Legislature(2015 - 2016)BUTROVICH 205
02/18/2016 08:30 AM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB171 | |
| SB91 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 171 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 91 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
SB 91-OMNIBUS CRIM LAW & PROCEDURE; CORRECTIONS
9:02:51 AM
CHAIR STOLTZE announced the consideration of SB 91. He noted
that RJ Ely, Police Chief of the Craig Police Department, had
provided written comments regarding SB 91.
He stated that the committee would hear from Ms. Taylor Winston
from the Office of Victims' Rights (OVR) on the impact SB 91 has
on victims. He disclosed that OVR was established to implement
the constitutional amendment passed by voters in 1994. He
revealed that OVR was an agency within the legislative branch.
He pointed out that the victims' advocate has a lot similarities
to the Ombudsman and that the individual was confirmed by the
Legislature to serve a five-year term on behalf of the
legislative branch. He explained that OVR had subpoena powers
and the ability to get into the minutia of court cases with
victims. He remarked that OVR was a productive state office that
assisted victims because of their legal training and staffing
that included paralegals and investigators.
He announced that the committee would first hear testimony from
an individual who was an Anchorage police officer. He specified
that the individual would speak on his behalf and not for the
Anchorage Police Department.
9:05:50 AM
CHARLES BAKER, Officer (OFC), Anchorage Police Department,
representing himself, Anchorage, Alaska, set forth that he
opposed SB 91. He asserted that SB 91 provided the "get out of
jail free card" to criminals while doing nothing for the
victims.
OFC. BAKER addressed Section 37 as follows:
In this it talks about establishing the presumption
that we as police officers will cite or give a summons
to any non-violent Class C felony. So if you look at a
Class C felony, that's going to be your felony DUI,
that's going to be your burglary in the second degree,
that's going to be your theft in the second degree.
Theft in the second degree involves the theft of a
firearm. I don't know any criminal who would steal a
firearm and commit a non-violent crime.
OFC. BAKER addressed Section 33 as follows:
Section 33 deals with having illegal drugs within 500
feet. Let's talk about meth or heroine, being within
500 feet of a school and having less than 2.5 grams. I
know with my training experience that a user's amount
is about one tenth of a gram; so what that means is
that a criminal could sit on an exit within 500 feet
of a school and sell 24-user amounts to kids coming
out. All I'm allowed to do is give them a citation or
summons and I don't take them to jail; that means I
give them a piece of paper and give them a court date
or I give them a ticket and I go away and then what is
stopping them with that piece of paper and not going
to jail from going to get more, as long as they stay
less than 2.5 grams, I can't take them to jail, I just
have to keep giving them citations.
9:08:14 AM
CHAIR STOLTZE asked if Officer Baker saw positive areas of the
bill that provided useful tools for law enforcement.
OFC. BAKER answered that there are portions in the bill that he
supported. He pointed out that he was concerned over the change
in the theft statute from $750 to $2,000 and its implications
for businesses.
SENATOR COGHILL replied that he shared OFC. BAKER's concerns and
addressed as follows:
Those are actually pretty legitimate concerns. I
actually share some of the concerns. So as we have
looked through this, some of the recommendations that
we had from the "Commission" [Alaska Criminal Justice
Commission (AJC)] were to reduce a lot of
misdemeanants down to the citations. Let's take
Section 33, if it was left at a misdemeanor you would
be able to at that point arrest them because it would
be any amount, right?
OFC. BAKER replied as follows:
For misdemeanor offences we have the ability to choose
whether we take them to jail or we cite them using the
words like "shall" and "presumptive," you're expecting
us to do so; if you leave it at a C felony, I now get
to take them to jail. If you use the language
"presumptive," if you expect us to give cites or
summons and you said "shall" in there, then that's
what I have to do right now, give a citation instead
of taking them to jail.
9:10:04 AM
SENATOR COGHILL replied as follows:
The aim was to make sure on possession that we had a
quick and certain way of dealing with it, but what you
are saying is probably getting them away from the
circumstance is probably better than actually citing
at this point.
OFC. BAKER replied as follows:
Right, we need to get them away from the victim,
that's the biggest portion of it, by us citing them
that gets us nowhere, all that gets us is giving them
a piece of paper and then I leave to go to my next
call. If I get called back and I catch him doing the
same thing and catch the same amount, I give them
another citation, I can possibly give them trespass
which is a misdemeanor and that's another citation. So
now he's holding 3 pieces of paper and I have to leave
and if it's the end of my shift, unfortunately I have
to go and another officer comes back and he's going to
do the same thing and now we have this guy, he could
have the hundred pieces of paper, that does not stop
him. What we need to do is fix it at the moment, take
him or her to jail, let him or her deal with the
consequences at that point and get the help they need.
Whatever Corrections has, I don't know, I don't deal
with that portion of it, but at the time we need to
get them away from victims. We shouldn't be making
more victims, we should be tough on crime. I feel that
this is giving them a "get out of jail free card."
9:11:21 AM
SENATOR MCGUIRE joined the committee meeting.
SENATOR COGHILL responded as follows:
I'm going to take that to heart. The idea was if we
had 2.5 grams that there would probably be reason to
hold them accountable, get them before a court, but we
are also pretty aware that there were some places
where you want to get them away from a circumstance.
In this recommendation there was actually an
arrestable violation put forward, it would probably be
very different than a misdemeanor which creates a
whole other range of illegal processes. So we are
trying, I think, and I am speaking for the Commission
on this one. The idea was how you make sure you hold
people accountable, give them a court date, but the
arrestable offense was then you could hold them for 24
hours. Do you think that would be a useful tool in
this particular circumstance?
9:12:20 AM
OFC. BAKER acknowledged as follows:
Yes sir, by taking us away from the victim and putting
them in jail, even if it's for the 24 hours; that at
least makes them accountable and takes them away from
the victim.
So let's take this, let's say I get called to your
house, you have the family, a guy enters your house,
starts breaking your stuff, tries to take stuff, I
arrive, I catch him. According to Section 37, I now
"cite" the guy, I give him a ticket or a summons to go
to court at a later date, I then leave because my job
is done, I've done what I'm supposed to do, give them
a citation. What is stopping him from going right back
in? I've already left, I get another phone call, he's
back again, "He's stealing my stuff and I'm worried
he's going to hurt my child." I come back, it's still
a citable offense according to Section 37. So now I
can "trespass" him, I give him another citation and
now he's holding three citations, end of my shift, I
leave, he goes back in. I have to be able to stop
that, I've got to make them accountable, I have to be
able to take them to jail on those circumstances to
get them away from the victim, so that's how we help
them.
9:13:53 AM
SENATOR COGHILL addressed section 37 as follows:
Now I'm jumping to Section 37 because I think that
certainly was not the intention is we allow people to
go destroy people's property and we just give them a
piece of paper showing them going to court. This would
be that unless the officer reasonably believes a
person is a significant danger to themselves or
others. So the significant part is a big deal there,
if you saw there was a danger, you could actually
arrest them under this condition.
OFC. BAKER answered as follows:
I agree, but let's say he goes in your garage, that's
your house. So if you're not actually in your garage,
you could look at it as a peace officer, I make that
judgement call that he never made it inside, I mean
depending on, not to say I wouldn't, I might arrest
the guy, but another officer could say he has that
judgement call now that he's not being violent, he's
just taking your stuff or he had wondered in there;
well that's a crime and we're just going to give him a
ticket and we can't stop him from going right back
into your garage, I mean all he is doing is holding a
ticket that has a date on it.
9:15:04 AM
CHAIR STOLTZE remarked that Officer Baker will find Senator
Coghill to be very easy to communicate with.
OFC. BAKER stated that he would love to help out any way that he
could.
SENATOR COGHILL stated that how SB 91 worked at the ground level
was important. He said the citation concept addresses people who
did not present a danger to the public or themselves and would
show up to court to be held accountable. He asserted that he
wanted to make sure that the discretionary judgement was left to
the officer in areas where the danger was at a higher level. He
revealed that, "A significant danger to themselves or others"
was added to Section 37 where it had previously just said
"danger." He asked Officer Baker to verify that Officer Baker
was saying that just giving a citation would become a danger at
a higher level and should be considered.
9:16:26 AM
OFC. BAKER answered that violent and non-violent class-C
felonies should not be cited or summonsed. He said individuals
committing class-C felonies need to go to jail because the act
was something that was more than a misdemeanor.
SENATOR COGHILL stated that he would take OFC. Baker's remarks
to heart and make notations on his recommendations.
CHAIR STOLTZE thanked OFC. Baker for coming forward as a citizen
away from Anchorage where he worked. He encouraged Officer Baker
to continue working with Senator Coghill.
SENATOR HUGGINS asked what OFC. Baker's confidence level was
with ankle monitors.
OFC. BAKER recounted that he had experienced situations where
the ankle monitors had not worked.
9:20:04 AM
NANCY MEADE, General Council, Alaska Court System, Anchorage,
Alaska, announced that she was available to respond to questions
regarding SB 91.
CHAIR STOLTZE pointed out that the Truth in Sentencing Act
requires a judge during sentencing to describe to the victim the
likelihoods and probabilities of how much time the offender will
serve with Good Time and parole. He noted a recent case in
Anchorage where the offender was sentenced for a long period of
time, but was released after serving a much shorter period of
time. He explained that the public was told by media that the
offender would serve a long time, but was released due to
current items within the Alaska Department of Corrections (DOC)
system for Good Time. He remarked that SB 91 has more incentives
and abilities for the incarcerated to get out earlier. He asked
Ms. Meade to address truth-in-sentencing and her confidence
level that the public will get full exposure for sentencing.
9:22:11 AM
MS. MEADE replied that there was the Victim's Rights Amendment
to the constitution and statutes that flesh out and provide
definite rights to the victims. She said victims have a right to
be notified when an offender is up for parole, release, or
probation. She disclosed that DOC has a system for notifying
victims called the Victim Information and Notification Everyday
(VINE) service. She added that during the pendency of a case,
the Department of Law keeps the victim in the loop of any
hearing where the defendant appears. She pointed out that the
DOC statutes do provide for Good Time, something that judges are
aware of and mention at a sentencing. She revealed that one-
third of a sentence was typically not served if the defendant
qualifies for Good Time credit and the defendant nearly always
qualifies. She added that defendants can get Good Time credit
for any pretrial time spent incarcerated or in certain treatment
programs. She disclosed that DOC does the actual prisoner-time
accounting, but judges do not have the actual accounting in
front of them when addressed during sentencing.
9:24:30 AM
CHAIR STOLTZE stated that actual prisoner time was an important
feature. He said there were new provisions proposed in SB 91
that ought to be fully disclosed. He asserted that the actual
prison time should be disclosed by the judge because sentencing
was the part where the public interfaced with the media.
MS. MEADE replied that Chair Stoltze was correct. She opined
that sometimes the media reports different things about a
sentencing hearing where every word is not reported. She
revealed that judges have training material as well as a script
that is read during sentencing that addresses whether victims
had been informed and would like to participate. She said she
would take Chair Stoltze's words back to the judges to ensure
that sentencing protocol was closely adhered to.
CHAIR STOLTZE noted that the media can only report what is said
by the judges. He pointed out that one of the issues that SB 91
addresses was money and asked Ms. Meade to elaborate on the
bill's fiscal note.
9:27:50 AM
MS. MEADE replied that the court system did submit a zero fiscal
note. She conceded that predicting exactly how the bill fiscally
plays out in the courtroom was hard. She explained the reasoning
for a zero fiscal note as follows:
I think as my fiscal note says, on balance it's
probably a wash, some things will end up being more
hearings for us and the Department of Law and the
public defenders probably recognizes that as well.
There may be a lot more bail hearings for example
because people are allowed to ask for a review of
their bail conditions if they aren't able to meet the
conditions after 48 hours. On the other hand, some of
the felonies that would become misdemeanors and
misdemeanors that would become violations may take a
little bit less time for the court to process.
MS. MEADE summarized that if and when SB 91 passes, the court
system would absorb costs when working with judges and clerical
staff on training.
9:30:25 AM
CHAIR STOLTZE noted that pre-trial custody was a major component
of SB 91 and asked why pre-trial custody shows up as a savings.
MS. MEADE explained that AJC and the bill's sponsor focused on
the fact that about a quarter of the state's prison population
was in jail awaiting sentencing, primarily because an individual
cannot make bail. She said SB 91 encourages judicial officers to
set bail amounts and conditions that result in more pre-trial
people being out on bail than in jail. She disclosed that a
grading or formula-risk assessment was anticipated to be done by
a new office within DOC where judges will receive
recommendations.
9:32:46 AM
CHAIR STOLTZE asked that departments identify within their
fiscal notes as to how much analysis was provided by The Pew
Charitable Trusts' reports and recommendations. He specified
that the intent was to assure that the state's branches of
government relied on its own professional analysis.
MS. MEADE specified that she did not work with The Pew
Charitable Trusts on her fiscal note.
CHAIR STOLTZE responded that he was providing a general notice
to all of the departments and branches of government.
9:34:29 AM
SENATOR COGHILL said the court was going to have to deal with
new concepts in the bail provisions. He remarked that the state
has people spending pre-trial time in jail based on not having
money rather than the risk to society. He asserted that those
who sit in jail quite often can be less risk to either showing
up to court or being a danger to society. He summarized that
doing a risk assessment would be a good tool for judges.
CHAIR STOLTZE opined that television shows often depict
economics as an accepted part of the system.
9:37:40 AM
TAYLOR E. WINSTON, Executive Director, Alaska Office of Victims'
Rights (OVR), Anchorage, Alaska, described OVR as follows:
The Office of Victim's Rights was established about 12
years ago to make sure that crime victims' rights are
protected. Alaska is rich with statutory and
constitutional rights for crime victims. So here
within our office we serve victims across the state.
Our victims are victims that come from all spectrums
of crime; for example, we represent victims of:
robbery, burglary, theft, sex offences, assault,
homicides, and even child victims of drug crimes. We
are one of the only organizations that actually
addresses concerns of all victims, not just domestic
violence or sexual assault victims, which there are
many organizations that work with them.
Our services are free to victims across the state, all
they have to do is contact our office and we will open
a file for them. We do have some limitations in that
we can only serve victims of felony-level crimes or A-
misdemeanor crimes that are people offences, meaning
under AS 11.41, or those crimes that are designated as
domestic violence offences; if a person is a victim of
one of those crimes or a parent, guardian of a person
who is a victim of one of those crimes, we can assist
for free.
9:39:16 AM
MS. WINSTON explained OVR procedures as follows:
How do we do that? Well, in our office we have myself
and three other attorneys, all of whom have been
prosecutors in the past and worked in also various
other areas of the law. We work as their attorneys,
the victims' attorneys. We follow the case through the
process so as soon as it's reported to the police, a
victim can contact us because we are able to help
guide them through the entire criminal justice
process, which means the law enforcement process, the
court process, and even after a resolution of the case
that in which they are a victim as it proceeds through
probation or parole we can also assist them. So that
can take on a variety of roles for us, a lot of
counseling with them as far as explaining the legal
twists and turns of the system. We can file motions on
their behalf to protect their privacy when defense
tries to get into their most privileged records like
substance abuse records, mental health records,
medical records, OCS records, we can help them try to
file pleadings to express their interest in having a
speedy disposition of the case, their opposition to
continuances, which are a significant problem across
the state. We certainly can represent them and speak
to them in bail hearings or at sentencings, or help
them with their comments to the court to address the
court in those hearings, and we also provide
references to other agencies that can help victims
where we cannot help them, such as civil matters or
with violence crimes compensation board, things of
that nature.
9:41:21 AM
CHAIR STOLTZE asked how OVR was funded.
MS. WINSTON answered that OVR was part of the legislative branch
and funded through general funding.
CHAIR STOLTZE asked Ms. Winston to confirm that a large portion
was from forfeited Permanent Fund dividends.
MS. WINSTON replied that forfeited dividends may have been used
at one time, but a change was made prior to her joining OVR.
CHAIR STOLTZE implied that Ms. Winston was an active participant
with the Commission and asked that she provide her thoughts and
analysis of SB 91.
MS. WINSTON explained her background as follows:
I have been in the trenches of the criminal justice
system for nearly 20 years. After graduating from
Georgetown Law, I spent one year in Anchorage as a law
clerk for a superior court criminal judge. Then I
worked for the Department of Law as an assistant
district attorney for 13 years, which included an
initial year of prosecuting misdemeanors in Anchorage.
Then 2 years in Bethel primarily prosecuting domestic
violence and sexual offense crimes, and the remaining
10 years back in the Anchorage DA's office where I
prosecuted felony level violent crimes, including
homicides, and spent 8 of those years that I was in
Anchorage in the sexual assault unit, 6 of which I
supervised that unit, and for the last 4 years I've
been with the Office of Victims' Rights. Additionally,
before becoming an attorney, I worked for almost 7
years as an analysist in Washington D.C. for the U.S.
General Accountability Office evaluating government
programs for waste, fraud, and abuse.
9:44:11 AM
MS. WINSTON provided general comments as follows:
This bill and the criminal justice system already as a
whole does not adequately recognize property victims
as victims; they get cast aside and considered as just
a property crime and behind every property crime there
is a victim that suffers, and I've seen it throughout
the court system and certainly have seen it throughout
legislation that they are sort of the forgotten
stepchild in the world of crime victims.
Now with all due respect to the comments I just heard
Ms. Meade make, victims are not always notified,
that's what our office fields a lot of complaints
about is the lack of notification by the Department of
Law with regards to bail hearings, with regards to
continuances, with regards to sentencings even, it's a
daily violation that occurs for victims across the
state and victims aren't notified about petitions to
revoke probation (PTR), now that's really a
resentencing event in which they have a right, a
constitutional right to address the court, they are
completely left out of that process. We have seen that
their constitutional right to a speedy disposition of
a case is virtually ignored by many judges across the
state. Sometimes it's just for the mere convenience of
the court that a constitutional right is ignored. Even
DOC, I've had victims call at the parole level and say
that they put their information in and weren't
notified about a parole hearing. So to say that it's
consistently and uniformly done across the state at
this point is not a fair portrayal and I believe SB 91
will only exasperate the problems; in fact, many of
the components of SB 91 are unconstitutional because
they do violate victims' constitutional rights.
9:46:15 AM
She addressed victims' constitutional rights as follows:
We are testifying of course on behalf of crime victims
statewide. As I mentioned, we are concerned about the
unconstitutionality of the sections in the bill and
negative effects that we'll have in our communities.
While the bill may achieve its goal to reduce prison
population by 25 percent, there is little in it to
hold offenders accountable and keep Alaskans safe. I
know a lot of hard work was put into drafting this
bill, but it's lopsided for offenders and against
victims. Even though it has been touted as a bill for
reinvestment, the bill focuses primarily on how to get
people out of jail. The bill provides lots of
specifics about reducing offenders' consequences, but
fails to provide specifics on the actual reinvestment
in other key areas of needed reform. There is no doubt
that our criminal justice system is flawed and change
is warranted, but change should not come at the
expense of Alaskans' safety. Change should not further
trample on the rights of thousands of people
victimized by criminals every year. Change should not
subject victims to further victimization by a justice
system that claims to hold offenders accountable and
keep people safe.
This bill hands gifts to offenders while it steals
away the rights of victims. In some ways, it is the
equivalent of like a parent telling a child, "Well,
you know, instead of your usual punishment about a
week long grounding, I'm going to give you a five
minute timeout, then we are going out for ice cream."
There was a public outcry a few years ago when Jerry
Active, and many of you may remember him, murdered two
people and raped a small child, people wanted to know
why he was out of jail and blamed the Department of
Law. If SB 91 becomes law, there will be many more
Jerry Active stories and the blame will fall fairly at
the feet of the Legislature. SB 91 gives the offender
reductions at every level of the process, layer upon
layer upon layer. There will be reductions in the
level of charges. There will be reductions in bail,
reductions in jail sentences, reductions in probation
lengths, reductions in sentences for probation
violations, reductions in the amount of time served
before being eligible for parole, and reductions in
the requirements to get parole.
9:48:34 AM
MS. WINSTON addressed change to charges as follows:
Many charges will be reduced as far as the seriousness
or class of the offense. In Section 31, giving
narcotics to children will drop a felony level. In
Section 34, possession of all drugs, including heroine
of any amount, will drop from felony to misdemeanor
level. In Section 18 through 22, misdemeanors like
failure to appear and violating conditions of release
won't even be crimes anymore, just a ticket. Reducing
penalties for violating conditions of release offenses
puts victims at risk. A defendant who has threatened
to kill a victim and shows up at the victim's home
during the middle of the night violating a judge's
bail order not to go there, would not be charged with
a new offense and may or may not be arrested in the
situation; in fact, police may not even respond since
a crime isn't being committed. The victim's
constitutional rights to be protected from the accused
and to be treated with dignity and respect through all
phases of the criminal justice process will be
violated to save a dollar. Defendants ordered to come
to court will have no incentive to come, this will add
to an already retched problem of continuances and
delays in the system. Victims will have less
certainty, suffer more delays, and become further
demoralized by the so called justice system, not only
their right to be treated fairly will be violated, but
the constitutional rights for a speedy disposition of
the case will be violated.
9:50:10 AM
She addressed difficulties for police as follows:
I think Officer Baker addressed some of this. For
crimes like vehicle theft, felony thefts, alluding,
possession of child pornography, arson, and
endangering the welfare of children and vulnerable
adults, as a general rule, those will be crimes that
police will have to give a citation for. We've seen a
lot of news stories lately about the dangers of
offenders driving a stolen vehicles and or alluding
police, headlines just in the last two months like a
K-9 unit apprehends car thief after a stolen Subaru
strikes police car, vehicle alluding trooper in
Fairbanks results in an officer involved shootout. A
UAA study found that 37 percent of all officer-
involved shootings in Anchorage from 1993 to 2013
started as a traffic stop, stolen vehicle, alluding,
or a burglary, it just makes no sense that a person
fleeing police and ultimately stopped would be given a
citation to come to court in a few days. Under Section
37, if police want to arrest the person for many of
these crimes, police would have to find a significant
risk to the public; this is a high threshold for
officers to meet and could subject them to lawsuits.
Many of these crimes in the bill considered harmless
and non-violent truly do present a safety issue for
law enforcement and the public.
MS. WINSTON addressed bail changes as follows:
Bail would be significantly reduced, requiring many
offenders to be released on their own recognizance or
unsecured bond. If a judge wants an offender to post
money, that judge would be required to legally justify
the imposition of that at a higher level of proof.
Changes to the bail statutes will preclude or
eviscerate a victim's constitutional right to be heard
regarding a defendant's release and would violate the
victim's right to be protected from the accused. For
example, Section 43 requires judges to release
defendants on their own recognizance or unsecured bond
for many misdemeanor offenders deemed low or moderate
risk and C-level felony offenders deemed low risk; for
victims of those crimes, even if allowed to address
the court, their input would be meaningless because
the judge's hands are tied. Sentences and penalties
across all categories of crimes would be reduced,
including for murderers and sex offenders. Some will
say, "Oh, well they are not being reduced because all
of the statutes for the presumptive terms for sex
offenders will remain the same." The sentences is the
totality of the sentence, what happens not only during
the initial phase, but also during probation and
parole, so the sentences would be reduced.
9:53:22 AM
She addressed sentencing changes as follows:
One of the most dramatic changes starting sort of at
the bottom of the list of offences is the dramatic
changes in sentences for A-misdemeanors like assaults.
Currently a person could be sentenced up to a year in
jail for a misdemeanor. For the most part, under SB 91
the maximum sentence for most crimes would only be 30
days and with Good Time that comes out to 20 days
maximum. So punching someone in the face, breaking
their nose would only mean a maximum time of 20 days
in jail.
Even more shocking is that possessing any amount of
heroine would only be punishable for that maximum 30
days, actual 20 days in jail. The consequences of not
following probation with a maximum sentence of 30 days
are so inconsequential they become meaningless and an
administratively huge waste of time and resources at
that misdemeanor level.
Sentences for felonies will drop too. For first time
defendants convicted of possession of child
pornography, a Class C felony, he would get a
probationary sentence called a Suspended Imposition of
Sentence (SIS) of 0 to 18 months. For example, a
defendant that I once prosecuted in Anchorage, who
possessed an old video of himself raping a little boy
in another state and had 15,000 other images of child
porn; under SB 91, he would only be put on probation,
but at the same time SB 91 makes sure that a Fish and
Game first-time defendant of a Class C felony would
get 1 to 2 years in jail.
The sentence of a first time Class B felony offender,
such as criminally negligent homicide, would drop. So
a defendant who points a gun at a person's head and
pulls the trigger thinking the gun is a toy, yet kills
a victim, that defendant faces as little as no time in
jail and no more than 2 years to serve for killing a
person.
A sentence for a first-time Class A offender, like
assault in the first degree, would also go down; for
example, a defendant who runs a red light and hits
your child in the crosswalk, crippling him for life,
would only face 3 to 6 years to serve in jail.
Probation lengths and penalties for probation
violations will go down too. Maximum probation lengths
for sex offenders will drop from 25 years to just 5
years. Maximum lengths probation for murders will drop
from 10 years to just 5 years. Maximum lengths of
probation for all other felonies will drop from 10
years to 3 years. Maximum probation lengths for
misdemeanors domestic violence (DV) crimes or [driving
under the influence] (DUIs) where there's been
previous DUI convictions, will drop from 10 years to 2
years. Maximum probation lengths for all other
misdemeanors will drop from 10 years to just 1 year.
Probationers will be able to earn a day-off for every
day of compliance, potentially cutting their already
reduced probation yet again in half. The bill merely
slaps probationers on the wrist for technical
violations, their penalty: first violation, no more
than 3 days; second violation, no more than 5 days;
third violation, no more than 10 days; and after the
fourth reported violation, the judge will then be
allowed to give them more significant time or all of
their suspended time; in fact, defendants could be
released under this scheme before any hearing takes
place, not only creating a huge safety risk for
victims and the public at large, but also violating
the victim's rights to be protected from the accused
as well as eviscerating their right to be heard on
release and their right to be heard regarding
sentencing on the resentencing.
Victims will have no certainty in the system. There
will be no more truth in sentencing because you are
going to have to have a sentencing-tree that looks
like a convoluted family-tree to explain what could
happen in this system under SB 91 for victims; they
won't know if they are getting a day-for-day credit,
they won't know if somebody is half-probation, they
won't know if somebody has gotten an administrative
parole, and under SB 91 they have to actually ask,
they have to be proactive and ask for a hearing under
administrative parole before they are allowed to have
that voice, that burden should not be placed on
victims in that, there should be a hearing, no matter
what the victims have the opportunity to speak out.
9:57:52 AM
MS. WINSTON continued to address probation as follows:
We talked about these probation violations, the word
"technical" is far too broad. What is a technical
violation? Well, I've heard it described as a guy
showing up a couple of hours late, getting popped on a
violation because he reported later in the day. I
would like to see the numbers of how many times that's
happened because I don't recall in 13 years as a
prosecutor ever having a probation violation filed on
that kind of low-level violation. A technical
violation can include anything that was not a new
crime; for example, a child molester out on probation,
ordered not to have contact with kids, is found on a
home visit by his parole officer (PO) to be naked in
the room with a naked toddler, that would be a
technical violation under SB 91, worth no more than 3
days in jail if it's his first violation.
There are also parole reductions and these are
scattered through Sections 96 through 117. First time
low and midlevel felons who have met requirements of
their case plan will automatically be paroled after
serving 25 percent of their jail sentence.
Discretionary parole will be available to more
criminals and sooner. Currently the highest level sex
offenders, those unclassified first time offenders,
can't get discretionary parole, but under SB 91 they
will be eligible. So, they will also be eligible for
those 55 years or older, they will be considered
geriatrics and allowed to parole after they have
served ten years of their sentence. How will this
impact people? Well, let's say you are a 45 year old
child molester who has raped 2 little girls repeatedly
and was sentenced to 50 years in jail, he'll be able
to get out under SB 91 on parole in just 10 years when
he turns 55. A most heinous of criminals would only
serve a small portion of a lengthy and worthy sentence
on a false premise that at 55 they are unlikely to
reoffend; this is particularly not the case with child
molesters, many of the child molesting cases we see
are committed by older offenders, offenders in their
50s, 60s, and sometimes even into their 70s.
10:00:30 AM
MS. WINSTON addressed Section 117 as follows:
Another alarming provision in the bill is Section 117
that says, "Regardless of your crime or sentence, if
paroled, the offender can be unconditionally
discharged from parole after only 1 year if the
offender has behaved for that year on parole and
completed ordered treatment;" if passed, this will
apply to any criminal, not just those already paroled.
For example, somebody is convicted of murder this
year, and because the offender has murdered a
girlfriend and received a 50-year active-jail
sentence, if he gets paroled after 20 years, he could
be completely off parole after only 1 year, 1 year of
good behavior can wipe away 30 years off his sentence
just like that.
MS. WINSTON addressed Section 91 as follows:
While the bill finds many ways to let defendants out
of jail at every turn to save money, it also builds in
many new administrative costs and adds new state
employees to the state payroll. OVR believes that the
pre-trial services component of Section 91, while well
meaning, is a waste of $3.9 million because
prosecutors, defense attorneys, and judges are in a
better position to assess risk; it is a waste of money
because private industry, as long as there are
standards set up and regulation and some oversight,
can better supervise pre-trial defendants and the $3.9
million quoted for this program with 125 new state
employees is a gross underestimation. Those monies
that are being sort of earmarked for pre-trial
services would be more effectively spent on treatment
programs for many offenders with addiction problems.
She addressed reinvestment as follows:
Even the Chair of the Commission told this committee
that public safety will not be protected under SB 91
without companion legislation reinvesting in needed
programs; I agree, I agree that those programs are
needed. But I must say, call me cynical, after all
these years that the state has been fat and happy with
its oil revenues, investment was not made for many
more probation officers to intensely supervise
offenders. Investment wasn't made for needed treatment
beds for those who might succeed at breaking the cycle
of addiction, and recidivism and investment for more
beds for treatment and isolation of mentally ill
criminals who pose a significant threat to our
communities was not made, and now when the state has
no money, we are being asked to trust in an adequate
reinvestment to protect the public that that will be
done.
10:03:32 AM
MS. WINSTON explained OVR support and recommendations as
follows:
OVR really does support thoughtful development of and
gradual passage of statutes designed to specifically
remedy its inefficiencies, problems, costs associated
with the criminal justice system that exist currently.
SB 91 however is too far reaching and much of it could
be achieved through more flexible policy changes and
utilizing laws already on the books. The notion that
the sky is falling and we must make all of these
profound changes is a false narrative. Much can be
accomplished by taking smaller steps, addressing some
of the more significant places of concern like
revamping the pre-trial. Pushing cases faster through
the system in and of itself will shorten down those
pre-trial numbers and pre-trial incarceration.
We are very thankful to Senator Coghill for the time
he has given us to talk to him about the concerns we
have in SB 91 and our hope is that some of these
concerns can be reflected in changes in the bill to
reduce its negative effects. We hope other legislators
will do the same as Senator Coghill has done and reach
out to us and talk to us about our concerns and where
this bill might be made profoundly better for the
people of the State of Alaska. One of the primary
responsibilities of government and this Legislature is
to keep people safe. Whatever form SB 91 takes over
the weeks to come it is imperative that this
legislation first and foremost protects the safety of
our citizens and does not sacrifice safety to save a
buck. We want to see a bill which does not violate our
constitution, which holds criminals accountable, which
keeps our community safe and protects victims and
their rights. While there are a few sections we
support and some we take no position on, overall,
given the ramifications we see in this bill, at this
point in time, OVR opposes SB 91 in its current form.
10:05:52 AM
SENATOR COGHILL responded to Ms. Winston as follows:
I'll be looking forward to the written testimony. I
think your goal and my goal is probably pretty much
the same. I think some of the methodologies there is
probably reasonable, maybe discussion on the pros and
cons of some of those; however, the unconstitutional
areas and the public safety issues are going to be
important. So as we work through those, my commitment
is to try and make sure that we don't inadvertently
kind of let people off the hook as you kind of
indicated that the whole idea is to hold people
accountable. Seat-time in jail doesn't necessarily
make them safe though and I think it doesn't make the
public safer. So as we move through this, those
accountability measures are going to be very
important, whether they are pre-trial or the issues
dealing with some of the post-jail time. You're right,
some of the reinvestment is a critical part and you
are probably right to chide us a little bit on the way
some of those programs have come and gone throughout
the years.
We've reached out to you and I appreciate it. I've got
a list of things that I'll probably bring out in front
of the committee that are based on some of the very
conversations we've had. So the bill that you see
before you will probably be quite different as we move
forward. We tried really hard in the Commission, and I
say "we" because I was part of the Commission, to have
victim advocates come before the Commission. We had a
victim-advocate meeting in Fairbanks and in Bethel,
and we would have welcomed any input you had at those
and at the Commission meetings. I'm sorry that we
didn't get these kinds of input during the process.
Was there a failure to communicate with OVR throughout
the commission process?
10:08:13 AM
MS. WINSTON replied as follows:
I did not receive very much communication from the
Commission, with the exception of the Fairbanks
meeting which I attended and I know you were there. I
did learn about some of the, very late in the process,
like November or December, some of the meetings that
were taking place just through the network. But I
didn't receive anything directly from the Commission,
which would have been helpful because while I
understand Brenda [Stanfill] was on the Commission to
represent victims. We just have a unique position at
OVR because we actually represent even a broader base
of victims across the state.
SENATOR COGHILL responded as follows:
All I can say at this point is I'll go through what
she has for written testimony and take a look at them.
There are probably some places where I think there's
room for argument on the public safety elements of
this; however, I think there's a good balance of
discussion on it. So I'll do my best to make sure that
we are a safer public, I think that was really the
Commission's view. But I do know that just seat-time
has not made us safer, just having people sit in jail
has not made us a safer place. Some of my probation
issues, we might have people on probation who have
been violated and it might be months before we can get
to them and get them in jail, that does not make us a
safer public.
So the system as we have it, and I think Taylor would
agree, that the system itself could do better, either
as it is now or as we move forward. So those kind of
accountability measures I think have to be swift, they
have to be clear, they have to be appropriate to the
issue, whether it is a petition to revoke bail or
probation. I kind of get where she's at on the
petition to revoke on violations. There should be
probably an escalating value to whether or not someone
immediately goes back to jail, or they are held
accountable in other ways, I think this bill allows
for some of those things. The pre-trial issue I'll
agree with to some degree. For those areas where there
is higher risk though, we've made an accountancy for
that in here. I think some of her concerns can easily
be answered, but for me to just try and take them in
order, she had quite a bit of time and I don't know
that I could keep up with all of the issues, but I'd
like to be able to respond to some of them, either by
way of an amendment or a rebuttal.
10:11:03 AM
CHAIR STOLTZE stated that the committee intents to revisit Ms.
Winston's comments. He remarked that Senator Coghill was not the
AJC chairman and his good motives were not intentional to slight
the constitutional office for OVR. He called attention to Ms.
Winston's testimony regarding AJC addressing victims' rights as
follows:
I think there may have been a supposition that Ms.
Stanfill in her role as a victim's agency was speaking
for, but as we heard from some pretty in depth
testimony and description of her constitutional and
statutory responsibilities, it sounds perhaps maybe
some of the legal expertise of the constitutional
responsibilities for victims weren't as fleshed out
even though Ms. Stanfill was, by title, somebody who
advocates for victims and maybe that was a potential
failing.
SENATOR COGHILL remarked as follows:
I think there's room for that discussion as well as
the fact that every meeting of the Commission was
publicly noticed. We met every month, many times in a
month, they were all publicly noticed and she was
never barred from any of those meetings. I think it
would have been helpful if she would have been there.
So there's probably a communication problem that could
have been solved.
CHAIR STOLTZE asserted that there was a big gulf between not
being prohibited and being invited.
SENATOR COGHILL divulged that a lot of people gave input who
were not necessarily invited on the Commission.
CHAIR STOLTZE said the committee would continue to flesh out
victims' rights and look forward to receiving Ms. Winston's
extended comments in written form.
SENATOR COGHILL asked that the Department of Law address Ms.
Winston's constitutional concerns regarding SB 91.
10:14:26 AM
JOHN SKIDMORE, Director, Criminal Division, Alaska Department of
Law, Juneau, Alaska, replied that the Department of Law has not
seen constitutional concerns. He said Ms. Winston's testimony
was broad and he would have to get into the specifics after the
meeting to provide analysis.
SENATOR COGHILL concurred that Ms. Winston brought up many good
points that should not be handled on the fly. He asked that Mr.
Skidmore address the new concept of going from misdemeanors to
violations and being able to detain on a violation.
MR. SKIDMORE replied as follows:
I believe what you are talking about is the reduction
of a class-B misdemeanor to a status of a violation
and within SB 91 there are several provisions where it
talks about the ability to hold an individual for 24
hours on a basis of that violation. Advice that I have
given to others that have asked what I interpret that
is you, the Legislature, can call it a violation, you
can call it a misdemeanor, you can call it what you
want, but we in the legal system know that if you are
going to take someone's liberty, that means it's a
crime. We're going to have to give those people a
court appointed attorney if they can't afford one on
their own and they are going to be entitled to a jury
trial regardless of what we call it. We've had that
same experience as many of you may remember in dealing
with minor-consuming where the Legislature has on
several occasions attempted to tackle that problem by
not calling it a crime, calling it a violation; but,
the liberties that were taken in those instances
weren't someone's freedom, weren't putting them in
jail, the liberty was merely the driver's license. But
there are opinions from the court of appeals and the
Supreme Court. But there are opinions out there that
say that when you are going to infringe upon a
citizen's liberties, like taking a license, that they
are entitled to a jury trial, they are entitled to
have a court appointed attorney if they cannot afford
one, and our analysis in the Department of Law is that
for all of those violations for which somebody would
be held for at least 24 hours, they would be entitled
to those same sorts of protections. So I don't see
that as unconstitutional, but I think it is important
that everyone understand how that would work and what
savings might be possible and what savings won't be
possible simply by calling it a violation.
10:17:43 AM
SENATOR COGHILL replied as follows:
That was a new concept that we went through and I'm
still trying to get my mind around it. So if we left
it as a misdemeanor, it starts one system, everything
as a misdemeanor is a crime. There were some
violations in here that were not going to be crimes,
detaining though becomes the crime issue. So I think
we have to ask ourselves the question, do we want to
keep the misdemeanants for all of those crimes where
we want somebody to be detained and do we want to have
violations where there are places where, I guess the
example they used was "moving cones on a construction
site," were places where they were misdemeanors. So we
are trying to figure out places where maybe they
shouldn't be in jail so much as they should be
considered a violation. So it was a new concept, I
just wanted to bring that up, that is one new concept
in law that comes into this bill that I'm still trying
to figure out.
CHAIR STOLTZE asked if legislation may have been rushed due to a
budget-driven letter from finance that did not allow for
deliberation on a lot of impacts that Ms. Winston and others
have mentioned.
10:19:52 AM
SENATOR COGHILL replied that the leadership of both bodies asked
how a lower jail population could be attained while keeping the
public safe and holding people accountable. He remarked that the
state's budget crisis led to a letter that asked what could be
done. He asserted that the Commission's statutory guidelines
were still public safety, accountability, and cost savings. He
asserted that reinvestment became a bigger deal because the
Commission did not want the cost savings just to go to the
General Fund without some return into holding people accountable
or providing for avenues of success. He remarked that prior to
the letter, the Commission had an aggressive schedule on looking
at sentencing, pre-trial, and post-trial. He set forth that the
Commission has been tasked to address the state's disparate
laws. He said downward pressure has been applied due to the
state's budget crisis where the judicial criminal system has
been asked for whatever relief was possible. He pointed out that
he agreed with Ms. Winston where cuts are made at the cost of
more crime or more victims. He said he may disagree with Ms.
Winston to some degree on how changes are achieved, but noted
that good points were brought up and he was willing to work with
her.
10:22:41 AM
CHAIR STOLTZE commented as follows:
Certainly as the appropriating body we are always
worried about the budget numbers. I just wonder if we
put too much pressure. You certainly described the
deliberations, but it was a pretty blunt and direct
communication.
SENATOR COGHILL related that the finance chairs asked for a
range from the dramatic to the most dramatic.
CHAIR STOLTZE replied as follows:
It was a real specific directive from the legislative
leadership: 25 percent reduction, no future prison
growth, 15 percent reduction; I mean they were pretty
specific, heavy suggestions I guess is what you call
it when you get a letter from the presiding officers
in the finance chair. We'd also be derelict if we
weren't looking at cost of everything, but did we
force feed cost over public safety and that's always a
concern.
SENATOR COGHILL responded as follows:
Here's one of the other questions, there are people
who have been violated by people who have committed
crimes against them, but there are people in jail who
are being held accountable who sometimes are being
mistreated by the government and they're victims of,
quite frankly, a system that is overcrowded and under
its ability to provide what I would consider good
justice. So then we have a system that starts actually
destroying people who may be willing to repair
themselves. So I think those are the two sides of the
question.
He stated that he would digest what has come forward from public
testimony and make some recommendations to the committee.
CHAIR STOLTZE recommended that committee substitutes or
amendments have a legal review.
10:25:27 AM
SENATOR MCGUIRE remarked that Chair Stoltze and Senator Coghill
articulated exactly the two sides that legislators move between.
She pointed out that Senators Coghill, Wielechowski, and she
have served at various times on the Judiciary Committee for the
past 16 years where victims' rights, as well as prosecution and
enforcement, has always been a passion. She conceded that the
Legislature has gone too far in each direction at times. She
said she remembered the mandatory sentencing where judges pushed
back when going from admitedly too much discretion to almost
none.
SENATOR MCGUIRE noted that the committee agreed in bringing back
OVR for further discussions. She said she shared Senator
Coghill's concerns that the cost of the system was too high for
what the state was getting and the fact that the Commission had
come together to review the system was excellent. She said she
liked Senator Coghill's sponsor statement, "With the
disappointing recidivism rates and public safety outcomes the
state has been achieving, the cost of doing nothing is too high
and I ask for your support." She said there were a range of
things that could be done. She suggested that rather than the
"citation idea" and not allowing for incarceration, the
committee might consider incarceration with treatment right away
where a medical, mental, and behavioral assessment was
administered. She explained that identifying a path an
individual was going down and providing treatment returns an
individual back to the community with a set of incentives
directly tied to treatment.
She noted that Anchorage police officers were in attendance and
asked to address their thoughts on SB 91. She asked if the
officers believed ankle monitoring worked.
10:30:07 AM
OFC. BAKER noted that a victim from a recent shooting had an
ankle monitor on and no one had an idea that the individual was
at the scene. He added that a former assistant district attorney
told him that one individual had committed three felonies with
an ankle monitor. He remarked that ankle monitoring needs to be
fixed.
SENATOR MCGUIRE said she had gone to the location in Anchorage
where the ankle monitoring system was housed. She remarked that
the ankle monitoring system was fail proof in areas, especially
when monitoring a person's recidivism into drug or alcohol use
where the success rate was 99 percent. She asked if the officers
could address deterrence and provide recommendations of things
that work as well as thoughts the committee needs to consider in
crafting SB 91.
10:32:21 AM
JEREMY CONKLING, Officer (OFC), Vice President, Anchorage Police
Department Employees Association, Anchorage, Alaska, revealed
that offenders know police policies, procedures, in addition to
monitoring radio traffic. He pointed out that due to safety
concerns, offenders know the police's alluding policy where car
chases only occur for serious crimes or intoxicated drivers. He
noted that offenders also walk in to stores with calculators to
steal up to $750, the current level when an arrest is made; SB
91 changes the level to $2000 and more Anchorage businesses
would be victimized. He remarked that deterrence was not present
at current levels and SB 91 lessened the "teeth" that police
have.
10:34:44 AM
CHAIR STOLTZE asked what level was Anchorage's pursuit policy
and who decides.
OFC. CONKLING answered that Anchorage's pursuit policy comes
from its command. He detailed that an on-scene sergeant monitors
the police radio and weighs the nature of the crime versus
public safety when making the pursuit decision.
SENATOR MCGUIRE said an important point that Senator Coghill
brought up was that the life of the victim as well as the
offender matters. She pointed out that in Anchorage there have
been cases where people have been arrested with alcohol, drug,
or mental health problems that have died within the first 24
hours of incarceration. She pointed out that the Devon Mosley
case involved an individual with mental health problems. She
asked if the Anchorage Police Department has a protocol when
dealing with an individual with mental health problems.
10:38:26 AM
OFC. CONKLING replied that the Anchorage Police Department uses
code "11-38" to identify a mental health situation over the
radio. He disclosed that if available, a Crisis Intervention
Team (CIT) trained officer is dispatched for a mental health
call. He pointed out that the Anchorage Police Department
currently has a shortage of CIT officers. He said he did not
know if the Department of Corrections had a CIT program when
individuals with mental health issues were transferred from the
Anchorage Police Department.
SENATOR COGHILL thanked the officers for coming forward with
questions that have to be navigated through where individuals
that do stupid things get caught up in the same system with
honest to goodness criminal minds. He said the officers bring a
good perspective and asked that they stay in touch.
CHAIR STOLTZE recognized that Commissioner Williams of DOC was
in attendance as well as correctional officers. He asserted that
he wants everyone to have a voice in the process. He noted that
a general message on fiscal notes was sent out that the
committee would flesh out and analyze. He thanked Ms. Winston
for opening some questions that the committee needed to address.
10:41:28 AM
SENATOR HUGGINS called attention to people who have their
property seized in a criminal case by the government and not
being able to get it back.
CHAIR STOLTZE pointed out that OVR provides assistance on behalf
of property victims.
He said he looked forward to continued participation on SB 91.
He asserted that he wanted a lot of vetting on the bill to show
the public what the legislative and executive branches were
thinking. He admitted that he has been playing the role of jaded
skeptic from the victims' rights vein a little more heavily and
that was why OVR had a more prominent role than they have been
in any other hearing. He said he hoped OVR continues to receive
a prominent reception in all committees in both bodies.
10:44:28 AM
CHAIR STOLTZE announced that SB 91 would be held for further
deliberation.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 171 Sponsor Statement - Governor's Transmittal Letter.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 171 |
| SB 171 DOA Hearing Request 2-12-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 171 |
| SSSB 91 Fiscal Note - ACS-TRC 2-16-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 91 |
| SSSB 91 Public Testimony & Correspondence to SSTA (Second Batch - 45 POMs) 2-17-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 91 |
| SB 171 Sectional Analysis by Department of Administration 2-17-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 171 |
| SSSB 91 Letter - Alaska Peace Officers Association 2-11-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 91 |
| SSSB 91 Office of Victims Rights - Written Testimony 2-18-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 91 |
| SB 171 Alaska Dispatch Article on Judgments Against the State 2-18-16.pdf |
SSTA 2/18/2016 8:30:00 AM |
SB 171 |