decide what
to do about an objection from the DOL as to what is in that risk
assessment tool. He further asked whether that starts trending
into separation of powers issues and impacting the independence
of the court.
MS. MEADE noted that she completely understands it is a
potential problem, and commented that the language directing the
court to approve the actions of the executive branch is not
located in any other area in statute. For example, she said, if
the court is on record as saying, "I believe in this tool and I
believe it is accurate," that leaves little room for someone,
likely a defense person in that scenario, to challenge the tool
and allege that the tool did not take into account the person's
employment history or something similar. The court is always
neutral, and it wants to retain the ability to assess whether
something is legal or good, with full briefing in the context of
litigation. The court system does not give advisory opinions on
whether something is good before it had been fully briefed to
the court. Ms. Meade commented that how the Supreme Court would
reach the approval or disapproval decision was puzzling because
it would not have had all of the information to decide whether
it was valid or not by not being fully briefed by interested
parties. It would, in essence be an advisory opinion, which the
court does not do, she reiterated.
12:04:49 PM
REPRESENTATIVE FANSLER referred to the decision approving the
tool, and asked who would make these decisions in the court
system, whether the Supreme Court would approve this, or someone
else.
MS. MEADE pointed out that Amendment 2 reads that the Alaska
Court System would have to approve something, and in her
opinion, that would only be by a decision by the Alaska Supreme
Court. The court system does not have superior court judges or
administrators deciding whether something another branch does is
valid or good policy. She explained that it would have be some
decision by the Alaska Supreme Court, except it would not have
the information to make a binding decision about whether
something the DOC created was useful or efficient.
12:07:05 PM
CHAIR CLAMAN recessed the committee until 1:30 p.m.
1:30:59 PM
CHAIR CLAMAN called the House Judiciary Standing Committee
meeting back to order at 1:30 p.m. Representatives Claman,
Fansler, Eastman, and Millett (alternate for Representative
Reinbold) were present at the call to order. Representatives
LeDoux, Kopp, and Kreiss-Tomkins arrived as the meeting was in
progress.
1:33:36 PM
CHAIR CLAMAN returned the committee to the discussion of
Amendment 2.
REPRESENTATIVE MILLETT moved to adopt Conceptual Amendment 1 to
Amendment 2, which would remove the Alaska Court System ...
1:34:49 PM
The committee took an at-ease from 1:34 p.m. to 1:39 p.m.
1:39:28 PM
CHAIR CLAMAN asked Clint Campion to broadly respond to questions
regarding his service to the Department of Law as the Anchorage
District Attorney, as well as his decision to leave the
department and go into private practice.
1:39:58 PM
CLINT CAMPION, Attorney, advised he is a private citizen
practicing law at a private firm in Anchorage, and from 2008
through 2017, he was a state prosecutor based in Anchorage.
During the last two and one-half years of his time at the
Department of Law (DOL), he was the Anchorage District Attorney
and in that role, he oversaw state prosecutions in the
Municipality of Anchorage, Bristol Bay, the Aleutians, and the
Pribilof Islands.
CHAIR CLAMAN asked what factors were involved in Mr. Campion's
decision to leave the department and go into private practice.
MR. CAMPION advised that he left the department because he had
an interesting and challenging opportunity for himself and his
career. He stated that he did not leave the district attorney's
office because he was unhappy or unsatisfied with the direction
of the department, the leadership of the department, or the
resources available to his office to accomplish the mission. He
stressed that he left because he believed and still believes it
was an opportunity for him to advance his career intellectually
and professionally.
CHAIR CLAMAN asked whether his departure had anything to do with
the criminal justice reform process that began while he was
serving as the Anchorage District Attorney.
MR. CAMPION responded, "No," and he said that he could clearly
say that he did not leave the Department of Law due to criminal
justice reform. He offered that he was involved at certain
stages in many of the criminal justice reforms that were
implemented, and that he still supports many of the reforms, and
he still supports the concepts underpinning criminal justice
reform.
1:41:52 PM
REPRESENTATIVE LEDOUX asked, based upon Mr. Campion's experience
as a prosecutor, whether there are any changes to SB 54 that he
would recommend.
MR. CAMPION advised the committee and the public that his
primary motivation in appearing today and providing comment is
out of a deep sense of loyalty to his former colleagues in the
prosecutors' offices across the state. He stressed that he
would like everyone to understand that in his perspective, all
of those prosecutors are more or less overwhelmed by the number
of cases they handle, and the severity and complexity of those
cases. He remarked that he primarily wanted to articulate today
the necessity of ensuring those prosecutors' offices have enough
personnel support, and the support of legislators and leaders
throughout the state for their work. The work prosecutors
perform is not the only important factor in the criminal justice
system because it includes probations officers, defense lawyers,
and law enforcement officers, but his primary loyalty is to
those prosecutors, he said.
MR. CAMPION, in response to Representative LeDoux's question,
answered that he views Senate Bill 91 as a three-phased approach
and that phases two and three make a lot of sense. Senate Bill
54 addresses some of the concerns of the prosecutors with regard
to phase one, but his recommendation is that it will take
continued evaluation and assessment as to how successful it has
been, or how successful it will be in the future. He pointed
out that he is not advocating for any specific changes currently
because, from his perspective, it would be unproductive to go
back and repeal phase one altogether, or repeal Senate Bill 91
altogether. Senate Bill 54 is a reasonable approach to
addressing the concerns that have been raised about phase one of
Senate Bill 91, he expressed.
1:44:21 PM
REPRESENTATIVE LEDOUX offered a scenario of going back to the
time the legislature was just beginning to work on Senate Bill
91, and asked whether there was anything in the bill that he
would have removed or added.
MR. CAMPION replied that the suspended entry of judgment (SEJ),
included in phase one, has not proven to be as effective as was
hoped. The concern is, with the court's rightful
interpretation, that when someone is out on an SEJ, the courts
do not retain any authority to place those people in jail.
Therefore, he said, it is a situation where if someone receives
an SEJ and they do not comply with the terms of the agreement
they entered into with the state, the court really only has the
choice to sentence them fully, which often might need a
conviction of record, or to not impose any real sanctions. The
SEJ is a small tweak, he described, that would need to be
addressed, but that by itself is not really driving any of the
real concerns being heard across communities and across the
criminal justice system.
1:45:48 PM
REPRESENTATIVE MILLETT asked whether phase one of Senate Bill 91
negatively impacted prosecutors' ability to do their jobs.
MR. CAMPION responded that he would not say Senate Bill 91 has
made the job any easier for prosecutors for two reasons, with
the decrease in penalties, the prosecutors lost leverage to
influence a defense attorney and defendant into a plea
agreement. Therefore, he explained, prosecutors need to look
more carefully about the cases they are charging because the
reality is that once it is charged, it is less likely to be
resolved through a plea agreement and; therefore, likely to go
to a jury trial which is a considerable expenditure of resources
for the prosecutor's office and the court system. Also, he
explained, in addition to reducing the leverage that prosecutors
have, prosecutors were not given any alternatives to divert
people out of the criminal justice system when confronted with a
variety of charges. He further explained that prosecutors were
not given any tools to put someone directly into a treatment
program, or take other types of diversion other than what was
already in existence. In some respects, he pointed out, some of
those tools were taken away, in particular there were some
changes to the Alcohol Safety Action Program (ASAP). He related
that in a large sense it has not made the job any easier, and it
has made the job somewhat more challenging for prosecutors.
1:47:26 PM
REPRESENTATIVE LEDOUX asked whether criminal justice reform has
actually made it more expensive to prosecute cases in some
instances.
MR. CAMPION answered, "I wouldn't say that," and he explained
that in terms of going to a jury trial, there may be more
expense, but when looking at the reductions and cost savings
that might come from the lower sentence, he was not certain
there would necessarily be more expense involved. From the
prosecutor's perspective there would be more investment of
resources on certain types of cases than previously, he said.
1:48:01 PM
REPRESENTATIVE EASTMAN asked whether it has not become more
expensive to prosecute cases because prosecutors are simply
pursuing fewer cases.
MR. CAMPION offered that prosecutors are looking more carefully
at certain types of cases, most specifically the offenses
previously characterized as misconduct involving a controlled
substance in the fourth degree, possession of a controlled
substance. Previously, he explained, the prosecutor's office
had a robust number of those cases being prosecuted, and as a
consequence of the reclassification of those offense, and the
reduction of penalties, prosecutors are much less likely to take
those cases to trial or charge those cases at all.
1:49:03 PM
CHAIR CLAMAN returned the committee to the discussion of
Amendment 2.
1:49:09 PM
REPRESENTATIVE MILLETT moved to adopt Conceptual Amendment 1 to
Amendment 2, page 1, lines 17-18, delete the language "and the
Alaska Court System."
REPRESENTATIVE FANSLER objected.
1:49:52 PM
REPRESENTATIVE MILLETT explained that she would like to remove
the Alaska Court System as one of the entities that must offer
its approval for the risk assessment tool, and that deleting
"and the Alaska Court System" removes the separation of powers
issue and the possible decision by the Alaska Supreme Court
issue.
REPRESENTATIVE EASTMAN surmised that the Department of Law
(DOL), the Department of Public Safety (DPS), and the Department
of Corrections (DOC) would work together on the risk assessment
tool, and due to the language in paragraph (6) that would put
the court system in that advisory capacity.
REPRESENTATIVE MILLETT said that he was correct, it will leave
the Alaska Court System in an advisory capacity through the
Alaska Criminal Justice Commission.
1:51:12 PM
CHAIR CLAMAN commented that paragraph (6) involves the
regulations, and there is also the public defender's office and
the office of victims' rights. He said that he sees the
exclusion of those two entities as a problem to the extent that
"we don't think we get enough of inclusion of other groups in
paragraph (6)," and the exclusion of those groups in paragraph
(5) is a problem, and he does not support the ...
REPRESENTATIVE MILLETT interrupted Chair Claman to advise that
the conceptual amendment does not exclude the public defender
and the office of victims' rights from anything in paragraph
(5), as they are mentioned in paragraph (6). She explained that
paragraph (5) reads that the commissioner shall obtain approval
from the DOL and the DPS before implementing the risk assessment
instrument, it does not say anything about taking any other
entity out of an advisory role or taking them out of the
development of the risk assessment tool.
REPRESENTATIVE FANSLER maintained his objection.
1:52:56 PM
A roll call vote was taken. Representatives LeDoux, Millett,
Eastman, Kopp, Kreiss-Tomkins voted in favor of adopting
Conceptual Amendment 1 to Amendment 2. Representatives Claman
and Fansler voted against it. Therefore, Conceptual Amendment 1
to Amendment 2 was adopted by a vote of 5-2.
1:53:40 PM
REPRESENTATIVE MILLETT commented that with regard to amended
Amendment 2, the continuity between the DOL, the DPS, and the
DOC gives the state a solid risk assessment tool moving forward.
She related that the risk assessment tool is one of the best
parts of Senate Bill 91, and it will become one of the state's
shining examples of how criminal justice system can be reformed
in the correct manner.
REPRESENTATIVE EASTMAN recalled Mr. Skidmore's previous
testimony and surmised that there would be no objection to the
tool from the department, and that he hopes the tool would have
the required buy-in from all parties, otherwise he could not see
how the tool would be successful.
1:55:44 PM
REPRESENTATIVE FANSLER said he would speak against amended
Amendment 2 for a couple of reasons, such that this unfairly
puts "our thumb" on the scales of justice and weighs it in favor
of the prosecutorial branch by excluding approval from the
office of victims' rights and, more importantly, the public
defender. The folks dealing with these situations directly in
the public defender's office would know what is best for a risk
analysis tool. The public defender and office of victims' right
are a vital line in the justice system. Excluding these two
entities is basically saying that they can offer their input,
"but in the end, we don't listen to it because we don't need
your approval," raises two of these groups above the other five
groups, "which I can't stand for," he expressed. Also, it is
his understanding that the risk assessment tool has been
finalized, it has had the input, it is prepared and ready to go,
and this would be step in the wrong direction, he pointed out.
1:57:13 PM
CHAIR CLAMAN commented that he also speaks in opposition to
amended Amendment 2, and described that this legislation is in
search of a problem that does not exist. Unequivocal testimony
has been that the process of developing the risk assessment tool
has been robust and effective. In the event the committee were
to amend this statute by requiring the approval of these
entities before the risk assessment tool was implemented, it
would require going back and redoing the whole process for the
risk assessment tool that is being worked on and is already in
place. He reiterated that this is a solution in search of a
problem that does not exist.
1:57:57 PM
REPRESENTATIVE MILLETT clarified that the risk assessment tool
is not finished, it is still in the working group, and Ms. Meade
advised that it is just being sent to the Supreme Court ...
CHAIR CLAMAN advised Representative Millett that the risk
assessment tool is finished and the use of it is being practiced
today.
REPRESENTATIVE MILLETT surmised from Ms. Meade's testimony that
the tool is not for public view yet and it is still in a draft
form.
1:58:45 PM
MS. MEADE clarified that the "tool is out" and finalized, but
that does not mean that the pretrial services office might have
some minor tweaks or changes in the future, but they are indeed
starting to practice a "pilot" with it this week. Tomorrow, she
noted, she will meet with the judges to explain the tool, but to
her knowledge it is a public document and it is out there.
1:59:26 PM
REPRESENTATIVE MILLETT noted that Ms. Meade had said that it was
in the pilot stage and was being used to determine if there are
any issues with the tool.
MS. MEADE opined that the pretrial services office is ensuring
that the logistics are going to work, and she described that it
is quite a project to get it to the court and to the parties
within 24-hours, so the office is performing blind tests for
consistency. She clarified that she does not believe the pilot
means it would go back and change the factors that led to the
score that is the tool itself.
2:00:16 PM
REPRESENTATIVE LEDOUX commented that she does not understand the
phrase "it's final but there might be changes."
CHAIR CLAMAN explained that the risk assessment tool needs to be
in use and working on January 1, 2018, and "they've" been going
through and working out all of the details of assessment tool
and now have a final product. The final product is being
driven, such as when testing a car to see how it works, by
letting the people who will use it, including judges, see how it
works, rather than using it for the first time on January 1,
2018.
2:01:19 PM
MS. MEADE clarified that what she meant in her previous
testimony was that the professionals who work on these tools
have continuously advised that in the future, it should be re-
analyzed and re-assessed to be certain it is performing in the
correct manner. She said she expects that after six to twelve
months of use, someone will look at it and determine whether the
tool is on the right track, whether the state is getting better
decisions, whether it is an effective tool, and whether
something should be tweaked, but it is final at this point.
2:01:53 PM
REPRESENTATIVE MILLETT commented that with that being said,
there are three months where "we can continue to look" at the
results during the trial period. She said she heard from the
DOL that it does not see any issues with it, so approval for
this in the next three-months from the DOL and the DPS would be
swift and would meet the deadline of January 1.
REPRESENTATIVE FANSLER maintained his objection.
2:02:48 PM
A roll call vote was taken. Representatives LeDoux, Millett,
and Eastman voted in favor of adopting amended Amendment 2.
Representatives Kopp, Kreiss-Tomkins, Fansler, and Claman voted
against it. Therefore, amended Amendment 2 failed to be adopted
by a vote of 3-4.
2:03:23 PM
REPRESENTATIVE MILLETT moved to adopt Amendment 3, labeled 30-
LS0461\N.60, Martin, 10/23/17, which read as follows: [The text
of Amendment 3 is listed at the end of these 10/24/17, 9:00
a.m., minutes of SB 54.]
REPRESENTATIVE FANSLER objected.
2:03:30 PM
REPRESENTATIVE MILLETT commented that she has issues with the
newly created administrative parole and that she would like to
go back to the prior statutes because administrative parole is
an automatic release without going through the Parole Board. In
the event, she said, the reason for the administrative parole is
that the Parole Board has a backlog, or the application for
parole is too difficult for the prisoners, then the committee
should address those issues and not create an avenue in which
prisoners are released automatically. The Parole Board and
parole are set up to weigh all of the risks of that person
returning to society, and to be held to the conditions of
parole. The system should protect the victims and not put any
responsibility on the victims to fill out the application to
have the offender go before the Parole Board because in that
manner, the responsibility is on the victim which is the
opposite of the way things should work. The administrative
parole process is a disservice to the public, public safety, and
victims, she stressed.
MS. ABBOTT advised that the amendment removes all references to
the creation of administrative parole from statute.
2:06:08 PM
REPRESENTATIVE KOPP asked how many people have been impacted by
administrative parole, and how many people have actually used
administrative parole since its implementation.
MS. ABBOTT answered that she does not have that information at
her disposal. However, it did go into effect on January 1,
2016, and she was unsure whether regulations had been written.
2:06:57 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, advised that three individuals have been released
on administrative parole since January of 2017, and the
information is contained within the 10/22/17, Alaska Criminal
Justice Commission Report, [page 25].
CHAIR CLAMAN noted that the information is located in the above-
mentioned report on page 25, in a blue column on the right-side
of the page, and commented that zero inmates have been eligible
for geriatric parole.
2:07:44 PM
REPRESENTATIVE EASTMAN, noting he was not in the legislature
when Senate Bill 91 was passed, asked whether there are any
other reasons administrative parole was generated.
MS. ABBOTT referred to the 12/2015 Alaska Criminal Justice
Commission Report [page 21 Recommendation 9], which read as
follows:
Recommendation 9: Expand and streamline the use of
discretionary parole.
Current eligibility for discretionary parole is
restricted to those non-sex offense felons convicted
of the most serious crimes (Unclassified Felonies),
and felonies towards the bottom of the severity scale
(first- and second-time Class C Felonies, as well as
first-time Class B Felonies). Offenders who fall
between these two poles are ineligible for
discretionary parole without the intervention of the
three-judge panel. Additionally, no offenders
convicted of a felony sex offense are able to apply
for discretionary parole without the intervention of
the three-judge panel.
REPRESENTATIVE EASTMAN offered that the state has a parole
process and this amendment will not end that process. The
advent of the new administrative parole process is probably
excessive, and the committee needs to look at going back to a
traditional parole process, he opined.
2:10:22 PM
REPRESENTATIVE KOPP clarified for the committee that Ms. Abbott
had read the definition of discretionary parole and not the
definition of administrative parole. He pointed out that
administrative parole is actually being considered with this
amendment.
CHAIR CLAMAN advised that what is troubling to him about
changing at this point, is that based on administrative parole
being used only three times, it suggests that it rarely arises.
The notion is to improve the state's results post-release for
the appropriate folks and trying to get them integrated back
into the community more easily. He suggested that to the extent
this tool is seldom used, to keep it around at least long enough
to see what happens with it because three times is not enough
information to create a record.
2:11:36 PM
REPRESENTATIVE MILLETT reiterated that this is a solution
looking for a problem. She offered her belief that what "the
Alaska Criminal Justice Commission "recommended was that we have
an issue with parole," and also an issue with the Parole Board
probably having a backlog. She suggested that those are issues
better addressed through additional opportunities for the Parole
Board, such as expanding the hours of the Parole Board, or
expanding the Parole Board. The commission had pointed to the
application process, she said, in that many people in prison are
eligible for parole, except because the parole process is so
onerous, the prisoners do not apply. Administrative parole puts
some victims in a position where they may not understand how
administrative parole works, and it puts the onerous back on the
victim, which is backwards. At this point, administrative
parole has not been vetted well enough and it should be
eliminated, she remarked.
REPRESENTATIVE FANSLER maintained his objection.
2:13:52 PM
A roll call vote was taken. Representatives Kopp, LeDoux,
Millett, Eastman voted in favor of adopting Amendment 3.
Representatives Kreiss-Tomkins, Fansler, and Claman voted
against it. Therefore, Amendment 3 adopted by a vote of 4-3.
2:14:38 PM
The committee took an at-ease from 2:14 p.m. to 2:19 p.m.
2:19:53 PM
REPRESENTATIVE LEDOUX advised that at this time she would not
move to adopt the following: Amendment 4, labeled 30-
LS0461\N.50, Glover\Martin, 10/23/17; Amendment 5, labeled 30-
LS0461\N.52, Martin, 10/23/17; Amendment 6, labeled 30-
LS0461\N.42, Bruce/Martin, 10/23/17; Amendment 7, labeled 30-
LS0461\N.40, Martin, 10/23/17; and Amendment 8, labeled 30-
LS0461\N.39, Martin, 10/23/17, and asked to move these
amendments to the bottom of the stack of amendments.
Sunshine2018
2:22:00 PM
The committee took an at-ease from 2:22 p.m. to 2:35 p.m.
2:35:33 PM
REPRESENTATIVE LEDOUX moved to adopt Amendment 9, labeled 30-
LS0461\N.44, Glover/Martin, 10/23/17, which read as follows:
Page 5, following line 25:
Insert a new bill section to read:
"* Sec. 11. AS 12.55.135(m) is amended to read:
(m) A court may not impose a sentence of
imprisonment for a definite term of more than five
days [24 HOURS] for a person convicted of disorderly
conduct under AS 11.61.110."
Renumber the following bill sections accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, following line 25:
Insert a new paragraph to read:
"(6) AS 12.55.135(m), as amended by sec. 11
of this Act;"
Renumber the following paragraphs accordingly.
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 12"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 13"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 30:
Delete "Section 17"
Insert "Section 18"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
2:35:44 PM
REPRESENTATIVE LEDOUX explained that Amendment 9 changes the
maximum time for disorderly conduct from 24-hours to five-days.
She offered her understanding that as a prosecutorial tool,
assaults were sometimes pled down to misdemeanor disorderly
conduct, and with the new rule for 24-hours, there is no teeth
where what might actually be a felony assault.
2:36:51 PM
REPRESENTATIVE KREISS-TOMKINS asked what problem Amendment 9
would solve.
REPRESENTATIVE LEDOUX responded that it solves taking away a
prosecutorial tool, such that in a case which may actually be an
assault, it gives the prosecutor a tool to plead down to
something.
CHAIR CLAMAN asked why prosecutors can't offer a plea deal to
disorderly conduct today if the sentencing is 24-hours, and
further asked how five-days changes the prosecution's ability to
offer that as a plea deal.
2:37:57 PM
REPRESENTATIVE LEDOUX commented that 24-hours is really next to
nothing and the cost of preparing for a trial for a 24-hour
sentence would probably not be of interest to the prosecution.
She offered that the defense attorney would realize that no
prosecutor would actually prepare a prosecution with a 24-hour
sentence and would tell the prosecutor "to pound sand."
CHAIR CLAMAN argued that as a plea deal tool, a person is
charged with assault in the fourth degree, which is up to one-
year in jail as a Class A misdemeanor. He asked whether the
offer that the person can go to trial on assault in the fourth
degree, or accept the plea deal of disorderly conduct, for
example, is a tool. He related the tool would be available as a
plea deal. Although, he said, the [prosecution] may not be
prepared to take it to trial on disorderly conduct if the
original charge was assault and they were cutting a deal, and
asked how the prosecution loses that tool today.
REPRESENTATIVE LEDOUX replied that "they probably would not be
willing to cut the deal" on the assault charge if they thought
they were going to win at the assault charge, but still the
person has committed a crime.
REPRESENTATIVE KOPP commented that disorderly conduct is a
valuable tool in the law to help solve the many boots on the
ground calls for officers, as to noise disturbance and fighting.
Public nuisance of all types falls under disorderly conduct and
it is a charge used to solve problems right away. He noted his
discouragement as to the possible lack prosecutorial incentive
with the 24-hour sentence, and changing it to five-days may see
the law actually being used. It does give the defense something
to plead down to from a misdemeanor assault, and he commented,
"not that that's the reason we should be doing this." This is a
good law to be kept on the books and if this amendment helps the
law to be utilized, it is a good amendment, he stated.
REPRESENTATIVE FANSLER maintained his objection.
2:40:57 PM
A roll call vote was taken. Representatives Eastman, Kopp,
LeDoux, and Millett voted in favor of adopting Amendment 9.
Representatives Fansler, Kreiss-Tomkins, and Claman voted
against it. Therefore, Amendment 9 was adopted by a vote of 4-
3.
2:41:31 PM
CHAIR CLAMAN offered his understanding that Representative
LeDoux, at this point, would not offer any of her other
amendments.
REPRESENTATIVE LEDOUX answered in the affirmative.
2:42:00 PM
REPRESENTATIVE MILLETT moved to adopt Amendment 22, 30-
LS0461\N.34, Glover/Martin, 10/20/17, which read as follows:
Page 1, line 4, following "program;":
Insert "relating to the Alaska Criminal Justice
Commission;"
Page 11, following line 31:
Insert a new bill section to read:
"* Sec. 21. AS 44.19.645(a) is amended to read:
(a) The mission of the commission is to protect
and improve public safety while working toward a more
efficient and cost-effective criminal justice system.
The commission shall evaluate the effect of sentencing
laws and criminal justice practices on the criminal
justice system to evaluate whether those sentencing
laws and criminal justice practices provide for
protection of the public, community condemnation of
the offender, the rights of victims of crimes, the
rights of the accused and the person convicted,
restitution from the offender, and the principle of
reformation. The commission shall make recommendations
for improving criminal sentencing practices and
criminal justice practices, including rehabilitation
and restitution. The commission shall annually make
recommendations to the governor and the legislature on
how savings from criminal justice reforms should be
reinvested to reduce recidivism. In formulating its
recommendations, the commission shall consider
(1) statutes, court rules, and court
decisions relevant to sentencing of criminal
defendants in misdemeanor and felony cases;
(2) sentencing practices of the judiciary,
including use of presumptive sentences;
(3) means of promoting uniformity,
proportionality, and accountability in sentencing;
(4) alternatives to traditional forms of
incarceration;
(5) the efficacy of parole and probation in
ensuring public safety, achieving rehabilitation, and
reducing recidivism;
(6) the adequacy, availability, and
effectiveness of treatment and rehabilitation
programs;
(7) crime and incarceration rates,
including the rate of violent crime and the abuse of
controlled substances, in this state compared to other
states, and best practices adopted by other states
that have proven to be successful in reducing
recidivism;
(8) the relationship between sentencing
priorities and correctional resources;
(9) the effectiveness of the state's
current methodologies for the collection and
dissemination of criminal justice data; and
(10) whether the schedules for controlled
substances in AS 11.71.140 - 11.71.190 are reasonable
and appropriate, considering the criteria established
in AS 11.71.120(c)."
Renumber the following bill sections accordingly.
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
2:42:09 PM
REPRESENTATIVE MILLETT explained that, subsequent to the
creation and direction given to the Alaska Criminal Justice
Commission, and the public's reaction to some of the crime
upticks in Alaska, the legislature should honor the Constitution
of the State of Alaska. The legislature should go back and
redefine the commission's role and put public safety in the
forefront and not just as a sidebar or something that is weighed
last, she said. Recidivism is important, she acknowledged, but
protecting the citizens of Alaska is most important, and she
would like to redefine and codify the commission's mission to
protect and improve public safety while working toward a more
efficient and cost efficient criminal justice system.
2:43:59 PM
REPRESENTATIVE KOPP referred to Amendment 22, Sec. 21, AS
44.19.645(a), page 1, lines 9-14, which read as follows:
(a) ... The commission shall evaluate the effect
of sentencing laws and criminal justice practices on
the criminal justice system to evaluate whether those
sentencing laws and criminal justice practices provide
for protection of the public, community condemnation
of the offender, the rights of victims of crimes, the
rights of the accused and the person convicted,
restitution from the offender, and the principle of
reformation.
REPRESENTATIVE KOPP asked how Amendment 22 adds to the above-
mentioned language [located in Senate Bill 91], wherein almost
the first directive is to protect the public.
REPRESENTATIVE MILLETT answered that it is about sending a
message to the public that criminal justice reform includes
public safety first and foremost, and everything else follows.
2:45:38 PM
REPRESENTATIVE EASTMAN recalled testimony from members of the
commission last evening, and it was his impression that the
commission was not prepared to include issues like crime rates.
Public safety is part of the commission's work, he commented,
and there is a challenge between focusing on recidivism and
focusing on crime rates. He related that he would like to see
the commission's public safety vision expanded to include public
safety, crime rates, impacts on victims, and those sorts of
issues, more so than was heard last evening.
2:46:34 PM
REPRESENTATIVE FANSLER, in response to Representative Eastman's
comments, referred to Amendment 22, Sec. 21, AS 44.19.645(a)(7),
page 2, lines 8-11,
(7) crime and incarceration rates, including
the rate of violent crime and the abuse of controlled
substances, in this state compared to other states,
and best practices adopted by other states that have
proven to be successful in reducing recidivism;
REPRESENTATIVE FANSLER pointed out that paragraph (7) leads with
"crime and incarceration rates, including the rate of violent
crime, and the abuse of controlled substances." He pointed out
that it is already dominantly included, and the language takes
into effect the protection of the public, community, and the
condemnation of the offender. He pointed out that it has
frequently been said that government is too bureaucratic with
too much red tape, and he finds it ironic that the committee now
has several amendments that have been nothing but more
bureaucracy with red tape, and he will vote against the
amendment.
REPRESENTATIVE LEDOUX commented that she does not see the need
for Amendment 22, and referred to Amendment 22, page 1, lines 9-
14, as follows:
(a) ... The commission shall evaluate the effect
of sentencing laws and criminal justice practices on
the criminal justice system to evaluate whether those
sentencing laws and criminal justice practices provide
for protection of the public, community condemnation
of the offender, the rights of victims of crimes, the
rights of the accused and the person convicted,
restitution from the offender, and the principle of
reformation.
REPRESENTATIVE LEDOUX offered her belief that the committee does
not need to amend the language for style.
2:48:15 PM
REPRESENTATIVE KREISS-TOMKINS advised that Representative LeDoux
had shared his observations, and that he had no further comment.
CHAIR CLAMAN noted that everyone serving on the Alaska Criminal
Justice Commission is a public official who took an oath to
uphold the Constitution of the State of Alaska, and he referred
to Article I, Section 12, Criminal Administration, which read as
follows:
Section 12. Criminal Administration
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted. Criminal administration shall be based upon
the following: the need for protecting the public,
community condemnation of the offender, the rights of
victims of crime, restitution from the offender, and
the principle of reformation.
CHAIR CLAMAN argued that Representative Eastman's observation
that the Alaska Criminal Justice Commission is not concerned
with crime rates is "just not true" because the commissioners
discuss crimes rates in every meeting because they are
concerned. He stressed that as a non-voting member of the
commission, he is consistently impressed with (coughing) oath to
uphold the Constitution of the State of Alaska, and that the
commissioners are first and foremost concerned about public
safety. He said he will not support the amendment.
REPRESENTATIVE MILLETT pointed the members to the 10/22/17
Alaska Criminal Justice Commission Report, Executive Summary,
noting discussions about criminal justice reform and that two-
pages discuss the crime rates. She argued that, as to the focus
of the commission being on public safety, the crimes rates are
two-pages of a 59-page report, and while she appreciates that
the commission discusses crimes rates, that is the missing
piece. The current crime rates were not reviewed when the
legislature passed Senate Bill 91, and the state was involved in
an uptick in crime, an opioid crisis, and a recession. She
opined that if the discussion had been about public safety
first, those things probably would have been closely considered,
and the timing of the execution of Senate Bill 91 would not have
taken place last year.
REPRESENTATIVE FANSLER maintained his objection.
2:50:57 PM
A roll call vote was taken. Representatives Millett, Eastman,
and Kopp voted in favor of adopting Amendment 22.
Representatives LeDoux, Fansler, Kreiss-Tomkins, and Claman
voted against it. Therefore, Amendment 22 failed to be adopted
by a vote of 3-4.
2:51:55 PM
The committee took an at-ease from 2:51 p.m. to 3:33 p.m.
3:33:57 PM
REPRESENTATIVE FANSLER moved to adopt Amendment 25, labeled 30-
LS0461\N.65, Martin, 10/24/17, which read as follows:
Page 3, line 6:
Delete "one year"
Insert "90 days"
REPRESENTATIVE MILLETT objected.
3:34:03 PM
REPRESENTATIVE FANSLER explained that Amendment 25 amends Sec.
6, AS 12.55.125(e)(1), page 3, line 6, Class C felony
convictions. Currently, he explained, under Senate Bill 91 a
Class C felony can have up to 18-months of probation. Under SB
54, the proposal is to allow for zero-to-one-year of active
sentence time. Thereby, bringing SB 54 into alignment with the
official majority recommendation of the commission, [located in
the 10/22/17 Alaska Criminal Justice Commission Report, page F4,
Recommendation 5-2017, Enact a 0-90-day presumptive sentencing
range for first-time Class C Felonies].
3:35:33 PM
REPRESENTATIVE MILLETT asked that the Department of Law (DOL)
describe first-time Class C felonies.
CHAIR CLAMAN reminded Representative Millett that the DOL
provided the committee with a list of Class C felonies
yesterday.
REPRESENTATIVE MILLETT pointed out that the list includes 142
Class C felonies that will move to 90-days, noting that some of
these are egregious crimes. While she understands the goal of
helping first-time felons, she said she is uncomfortable with
lowering the sentences because a person can make their case in
court for a lower sentence. Changing it to 90-days is not a
deterrent for a Class C felony and she asked how this makes the
public safer.
REPRESENTATIVE FANSLER responded that when looking at the safety
issue, currently a person can be sentenced to zero-days, and
numerous testimonies advised that, typically, any jailtime would
be used as a deterrence for future and repeating crimes. At the
same time, this is balanced with the fact that the more time a
person spends in jail, the greater the chance of the person
recidivating and increasing their criminal activity. This
amendment offers a better balance. He acknowledged that the DOL
list is an extensive list of 142 crimes, with a wide range of
differing crimes on the list. His personal preference, he
pointed out, is that he would much rather see several of these
crimes reclassified. When comparing such a wide range of
crimes, it is imperative that the committee make sure it is not
sending low-level crime individuals to long-term jail sentences.
He remarked that with the disparity that exists in the court
system when it comes to sentencing minorities, a situation could
be seen where unfair sentences could be decided upon for folks
of a certain race. This amendment is the correct road to take,
which is probably why the commission recommended it, he said.
3:39:50 PM
REPRESENTATIVE EASTMAN asked that if the amendment changes the
current bill from one-year to only 90-days, what would it look
like once it was pled down, how much jailtime.
REPRESENTATIVE FANSLER answered that in each instance it would
be from zero-to-90-days, and depending upon the circumstances,
the judge could determine any range of ways to sentence a person
and this is an appropriate range to allow for the differing
crimes on this list. He explained that it allows for the
intention of the original Senate Bill 91, rather than the lowest
level of criminals wasting time in jail that they get into the
programs they need and receive rehabilitation services, and this
amendment allows that process to take place in a better manner.
3:41:12 PM
REPRESENTATIVE EASTMAN referred to the DOL's list of Class C
felonies, line 139 - "selling up to 50 50 tablets, ampules, or
syrettes containing a schedule IIA or schedule IIIA substance,
misconduct involving a controlled substance in the third degree
MICS3)," and commented that the maximum would be 90-days. He
related, in that instance, a person is almost assured they will
not receive the maximum sentence, and a drug dealer who got
caught selling 50 doses will plea bargain the sentence down. He
commented that the discussion is about "a very, very small
amount" of time in jail (audio difficulties).
3:42:18 PM
The committee took an at-ease from 3:42 p.m. to 3:49 p.m.
3:49:19 PM
REPRESENTATIVE EASTMAN continued asking his question regarding
the amount of jailtime a person is actually looking at once it
had been pled down and gone through the process, whether that
was sufficient. He pointed to DOL list and noted that
intentionally killing a police dog is on the list, and said that
if someone is committing this type of violent acts resulting in
the murder of a police dog, he does not think some small amount
of jailtime is a sufficient deterrent and that it should be
higher. He asked why Representative Fansler believes the small
amount of jailtime would be sufficient.
REPRESENTATIVE FANSLER expressed that he does not consider 90-
days a small amount of jailtime because any time spent in jail
is life altering. Currently, he pointed out, it is zero
jailtime on a first offense Class C felony, and this amendment
makes the law stronger. It is what intelligent experts, who
have studied these issues recommended, and it strikes him that
is a good guidepost. He reminded the committee that "this group
has kind of agreed with many of the recommendations from the
commission already." This is a further situation where he
believes the commission has the proper understanding when it
looks at the numbers and research of what an appropriate
sentence would be for someone in this class of felonies, he
pointed out.
3:51:48 PM
REPRESENTATIVE MILLETT said she is uncomfortable changing the
amount of jailtime to zero-90-days, rather than zero-one-year.
She referred to the DOL list of Class C felonies and read as
follows: holding a gun to someone's head and threatening to kill
them; and chopping the head off of a cat. She said she believes
the state's sentencing structure should not be for the least
crime, that if the crimes are going to all be grouped together,
it should be for the most expansive and dangerous crimes even
though they are all under Class C felonies. Many people with
drug and alcohol abuse issues receive 90-days maximum, and their
sentence is reduced, and they possibly serve two-to-three-days,
and asked whether the committee would want to allow the court a
little more time and more opportunity to give a longer sentence.
She said she agrees that possibly there should be a review as to
recriminalization and the manner in which crimes are described
and redefine them, but she does not think taking the step first
of lowering the amount of time is the first step the legislature
should be taking. She said she would be a no-vote on the
adoption of this amendment.
3:53:37 PM
REPRESENTATIVE KOPP advised that this amendment is consistent
with the Alaska Criminal Justice Commission's recommendation,
and the members need to keep in mind that the zero-to-one-year
gives the Department of Law (DOL) a range within which to work
with the particular circumstances of the offense and the nature
of the offender themselves. He said he supports keeping the
sentencing at zero-to-one-year because some violent and serious
crimes are conducted under Class C felonies, and that range
gives the department a tool to apply as necessary.
REPRESENTATIVE EASTMAN commented that Alaska is one of a few
states with a list of 142 separate crimes that are classified
under one heading and treats the crimes similarly. He said
there is something to be learned from other states that simply
assign a penalty to a specific crime and forego the
classification process. He related that for some of the varied
crimes listed, 90-days is not an appropriate or just sentence
and he would be a no-vote on the adoption of the amendment.
REPRESENTATIVE KREISS-TOMKINS noted that given this special
session, and what transpired over the summer, and the comments
from the members of the Alaska Criminal Justice Commission,
there appears to be an emerging concurrence around the language
presently in the legislation, and he is comfortable with the
current SB 54.
REPRESENTATIVE FANSLER asked the committee to recognize that a
person can be released for good behavior. He clarified for the
committee that judges' direct maximum penalties all of the time
and "to act like they do not would just be a fallacy." Also, he
pointed out, it is important to remember that first-time Class C
felony offenders without aggravators or anything like that is
the subject. Typically, he said, "what we're going to be seeing
is, you know, a situation that -- that is quite honestly
possibly pretty rare with a lot of these things." He reiterated
that zero-to-90-days offers the desired latitude.
REPRESENTATIVE MILLETT maintained her objection.
3:59:04 PM
A roll call vote was taken. Representatives Fansler and Claman
voted in favor of the adoption of Amendment 25. Representatives
Kreiss-Tomkins, LeDoux, Millett, Eastman, and Kopp voted against
it. Therefore, Amendment 25 failed to be adopted by a vote of
2-5.
3:59:50 PM
REPRESENTATIVE FANSLER moved to adopt Amendment 26, labeled 30-
LS0461\N.66, Martin, 10/24/17, which read as follows:
Page 3, line 6:
Delete "one year"
Insert "180 days"
REPRESENTATIVE MILLETT objected.
3:59:49 PM
REPRESENTATIVE FANSLER noted that it had been stressed several
times that the commission was split by vote or two when it made
the recommendation for 90-days. Luckily, he commented, this
committee compromises well and it can divide the days in half to
a "nice 6-month period of 180-days."
REPRESENTATIVE EASTMAN commented that the committee has been
talking about the impact of some of these sentences on the
convicted person, but his focus begins with the impact to the
public, and on past and future victims of crimes. He related
that his constituents are not immune to some of the current
crimes included in the DOL's list of Class C felonies, and he
would be a no-vote. He opined that compromising justice is not
what the committee is looking for because justice requires
stiffer penalties, and focusing not just on the convicted person
but on the larger impact it has to the public. The public is
where the focus needs to start, and after that piece is shored
up, the discussion can be about reducing penalties, he said.
4:03:19 PM
REPRESENTATIVE FANSLER clarified that Senate Bill 91's focus was
in making society a better place and eliminating crime. The
statistics show that reducing recidivism is the correct avenue
and offering rehabilitation programs and opportunities, not
locking people away for years of their lives. He pointed out
that, not only is locking people away costly, but it ruins
people's lives and it creates more victims. Therefore, he
further pointed out, the real manner in which to solve this
problem, the real way to help Alaskans, and the real way to
concentrate on Alaskans, is to make sure the state is not
producing more criminals or more hardened criminals, but rather
that the state is releasing criminals who will not recidivate
and transfer into society through these programs, and will
contribute to society. It is known that these goals are not
accomplished by locking people away, as has been seen in the
State of Texas, and this is a step toward those successes. He
stressed that this is something he feels passionately about,
which is why he is offering amendments that are closer to the
recommendations of the Alaska Criminal Justice Commission, of
which has studied these issues for many years.
REPRESENTATIVE MILLETT maintained her objection.
4:04:40 PM
A roll call vote was taken. Representatives Fansler and Claman
voted in favor of the adoption of Amendment 26. Representatives
Kopp, Kreiss-Tomkins, LeDoux, Millett, and Eastman voted against
it. Therefore, Amendment 26 failed to be adopted by a vote of
2-5.
CHAIR CLAMAN noted that Amendment 27 is the subject of a bill
that passed the House of Representatives and is currently
located in the limbo file.
4:05:27 PM
REPRESENTATIVE MILLETT moved to adopt Amendment 27, labeled 30-
LS0461\N.62, Martin, 10/24/17, which read as follows: [The text
of Amendment 27 is listed at the end of the 10/24/2017, 9:00 am,
minutes of SB 54.]
REPRESENTATIVE FANSLER objected.
4:05:40 PM
REPRESENTATIVE MILLETT said that Chair Claman was correct,
Amendment 27 is a bill that passed the House of Representatives
and came back from the Senate with the addition of the drug
tramadol. She advised that the Controlled Substance Advisory
Board offers recommendations regarding controlled substances,
and both of these substances, especially U-47700 with street
name "Pink," "which is about 20 times stronger than fentanyl,
which is about 20 times stronger than meth and heroin." There
is no medical use for U-47700, and Amendment 27 puts it in
schedule IA controlled substance. Tramadol, she explained, is
being used as a street drug, and Alaska is seeing the uptake in
the abuse of Tramadol, in addition to the uptake in the use of
U-47700. She offered that because the bill is in the limbo file
and the legislature is not in regular session, she is not
breaking any rules in special session by offering Amendment 27.
CHAIR CLAMAN clarified that Amendment 27 is not the version that
was passed by the House of Representatives, it is the somewhat
modified version passed by the Senate.
4:07:16 PM
REPRESENTATIVE FANSLER surmised that this will include a title
change for SB 54.
REPRESENTATIVE MILLETT answered yes, and opined that other
amendments have passed and will require a title change also.
4:07:44 PM
REPRESENTATIVE FANSLER removed his objection.
REPRESENTATIVE EASTMAN objected to Amendment 27 for purposes of
discussion, and asked that the sponsor explain the meaning of
schedule IA controlled substances.
CHAIR CLAMAN reminded Representative Eastman that this bill was
debated in this committee last year, and in that regard, he does
not see a reason to not move forward. He opined that it passed
the House of Representatives unanimously.
REPRESENTATIVE EASTMAN commented that he was pretty sure it did
not pass unanimously, and he wanted to be sure schedule IA
classification is appropriate.
REPRESENTATIVE MILLETT responded that schedule IA is basically
any drug without a medical use, and U-47700 has zero medical
use.
REPRESENTATIVE EASTMAN maintained his objection.
4:09:27 PM
REPRESENTATIVE KOPP referred to AS 11.71.140(a), which read as
follows:
AS 11.71.140. Schedule Ia.
(a) A substance shall be placed in schedule IA if it
is found under AS 11.71.120(c) to have the highest
degree of danger or probable danger to a person or the
public.
REPRESENTATIVE KOPP noted that the Controlled Substance Advisory
Board recommended this change, the DOL chairs the Controlled
Substance Advisory Board, the DOL is fine with Amendment 27, and
he supports the amendment.
4:10:07 PM
REPRESENTATIVE FANSLER thanked the sponsor for bringing this
legislation forward as Alaska has an unprecedented opioid crisis
and this amendment should be fast-tracked.
REPRESENTATIVE KREISS-TOMKINS said he seconds Representative
Fansler's appreciation and suggested looking at a more efficient
way to approach listing these types of drugs, so a piece of
legislation is not required each time something new emerges from
the chemists of the under-world and hits the streets.
REPRESENTATIVE MILLETT advised that Governor Bill Walker's
office came to her with this piece of legislation due to the
opioid crisis. She reiterated that the Controlled Substance
Advisory Board reviews Alaska's drugs with the mission of
looking at drugs and street drugs to make sure the
classifications are correct. Amendment 27 will give the state
more tools in the toolbox to combat the state's opioid crisis,
she explained.
REPRESENTATIVE EASTMAN continued to maintain his objection.
4:11:49 PM
A roll call vote was taken. Representatives Kopp, Kreiss-
Tomkins, LeDoux, Millett, Fansler and Claman voted in favor of
adopting Amendment 27. Representative Eastman voted against it.
Therefore, Amendment 27 was adopted by a vote of 6-1.
4:12:31 PM
REPRESENTATIVE MILLETT moved to adopt Amendment 28, labeled 30-
LS0461\N.68, Martin, 10/24/17, which read as follows:
Page 2, following line 29:
Insert a new bill section to read:
"* Sec. 6. AS 12.55.125(c) is amended to read:
(c) Except as provided in (i) of this section, a
defendant convicted of a class A felony may be
sentenced to a definite term of imprisonment of not
more than 20 years, and shall be sentenced to a
definite term within the following presumptive ranges,
subject to adjustment as provided in AS 12.55.155 -
12.55.175:
(1) if the offense is a first felony
conviction and does not involve circumstances
described in (2) of this subsection, three to six
years;
(2) if the offense is a first felony
conviction and the defendant
(A) possessed a firearm, used a dangerous
instrument, or caused serious physical injury or death
during the commission of the offense, five to nine
years; or
(B) knowingly directed the conduct
constituting the offense at a uniformed or otherwise
clearly identified peace officer, firefighter,
correctional employee, emergency medical technician,
paramedic, ambulance attendant, or other emergency
responder who was engaged in the performance of
official duties at the time of the offense, seven
[FIVE] to 11 [NINE] years;
(3) if the offense is a second felony
conviction, eight to 12 years;
(4) if the offense is a third felony
conviction and the defendant is not subject to
sentencing under (l) of this section, 13 to 20 years."
Renumber the following bill sections accordingly.
Page 15, line 18:
Delete "sec. 15"
Insert "sec. 16"
Page 15, following line 20:
Insert a new paragraph to read:
"(1) AS 12.55.125(c), as amended by sec. 6
of this Act;"
Renumber the following paragraphs accordingly.
Page 15, line 21:
Delete "sec. 6"
Insert "sec. 7"
Page 15, line 22:
Delete "sec. 7"
Insert "sec. 8"
Page 15, line 23:
Delete "sec. 8"
Insert "sec. 9"
Page 15, line 24:
Delete "sec. 9"
Insert "sec. 10"
Page 15, line 25:
Delete "sec. 10"
Insert "sec. 11"
Page 15, line 26:
Delete "sec. 11"
Insert "sec. 12"
Page 15, line 27:
Delete "sec. 12"
Insert "sec. 13"
Page 15, line 28:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 29:
Delete "sec. 18"
Insert "sec. 19"
Page 15, line 30:
Delete "Section 17"
Insert "Section 18"
Page 15, line 31:
Delete "sec. 24"
Insert "sec. 25"
REPRESENTATIVE FANSLER objected.
4:12:35 PM
REPRESENTATIVE MILLETT referred to the issue of uniformed police
officers, emergency medical technicians, paramedic, ambulance
attendant, or any other emergency responder hurt in the line of
duty, and offered that she did not know whether this issue was
an unintended consequence of Senate Bill 91. The issue, she
explained, is that Senate Bill 91 lowered the sentence for
severely injuring these individuals, and Amendment 28 carves out
the presumptive sentencing range and puts it back to the pre-
Senate Bill 91 range of seven to eleven years.
4:13:46 PM
REPRESENTATIVE EASTMAN surmised that all of the changes in this
amendment are strictly going back to pre-Senate Bill 91 status.
REPRESENTATIVE MILLETT confirmed that these would go back to
pre-Senate Bill 91 levels for just this class of uniformed
police officers, emergency medical technicians, paramedic,
ambulance attendant, or any other emergency responder hurt in
the line of duty.
4:14:23 PM
REPRESENTATIVE KOPP asked Mr. Skidmore whether there are any
other issues. He commented that he appreciates that this
amendment is sending a strong message about community
condemnation of those people who would assault any uniformed
first responder, and he wants to be certain the goal is covered
in the amendment.
MR. SKIDMORE answered that he does not see any issues with this
particular amendment, although he did have questions earlier
about aggravators. He clarified that special circumstances,
under AS 12.55.125(c), in this instance only addresses those
offenses that were a Class A felony, as opposed to all of the
other crimes. These special circumstances only apply to those
most serious injuries, he explained, and the aggravator he spoke
of earlier, only applies to other offenses which would have been
a Class B or Class C felony. This is the presumptive range that
would apply for the Class A, and this is what controls in terms
of what happens for an officer or a first responder that is
harmed, he explained. An aggravator and a special circumstance
cannot be used together to enhance a sentence, it must be one or
the other. For example, he explained, when the law offers a
special circumstance, an aggravator cannot be added. In the
event the prosecution used an aggravator, the aggravator would
have authorized a maximum sentence and that is not allowed for a
Class A felony, which is what this special circumstance
addresses. He noted that "this says your sentencing range for
that is seven to eleven," and he wanted to make clear how these
two legal concepts interact with one another."
4:16:57 PM
REPRESENTATIVE MILLETT asked for clarification that Amendment 28
identifies the statute prior to pre-Senate Bill 91.
MR. SKIDMORE answered in the affirmative.
CHAIR CLAMAN said that special circumstances were not available,
and the prosecution was just using the aggravator because a
Class A felony is up to 20-years in jail. Under Amendment 28,
because the definition of special circumstances includes the
firearm against a public safety officer, that by adopting
Amendment 28, the committee is saying that the judge's
discretion to get to the maximum sentence is removed because
with an aggravator for a firearm at a public safety officer, if
"you didn't have this special circumstance you could go up to
20, but because of this with a firearm against a public safety
officer, the sentence is limited to seven to eleven years."
MR. SKIDMORE clarified that the firearm is the first special
circumstance, and then there is the "or," so it is not a firearm
directed at a first responder. He explained that the firearm is
when a person possesses a firearm, or uses a dangerous
instrument, or causes serious physical injury to anyone, that is
a special circumstance for those Class A felonies. He referred
to Amendment 28, AS 12.55.125(2)(B), page 1, lines 14-18, and
advised that AS 12.55.125(2)(B) is directly affected by this
amendment when changing it to seven to eleven years, that is
only when it applies to first offenders. The Class A felony can
be causing serious physical injury but need not involve a
dangerous instrument or a firearm. There is a differentiation,
he said, and his point is that when the victim in a case is the
first responder, it need not be an injury caused by a firearm.
4:19:12 PM
CHAIR CLAMAN offered a scenario of a Class A felony assault in
the first degree, and a person directed that conduct at a public
safety officer or first responder. He explained that if there
wasn't this statute, the prosecution could prove up an
aggravator that the person knowingly directed the conduct at a
public safety officer. At that point, he explained, without
this special circumstance, the sentencing range would be five to
twenty years under the Class A felony.
MR. SKIDMORE advised that Chair Claman's legal analysis is
accurate, but this special circumstance existed prior to any
criminal justice reform.
4:19:59 PM
CHAIR CLAMAN surmised that, in terms of the maximum sentence in
this special circumstance, it restricts the judge's discretion
when there is an injury to a first responder. The judge could
not give them the maximum of 20-years because the judge would be
limited to five to eleven years, unless the prosecution proved
up a different aggravator that was not incorporated in this
special circumstance.
MR. SKIDMORE said that he thought Chair Claman was correct, but
Chair Claman's analysis assumes that this special circumstance
was removed entirely. Currently, he explained, this special
circumstance limits it to five to nine years.
CHAIR CLAMAN asked for clarification that these are actually
special circumstances when talking about the maximum sentence,
such that the judge's discretion to go to the maximum on a first
offender, under these circumstances, is removed. He said he is
not saying that is not a reasonable policy choice ...
MR. SKIDMORE said that is how the law was prior [to criminal
justice reform].
4:20:57 PM
REPRESENTATIVE KREISS-TOMKINS surmised that special
circumstances, prior to criminal justice reform, limited a
judge's discretion if the judge wanted to sentence someone to up
to 20-years, because that would be what an aggravator would
allow for a Class A felony. He related that he is struggling to
express himself.
MR. SKIDMORE explained that with the presumptive sentencing
established for a Class A felony for a first offender, if there
are special circumstances, it would allow that presumptive
sentencing to be higher when one of these special circumstances
was found by a jury beyond a reasonable doubt. As to
aggravators, he explained, the prosecution can look at whether
there are any aggravators that allow this crime to go higher
than that presumptive sentencing range. He explained that there
is an aggravator that uses this same language, and that
aggravator would not be allowed to be used to aggravate this
particular offense, although a different aggravator could be
used to elevate the sentence. He advised that special
circumstances start with the premise to increase the presumptive
range for this particular crime, and he does not know the
criminal history of how it ended up as both a special
circumstance and an aggravator and is in both places. He said
he could only explain how the two things work in conjunction
with each other.
4:23:26 PM
REPRESENTATIVE KREISS-TOMKINS commented that throughout decades
of the legislative process "it seems maybe a little bit clunky
the way things were prior to Senate Bill 91" in that if there
were no other aggravators that could be proven, "this this sort
of" moving up the presumptive range, but also preventing an
aggravator from being applied to the crime would actually
handicap or limit sentencing potentials associated with a crime.
MR. SKIDMORE commented that he was unsure there was a question.
REPRESENTATIVE KREISS-TOMKINS asked whether his thinking was
"going off the rails."
MR. SKIDMORE said that he does not believe Representative
Kreiss-Tomkins was going off the rails.
4:24:40 PM
REPRESENTATIVE KOPP commented that the unexplainable history
that Mr. Skidmore pointed out highlights why criminal law should
always be vetted through a body that thinks through these issues
at length. Thereby preventing internal conflicts or things that
cannot be reconciled. Ideally, he said, the Alaska Criminal
Justice Commission would be reviewing all criminal related bills
because it would help the process. He pointed to Class A
felonies and the possible death of a uniformed or otherwise
clearly identified peace officer, fire fighter, correctional
employee, EMT, paramedic, and asked whether necessarily the
discussion was about manslaughter and not murder, otherwise it
would not be a Class A felony, it would be an unclassified
felony.
MR. SKIDMORE asked whether the question was limited only to
manslaughter as opposed to ...
4:26:57 PM
REPRESENTATIVE KOPP explained that if it was death, it would
have to be a manslaughter offense that was being discussed here
because it is a Class A felony versus and an unclassified
felony.
MR. SKIDMORE responded that this would apply to two Class A
felonies, assault in the first degree and potentially
manslaughter if talking about death. Predominantly, he said, he
thinks of this more as assault in the first degree as opposed to
manslaughter.
REPRESENTATIVE KOPP offered a scenario of a person fleeing a
traffic stop and they accidentally run over and kill an officer.
He commented that his reading of this bill is that it would be
presumptive to a seven to eleven-year sentence, as amended. He
asked whether Mr. Skidmore could think of any other aggravators
that that could increase that sentence.
MR. SKIDMORE, in response to the scenario, answered that it
depends upon all of the specific facts of the case, such that a
responsible prosecutor would sit down with the statutes and
sentencing manual and look for all of the provisions of law that
might apply. He opined that the scenario applies to Class A
felonies, and the Class A felonies he thinks of off the top of
his head are assault in the first degree, and manslaughter.
There could be a manslaughter that involved the first responder,
and this is what would control, seven to eleven years, he said.
4:28:15 PM
REPRESENTATIVE LEDOUX referred to the language located in
Amendment 28, AS 12.55.125(c), page 1, line 15, "clearly
identified peace officer," and asked why it does not apply to
someone working in an undercover operation when the intent is to
protect peace officers.
MR. SKIDMORE explained that the state wants to penalize an
individual who knowingly kills a law enforcement officer. In
the event the person is undercover, it may not be a situation in
which that undercover officer was killed because they were a law
enforcement officer. Hypothetically, he offered, if a law
enforcement officer is working undercover, and the person being
investigated does not realize they are an officer, and there is
some other reason the person chooses to harm that officer, the
killing is not about them being a law enforcement officer, it is
for some other rationale. He offered that there are other
crimes that the DOL would be able to use to prosecute that
offender. In the event the goal is to enhance the penalty
because it was an officer, then the law does require the mental
state he discussed earlier, the knowingly, recklessly, and those
sorts of things. He reiterated that it does require a mental
state to go along with that, and to have zero mental state would
be a strict liability, and the state does not send people to
jail on strict liability offenses as a general rule.
4:29:54 PM
REPRESENTATIVE LEDOUX commented that the state does not send
people to jail for strict liability offenses, but this involves
sentencing. She related that if the intent is to protect law
enforcement officers as a category, she is confused as to why
those not in uniform and not otherwise clearly identifiable,
should not be included. She said she may be going down a rabbit
hole, but this was not the situation prior to Senate Bill 91.
MR. SKIDMORE related that he was not suggesting what policy the
legislature does or does not take, but rather he was offering an
explanation as to why the law is crafted in this manner. He
remarked that Representative LeDoux's point that it relates to
sentencing as opposed to an element of the crime was well taken.
4:31:25 PM
REPRESENTATIVE EASTMAN asked the sponsor whether she would
consider an amendment that would add to the "knowingly directed
not uniformed peace officers?" Thereby, he clarified,
maintaining the knowingly, and opening it up not to just clearly
identified peace officers, but for sentencing purposes "peace
officers." In the event the person knew they were peace
officers, he said he did not think the crime should have a
different sentence just because they were wearing a uniform.
CHAIR CLAMAN clarified that the language does not require the
peace officers be uniformed, it read "clearly identified," and
he suggested that a law enforcement officer could vocally
identify themselves as a police officer. The officer would be
clearly identified, and it would then become a fact question as
to whether if knowingly directed conduct at that officer. There
is nothing in this language that requires a uniform, he said.
REPRESENTATIVE EASTMAN commented that that would not cover the
situation being discussed earlier as to an undercover officer.
He related that the person could know they were an undercover
officer, but they would not be covered under this language
because the officer was not clearly identified.
4:31:51 PM
REPRESENTATIVE MILLETT responded to Representative Eastman that
she is not opposed to a conceptual amendment, but if the
conceptual amendment is offered, then the committee "should do a
uniform change also" to the murder statute for a peace officer.
She opined that that is where the confusion comes in, and she is
trying to fix an oversight in Senate Bill 91 where this portion
of a uniformed peace officer or first responder was
inadvertently changed in the overall reduction in presumptive
sentencing. She said she is not opposed to a conceptual
amendment, although the immediate need is to change the
unintended consequence in Senate Bill 91.
REPRESENTATIVE LEDOUX remarked that for purposes of sentencing,
the person would not have to know the person was a peace
officer, just that they knowingly directed a weapon at that
person.
4:34:17 PM
REPRESENTATIVE KOPP commented that the committee was going down
a rabbit hole, "a big one." He then referred to clear
legislative intent, and read as follows: "uniformed personnel,
uniformed peace officers, fire fighters, correctional employee,
EMTs, paramedics, ambulance attendants, or emergency responders
engaged in the performance of official duties at the time of the
offense." He advised that undercover officers or not clearly
identified officers is a whole other section of law, and it is a
much higher standard to say whether someone knowingly directed
their conduct at someone who was not identifiable in an official
role. He related that in the event the concern is about that,
the law already covers it extensively under AS 12.55.155(c)(13),
Factors in Aggravation and Mitigation, which read as follows:
(13) the defendant knowingly directed the conduct
constituting the offense at an active officer of the
court or at an active or former judicial officer,
prosecuting attorney, law enforcement officer,
correctional employee, fire fighter, emergency medical
technician, paramedic, ambulance attendant, or other
emergency responder during or because of the exercise
of official duties;
REPRESENTATIVE KOPP advised that these factors in aggravation
can be completely outside of any presumptive sentence and can be
taken to the maximum for murder. He described that the
committee is trying to do "way more" than just debate the
straight forward amendment, and the committee should speak
solely to the amendment. He said he supports the amendment as
currently written.
4:36:08 PM
REPRESENTATIVE LEDOUX commented that even though she got the
committee into the rabbit hole, she suggested that the committee
think about this issue for another bill, and to keep this
amendment clear.
REPRESENTATIVE EASTMAN said the amendment is an improvement over
existing law and that stiffer penalties would be appropriate.
4:36:54 PM
REPRESENTATIVE FANSLER removed his objection. There being no
objection Amendment 28 was adopted.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB54 ver N 10.23.17.PDF |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Sponsor Statement ver N 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Sectional Summary ver N 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Summary of Changes (ver. A to ver. N) 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Bill Contents ver N 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 ACJC Recommendations 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Alaska Criminal Justice Commission Annual Report 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Bill Presentation 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 ACJC Presentation 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Supporting Document-Letters of Support 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Supporting Document-Letter ACLU 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Opposing Document-Letter CUSP 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Additional Document-DoL Recommendations to ACJC (January 9, 2017) 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Additional Document-DoL SB 54 Frequently Asked Questions 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM |
SB 54 |
| SB54 Additional Document-DoL C Felonies in AS 11 Affected by SB 91 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 SB 91 |
| SB54 Additional Document-DoL Memo - State Sentencing (May 19, 2017) 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Additional Document-Leg Legal Memo on Amendment #1 (N.32) 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Amendments #1-22 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Amendments #23-28 10.24.17.pdf |
HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM HJUD 10/26/2017 9:00:00 AM |
SB 54 |
| SB54 Fiscal Note DPS-DET 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note LAW-CRIM 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note DHSS-PS 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note JUD-ACS 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |
| SB54 Fiscal Note DOC-IDO 10.23.17.pdf |
HJUD 10/23/2017 1:00:00 PM HJUD 10/24/2017 9:00:00 AM HJUD 10/24/2017 6:00:00 PM HJUD 10/25/2017 8:00:00 AM |
SB 54 |