Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/21/2018 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB184 | |
| SB175 | |
| SB150 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 184 | TELECONFERENCED | |
| *+ | SB 150 | TELECONFERENCED | |
| *+ | SB 175 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 150-PRETRIAL RELEASE; NON-AK CRIM HISTORY
2:08:30 PM
CHAIR COGHILL reconvened the meeting and announced the
consideration of SB 150.
2:08:52 PM
JAHNA LINDEMUTH, Attorney General, Department of Law, Anchorage,
Alaska, stated that, as attorney general, this is a top priority
to pass this session. It is critical for public safety. Phase
III of Senate Bill 91, which put the pretrial risk assessment
tool in place, went into effect on January 1, 2018. She
understands that DOC has already hired 35 new pretrial officers,
which should have a good impact on public safety going forward.
She explained that in the process of putting this in place, the
Department of Law recognized an oversight that requires a
legislative fix this session. The division is using a pretrial
risk assessment tool that generates a score that informs judges
about whether a person should be released mandatory own
recognizance (OR), presumptive OR, or whether the judge should
use discretion on imposing conditions of bail or keep the person
in prison pretrial.
The statute required a validating tool be put in place for the
pretrial risk assessment. However, only in-state criminal
history has been used. There was a problem using the out-of-
state criminal history and getting the tool validated in time.
That is something that may or may not happen in the future. SB
150 seeks to put in place a fix that would go away if the out-
of-state criminal history is used in the future. In the interim,
an override is necessary when the tool is generating a mandatory
OR if it's taking discretion away from the judge to keep
somebody in jail who has a risk factor based on out-of-state
criminal history.
CHAIR COGHILL offered his understanding that the state went to
the FBI for data to help validate this tool and access to the
information was denied because the use was identified as a
research purpose rather than a law enforcement purpose.
2:13:05 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Department of Law (DOL), Anchorage, Alaska, agreed. He said
criminal justice information is highly confidential and can
generally only be used for law enforcement purposes. The
pretrial risk assessment tool mandated by Senate Bill 91
requires that information to be validated, but the FBI won't
release that information for this non-law enforcement purpose.
CHAIR COGHILL said the idea is to give judges more discretion
regarding mandatory release if the out-of-state criminal justice
information indicates that more judicial discretion is
warranted.
MR. HENDERSON said that's correct. He said with the chair's
permission, he would give a general overview of the law, the
problem that's been identified, and how SB 150 proposes to fix
the problem.
He advised that pretrial enforcement is a key component of
criminal justice reform. It provides a way to apply analytics
and empirical data to give judges as much information as
possible in order to make release decisions. Bail is designed to
ensure a person appears at court and to keep the public safe.
Bail is not a sanction and it can't be used as such because a
person is presumed innocent until found guilty.
Phase III of Senate Bill 91 put the pretrial risk assessment
tool in place. It is objective, standardized, based on the
analysis of empirical data, and validated by the state's
pretrial population. The rub is not being able to apply the out-
of-state criminal history to the state's pretrial population
because it can affect bail decisions.
He directed attention to the bail matrix in the packets. He
explained that an algorithm drives the decisions that judges
make regarding bail. For example, if the Pretrial Enforcement
Division finds somebody to be low risk (they are charged with
non-violent, non-sex misdemeanors), they would be mandatory OR.
The judge would be required to release that person without
setting a monetary bail. The mandatory decision is for low risk
misdemeanors, moderate risk misdemeanors, and low risk felonies.
2:17:42 PM
CHAIR COGHILL clarified that out-of-state data is still being
collected, but at this point it isn't factored into the
different levels of recognizance.
MR. HENDERSON agreed that DOC is collecting the out-of-state
criminal history information outside the FBI system in the hope
that it can be used in the future to validate the tool. He
referred to the proposed fix as a safety valve that won't be
used if the FBI system is available. He acknowledged that using
the FBI system is not a sure thing.
He reviewed the sample pretrial report generated by the Pretrial
Enforcement Division. He explained that DOC collects information
like the age of first arrest, and the number of criminal
convictions, the number of times on probation, and the number of
times in jail to determine whether someone is low, moderate, or
high risk for appearing in court and for reoffending.
2:19:50 PM
SENATOR COSTELLO said that at Senator Coghill's suggestion,
Suzanne DiPietro explained the process to her at length. The
risk assessment tool is data driven and the questions on the
tool were generated by actual situations. Certain factors result
in the risk of committing a new criminal offense and a different
set of factors result in the risk for failure to appear. This is
why there are two different tools and two different scores. Out-
of-state felony information is not part of the data that
generated the tool so someone with a felony from another state
could commit a felony in Alaska and still score zero on the risk
assessment tool. She said the administration was alerted to this
loophole after an incident in Anchorage. A felon from another
state wielded a gun in a mall and subsequently scored zero on
DOC's risk assessment tool. She said her concern is that similar
incidents can occur until the loophole is closed. She asked if
her understanding was correct.
MR. HENDERSON said the bill would address that issue. When the
statute was created the intent was that out-of-state criminal
history would be considered in the creation of the risk
assessment tool. Because that did not happen, SB 150 creates a
fix that allows the judge to exercise discretion in making an
appropriate bail decision in narrow, targeted circumstances. He
noted that information from DOC indicates that one in three
individuals who fall within the red boxes of the bail matrix
have out-of-state criminal histories that were not taken into
account.
2:24:21 PM
CHAIR COGHILL highlighted that Senator Costello was talking
about felony behavior, whereas Mr. Henderson was talking about
overall criminal history.
MR. HENDERSON agreed. The bill defines out-of-state criminal
history to include convictions, arrests, and charges.
2:25:06 PM
SENATOR COSTELLO asked him to respond to the point that the
department proceeded to develop the tool after it learned that
out-of-state criminal history would not be part of it.
MR. HENDERSON said the department went ahead for several
different reasons. Primarily, it was because the law was going
into effect January 1, 2018 and that law mandated the use of the
tool. The department used just Alaska data because that was what
was available.
SENATOR COSTELLO noted that the bill required the department to
promulgate regulations and she understands that hasn't happened.
She asked if the department still intends to draft the
regulations that were required by state statute.
MR. HENDERSON explained that the law requires DOC to adopt the
regulations in consultation with the Department of Law, the
Public Defender Agency, the Department of Public Safety, the
Office of Victims' Rights, and the Court System. That workgroup
is actively meeting and discussing the regulations that will be
promulgated.
SENATOR COSTELLO said she is extremely supportive of this effort
but is concerned that the process did not include the public.
There was no public comment or public education about how the
tool was generated and why it's being used.
2:27:55 PM
SENATOR WIELECHOWSKI wondered if the bill goes far enough
because constituents have purported a cycle of people repeatedly
being arrested and released. He asked if those stories are
accurate and what can be done to stop that cycle if that is the
case.
MR. HENDERSON said they have started to see that type of cycle,
but the bill doesn't address that. SB 150 proposes to address
the issue of out-of-state criminal history. One other issue is
how the tool considers new offenses committed during the
pendency of bail. Something else that needs clarification is
that pretrial services officers have the authority to arrest and
file the subsequent criminal complaint. Because of different
interpretations of the statute, the Court System has not allowed
pretrial services officers to file criminal complaints.
CHAIR COGHILL said his intention is to address that in the bill.
ATTORNEY GENERAL LINDEMUTH said she believes that Senator
Wielechowski's question focuses on stories that circulated
before the pretrial unit was put in place. The Court System
changing its bail schedule before the Pretrial Enforcement
Division was up and running was also a factor. She said her
general sense is that the program is very successful, but more
data is needed to evaluate it completely.
SENATOR WIELECHOWSKI said he appreciates the bill because his
constituents are very frustrated. In the past few days he's
heard reports that people under observation by the Pretrial
Enforcement Division have figured out how to manipulate their
monitoring devices to evade observation. They are entering
prohibited areas and circumventing alcohol prohibitions. He said
he's curious about the accuracy of those reports and wonders how
to fix the problem.
SENATOR COSTELLO shared that this morning she released the
results of an unscientific survey of five questions about crime.
It was circulated to 70,000. Almost 5,000 people responded to
the questions and 1,000 shared their stories. Based on the
responses she's read so far, she isn't sure the tool is as
successful as she thought it would be as a co-sponsor of the
governor's crime reform. She invited the attorney general to
visit her office and read the stories. She described them as
valuable feedback.
ATTORNEY GENERAL LINDEMUTH said she appreciates the offer
because other than the fiscal crisis, public safety is the
state's top concern. The crime statistics are unacceptably high,
and the three branches of government need to work together to
address the problem.
2:36:44 PM
SENATOR SHOWER said crime was a top concern at the two town
halls he held last weekend. The UCR statistics support the
concern and the law enforcement officers he talks to say the
lack of prosecutors is causing a backlog of cases. He referenced
the one in three statistic that Mr. Henderson cited and
questioned whether the bill is too narrowly focused considering
the broad scope of the problems the state is facing.
ATTORNEY GENERAL LINDEMUTH said she believes that one in three
represents a significant population that will be impacted by the
bill.
SENATOR SHOWER said his concern is waiting another year when
crime is affecting people so much.
ATTORNEY GENERAL LINDEMUTH said the Department of Law had a
number of concerns with Senate Bill 91 and all those were
addressed in Senate Bill 54. SB 150 fixes a problem that was
identified last fall and the fix is needed right now.
CHAIR COGHILL asked Senator Wielechowski to restate his question
for Ms. Fox.
2:41:03 PM
SENATOR WIELECHOWSKI asked if it's true that people being
monitored under the Pretrial Enforcement Division have figured
out how to manipulate their monitoring devices to evade
observation so they can enter prohibited areas, take drugs in
violation of court order, and evade alcohol prohibitions.
2:42:08 PM
GERI FOX, Director, Pretrial Services Division, Department of
Corrections (DOC), Anchorage, Alaska, said DOC is aware of the
attempts people make to defeat their monitoring devices and the
manufacturers have built in specific strategies to detect such
attempts. She pointed out that prior to January 1, defendants
were only monitored if they paid a private company for the
service and judges did not have the broad authority to put
individuals on electronic monitoring devices. Currently more
than 228 defendants around the state are on electronic
monitoring.
SENATOR WIELECHOWSKI said private companies have provided quite
effective electronic monitoring in years past, but most of them
have gone out of business. He asked if the Pretrial Enforcement
Division is using active, realtime GPS monitoring.
MS. FOX said they use four realtime GPS devices. One monitors
curfew, another monitors curfew and alcohol, another is a
handheld breathalyzer that monitors alcohol and GPS, and another
is an ankle device that does realtime GPS monitoring.
SENATOR WIELECHOWSKI said he was disappointed that private
industry was rebuffed when they offered to provide their
expertise. Many have now gone out of business and that
accumulated expertise is lost.
MS. FOX clarified that her role in DOC is to stand up the
Pretrial Enforcement Division according to statute. She said she
oversaw the process to get those private businesses certified to
work with the department. Defendants still have the option to
pay a private company for electronic monitoring. Some people
exercise that option, but it's an expensive endeavor.
CHAIR COGHILL commented that an individual who pays for their
electronic monitoring probably has the advantage of the Nygren
credit. He asked if someone released on mandatory OR could still
be under some monitoring.
MS. FOX said yes. Pretrial enforcement officers oversee
individuals released on mandatory OR if the judge orders that
and the orders may include electronic monitoring.
CHAIR COGHILL asked if the range of the offense in the out-of-
state criminal history will be taken into consideration for the
mandatory release measure.
MR. HENDERSON said yes. The judge will make certain findings and
shall impose the least restrictive condition(s) that reasonably
ensures the appearance of the offender and public safety.
CHAIR COGHILL offered his perspective that appearing in court is
subtler than the safety question.
SENATOR WIELECHOWSKI asked what percentage of people monitored
by pretrial enforcement are violating the terms of their
release.
MS. FOX said there isn't enough data to answer that question,
but after 2.5 months 3,864 assessments have been done and 1,069
individuals are under supervision in Alaska communities.
CHAIR COGHILL said he would reiterate that previously
supervision only happened under a third-party, which was found
to be very ineffective.
SENATOR WIELECHOWSKI disagreed that it was ineffective; a grant
to provide electronic monitoring was found to be very effective.
CHAIR COGHILL said he stands corrected. It was third-party
monitoring by a relative that was found to be ineffective.
He stated his intention to send the governor's bill to
legislative drafting. He asked Mr. Henderson if he had any
comments or suggestions on the language in the bill.
MR. HENDERSON said it's important to keep in mind that Section 1
allows the prosecuting attorney to ask the judge to postpone
arraignment for 48 hours to allow time to obtain the out-of-
state criminal history. That will be helpful in informing the
judge regarding what release conditions should occur.
2:56:55 PM
CHAIR COGHILL said SB 150 seems to be a reasonable solution to
the issue that was identified last fall. He said he appreciates
the widespread effort that's gone into finding a resolution.
CHAIR COGHILL stated he would hold SB 150 in committee awaiting
a committee substitute.