Legislature(2015 - 2016)CAPITOL 120
02/20/2015 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB83 | |
| HB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 15 | TELECONFERENCED | |
| += | HB 83 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 79 | TELECONFERENCED | |
HB 15-CREDITS FOR TIME SERVED/GOOD TIME
1:54:51 PM
CHAIR LEDOUX announced that the next order of business would be
HOUSE BILL NO. 15, "An Act relating to credits toward a sentence
of imprisonment and to good time deductions."
1:56:12 PM
REPRESENTATIVE KELLER moved to adopt committee substitute (CS)
for HB 15, Version 29-LS0102\N, Gardner/Martin, 2/19/15 as the
working document. There being no objection, Version N was
before the committee.
1:56:23 PM
REPRESENTATIVE TAMMIE WILSON paraphrased the following sponsor
statement [original punctuation provided]:
The state of Alaska faces rising incarceration costs,
growing correctional populations, and declining
financial resources. To face this challenge, Alaska
must seek out alternatives which maximizes state
financial resources while providing rehabilitative
services for incarcerated individuals. It is the
purpose of HB 15 to grant credit against a sentence of
imprisonment and award good time deductions for time
spent in a treatment program, in a private residence,
or under electronic monitoring.
It is the mission of Alaska Department of Corrections
(DOC) to provide secure confinement, reformative
programs, and provide a process of supervised
community reintegration to enhance the safety of our
communities. Under current statutes, a convicted
prisoner is entitled to a deduction of one-third of
the term of imprisonment under good time deductions if
the prisoner follows the rules of the correctional
facility in which the prisoner is confined. However,
if a prisoner spends any time in a treatment program
or while under electronic monitoring they are
ineligible. The penalization for seeking treatment,
maintaining employment, or starting the process of
reintegration into the community stands in stark
contrast to the goals outlined by DOC.
A diverse range of programs are available to prisoners
to facilitate an individual's reintegration.
Electronic Monitoring (EM) is a tool utilized by DOC
that provides cost effective supervision of offenders
while reducing recidivism. The EM program allows
qualified incarcerated individuals to serve time at
home while adhering to the program conditions.
Qualified individuals can gain access to community-
based treatment, maintain employment, access diverse
medical treatment, perform community service work, and
begin the process of reintegration. The ability to
grant credit against a sentence of imprisonment for
time spent under supervision of electronic monitoring
or within a treatment program can potentially save the
state of Alaska over twelve million dollars a year.
The State of Alaska has an opportunity to
substantially save money while increasing Alaskans
access to community-based treatments, ability to
maintain employment, and reduce recidivism. HB 15
promotes the mission of DOC by encouraging the use of
reformative programs while fostering community based
reintegration.
Thank you for your support of HB 15.
1:58:56 PM
REPRESENTATIVE WILSON offered an Electronic Monitoring (EM)
power point presentation and advised that the bill does not
change eligibility. Requirements of eligibility are based upon
the Department of Corrections (DOC) recommendations and the
court in determining the type of monitoring an individual should
have, she expressed. Currently, the seven requirements by DOC
are as follows: 1. Release date is less than three years. 2. No
current or prior sex offense related convictions. 3. No current
domestic violence related convictions. 4. Reside in and work in
the Anchorage, Fairbanks, Girdwood, Kenai, Ketchikan, Mat-Su, or
Sitka areas. 5. Land-line phone with basic service and long
distance carrier. 6. Must be able to provide a "clean" urine
sample (no prescription narcotics or street drugs.) 7. No
weapons, alcohol, or controlled substances in the home. She
stated she is hopeful the program will grow to cover more areas
than the above mentioned areas.
1:59:51 PM
REPRESENTATIVE WILSON explained that within the EM 24/7 program,
should an individual take a drink of alcohol, the monitor picks
it up and data is downloaded at the end of the week. The
approximate monitor cost is $105 for seven days versus over $150
per day. DOC has an EM program and there are private companies
with monitors, she remarked. In FY14 a total of 2,034
individuals participated in DOC's EM program and the
participants served a total of 134,585 days, which averages
about 66 days per year. Although, if good time deductions were
provided with the 2014 participants, it would have reduced the
days by 44,862. She described good time as not only a mechanism
to show behavior change when incarceration, but actually "a step
down." She related that parole is to help individuals find a
job or a place to live but is currently not [effective] because
there are many prisoners per parole officer. This program puts
an individual in their own setting, receiving treatment, and an
opportunity to abide by the rules. She pointed out that should
the offender not obey the rules they will serve the remainder of
their time in jail. She suggested encouraging those with "these
kinds of issues" to undergo treatment rather than penalize them.
2:02:30 PM
REPRESENTATIVE WILSON pointed to the chart on page 9 which she
described as a potential cost savings per individual. The
intent is to incentivize a program currently in existence which,
she noted, is that an individual in pre-trial receives credit
for sitting there. "I go and say I'm going to get treatment
while I'm waiting to go to trial, I don't. That just to me
seems very backwards to be able to do that," she related. She
noted that pages 9-10 indicate more savings, and page 11 depicts
a reduction of 31 percent, with significant reduction across all
age groups and offenses. She opined that the reduction is due
to individuals living in their own community versus taking them
completely out of it. She pointed to page 12, "general
recidivism", "EM recidivism" and "general recidivism less EM
recidivism" from FY2007-FY2011. Page 13, is the BI TAD device
which has proven effective in Alaska and, she said, that 90
percent of Alaska's offenders/inmates have alcohol or illegal
drugs involved in their crimes. She noted there is an 18
percent recidivism rate for offenders who serve their entire
sentence on the EM program, and were released for time served.
She pointed out that the state can save $12 million if the
program is utilized by individuals already enrolled in
electronic monitoring during FY2014. However, if an individual
is currently on the EM program, this bill does not affect them.
She reiterated that EM has been successfully tested in
Anchorage, Kotzebue, Bethel, Palmer/Wasilla, Fairbanks, and
Nome.
2:04:53 PM
REPRESENTATIVE WILSON advised it was never her intent that the
program would be solely private residence, and if the offender
commits another crime while on EM they will not receive time
served or good time. Representative Wilson commented that HB 15
is not ready to be passed out of committee today as she has
questions on the statute. She asked "should we just offer it to
those going into a treatment program, actually a residential
treatment program, or the 24/7 program that we are hearing would
not be eligible under the current way this bill is written
because it is not a residential treatment." However, she noted,
the individual being monitored 24/7, is holding a job,
performing according to DOC's requirements, and is outside of a
treatment program. There is a question that once an individual
is sentenced, can they stay on the same monitor versus a
different monitor where they will have to check in with someone
randomly. She described that scenario as being difficult when
the individual has a job and yet with the EM device, the
individual is monitored 24/7 and does not have to leave work to
be tested. She stated that as far as the incentivize treatment
portion of the bill that is as far as she plans to go. She
opined that currently under HB 15 an individual in jail and not
currently on EM would not be eligible. She further opined that
the more time an individual stays in jail without the right kind
of treatment, or able to get back into society, "having that
step down," the more likely the individual is to stay within the
system. She described the goal as getting Alaskans out of jail,
able to live in society, and have a family.
2:09:00 PM
REPRESENTATIVE KELLER asked the amount of time being spent
between arrest and sentencing. He said he had heard the pre-
trial time was large, and the Alaska State Constitution
guarantees a speedy trial.
REPRESENTATIVE WILSON offered that if an individual is sitting
jail waiting for trial, and found innocent, "you've got time
banked, because you served and you didn't have to serve."
2:09:57 PM
REPRESENTATIVE KELLER asked that Representative Wilson bring the
information to the committee of the amount of time and the
number of people that are in this position, and the number of
individuals and the amount of banked time. He expressed that he
would like to know why she backed away from house arrest as he
understood that conditions of bail sometimes include third party
custodians with the individual locked in house arrest.
REPRESENTATIVE WILSON stated "that was never our intent,
Representative Keller, it was kind of an accident." The intent
was always for electronic monitoring, she said she took the part
of the statute that looked "like they took just that part out."
She noted that a court case decided if an individual is in their
residence [with a 3rd party custodian] and not allowed to go
where they would like, it is not the same type of monitoring as
electronic monitors. She added that most of the people in jail
are due to drugs and alcohol, and courts have been concerned
that the third party custodian is not monitoring as well as they
should.
REPRESENTATIVE KELLER said there are individuals that take being
released into custody very serious, as it changes the life of
the person that takes it seriously and in house arrest. He
suggested that the appropriate response may be to do something
to ensure that the terms of bail are met rather than just
ignoring that arena and allowing it to get weaker. He likes the
idea of including this into the bill and would like to hear
reasons why not.
REPRESENTATIVE WILSON deferred to "bright people behind me," and
noted she is not an attorney.
2:12:51 PM
CHAIR LEDOUX referred to Representative Wilson's statement
regarding "banked time" and asked for clarification that in the
event an individual is acquitted and has served time, that time
can be used the next time the individual is arrested.
REPRESENTATIVE WILSON said "it is my understanding that is
true." Literally, she remarked, an individual has served time
but has been acquitted so later on the individual can use it if
arrested again.
2:13:50 PM
REPRESENTATIVE CLAMAN commented that he was not aware of
"banking." He opined that it is common that a pre-trial release
is not as restrictive as a house arrest post sentencing, and it
is fairly common for an individual to negotiate receiving jail
credit before sentencing so it is part of the pre-trial release,
he said. In terms of speedy trial, he suspects that speedy
trial has been waived more than once.
CHAIR LEDOUX opened public testimony.
2:16:06 PM
BILLY HOUSER, Probation Officer, Division of Probation and
Parole, Department of Corrections, said he is the program
manager for the Department of Corrections Electronic Monitoring
and is not clear as to the changes made in the drafts. However,
good time is the key issue and part of Sec. 4 [Version 29-
LS0102\E] deals with good behavior while a prisoner is confined
at a correctional facility and noted it is problematic for the
electronic monitoring program. He said the draft he reviewed
would have been fine and would have resolved those issues if the
last portion, " ... ordered by the court and the defendant has
not committed a crime while in the residential treatment program
or under electronic monitoring." He indicated that removal of
the last sentence could achieve the goals of this legislation,
which is both rehabilitation and reducing the amount of
individuals in custody. He pointed out that the first three
sections regarding sentencing and pretrial credit have a lot of
problems.
CHAIR LEDOUX noted that Mr. Houser may not be looking at the
correct draft.
2:19:39 PM
REPRESENTATIVE WILSON offered that Mr. Houser is looking at the
committee substitute that was "out" last night. She remarked
the section is problematic which is why it is no longer part of
the bill.
MR. HOUSER said he now understands that everything was removed
except for the prior section 4, which addresses AS 33.20.010(c).
REPRESENTATIVE WILSON responded that Sec. 1, AS 12.55.027(d) was
in the original bill. She explained that "in a private
residence" is removed so it reads "for time spent under
electronic monitoring" and added the following: "if the
defendant has not committed a crime while under electronic
monitoring." She further responded that AS 33.20.010(c) was
amended to read "a prisoner shall be awarded a good time
deduction under (a) of this section for any period spent in a
residential treatment program, or while under electronic
monitoring if the defendant has not committed a crime while
under electronic monitoring."
MR. HOUSER stated that from an electronic monitoring standpoint
and a restorative justice philosophy standpoint, allowing the
courts to give sentence credit to an individual in a pretrial
status is very problematic. Currently, he stated, the bail
companies are non-regulated and are in a for-profit position in
that when an individual does not have the money to pay for bail
and electronic monitoring, the individual will not receive those
services. The program rules are "all over the map" and in
essence defendants seek continuance after continuance and waive
their right to a speedy trial. He described a scenario of
reviewing an electronic monitoring application for an individual
who had served three and one-half years to a private bail
company on electronic monitoring. The individual planned to
take a plea agreement where he would serve a three years flat
time sentence. This would be the individual's third felony
conviction, presumptive under sentencing guidelines, and in
essence, he expressed, if the court were to allow the individual
credit for the time he was out on bail he would not have served
a single day in jail for a conviction that requires three years.
Mr. Houser reiterated there is "so much" disparative treatment
involved that it is very problematic. He related that judges
are not familiar enough with correctional interstate compact
rules and regulations for actual correctional facilities and
probation and parole and were giving credit to individuals
living out of state with a private bail company to "serve their
sentence." The individual then receives jail credit for it,
when in fact, the individual should have been processed through
the interstate compact for corrections, he expressed. He noted
that if that process is not met, or regulated, the state is
subject to civil penalties. In essence, he remarked, AS
33.20.010(c) would be served in helping to reduce the number of
individuals incarcerated. Realistically, he commented, DOC has
the ability right now to place pretrial prisoners on electronic
monitoring house arrest as a designation process. The only
thing that keeps DOC from currently doing that is the good time
credit statute. He explained that if an individual is placed on
pretrial, the individual does not get the good time but, if DOC
designated them to pretrial, they would. The goal could be
achieved just by amending AS 33.20.010(c).
2:27:21 PM
DOUGLAS MOODY, Deputy Public Defender, Criminal Division,
Central Office, Public Defender Agency, Department of
Administration, stated that electronic monitoring is sufficient
both to protect the public and to provide the necessary
structure to reintegrate the individuals. The whole idea with
offenders in jail is because the state was mad at them about
their behavior, and not so much afraid of them. The goal is
that they change their behavior and get them plugged back into
being productive members of society and, he said, HB 15 will do
that. Anything that helps DOC expand its electronic monitoring
program both post-trial and pre-trial, the public defender's
office supports. He opined it would benefit the public
defender's particular client base in that they have sliding
scales for their electronic monitoring so that indigent
defendants can participate. Whereas Mr. Houser is correct, he
noted, that if it is totally left to the free market a lot of
public defender clients can't get out because they can't pay the
fee. He then addressed the question about banking time and said
the time an individual spends in jail could only be credited to
the case the individual is in jail upon. For example, he
explained, an individual does six months on one case and is
acquitted, that time is dead time and never counts again. He
further explained that the banking situation arises when there
are probation hearings and an individual may sit in jail waiting
for a probation revocation hearing for 60 days. The offender
finally appears in front of the judge and the judge revokes 30
days, so the individual has 30 days in the bank for the next
violation but on that case only, he expressed.
2:31:13 PM
RICK SVOBODNY, Deputy Attorney General, Central Office, Criminal
Division, Department of Law, stated he would not be focusing so
much on electronic monitoring or credit for jail time for an
individual staying in their private residence. But rather
offered two concepts that sound a lot alike but are not the same
at all. There is credit for time served in pre-trial, which is
before an individual has been sentenced they can get credit for
time in jail, or credit for time in treatment programs. He
noted that what has been added with this bill is credit for time
on electronic monitoring. He explained that the other concept
is good time credit where an individual has been sentenced to a
term in jail and to control the individual in jail, they receive
a reduction of one day for every three days served. Currently,
he said, an individual receives credit for time in pre-trial
when the individual actually is in jail. For example, if the
judge said bail is $100,000, and the individual cannot post
$100,000 the individual may stay in jail unless there are other
conditions for their release. Every day an individual is in
jail they get credit for that time. He paraphrased a 1980
Alaska Supreme Court decision that said, "if a court orders you
do something that is the functional equivalent of jail - that it
is like jail in many respects in pretrial. The individual
should get credit for that too." He noted two cases Lock v.
State of Alaska, 609 P.2d 539 (1980) and Nygren v. State of
Alaska, 658 P.2d 141 (Alaska App. 1983) that set out that
proposition. He opined that when a court orders an individual
pre-trial, as a condition of bail to a treatment program the
individual should receive credit as though sitting in jail.
Although, he said there were examples of a treatment program
being run outside of Anchorage for alcohol treatment in a bar,
"Sgt. Preston's Lodge." The courts have granted credit for
showing up at the Department of Health & Social Services or an
entity designated by the Department of Health & Social Services
to take medication that wasn't related to alcohol. Some judges
believe that was the functional equivalent of jail and were
giving people credit.
2:36:35 PM
REPRESENTATIVE GRUENBERG asked if Mr. Svobodny was talking about
good time, or credit for time served.
2:36:48 PM
MR. SVOBODNY responded that he was referring to conditions of
bail that are set by the court prior to trial, prior to
conviction, and credit for time actually served. The Court of
Appeals and the Alaska Supreme Court were good about telling
judges that it doesn't count when the individual is out fishing.
He offered another example where an individual was released to
the custody of his mother. The individual came to court and
said "that's like jail," and the court gave him credit of which
the Court of Appeals overturned, he noted. In 2007, the
legislature put standards into the law which became AS 12.55.027
credit for time served. The legislature decided if an
individual is in a treatment program and it has restrictions
which the Court of Appeals and Supreme Court said are the
functional equivalent of jail, the individual receives one day
credit for every day in the program. "You don't even need to
complete the program, but just for every day you've been in it,
you get credit," he said, and that is where AS 12.25.027 comes
in. He offered that he is not arguing that electronic
monitoring is not a good thing or a helpful tool, but suggested
it is not the functional equivalent of jail. He described it as
being back to the old days, before standards for treatment
programs as no standards for EM have been imposed. He explained
that the legislature imposes standards for treatment programs in
that it had to be a legitimate treatment program and a
representative of the program had to go to court and testify
that the individual was in their program. He described the core
principle of Sec. 2, AS 12.55.027 as when an individual has
served time in jail, or the functional equivalent of jail time,
the individual should receive credit and the question that
requires answering "is wearing an electronic bracelet the
functional equivalent of incarceration."
2:42:34 PM
REPRESENTATIVE KELLER asked Mr. Svobodny to make his last point
again.
MR. SVOBODNY responded that he will be losing a lot of
prosecutors due to the budget and he would rather have
individuals do less time in jail, rather than have people who do
a good service lose their jobs. He is not opposed, in general,
to reducing the amount of time some individuals go to jail but,
he stated, "why don't we just call it that - let's commute
everyone by one-third of their time instead of creating a legal
fiction."
2:43:43 PM
REPRESENTATIVE GRUENBERG referred to Sec. 1, and stated it is
confusing due to the way it is currently drafted "may not," and
proposed the language "shall grant credit."
MR. SVOBODNY answered there is no need to change anything in AS
12.55.027 as it says "shall not grant credit" is for the
previous examples. That is why in 2007, the legislature said
"they shall not grant credit."
2:45:36 PM
REPRESENTATIVE GRUENBERG noted that the current language is that
"the court may not grant credit [against a sentence of
imprisonment] for time spent in a private residence ..." He
asked whether there were any circumstances wherein an individual
should be able to do that.
MR. SVOBODNY replied in the event an individual is in the
functional equivalent of jail, then yes. If the court releases
an individual on his own recognizance, and orders that he live
at his residence and not leave the room, that would be the
functional equivalent of incarceration.
2:47:18 PM
REPRESENTATIVE GRUENBERG surmised that Mr. Svobodny would
support allowing credit for time in a private residence if it is
the functional equivalent of incarceration.
MR. SVOBODNY responded "yes."
REPRESENTATIVE GRUENBERG questioned whether there were any
circumstance under which credit should be granted for electronic
monitoring.
MR. SVOBODNY replied that it is hard for him to think of a
circumstance wherein all the court is requiring is that an
individual wear an ankle bracelet. He said he can't conceive
anyone thinking that is the same as being in jail.
2:49:03 PM
REPRESENTATIVE CLAMAN said Mr. Svobodny prefaced his comments
that up until 2007 when AS 12.25.027 was passed the courts did a
good job of developing a common law of what constituted the
functional equivalent of jail for purposes of what is known as a
legal matter is Nygren credit.
MR. SVOBODNY answered "yes," if you mean the appellate courts.
REPRESENTATIVE CLAMAN noted that since 2007, there has been
considerable additional litigation about Nygren credit. He
further noted that the old common law of Nygren credit versus
the statutory law turned out to not perfectly match Nygren
credit. He offered that the philosophical question is whether
the state is better off trying to define this as a legislature
by statute, or might the state be better off by saying that the
courts are doing a good job developing this as common law and
adapting to modern technology as it comes up. He asked whether
the state would be better off getting out of the business of
defining this and let the courts continue to deal with it rather
than writing it as statute.
MR. SVOBODNY responded that it depends upon what the legislature
would do. He said he knows what the courts have said, and would
the state give people credit for staying in their own homes and
wearing an ankle bracelet. He remarked that the discussion is
credit for time served and he has no problem with the appellate
court decisions if it starts with Nygren credit for the
functionally equivalent of incarceration. He agreed with
Representative Claman that there is an existing statute that is
a little more restrictive than where the courts were at the time
AS 12.25.027 was passed. He described it as a nuance issue as
opposed to public policy issue.
2:52:35 PM
CHAIR LEDOUX asked whether the legislature is in this
legislative predicament right now with this statute because
there are a few "off the wall" cases by the Superior Courts that
possibly the Department of Law and legislature reacted to. She
suggested the legislature consider going back to the system
especially now that common law is more developed. With the
guidance of the appellate courts, trial courts have a little
more discretion to determine what the functional equivalent of
jail is, she said.
MR. SVOBODNY responded "Yes, we might be better off." He opined
that the reason there were less than appropriate decisions by
the trial courts is that it is hard to predict without standards
whether something is going to work or not. He referred to a
Juneau case wherein a defendant was found at a movie theater
with his girlfriend rather than being home or at work. The
trial court determined that dinner and a date was not the same
as being in jail. "If we put the resources into fighting about
it, both from the defense point of view and the state's point of
view, we're just fine with the appellate court decisions."
2:55:04 PM
CHAIR LEDOUX surmised that rather than a statute currently
reading "the courts may not grant," that perhaps the best
situation would be a statute with a number of guidelines the
courts should consider when making decisions.
MR. SVOBODNY responded in the affirmative and advised that was
done in 2007 in (a), (b), (c), the major place that people were
getting credit was treatment programs.
2:55:55 PM
REPRESENTATIVE GRUENBERG said subsection (c) uses the concept of
functional equivalent and provides guidelines.
MR. SVOBODNY responded that Sec. 3 is credit for good time and
is an entirely different concept. That is a tool as to how the
Department of Corrections causes people to behave following
sentencing where an individual is given one-third off of the
sentence then, he explained, should the prisoner cause problems
DOC potentially takes that time away. After fulfilling the
sentence and the individual is out on probation or parole and is
using electronic monitoring, the individual receives credit for
good time if their probation or parole is being revoked. He
opined that if the individual is not in custody, it is a "bigger
legal fiction" to say an individual should be given one day for
each three days served so the individual will behave. He
reminded the committee that electronic monitoring is a device to
help in public protection and it has the ancillary effect of
keeping people from breaking the law. He expressed that
electronic monitoring does not stop people from committing
crimes as it is not a panacea, it is a tool.
3:00:04 PM
CHAIR LEDOUX announced HB 15 is held over and public testimony
remains open.
3:00:52 PM