Legislature(1997 - 1998)
02/18/1998 01:05 PM House JUD
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* first hearing in first committee of referral
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HB 272 - DO JAIL TIME BY ELECTRONIC MONITORING [The three microphones continued to be out of order, and portions are difficult to hear on the tape.] Number 0580 CHAIRMAN GREEN announced the final item of business would be HB 272, "An Act to permit a court to order a defendant who receives a sentence of imprisonment for a misdemeanor to serve the sentence by electronic monitoring; and relating to the crime of unlawful evasion." As sponsor, he called on his staff member, Kevin Jardell, to present the bill. Number 0595 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, referred members to the work draft in their packets, Version E. He explained that HB 272 is an attempt to provide the Department of Corrections an additional tool to help ease overcrowding and relieve some budget problems; it is not meant to be a solution to all the problems. Mr. Jardell offered to go through the work draft and then answer questions regarding the changes. REPRESENTATIVE ROKEBERG made a motion to adopt as a work draft version 0-LS0821\E, Luckhaupt, 2/18/98. There being no objection, it was so ordered. MR. JARDELL referred to AS 11.56.310(a) and said the first portion of the bill relates to penalties for violations off of electronic monitoring. There is a two-stage penalty classification. If a person on electronic monitoring for a felony violates off of electronic monitoring, it would be escape in the second degree, a class B felony. If a person on electronic monitoring for a misdemeanor violates off of electronic monitoring, it would be escape in the fourth degree, a class A misdemeanor. Number 0685 MR. JARDELL referred to Section 3, relating to AS 12.55.015, and said it sets up the opportunity for the sentencing judge to put on the record his or her concerns or feelings regarding an individual's propensity to violate or whether they are high-risk or low-risk. He next referred to Section 4, relating to AS 33.30.061, and explained that it eliminates the eligibility of prisoners who are convicted of domestic violence (DV) crimes or crimes against the person. MR. JARDELL referred to Section 5, relating to AS 33.30.065, and explained that it gives the Department of Corrections the authority to develop and implement an electronic monitoring program. Subsection (b) establishes criteria that the commissioner of that department is to look at in evaluating whether a prisoner would be a high risk or a low risk. Most of these criteria are similar to those used in the furlough program now established by statute. Subsection (c) limits prisoners' due process rights regarding the placement on or off of electronic monitoring. Mr. Jardell indicated they equate it to the department's moving somebody from the Mat-Su Pre-Trial Facility to the Cook Inlet Pre-Trial Facility, in which now a prisoner has no say. He expressed the hope that prisoners could be placed on or taken off of electronic monitoring in the same fashion. Number 0771 REPRESENTATIVE BUNDE referred to subsection (b) on page 3. He asked whether those considerations for placement are listed in order of priority. MR. JARDELL replied that they are not meant to be prioritized. It is just a list, and not an exhaustive one. Number 0797 REPRESENTATIVE BUNDE suggested that item (3), the availability of program and facility space, is certainly not the third-highest priority. He asked if there is any danger that someone could list this as a list of priorities. MR. JARDELL said he doesn't foresee that, indicating his belief that item (3) parallels item (3) in the furlough statute. He acknowledged it may be of some concern, however, and he said it wouldn't be a problem to make that item (8) and renumber the list. CHAIRMAN GREEN pointed out that it is a parallel construction to other language in the code, where it is not considered a priority listing. Number 0848 REPRESENTATIVE BERKOWITZ noted that this addresses conviction but not bail. MR. JARDELL concurred and explained that they don't want to get too expansive in this project. They want to allow the Department of Corrections to focus on a specific group of prisoners that have already been convicted, and to try to implement an effective program. He expressed hope that if it is successful and can be done economically and efficiently, it could be expanded later to address those concerns. He noted that Fred's Bail Bonding in Anchorage now has some private electronic monitoring for pre-trial or bail situations. REPRESENTATIVE BERKOWITZ commented that Fred does have a quasi-governmental sta can get bail with electronic monitoring, that person would qualify for Nygren or jail term credit. CHAIRMAN GREEN said that may be. Number 0912 MR. JARDELL stated his impression that Representative Berkowitz is correct. He added, "My understanding of Nygren is that if the court orders you to any type of incarceration, that that incarceration can be counted as Nygren credit. I'm not so sure if it was allowed and not an order; I would imagine under any kind of electronic monitoring, it would be ordered by the courts." Number 0935 REPRESENTATIVE BERKOWITZ asked whether they are defining "electronic monitoring." MR. JARDELL referred to page 3, beginning at line 3. He told members the manner in which they have tried to define it is in the discussion there, which says it should be designed so that any attempt to remove, tamper with, or disable the monitoring equipment will result in a report or notice to the department. It is defined by the result rather than by the actual technology. MR. JARDELL further indicated that in speaking with various people involved in electronic monitoring, he had learned that it involves a wide range of technology that is increasing daily. He said their feelings were that if it is broad enough, and if it states the required result, it would allow those people to do research and implement technology that fits the situation. Number 0988 CHAIRMAN GREEN commented that the McLaughlin Youth Center currently has 20 to 25 people on electronic monitoring. Number 1003 REPRESENTATIVE BERKOWITZ pointed out that this could be construed to mean that if someone is required to sit by a telephone and answer it, that could constitute electronic monitoring. CHAIRMAN GREEN said he supposed that could be, without a strict definition. However, the bill allows the Department of Corrections to determine who will be subject to electronic monitoring, and he would seriously doubt that the telephone would suffice. REPRESENTATIVE PORTER commented that the last time he was involved in it, the technology required a telephone line to monitor and to report. CHAIRMAN GREEN agreed, saying it still does. REPRESENTATIVE BERKOWITZ said he could think of situations in the Bush where monitoring by telephone might be appropriate or the easiest and cheapest thing to do. CHAIRMAN GREEN responded that these aren't that expensive. If it were inefficient in the Bush, however, the person wouldn't be on electronic monitoring, which the Department of Corrections would have the authority to determine. Number 1114 REPRESENTATIVE PORTER said the requirement is that the electronic monitoring shall be administered by the department and shall be designed so that any attempt to remove, tamper with or disable the monitoring equipment, or to leave the place selected for the service of the term or period, will result in a report or notice to the department. He stated, "That is a general description of the technology that is involved, not just sitting by a telephone." Number 1202 REPRESENTATIVE BERKOWITZ referred to Section 4 on page 2, which precludes electronic monitoring for a person serving a term of imprisonment for a crime against a person. He pointed out that it includes such things as barroom brawls. While he endorses not including domestic violence, he said he is curious why they are including all assaults. CHAIRMAN GREEN replied that first, this is an experimental program. He explained, "Even though it's being used nationwide and is increasing, the concept is let's walk before we run, and if we can confine it to those people who are less likely to offend another person, and see that it works, then broaden it later, rather than to take in too big a scope now and have it fail because we tried to cover too many people. Again, it's not a cure-all. It's a help for Corrections." REPRESENTATIVE BERKOWITZ said he understands that and is very supportive of the concept, but has concerns about carving out all people who have crimes against a person. Number 1307 REPRESENTATIVE PORTER expressed concern also. He said he would be interested to see what the Department of Corrections and the Department of Law have to say about that section. Especially in light of the following page, which lists considerations including what the person has been charged with and the person's individual situation, he believes it is unnecessarily restrictive to have specific folks that cannot qualify. Representative Porter stated, "I can't imagine that too many domestic violence offenders would want to be in this situation, but I could if the victim of the domestic violence was in Pennsylvania and this person otherwise was going to be transitioned into the community in a few months anyway. For every rule, there's an exception. So I really don't think that an across-the-board exclusion is appropriate." CHAIRMAN GREEN replied, "Well, we'll hear from some other people, and I hope we can change your mind." Number 1395 REPRESENTATIVE ROKEBERG said he finds the language in Section 4 ambiguous. He suggested tightening that up. Number 1444 ANNE CARPENETI, Assistant Attorney General, Legal Services Section-Juneau, Crim testify. She stated that the department supports this legislation, noting that they had worked with the sponsor. She advised members that she had planned to mention several things, but those had already been taken care of, with a couple of exceptions. MS. CARPENETI referred to page 3, line 21, which she believes was added as a result of conversations between the Department of Law and the sponsor's staff because of not wanting to create the right for a person to have a hearing before going back into a facility if that person is not succeeding. She suggested on line 25, after the period, adding the words, "Placement of a prisoner on electronic monitoring does not create a liberty interest, [comma] and", which would be followed by the existing language, "[a] decision of the commissioner ...." Ms. Carpeneti explained that those words are used in the regulations, and she believes they need to say those words to avoid a person having a right to a hearing before being moved to a facility. Number 1564 REPRESENTATIVE CROFT asked Ms. Carpeneti whether they can define what is and is not a constitutional liberty interest. MS. CARPENETI replied, "Well, I think we can. We do in regulations, in terms of furloughs." She noted that somebody from the Department of Corrections was present who could assist. She indicated the Department of Corrections would consider this a part of their facilities. "What they are doing is transitioning a person from strict supervision back to the community," she added. REPRESENTATIVE CROFT asked whether right now they don't have a protected liberty interest in substantial changes in prisoner conditions, such as moving them from minimum to maximum facilities. He asked about due process. MS. CARPENETI said they do have a right to a hearing. Number 1641 ALLEN J. COOPER, Deputy Director, Division of Institutions, Department of Corrections, said Ms. Carpeneti is talking about the Ferguson decision, relating to a liberty interest. He indicated that to remove a prisoner from a program, they must provide a hearing to determine that. In this particular case, he would be very concerned if they had an individual out there doing something such as smoking dope, and he would want to be able to take action to put that person back into more confined quarters. The department would still have to provide a hearing about classification to address procedural due process. "But when I make those decision, I want to make them very swiftly and immediate, and I think I need that flexibility to do that," he added. REPRESENTATIVE CROFT responded, "I think I want you to, too." He said although not familiar with the Ferguson decision, he is familiar with the general idea of the liberty interest under the constitution and the right to a hearing before that is invaded. Representative Croft stated, "I know we can do this, I guess; I'm just not sure what the effect of doing it is. Have you guys had decisions where you've written in statute or regulation, 'This is not a liberty interest,' and the courts saying, 'That's good enough'?" MR. COOPER said no, this would be the first time they had done that. The way he deals with a liberty interest is to go out and make that decision to remove a substantial immediate threat to the public, and then they would have 24 hours in which to have a hearing. "But I need to demonstrate that," he said. "And I guess in this particular case, Law is a better judgment as far as the legal part of me making those decisions, but that's how I resolve it now." Number 1778 REPRESENTATIVE CROFT said he believes that is the right corrections approach. He asked whether they can do that constitutionally. MS. CARPENETI indicated she believes so. REPRESENTATIVE CROFT replied that saying the hearing is held after the revocation makes more sense to him than just saying it is not a liberty interest. He added, "It seems like, in my reflections, those cases, the courts uphold both." MS. CARPENETI said she believes they need to do both in order to (indisc.). CHAIRMAN GREEN advised members that Representative Porter had a suggestion that might address this. Number 1820 REPRESENTATIVE PORTER said he had often complained about the court issuing decisions that are tantamount to writing law. He stated, "I guess we should be fair and say that perhaps we shouldn't be making constitutional decisions either. With that in mind, I wonder if it wouldn't be within the intent of what you're looking for to say that we do not intend that this create a liberty interest, as opposed to 'does not create.'" MS. CARPENETI said that is a good suggestion. She also suggested reiterating that the person would have a right to a hearing after the fact, but not beforehand. Number 1883 REPRESENTATIVE BERKOWITZ commented, "Regardless of what we say, though, it seems to me that anyone in the state's custody has procedural due process rights related to the classification question, in that those rights would not be impinged by the language you're suggesting." MR. COOPER said that is correct. Number 1942 CHAIRMAN GREEN suggested amending it now, indicating the language he had was: "Placement of a prisoner on electronic monitoring is not intended to create a liberty interest, and a ....", with the remaining language following. REPRESENTATIVE PORTER asked, "And a decision of the commissioner?" CHAIRMAN GREEN said yes, adding, "All that I read just substitutes for the capital 'A'." Number 1966 REPRESENTATIVE BERKOWITZ pointed out that regardless of what the language says, it is subject to review because of the procedural due process requirements. He suggested ending it with the language proposed by Representative Porter. REPRESENTATIVE CROFT suggested, in the alternative, saying it is not subject to review before the revocation. Number 1999 MS. CARPENETI told members Mike Stark had drafted a similar amendment for her that read, "A decision by the department that a prisoner is released to serve a sentence or part of a sentence under electronic monitoring does not create in the prisoner a liberty interest in the status. The prisoner may be returned to the correctional facility at the discretion of the department." Ms. Carpeneti pointed out that this doesn't say it is not subject to review. CHAIRMAN GREEN said he would have no problem with that. REPRESENTATIVE PORTER said he would certainly accept that language, with the amendment of, "does not intend to create." MS. CARPENETI offered to provide written copies of that language. REPRESENTATIVE BERKOWITZ said he wanted to be clear that when they are talking about discretion of the department, they are talking about some level of cause. MR. ALLEN indicated it would be based on some behavior that would cause them to bring the person back because of public safety interests. REPRESENTATIVE BERKOWITZ asked whether that approach is enshrined somewhere in either statute or regulation. MR. ALLEN said yes, the safeguards are under the classification regulations. CHAIRMAN GREEN called an at-ease at 2:34 p.m. He called the meeting back to order at 2:36 p.m. Number 2129 MR. ALLEN said for any prisoner or individual placed on electronic monitoring, if they decide to change that, particularly if they move to the institution side of things, the department would have due process safeguards under the classification regulations. Number 2163 REPRESENTATIVE PORTER made a motion to adopt Amendment 1, to replace subsection (c) on page 3, lines 21 through 27, to read: "(c) A decision by the department that a prisoner be released to serve a sentence or part of a sentence under electronic monitoring is not intended to create in the prisoner a liberty interest in the status. The prisoner may be returned to a correctional facility at the discretion of the department." CHAIRMAN GREEN asked whether there was any objection. Hearing none, he announced that Amendment 1 was adopted. Number 2204 REPRESENTATIVE PORTER asked whether the department is utilizing electronic monitoring now. MR. ALLEN replied that on the institution side of things, they haven't used electronic monitoring, although he understands that on the community corrections side, there have been several pilot programs over the past several years. He said in the past, they had money to do it but never had the chance to develop it or add to it. He said overcrowding is his paramount concern, and any avenue or sanction they can provide to alleviate that will be welcome. Number 2260 REPRESENTATIVE PORTER referred to page 3 and the criteria for selecting who goes on the program. He read from item (6), which says, "the record of convictions of the prisoner, with particular emphasis on crimes specified in AS 11.41 or crimes involving domestic violence". He then asked, "Would you think that Section 4 on page 2 is necessary?" MR. ALLEN replied that his answer would be a double shuffle at this point, suggesting that Representative Porter was asking if limiting that criteria would limit the people to whom this would apply. Although he agreed it will narrow the field, he said he would like to review statistics to ensure there will be a sufficient pool, then respond later. Number 2414 REPRESENTATIVE CROFT apologized for missing the earlier answer and asked, "Are we doing it now?" MR. ALLEN said no. CHAIRMAN GREEN said they are doing it with juveniles. MR. ALLEN said they are doing juveniles, through the Department of Health and Social Services, but they only had a couple of pilot projects the past year. REPRESENTATIVE CROFT asked whether, for those juveniles, they had excluded certain classes of juvenile crimes. MR. ALLEN restated that it was the Department of Health and Social Services. TAPE 98-20, SIDE A Number 0001 [During the tape change, Representative Croft asked about driving under the influence (DUI) cases.] MR. ALLEN replied, "We may not, because we had some requirements that with a DUI, you have to serve a certain amount of time. ... And that's mandatory. So, we have to look at those things. But there were some other folks with other crimes, particularly nonviolent crimes, trespassing, theft, those kinds of things." CHAIRMAN GREEN mentioned forgery. MR. ALLEN said they have found nationally that this works well with "nonviolent folks." Number 0058 REPRESENTATIVE CROFT referred to a study relating to the electronic monitoring "self-pay" program. He stated, "And it seems like there's a wide variety, from 70 percent to about 90 percent, in their success rates. And I just wondered whether anybody has seen reasons for that variance. ... What factors in this program lead it to the higher success rates and what factors for the lower?" MR. ALLEN said it is too early for him to answer that from his department's perspective. He suggested his next step would be going back to look at the groups and the types of people they'll be looking to use this for. Number 0111 CHAIRMAN GREEN mentioned that there had been a couple of national symposiums on this, and he speculated that it is probably because of the net widening beyond that narrow band for which this might be more applicable. He emphasized the importance of having the Department of Corrections, rather than judges, make the determination, because department personnel are a lot closer to the prisoners' behavior. REPRESENTATIVE BERKOWITZ asked whether there was an actual monitor available, which was then passed around for members' inspection. Number 0171 REPRESENTATIVE ROKEBERG asked, "Your testimony is that the Department of Corrections is not doing this now. Has not the legislature, in the course of the last three years, asked the department to do this? And the department's not doing it, even though the legislature has asked for them to do it?" MR. ALLEN replied, "That is not been in my purview to not do that." He said that is the best way he can answer that. REPRESENTATIVE ROKEBERG said having served the last three years on the budget subcommittee for Corrections, he finds that answer a little humorous. He restated his understanding that the legislature has asked the department to do this, which they apparently have refused to do. CHAIRMAN GREEN stated, "Well, now they're willing to accept it." MR. ALLEN said he could understand Representative Rokeberg's disenchantment. Number 0258 REPRESENTATIVE PORTER asked whether his understanding is correct that the standard sentence for a DWI is mandatory jail time and wouldn't be available for electronic monitoring. MR. ALLEN said, "I misspoke." REPRESENTATIVE PORTER asked whether for the 10 days a person gets for driving with a revoked license, for example, those things are mandatory jail time and would take other legislation before they could utilize this kind of a system. MR. ALLEN said yes, restating that he had misspoken. REPRESENTATIVE PORTER said that is why he is concerned about cutting down how many folks can get on this program. He encouraged the department to look into contracting for this service, rather than adding state employees. He said his research has indicated it can save substantial money if the criteria isn't set up so that nobody can do it except some outfit in Florida and employees of the Department of Corrections; he said that is one iteration of a request for proposals (RFP) that he had seen. Number 0235 CHAIRMAN GREEN indicated he and his staff have been assured, in several meetings, that there are enough candidates without DWIs to make the pilot testing work. He stated, "And if it works, we can certainly expand it." REPRESENTATIVE PORTER said he didn't want to hold up the bill but would be interested in the information Mr. Allen would get for the committee regarding the number of eligible people. Number 0428 REPRESENTATIVE CROFT asked Mr. Allen, "If you said it's not your responsibility to not implement the electronic monitoring program, whose responsibility in the Department of Corrections is it to not implement the electronic monitoring program?" MR. ALLEN asked whether he could talk to Representative Croft after the hearing. Number 0466 REPRESENTATIVE ROKEBERG said he was having trouble understanding what Section 4 really means. He asked Ms. Carpeneti to address it. MS. CARPENETI said she was glad he had asked that. Section 4 is intended to say that the commissioner may use electronic monitoring except when a person is convicted of a crime against a person, a crime under AS 11.41, or a crime involving domestic violence. She said she herself is a little confused about the meaning of the criteria on page 3, item (6), because she doesn't know whether "particular emphasis" is negative or positive, although she assumes it is negative emphasis. Ms. Carpeneti suggested it would be clearer to say, for item (6): "the record of the convictions of the prisoner;". She indicated she would delete the remainder of the paragraph, as she isn't sure what it means. REPRESENTATIVE PORTER said considering Section 4, the language that Ms. Carpeneti is suggesting should be stricken is superfluous. MS. CARPENETI concurred. Number 0608 REPRESENTATIVE ROKEBERG said he wasn't sure his original question had been answered, and that the sentence structure is still confusing. MS. CARPENETI agreed, saying she'd had to read it three times. She offered to try to redraft it. REPRESENTATIVE ROKEBERG asked if it is the sponsor's intent that these individuals, who have committed a crime against a person or who are domestic violence offenders, are excluded from the program. CHAIRMAN GREEN said they are excluded. He asked for a suggestion to make it clear. Number 0674 REPRESENTATIVE BERKOWITZ offered to try. He stated, "I would submit that Section 4 is the enabling portion of this whole legislation. And I think it should be real clear that the commissioner may designate a prisoner, then get rid of the clause that begins, 'who is not serving a term of imprisonment, or a period of temporary commitment for a crime against a person or a crime involving domestic violence,' remove that, because what you want to say is the commissioner may designate a prisoner to serve by electronic monitoring, period. Then on the next page, what you're saying is [that] in determining whether or not to allow someone to serve with electronic monitoring, please, under Section 6, look to see whether these guys are in for an assault or a crime ... against a person or a crime involving domestic violence. And that allows the commissioner the latitude to say, 'No, you're in for a DV crime, you're not getting ... a monitor, tough luck.'" Number 0746 REPRESENTATIVE PORTER asked whether Section 4 is intended to mean that, "A prisoner serving a term of imprisonment, or a period of temporary commitment, for a crime against a person or a crime involving domestic violence is not eligible for electronic monitoring." CHAIRMAN GREEN said in essence, that is what they are saying. REPRESENTATIVE PORTER suggested considering that wording, even though he himself doesn't agree with it. Number 0769 REPRESENTATIVE CROFT suggested if the second sentence was as Representative Porter had mentioned, the first sentence would be enabling and the second restricting. He said what Representative Berkowitz had suggested works but changes it from a "can't" to a "consider." He proposed translating it into understandable language first and then debating whether they want to weaken it. REPRESENTATIVE BERKOWITZ said as he understands the sponsor's intent, he would use the sentence as he had read it and then the sentence provided by Representative Porter as a separate sentence within that section. He stated, "This legislation enables; these people are not eligible." REPRESENTATIVE PORTER said he intended to speak against it. REPRESENTATIVE ROKEBERG suggested it would be easier to amend that way. Number 0936 REPRESENTATIVE BERKOWITZ indicated he would move Amendment 2 and then move to amend it to address policy. He stated the amendment as follows: "Section 4 should now read ..., 'The commissioner may, under AS 33.30.065, designate a prisoner to serve the prisoner's term of imprisonment or a period of temporary commitment, or a part of the term or period, by electronic monitoring. An individual serving a term of imprisonment, or a period of temporary commitment for a crime against a person or a crime involving domestic violence is not eligible for electronic monitoring.'" Number 0978 CHAIRMAN GREEN asked whether there was any objection. Hearing none, he announced that Amendment 2 was adopted. Number 0980 REPRESENTATIVE BERKOWITZ made a motion to delete the second sentence. REPRESENTATIVE ROKEBERG objected, suggesting they hear from witnesses first. REPRESENTATIVE BERKOWITZ said he would withdraw the amendment temporarily. CHAIRMAN GREEN said there had been some discussion of page 3, line 17, that they have a semicolon after "prisoner". REPRESENTATIVE PORTER proposed waiting on that one, as well. Number 1014 MS. CARPENETI told members the Department of Law supports the way it is written now, with not making eligible people convicted of crimes against the person or domestic violence crimes, at least at this point. CHAIRMAN GREEN agreed it doesn't make a lot of sense to send a domestic violence perpetrator home. MS. CARPENETI said her final comment was to suggest that the committee consider adding a provision that holds the state harmless for its decisions to release prisoners on electronic monitoring. She acknowledged that it wouldn't be popular. She explained that the decision to release is probably discretionary anyway, and wouldn't be something they would be liable for. She said they would suggest something like what is in the domestic violence law now, that says a civil suit cannot be brought for damages for the decision to release a person under electronic monitoring (indisc.). Number 1084 REPRESENTATIVE ROKEBERG asked Mr. Allen why there wasn't a fiscal note from the Department of Corrections. MR. ALLEN said they had just received the proposed committee substitute but would provide one. Number 1125 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, came forward to testify. She told members that when the council first reviewed this bill, it was written so that only misdemeanants would be eligible for electronic monitoring, and it was open for all misdemeanants. The council had been significantly concerned about that, and had spoken with the sponsor about those concerns. She said they feel very strongly that it is important to provide a policy statement that electronic monitoring is for nonviolent crimes that are not against a person. In particular, domestic violence should be excluded. MS. ANDREEN reported that domestic violence for the most part ends up being charged at a misdemeanor level, with little or no jail time in the vast majority of cases. She stated, "And when it does happen, we feel that having a venue for electronic monitoring to take place in place of incarceration is not an appropriate way to tell offenders that this isn't okay." She said there are other concerns, which go without saying, about victim safety. Having violent offenders be ordered to be at home, with possibly more contact with the victims, needs to be considered. MS. ANDREEN said she had served on the sentencing commission in the early Nineties, where she first learned about electronic monitoring and the options; she had also attended a national conference in Washington, D.C. She said although she could be wrong about it, she was fairly certain that when the sentencing commission had recommended that the state look at electronic monitoring as an alternative sanction, they had recommended that it not be used for crimes against a person. She offered to check on that. MS. ANDREEN referred to page 3, item (6), which says the commissioner shall consider, among other things, the record of convictions of the prisoner, with particular emphasis on crimes specified in AS 11.41 or crimes involving domestic violence. She explained that she is thinking about domestic violence cases where this particular time, the offense is not domestic violence or may not be a crime against a person. The person could be eligible for electronic monitoring and yet have a substantiating history of domestic violence. To order such a person to serve time at home is really not a policy way that we want to go, Ms. Andreen said. And keeping some type of language like this in there, so that the commissioner will take a look at what the history is, will ensure that we don't put victims at risk. Number 1303 CHAIRMAN GREEN referred to Representative Berkowitz' concern on page 2, Section 4, as amended. Number 1340 REPRESENTATIVE BERKOWITZ suggested if they are going to pursue electronic monitoring and to give the Department of Corrections the latitude necessary to reduce jail populations, for example, they shouldn't second-guess them or micromanage their decisions. While the concern about domestic violence is clear, and he doesn't believe that anyone in the Department of Corrections, the Department of Law, or anyone else involved in law enforcement takes it lightly, he suggested that subsection (3) on page 3 addresses that concern. REPRESENTATIVE BERKOWITZ also said there are instances, such as the one described by Representative Porter, where the victim may be long gone from Alaska and not any imminent threat. There also could be extenuating circumstances to an arrest. Representative Berkowitz stated his belief that it is in the realm of micromanaging how the program is administered if they tie the hands of the Department of Corrections by saying at no time, ever, can they use electronic monitoring on someone with a conviction for assault or domestic violence. CHAIRMAN GREEN said Representative Berkowitz makes a good point, as does Representative Porter. However, in discussing this with members of the Administration and people in other states, the concern is about someone with a propensity for a crime against a person, a violent reactor. He is therefore thinking of starting slowly, restricting eligible persons until they know this is really working. Chairman Green said far more people are eligible than they had wanted for a pilot program, even with this restriction, as the pilot program they were talking about was perhaps 50 people. Number 1466 REPRESENTATIVE BERKOWITZ mentioned the wide range involved in crimes against persons, pointing out that causing a car crash where people in the other car are hurt can be charged as assaultive behavior if there is a DWI attached to it. He suggested that perhaps the way around it is to just say that people involved in domestic violence aren't eligible for release, because that is pretty clear-cut. However, to him the range of assaults and crimes against a person is so big, including barroom fights or schoolyard tussles, that there might never be a pattern of conduct involved. REPRESENTATIVE PORTER agreed with Representative Berkowitz and said he thinks it is very appropriate, when making a designation, for the Department of Corrections to consider whether that person is a domestic violence offender and then what would be the likelihood of reoffense. He suggested there is bound to be a situation where reoffending would be impossible. From his experience, he doubts that the department would order seven days of electronic monitoring for someone charged with a domestic violence assault who only got seven days in jail. REPRESENTATIVE PORTER stated, "But, on the other hand, if it was six months, one of the methods of trying to determine whether or not this person is eligible for release, rather than probation or parole, rather than not, is transitioning. And ... electronic monitoring provides the opportunity for the final stage of transitioning. And like it or not, a person in general terms that's convicted of domestic violence or of a crime against a person is going to be released." Representative Porter said he doesn't look at this as a way to clear the jails so we don't have to build another one. He said he looks at it as one of the methods considered very useful in determining whether a person should go onto parole, and whether they will be successful in transitioning, in a form of probation. He suggested in that case the first stage might be electronic monitoring. Representative Porter concluded by saying it would be simple to leave it in, but he has a professional aversion to micromanagement. Number 1625 REPRESENTATIVE ROKEBERG said he would tend to support what both prior speakers said, but he would exclude crimes against a person and leave domestic violence in. CHAIRMAN GREEN asked whether that is a compromise that Representative Berkowitz could stand. REPRESENTATIVE BERKOWITZ said yes. He made a motion to strike "against a person or a crime". It would therefore say "commit a crime involving domestic violence". CHAIRMAN GREEN asked whether there was any objection, and he labeled it Amendment 3. There being no objection, Amendment 3 was adopted. Number 1659 REPRESENTATIVE CROFT made a motion to move HB 272, Version E [0-LS0821\E, Luckh individual recommendations and attached fiscal note(s). CHAIRMAN GREEN asked whether there was any objection. There being none, he announced that CSHB 272(JUD) was moved from the House Judiciary Standing Committee.
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