Legislature(2017 - 2018)BELTZ 105 (TSBldg)
04/02/2018 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB214 | |
| SB150 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | SB 150 | TELECONFERENCED | |
| += | SB 214 | TELECONFERENCED | |
| + | HB 307 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 150-PRETRIAL RELEASE; NON-AK CRIM HISTORY
2:45:13 PM
CHAIR COGHILL announced the consideration of SB 150. Finding no
one who wished to comment, he close public testimony and
requested a motion to adopt the proposed committee substitute
(CS).
2:46:02 PM
SENATOR COSTELLO moved to adopt the work draft CS for SB 150,
version 30-GS2814\O, as the working document.
CHAIR COGHILL objected for an explanation.
2:46:18 PM
JORDAN SHILLING, Staff, Senator John Coghill, Alaska State
Legislature, Juneau, Alaska, stated that the first change is a
more specific title. The bill also has intent language that
states that once out-of-state convictions are considered in the
tool as a predictive variable, the section of the bill [allowing
a defendant to be detained for 48 hours and directing
presumptive release on a person's own recognizance or on an
unsecured bond when the person has a criminal history outside
the state] would no longer apply.
The next change appears in Section 8 on page 5, lines 11-21. A
new subsection (m) to AS 12.30.011 clarifies that this section
of law only applies to the mandatory own recognizance (OR) parts
of the pretrial release grid that members have in their packets.
He noted that those are the red boxes. It also ensures that if
an out-of-state conviction exists, that those red mandatory OR
boxes revert to the process for the presumptive OR boxes in the
release grid. That would require a judge to make a finding on
the record using the clear and convincing standard, just like is
done for most of the pretrial release grid. The most substantive
change in the CS is the new five-year lookback in subsection
(m). The out-of-state history would only be relevant and used in
the preceding five years. That is commensurate with the way in-
state convictions are treated, which is anywhere between three
and five years.
Version O also contains additional language in Sections 10 and
11 that the Department of Law requested to make it clear that
pretrial services officers can file criminal complaints in
court. He read DOL's reasoning:
Because the law is unclear, some courts have decided
not to allow pretrial services officers to file
complaints. The only other option for filing
complaints is to wait for a prosecutor to evaluate the
case and file charges on behalf of the state.
CHAIR COGHILL noted that he had an amendment that removes the
five-year lookback because it was deemed too constraining.
2:50:19 PM
SENATOR WIELECHOWSKI asked if the 3-5 year in-state lookback was
in statute or something the department decided on.
MR. SHILLING replied it is through regulation, not statute.
Senate Bill 91 did not assign weights to these factors in
statute because there would be no way for the legislature to
determine what weight to apply. Prior convictions have been
found to be predictive and the tool currently only takes into
consideration convictions in the last three years and arrests in
the last five years. The bill adopts the higher number. He said
it is also notable that the tool does not take past charges into
consideration, but the bill does.
2:51:18 PM
SENATOR WIELECHOWSKI asked if a pending charge was a factor in
the pretrial assessment tool.
MR. SHILLING replied the tool takes the current charge into
consideration, not a pending charge.
SENATOR WIELECHOWSKI asked if a judge or prosecutor might
benefit from being able to take a pending charge into account
when considering someone's risk.
MR. SHILLING replied the developers of the assessment tool
tested a lot of factors and identified six that were predictive.
If that factor was considered and it's not part of the tool, the
assumption is it wasn't found predictive of pretrial
performance. He deferred to Geri Fox to discuss what was tested
and found not predictive.
SENATOR WIELECHOWSKI said it would be helpful to have that
information.
2:53:02 PM
GERI FOX, Director, Division of Pretrial Services, Department of
Corrections, Anchorage, Alaska, advised that one of the
questions in the assessment tool is the total number of prior
arrests in the last five years. If an individual has a pending
charge, they would receive a point for having an arrest. She
noted that more than 4,000 calculations were run to identify
what is most predictive.
SENATOR WIELECHOWSKI referenced the pretrial assessment detail
in the packet under NCA (new crime arrest) and asked if a person
receives two points if they have had three prior arrests or zero
points if they had just two arrests.
MS. FOX replied she believes that is correct but at some point,
the numbers of arrests are no more predictive.
SENATOR WIELECHOWSKI asked if a person with 10 prior arrests
would get two points, but if two of the arrests resulted in
convictions the person would get two more points under "total
number of convictions in the past three years."
MS. FOX said she didn't have the scoring guide, but that's the
basic concept.
2:56:55 PM
SENATOR COSTELLO noted that a memo from Legislative Legal
Services and opined that it's important to recognize that the
regulations that Senate Bill 91 called for have not been
written. She understands that the reason is that there was a
rush to get the law on the books by the effective date.
She offered her understanding that the state does not have
access to out-of-state criminal histories because the federal
government considers using the information for assessment as
research and thus a violation of privacy. She asked how other
states implemented these risk assessment tools when they didn't
have access to out-of-state criminal histories.
MS. FOX said she understands that many states do not take out-
of-state criminal histories into account.
CHAIR COGHILL said his research agrees with that; Alaska is
breaking ground by including out-of-state convictions.
He asked Mr. Henderson to comment on the committee substitute,
which still has the five-year lookback. He reiterated that he
had an amendment to remove that provision.
3:00:49 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Office of Special Prosecutions, Department of Law, Anchorage,
Alaska, said version O addresses many of the concerns the
department identified. The only area of concern is that the
lookback is limited to five years.
The department agrees with the change in Section 8 regarding the
standard for bail and appreciates that the Pretrial Enforcement
Division can file criminal complaints. Some judges have refused
to allow pretrial enforcement officers to file criminal
complaints and that creates a delay and potentially a public
safety concern.
MR. HENDERSON outlined the significant concerns the department
had with limiting the lookback to five years. This does not
allow judges sufficient discretion to evaluate the extent and
significance of out-of-state criminal histories. There are too
many scenarios where someone who was recently released from
prison in another state for a significant crime moves to Alaska
and commits a misdemeanor or class C felony. In that
circumstance, the state would not be able to ask the judge to
set monetary bail. The individual would be mandatory OR.
He pointed out that the five-year limit is not based on
empirical evidence. Further, the tool considers certain aspects
that are not based on a limited lookback of three to five years.
For example, the tool looks at age at first arrest. A person who
has an arrest that occurred before age 19 will receive at least
one point. The total number of FTA warrants that a person has
looks at the entire criminal history. Also, the total number of
the probationary sentence looks at a person's entire criminal
history. He pointed out that in-state criminal history is
validated and until out-of-state criminal history is validated
placing a time limitation is not something the Department of Law
would support.
3:05:21 PM
SENATOR WIELECHOWSKI asked for an explanation of the difference
between points on the FTA and NCA scales and how they work
together.
MR. HENDERSON explained that the risk assessment tool generates
two scores; one for the risk regarding failure to appear (FTA)
and one for the risk of new criminal arrest (NCA) while on bail.
The higher of the two scores - in addition to the current
charge, dictates what box a person falls into. For example, if a
person is high on FTA and low on NCA, the person would be
determined to be a high risk for purposes of either mandatory
release or presumptive OR.
SENATOR WIELECHOWSKI reviewed the potential points on the chart
and observed that it seems difficult to get above a low score on
failure to appear (FTA).
MR. HENDERSON suggested that if Ms. Fox has the scoring guide,
she could provide the exact numbers that lead to a maximum score
of eight. In general, each question has a value of up to two
points.
MS. FOX confirmed that most of questions have a value of up to
two points. The combined score is where the predictive validity
of the tool comes into play and is why it's so important to
revalidate the tool on a regular basis. For example, pretrial
officers are currently monitoring individuals on release and it
may be that violations will be found more quickly. Each year the
tool should be reevaluated to determine whether any predictive
issues change or if the scoring or weighting should be
different. Having a statute that calls for an evidence-based
validating tool provides the best opportunity to have a flexible
system. Actual data drives what information is included in the
tool.
3:10:20 PM
SENATOR WIELECHOWSKI posed a hypothetical situation of someone
who had 10 failure to appear (FTA) warrants in the last three
years. He asked if that person would get a total of four points.
MS. FOX replied it would depend on the underlying offense. That
is also why the preassessment tool looks at a number of factors.
In Alaska, the tool looks at FTA, NCA, and the current charge.
SENATOR WIELECHOWSKI asked if someone with 10 prior FTA warrants
who was over 21 at the time of first arrest and not currently
booked on an FTA or property charge or motor vehicle charge
would score four points.
MS. FOX said yes.
SENATOR WIELECHOWSKI observed that they would be deemed low risk
even though they failed to appear 10 times.
MS. FOX answered yes.
CHAIR COGHILL suggested he keep in mind that there could still
be release conditions for someone deemed low risk who was
released OR.
MS. FOX agreed.
CHAIR COGHILL added that any failure could result in a warrant
or the individual being picked.
MS. FOX said yes.
3:13:45 PM
CHAIR COGHILL advised that he had an amendment that removes the
five-year lookback, but he wouldn't offer it today.
He asked Mr. Steiner to comment on version O.
3:14:50 PM
QUINLAN STEINER, Public Defender, Public Defender Agency,
Anchorage, Alaska, said he believes the changes in version O are
measured and targeted to address the concerns that were raised.
He cautioned that if the five-year lookback is repealed, it
could result in arbitrary or varied decisions across the state.
That could result in people spending time in jail unnecessarily
relative to their score for failure to appear or new crime
arrest.
3:16:07 PM
CHAIR COGHILL removed his objection and version O was adopted.
He held SB 150 in committee for future consideration.