Legislature(2001 - 2002)
03/23/2001 01:11 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HB 172 - THERAPEUTIC DRUG AND ALCOHOL COURTS Number 0076 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 172, "An Act relating to therapeutic courts for offenders and to the authorized number of superior court judges." Number 0111 REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, [22- LS0612\J.5, Luckhaupt, 3/21/01], which reads as follows: Page 2, line 1: Delete "Second" Insert "Third" Number 0126 CHAIR ROKEBERG objected for the purpose of discussion. Number 0134 REPRESENTATIVE BRIAN PORTER, Alaska State Legislature, sponsor, explained that Amendment 1 addressed a typographical error in HB 172; Anchorage is located in the third judicial district, not the second judicial district. Number 0140 CHAIR ROKEBERG removed his objection and noted there were no further objections. Therefore, Amendment 1 was adopted. Number 0152 REPRESENTATIVE COGHILL made a motion to adopt Amendment 2, [22- LS0612\J.4, Luckhaupt, 3/21/01], which reads as follows: Page 1, following line 11: Insert "will focus on defendants charged with multiple driving while intoxicated offenses and" There being no objection, Amendment 2 was adopted. Number 0172 CHAIR ROKEBERG made a motion to adopt Amendment 3, [22- LS0612\J.1, Luckhaupt, 3/20/01], which reads as follows: Page 2, line 1, following "Anchorage.": Insert "In addition, the legislature recognizes that district courts are currently experimenting with and using therapeutic concepts such as those contained in this Act. The legislature acknowledges these efforts, encourages their continuation in the district courts, and does not intend by this Act the extinguishment of these efforts." REPRESENTATIVE COGHILL objected for the purpose of discussion. Number 0203 CHAIR ROKEBERG explained that Amendment 3 recognizes the existing district-level therapeutic courts, and encourages the continuation of these courts and any future district-level therapeutic courts. He noted that this was a policy statement and would become part of uncodified law. Number 0300 REPRESENTATIVE PORTER, as the sponsor, said he did not object to Amendment 3. Number 0307 CHAIR ROKEBERG noted there were no further objections. Therefore, Amendment 3 was adopted. Number 0318 REPRESENTATIVE COGHILL made a motion to adopt Amendment 4, [22- LS0612\J.3, Luckhaupt, 3/21/01], which reads as follows: Page 4, following line 30: Insert a new subsection to read: "(n) The Department of Health and Social Services is authorized to make advances to a defendant accepted to the therapeutic court to cover the initial costs of participating in the treatment programs if the defendant is otherwise without resources to pay those costs. The court shall require as a condition of probation that the defendant repay the department." Reletter the following subsection accordingly. Number 0339 CHAIR ROKEBERG objected for the purpose of discussion. He explained that Amendment 4 creates a "grubstake" provision for defendants who do not have funds to cover initial program fees and Naltrexone prescriptions, and would allow for quicker entry into programs. Number 0388 CHAIR ROKEBERG noted there were no further objections. Therefore, Amendment 4 was adopted. Number 0400 REPRESENTATIVE COGHILL made a motion to adopt Amendment 5, which reads as follows [original punctuation provided]: Page 2, following line 18: Insert a new subsection to read: (c) Nothing in this Act is intended to place additional requirements or changes to other existing specialized or general state courts. Reletter the following subsections accordingly. Page 3, line 19: Delete "or municipal prosecutor" Page 3, line 30: Delete "or municipal prosecutor" Page 4, lines 14-15: Delete "or municipal prosecutor" Page 4, line 26: Delete "(k) of this section" Insert "(l) of this section" CHAIR ROKEBERG requested an explanation of Amendment 5. Number 0418 REPRESENTATIVE PORTER explained that the municipal prosecutor wanted to be removed from HB 172 because the district court already has a functioning system in place for the district court misdemeanors that it handles, and HB 172 has different timeline requirements that would be inconvenient to follow. Representative Porter noted that he had no objection to Amendment 5. Number 0452 REPRESENTATIVE BERKOWITZ inquired if Amendment 5 also removed the Anchorage municipal prosecutor from the loop in terms of participating in the formation of sentences for therapeutic courts. Number 0504 REPRESENTATIVE PORTER responded that Amendment 5 was meant to remove any requirements in HB 172 that are specific to the therapeutic court in the superior court. It is not intended to prohibit the municipal prosecutor from participating in the district court under existing rules if he or she chooses to do so. Number 524 CHAIR ROKEBERG noted there were no objections. Therefore, Amendment 5 was adopted. Number 546 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 6, [22-LS0612\J.7, Luckhaupt, 3/22/01], which reads as follows: Page 3, line 23: Delete "state or municipal prosecutor and the" Page 3, lines 24 - 25: Delete "prosecutor, the defendant, or the court if the defendant's" Insert "defendant or the court if the" Number 0565 REPRESENTATIVE COGHILL objected for the purpose of discussion. REPRESENTATIVE BERKOWITZ referred to page 3, lines 23-25, and explained that Amendment 6, with regard to subsection (e), attempts to remove the prosecutor from the role of gatekeeper. He said it seems to him that it would be more appropriate to have that responsibility lie with the courts. In essence, someone could move to get into the court, and the court could then make a determination whether that action was appropriate. He predicted that most of the time the defense attorneys and prosecutors would agree with that decision, but in instances when they don't agree, the court could resolve the conflict. Without Amendment 6, too much discretion is in the hands of the prosecutor. Representative Berkowitz maintained that that discretion and responsibility should lie with the courts. Number 0645 CHAIR ROKEBERG noted that he thought he understood the concept of Amendment 6, but wanted to know why Amendment 5 did not remove the municipal prosecutor from page 3, line 23. REPRESENTATIVE BERKOWITZ attempted to clarify that under Amendment 6, someone who was charged under municipal statute would not have (indisc.--multiple speakers). REPRESENTATIVE PORTER explained that the prosecutor's office is the driver of the train of prosecution by law, by history, and by tradition. It is the responsibility of [the prosecutor's office] to make these kinds of decisions, and he said he thought that leaving it as is [without Amendment 6] would be the appropriate action. REPRESENTATIVE BERKOWITZ countered that the prosecutor's office would need to develop a protocol or policy in order to determine who would qualify for therapeutic court, so that it would not be an arbitrary assignment. And once that due-process realm is entered into, the judge might as well be the arbiter; it would cut out a step whereby motions could result, such as when a defendant said he/she was willing to enter into the [therapeutic court] but the prosecutor was not allowing it in violation of prosecutorial policy, or without good cause. He suggested that going straight to the court would result in a relatively expeditious resolution. REPRESENTATIVE PORTER responded by saying that that particular issue has not been raised in either charge bargaining or sentence plea-bargaining, which, in effect, is what [the provisions of HB 172] come down to. He explained that in the existing therapeutic courts, there is a requirement that the prosecutor advise the defendant that participation in a therapeutic court mandates a guilty plea. He said he did not think defendants would plead guilty if participation in a therapeutic court was not the appropriate decision. Number 0888 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, noted that although he had missed testimony from the prior meeting regarding the issues encompassed in Amendment 6, he had heard enough about it to respond to those points. He said that there were three reasons why he thought Amendment 6 was not a good idea. The first reason was given [at the prior meeting] by Judge Wanamaker, who said that in order for this type of program to work, the prosecutor must consent. Mr. Guaneli added that he himself thought that was appropriate. This program will require a lot of time and effort by all the agencies involved, and it is important for the prosecutor to have an investment in whether a defendant succeeds, which would not happen if the defendant got into the program over the objections of the prosecutor. MR. GUANELI said the second reason was more of a practical one. Oftentimes, prosecutors know more about certain defendants and their past, or ongoing, activities than anyone else does. For example, there may be an ongoing investigation of a defendant for a child-abuse offense, or for a narcotics offense. There may be things about that defendant that [the DOL] does not want disclosed to anybody, even a judge, but which could be grounds for objecting to the defendant's participation in the program. Number 0970 MR. GUANELI explained that the third reason was a legal one. Constitutionally, there are three branches of government, and the executive branch has a role in law enforcement as well as a role in prosecution. The type of program [encompassed in HB 172] involves agreements regarding what is going to happen to a defendant, as well as agreements regarding certain conditions that both the defendant and the state must abide by, all of which require the consent of the prosecutor. The Alaska Supreme Court has cautioned judges to refrain from unilaterally engaging in plea negotiations with defendants because that is the responsibility of the prosecutor. Judges can only accept or reject the agreement brought before them. He noted that there is Alaska case law on that point. Mr. Guaneli finalized by saying that for all of the aforementioned reasons the DOL thinks that the prosecutor should have a consenting role; that will ensure the program will work, and was also why HB 172 was drafted as it was. Number 1056 REPRESENTATIVE BERKOWITZ responded to the suggestion that prosecutors know more than the courts by saying that if that were indeed the case, then that is why there are courts - so that the prosecutor might make the court aware of all the facts. In instances when there is an ongoing investigation, or if there might be something that would be compromised by the defendant's participation in a therapeutic court, there would also be opportunities to argue, even obliquely, or by proceeding under seal, that therapeutic court would not be the best option. He added that he thought that cases involving people who had DWIs in addition to being the subject of a major investigation would be the exception rather than the rule, and the therapeutic courts should not be built around that problem. REPRESENTATIVE BERKOWITZ, in response to the issue of separation of powers, said that according to his understanding, this was not a charging decision [being made under the program created by HB 172], which would appropriately be made by the executive branch. Instead, it was, in essence, a sentencing decision. Thus, he said, it was fully acceptable and appropriate that someone should not get into a therapeutic court unless he or she had made an admission of guilt. Once that admission of guilt is made, the sentencing phase is entered into, and this phase has always been the responsibility of the courts. He said he thought it should not be characterized as a plea negotiation situation; rather, it is simply a hearing to determine the appropriateness of therapeutic court for a particular defendant, and the prosecutor's office is free to argue either for or against the action. In conclusion, Representative Berkowitz offered that Amendment 6 would provide further checks and balances to the system, and would not be a diminution of the executive branch's authority to charge; it would simply be a check on that authority by both the courts and the individual defendants. Number 1192 CHAIR ROKEBERG noted that because of both prior testimony and his own research, he was inclined to favor Amendment 6. It had become apparent to him that the position of the attorney general's office as it related to existing therapeutic-court activities was not a favorable one. On the contrary, to a certain degree, [the attorney general's office] has been obstructive. Chair Rokeberg requested that Mr. Guaneli and the attorney general give their assurance of full cooperation in the pilot program on this particular issue. MR. GUANELI noted that he did not wish to plow over old ground regarding why the DOL was reluctant to engage in the experimental wellness court program in Anchorage. He acknowledged, however, that the Anchorage prosecutors work for his office, and therefore he was accountable for the actions of those prosecutors. He emphasized that the DOL had a role in crafting HB 172, and is slated to get funding for participating in this pilot program; the DOL would be an active participant in this program as it is set out in HB 172. In addition, he said that the DOL would like to see a decrease in the number of felony drunk drivers in Anchorage, as well as throughout the rest of state. And if this program can help towards that end, the DOL is all for it and willing to invest the time and effort needed to see the program succeed. He noted, however, that it would require the DOL's unconditional involvement, which means fulfilling the role of gatekeeper to ensure that the most appropriate people enter into the program. There are not enough openings in the pilot program to fit in everyone who gets charged with felony drunk driving, and decisions will have to be made regarding who gets into the program, he concluded. REPRESENTATIVE BERKOWITZ, in defense of Amendment 6, reiterated that this is not a charging decision; the defendant should have due process in order to get into the program. Prosecutors are not infallible, and to make the prosecutor the sole gatekeeper without the backstop of the courts, he said he thinks is not what people have in mind when thinking about checks and balances. Number 1375 CHAIR ROKEBERG noted that the objection to Amendment 6 was maintained. A roll call vote was taken. Representatives Berkowitz, Kookesh, and Rokeberg voted for Amendment 6. Representatives Coghill, Meyer, and James voted against it. Therefore, Amendment 6 failed by a vote of 3-3. Number 1395 REPRESENTATIVE BERKOWITZ moved to report HB 172, as amended, out of committee with individual recommendations and the accompanying fiscal notes. CHAIR ROKEBERG objected for the purpose of attaching an additional fiscal note from the committee, which would provide $85,000 to the existing therapeutic courts so that they could continue operations in the coming fiscal year. Number 1449 REPRESENTATIVE BERKOWITZ modified his motion to encompass the addition of the committee fiscal note to HB 172. There being no further objection, CSHB 172(JUD) was reported from the House Judiciary Standing Committee.
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