Legislature(2015 - 2016)GRUENBERG 120
04/11/2016 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB91 | |
| SB24 | |
| HJR19 | |
| Adjourn | |
| SB91 |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 91 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 200 | TELECONFERENCED | |
| += | SB 24 | TELECONFERENCED | |
| += | HJR 19 | TELECONFERENCED | |
SB 91-OMNIBUS CRIM LAW & PROCEDURE; CORRECTIONS
1:07:10 PM
CHAIR LEDOUX announced that the first order of business would be
CS FOR SPONSOR SUBSTITUTE FOR SENATE BILL NO. 91(FIN) am, "An
Act relating to criminal law and procedure; relating to
controlled substances; relating to immunity from prosecution for
the crime of prostitution; relating to probation; relating to
sentencing; establishing a pretrial services program with
pretrial services officers in the Department of Corrections;
relating to the publication of suspended entries of judgment on
a publicly available Internet website; relating to permanent
fund dividends; relating to electronic monitoring; relating to
penalties for violations of municipal ordinances; relating to
parole; relating to correctional restitution centers; relating
to community work service; relating to revocation, termination,
suspension, cancellation, or restoration of a driver's license;
relating to the excise tax on marijuana; establishing the
recidivism reduction fund; relating to the Alaska Criminal
Justice Commission; relating to the disqualification of persons
convicted of specified drug offenses from participation in the
food stamp and temporary assistance programs; relating to the
duties of the commissioner of corrections; amending Rules 32,
32.1, 38, 41, and 43, Alaska Rules of Criminal Procedure, and
repealing Rules 41(d) and (e), Alaska Rules of Criminal
Procedure; and providing for an effective date."
[Before the committee was CS for Sponsor Substitute for Senate
Bill 91(FIN) am, Version Y.A]
CHAIR LEDOUX advised the intention today is to ask questions,
note anything in Senate Bill 91 that is different from HB 205
that the committee agrees with, and then offer amendments as to
the portions the committee does not agree. She added, the
upcoming committee substitute is basically HB 205 [incorporated
into SB 91]. She then asked Senator Coghill's aide to present
the bill and explain the differences between SB 91 and HB 205.
1:08:05 PM
JORDAN SCHILLING, Staff, Senator John Coghill, Alaska State
Legislature, referred to the spreadsheet title: Policy,
Differences between SB 91 and HB 205, Code Section and said he
will identify the changes between the two bills and amendments
adopted thus far in SB 91, which is before the committee.
MR. SHILLING pointed to [AS 11.46.130(a)] HB 205, an amendment
recently adopted by the House Judiciary Standing Committee, and
stated that the felony theft threshold is at $1,000 and is
linked to the CPI increase every five years. Whereas, SB 91 has
a threshold of $2,000, and it is not linked to the CPI.
2:20:16 PM
CHAIR LEDOUX pointed to the policy difference between $1,000 and
$2,000, and asked why the Senate chose not to inflation-proof.
MR. SHILLING acknowledged that he had difficulty recalling all
of the conversations around the inflation adjustment, and opined
that it was removed in the first committee of referral due to a
general uncomfortableness in linking it to the CPI because the
legislature should consider that number as it necessitates being
adjusted, rather than automatically.
CHAIR LEDOUX surmised that the legislature would be coming back
to this every couple of years.
MR. SHILLING answered in the affirmative.
REPRESENTATIVE CLAMAN referred to the spreadsheet and asked Mr.
Shilling to explain the color coding.
MR. SHILLING explained that the light orange tint reflects
amendments recently adopted by the House Judiciary Standing
Committee on HB 205.
REPRESENTATIVE CLAMAN asked whether that means the portions not
tinted reflect parts in HB 205 that are not in SB 91, or in SB
91 and not in HB 205.
MR. SHILLING answered that the entire spreadsheet reflects the
differences between the two bills, and the tinted portions are
different due to the amendments the House Judiciary Standing
Committee adopted.
1:10:48 PM
MR. SHILLING [referring to AS 11.56.730] said that the
commission recommended that failure to appear be a violation,
but then becoming a crime once the individual has absconded for
30 days or more. The difference is what level of crime it
becomes once it has been determined the individual has
absconded. He explained that HB 205 reads that if the
individual has absconded it is a class A misdemeanor regardless
of the underlying offense. Within SB 91, it would be a class A
misdemeanor if the underlying crime was a misdemeanor, and a
class C felony if the underlying crime was a felony.
1:11:36 PM
MR. SHILLING, [referring to AS 11.71.030(a), misconduct
involving controlled substances statutes], advised the
commission recommended a 2.5 gram threshold to differentiate
between a high level drug dealer and a low level drug dealer -
class B felony versus class C felony. He explained that SB 91
separates one-eighth substances out of the 2.5 gram threshold
and applies its own threshold of 1 gram to 1A substances. He
noted that the Senate version also takes into account dosage
units and aggregate weight for the purpose of determining
whether it is a class B or class C felony.
1:12:13 PM
MR. SHILLING [referring to AS 12.55.027] said SB 91 has a 120
day cap on the amount of pretrial credit a defendant can receive
on electronic monitoring, and opined that this committee adopted
an amendment removing that firm 120 day cap.
1:12:33 PM
MR. SHILLING [referring to AS 12.55.090(c)] said the change
relates to probation term lengths, and within HB 205 there are
probation limits specifically for domestic violence (DV)
offenses. Whereas, he pointed out, SB 91 has a three-year cap
on all assault offenses and not solely DV-related assaults.
REPRESENTATIVE CLAMAN surmised that HB 205 has a higher cap on
DV offenses compared to everything else, whereas the Senate
doesn't make the distinction.
MR. SHILLING requested that the committee review the language
within the two bills because it is more nuanced than that, and
he turned to SB 91, Version Y, page 39.
MR. SHILLING, in response to Chair LeDoux, acknowledged that he
did not have SB 91, Version Y.A, but had Version Y. He asked
whether the version before the committee was Y.A.
CHAIR LEDOUX agreed.
1:14:01 PM
The committee took a brief at ease.
1:14:35 PM
MR. SHILLING pointed to SB 91, Version Y.A, page 39, and to HB
205, Version H, page 40. He opined that within HB 205, page 40,
the House Judiciary Standing Committee adopted an amendment
changing the maximum term of probation for an unclassified sex
offense to 10 years and "it is not reflected in what we see
here." That amendment "being adopted into this" does provide
parity on that offense in SB 91. He pointed to the difference
as it relates to the misdemeanors, such that HB 205 is two years
for a misdemeanor offense involving domestic violence (DV).
Whereas, within SB 91 it is three years for any offense under AS
11.41.230, which is assault.
REPRESENTATIVE CLAMAN asked whether it was assault or assault in
the fourth degree.
MR. SHILLING clarified that it is assault in the fourth degree.
1:16:01 PM
MR. SHILLING [referring to AS 12.55.110] said the change relates
to the technical cap on technical violation stays. The
commission recommended that individuals committing technical
violations spend three days, five days, and ten days in prison
for those violations. The commission acknowledged that some
technical probation violations are worse than others, and it
recommended excluding non-completion of sex offender treatment
from the definition of technical violation. The Senate carved
out more things from that definition, for example, not
completing batterers' intervention programing, and failure to
complete special sex offender supervision conditions would be
excluded from the definition of technical violation. He added
that HB 205 does not make similar carve outs.
1:17:07 PM
MR. SHILLING [referring to AS 12.55.125(a)] said the change
relates to mandatory minimums for first and second degree
murder. He asked for clarification as to whether the House
Judiciary Standing Committee had considered an amendment
regarding the mandatory minimums, and should he skip to the next
change.
CHAIR LEDOUX said to not skip to the next change because this
committee had considered the amendment and it was withdrawn
pending the Senate's actions. She clarified that that doesn't
mean this committee will exactly take up the Senate's version.
MR. SHILLING explained that the Senate increased the mandatory
minimum by five-years for first degree murder, moving from 20
years to 25 years; and second degree murder would be increased
to five years, moving from 10 years to 15 years.
1:17:59 PM
MR. SHILLING [referring to AS 12.12.55.135(a)] said the change
relates to misdemeanor class A ...
REPRESENTATIVE CLAMAN interjected that another issue on the
murder statute was a discussion regarding stacking issues on
second degree murder wherein multiple people are killed in one
event. He asked whether the Senate had adopted anything
regarding stacking.
MR. SHILLING advised that he was not aware of the stacking issue
and opined that it was not considered in the Senate.
REPRESENTATIVE CLAMAN surmised that murder in the second degree
from the Senate was 15 years.
MR. SHILLING answered in the affirmative.
1:18:47 PM
MR. SHILLING [returning to his testimony regarding class A
misdemeanors] advised that the commission recommended a zero to
30 day presumptive range for class A misdemeanors with
exceptions. An exception in HB 205 is that a DV-related assault
in the fourth degree can be sentenced within a zero to one-year
range. Similarly, in SB 91, DV-assault in the fourth degree is
an exception from the zero to 30 range, and DV-assault in the
fourth degree can be sentenced up to one-year, but the Senate
also included non-DV-related assault in the fourth degree, and
that exception to the zero to 30 day presumption.
CHAIR LEDOUX asked what elements are involved in a non-DV-
assault in the fourth degree.
MR. SHILLING deferred to the Department of Law on the elements
of the offense, and opined that it would be a mutual combat
situation where the relationship is not that of a domestic
violence offense.
REPRESENTATIVE CLAMAN surmised that within HB 205 only DV-
assault in the fourth degree has the carve-out of a longer
sentence than the 30 day limit. Whereas, within SB 91 all
assaults in the fourth degree have a 30 day limit, even DV-
assault.
MR. SHILLING agreed.
REPRESENTATIVE CLAMAN asked whether that was for first offenses.
MR. SHILLING agreed, and he said any crime that is a repeat
conviction can be sentenced outside of the zero to 30 day range.
Therefore, the exceptions for all assault in the fourth degree
could be applied upon the first DV conviction, he explained.
1:20:41 PM
MR. SHILLING [referring to AS 22.35.030(b)] said it relates to
the suspended entry of judgment provision. Within SB 91,
language specifically provides for those convictions to appear
on CourtView, and he opined that the House Judiciary Standing
Committee adopted an amendment requiring that those convictions
do not appear on CourtView.
CHAIR LEDOUX advised Mr. Shilling he was correct.
1:21:14 PM
MR. SHILLING [referring to AS 33.07.010] said the change relates
to the agencies that are to work collaboratively with the
Department of Corrections (DOC) to adopt regulations
implementing the pretrial release decision framework, and the
recommendations that would be made to the courts. Currently,
the Office of Victims' Rights (OVR) in HB 205 is not among the
agencies working on those regulations. Whereas, he said, within
the SB 91 the Office of Victims' Rights will be part of that
process.
1:21:47 PM
MR. SHILLING [referring to AS 33.07.030] said the change relates
to the ability of the Department of Corrections (DOC) to
contract out its supervision of pretrial defendants. A
provision adopted within SB 91 explicitly allows the DOC to
contract out, for example, pretrial electronic supervision and
HB 205 does not contain a similar provision.
CHAIR LEDOUX asked, without that similar provision the
Department of Corrections (DOC) would not be able to contract
that out.
MR. SHILLING acknowledged that it is not entirely clear to him
and he opined that DOC has broad authority to contract out and
suggested it might be something to review. He further opined
that he was unsure whether it was absolutely necessary for
language allowing DOC to contract out.
CHAIR LEDOUX explained there has been some concern amongst
members in the House of Representatives about DOC contracting
out to private companies.
MR. SHILLING agreed, and he said he had heard some uneasiness
surrounding private electronic monitoring companies and the
amount of oversight the state has over those entities.
CHAIR LEDOUX remarked that once Mr. Shilling's presentation is
completed she would like to hear from someone from the
Department of Corrections and the Department of Law regarding
assault in the fourth degree issues.
1:23:45 PM
MR. SHILLING [referring to AS 33.16.089] said the change relates
to administrative parole policy. He offered that SB 91 excluded
criminally negligent homicide, a class B felony, from the
administrative parole provision, and opined that the House
Judiciary Standing Committee had not made a similar carve-out.
1:24:11 PM
MR. SHILLING [referring to AS 33.16.090(a)] said the next
difference relates to the geriatric parole provision.
Currently, he explained, within SB 91, an individual becomes
eligible for that form of discretionary parole upon reaching the
age of 60 years, and having served 10 years. However, SB 91
excluded unclassified felons and sex offenders from this policy.
He opined that within HB 205, the age of eligibility is 55 years
with the length of stay required to become eligible is 10 years,
and those offenders are not carved out of the policy.
1:25:01 PM
MR. SHILLING [referring to AS 33.16.090(b)] said the change
relates to discretionary parole eligibility for sex offenders.
He said the commission recommended that eligibility for
discretionary parole for sex offenders would occur at the one-
third point within their sentence, and would apply to all sex
offenders except repeat unclassified and class A sex offenders.
The Senate Finance Committee excluded unclassified sex offenders
from that policy, which would be sexual abuse of a minor in the
first degree and sexual assault in the first degree. It moved
the point in which they become eligible from one-third of the
sentence to one-half of the sentence. He opined that the House
Judiciary Standing Committee had not made any changes to that
policy, and that it conforms exactly to the commission's
recommendations.
1:25:55 PM
MR. SHILLING [referring to AS 33.16.130] said the change relates
to a provision inserted into SB 91 by the Senate State Affairs
Standing Committee allowing the Board of Parole to confer with a
corrections officer when making decisions regarding
discretionary parole. He pointed out that a similar provision
is not contained within HB 205.
1:26:24 PM
MR. SHILLING [referring to 33.16.150, 24/7 program] said SB 91
contains a provision granting authority to the Board of Parole
to place parolees in the 24/7 sobriety program, and HB 205 does
not contain that provision.
1:26:42 PM
MR. SHILLING [referring to AS 33.16.215, early discharge] said
the commission recommended an early discharge provision allowing
those ...
CHAIR LEDOUX asked Mr. Shilling to explain, for the committee
and the public, what is meant by the 24/7 sobriety program.
MR. SHILLING explained that the Board of Parole, as a condition
of parole, may require an individual to participate in a program
requiring a breathalyzer test twice a day to ensure sobriety.
He offered that it is arguably something the Board of Parole
currently has the ability to do, and described it as a bit
duplicative. He added that this provision was inserted within
the Senate Judiciary Standing Committee.
CHAIR LEDOUX surmised that within the 24/7 sobriety program an
individual provides a breathalyzer test twice a day. She asked
how it works exactly, and how many hours it takes before zero
alcohol registers in the person's system. She offered a
scenario of an individual taking the first test at 12:00 noon,
has a beer immediately after the first test, [and takes the
second test 12 hours later].
MR. SHILLING offered that it is difficult to answer because he
is not an expert on how long it takes a body to metabolize
alcohol, and it varies from person to person. He agreed the
test happens 12 hours apart and presumably an individual could
consume some alcohol during that period and still blow at a zero
blood alcohol content during the second test.
CHAIR LEDOUX inquired as to whether the tests must be 12 hours
apart. For example, an individual takes the test at 12:00 noon
and rather than having them take it again exactly 12 hours
later, could the testing be random so the person does not know
when the test will occur.
1:29:00 PM
MR. SHILLING advised there are other technologies that test more
frequently. For example, the Department of Corrections (DOC)
uses Secure Continuous Remote Alcohol Monitoring (SCRAM)
bracelets, a transdermal alcohol testing devise that tests every
30 minutes. There are other interventions to ensure sobriety
beyond simply testing twice a day, 12 hours apart, he noted, and
deferred to DOC.
CHAIR LEDOUX asked whether a parolee would have to participate
in both the 24/7 program and the SCRAM bracelet.
MR. SHILLING opined that the Board of Parole has the discretion
to impose a number of conditions and he thought it may be
possible to impose both conditions. He deferred to the Board of
Parole and Jeff Edwards.
CHAIR LEDOUX noted that Tony Piper from the Alaska Alcohol
Safety Action Program (ASAP) program is available for questions,
but Mr. Shilling will finish his presentation before calling
witnesses.
1:30:22 PM
MR. SHILLING [referring to AS 33.16.210] said the change relates
to the early discharge policy. He advised that SB 91 excludes
unclassified felons, domestic violence offenders, sex offenders,
and misdemeanants, from the early discharge policy. He opined
that the House Judiciary Standing Committee had not made those
carve-outs to the early discharge provision. Therefore, the
only difference would be that within SB 91, misdemeanants are
not eligible for early discharge, and within HB 205,
misdemeanants are eligible for early discharge.
1:31:13 PM
MR. SHILLING [referring to AS 33.16.215] noted that technical
violations had previously been discussed, and the reason it is
on the spreadsheet twice is because that same policy applies to
both probation and parole.
1:31:26 PM
MR. SHILLING [referring to AS 33.20.010, earned good time credit
for sex offenders] said the commission recommended a one-third
earned credit for sex offenders who complete sex offender
programming in DOC facilities, and that credit is one-third of
the sentence. He noted that SB 91 removes this policy entirely
from the bill. The House Judiciary Standing Committee amended
that provision, he related, although it has not adjusted the
credit amounts and it remains intact otherwise in HB 205.
1:32:02 PM
MR. SHILLING [referring to AS 33.30.095] said that the change
relates to reentry support given to inmates prior to release.
He referred to a provision in the bill which read: "within 90
days of release the DOC shall do a number of things to prepare
an individual for entry." One of the new responsibilities given
to that program is that DOC shall allow non-profits to come into
the facility and work with these individuals to sign them up for
public assistance and other benefits prior to release, he
explained.
1:32:41 PM
MR. SHILLING [referring to AS 43.61.010, marijuana taxes]
advised that the Senate Finance Committee inserted a provision
into SB 91 to ensure that the reinvestment priorities of the
legislature could be adequately funded. The solution was to
direct 50 percent of the marijuana tax revenue into recidivism
reduction programs. In making that move, the provision would
adequately fund community based substance abuse treatment
programs in prison, community residential centers, substance
abuse treatment programs, victims' services, violence
prevention, and a number of other items. He described this as
major difference between the two provisions because one makes
reinvestment possible, and one makes reinvestment more
difficult.
CHAIR LEDOUX related, "Counting your chickens before the eggs
have hatched," and asked whether it is actually known what the
marijuana taxes will bring to the state.
MR. SHILLING responded that the Department of Revenue provided a
conservative projection of bringing in $6 million in FY17, that
amount would double in FY18, and the out years to $12 million.
Therefore, he remarked, this statutory provision, which mirrors
what the state does with alcohol tax revenue, would divert one-
half of that into recidivism reduction. There is some wiggle
room the Senate Finance Standing Committee built in, in the
event those projections do not come to be true. He reiterated
that the administration believes it is a conservative estimate.
1:34:31 PM
REPRESENTATIVE LYNN asked whether Mr. Shilling said the
projection is $6 million on the marijuana tax.
MR. SHILLING answered in the affirmative.
REPRESENTATIVE LYNN asked whether that is after the expenses of
putting together the various boards, writing regulations, and
setting up the whole program. He further asked whether it is
gross or net income.
MR. SHILLING answered that he did not know how the cost of the
board and writing regulations sits in with the projected
revenue, and he could get back to Representative Lynn after the
meeting.
MR. SHILLING, in response to Representative Lynn, agreed that it
makes a big difference.
CHAIR LEDOUX pointed out that the Director of the Alcoholic
Beverage Control Board (ABC Board) and the Director of the
Marijuana Control Board is the same person in order to curtail
expenses.
REPRESENTATIVE LYNN commented that it is unknown whether that is
before or after expenses.
CHAIR LEDOUX stated, "That is what Mr. Shilling just said."
CHAIR LEDOUX extended that she would like to direct a question
to the Department of Law.
1:36:29 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), said he was available to
answer questions.
CHAIR LEDOUX asked for an example of a non-domestic violence
assault in the fourth degree.
MR. SKIDMORE explained that assault in the fourth degree is any
assault in which someone is placed in fear of imminent serious
physical injury, or has physical injury pain. When the domestic
violence (DV) restriction is applied there must be a certain
relationship between the two people involved in that particular
instance. He explained, in the instance in which that
relationship does not exist is, by definition, a non-domestic
violence assault. For example, a bar fight or neighbors getting
into an altercation, or two people who do not know each other
end up in some sort of assault, those do not meet the domestic
violence relationship. He described it as a fairly broad
spectrum on what it could include.
CHAIR LEDOUX asked whether both people would be charged with
assault in the fourth degree, such as a bar fight.
MR. SIDMORE advised there are instances in which both parties
have been charged which is something the Department of Law (DOL)
attempts to avoid. In the event both parties are charged in
such a situation it is generally considered to be more of a
mutual combat scenario, and disorderly conduct is the more
appropriate charge. Secondly, he offered when both parties are
charged it is an attempt by the police to bring both people in
because they had difficulty sorting out the primary aggressor.
In that situation, he offered, the district attorney will review
it to determine the primary aggressor and whether or not someone
had a defense, such as self-defense, available to them.
CHAIR LEDOUX said her next question involved the Department of
Corrections entering into contracts for the supervision of
pretrial defendants.
1:39:12 PM
DEAN WILLIAMS, Commissioner Designee, Department of Corrections,
advised that the Department of Corrections (DOC) currently has
authority to contract out if it so desires, and the language in
this provision reads: "the department may." Mr. Shilling was
correct in his testimony in that the department currently has
the authority to begin with, and a policy call is the issue. He
related that for the Department of Corrections (DOC) to have the
discretion to do either one is best, and remarked that he
personally believes there is a state interest in deciding who is
on electronic monitoring, but it is a policy call.
CHAIR LEDOUX offered that concern reported to her has involved a
person being out on electronic monitoring, and some of the
private companies are not there 24-7 hours/days. She asked
whether someone is listening to whether or not someone has taken
off the electronic monitor. She related that she had heard of
instances where someone was supposed to be on electronic
monitoring and went to a location they were not allowed, and in
one case someone was murdered.
MR. WILLIAMS offered that he had heard the same incidental
anecdotal stories regarding concerns, of which he has equal
concern, regarding those instances happening. He related that
his goal in moving forward with the department is to be certain
whatever is being done with electronic monitoring that it is the
most robust program the department has. He said he has control
over it either way, with the contractor, or with operations
himself. He pointed out that there is an interest in this state
having direct oversight. It makes sense to him that the state
would have ultimate responsibility in running the program and
may, in fact, want to have full authority and not contract it
out. He noted that it is going well in some place with the
independent contractors, but in moving forward he will vet all
options to determine which works best.
1:42:21 PM
CHAIR LEDOUX asked whether he is aware of instances where the
private contractor simply has not been available 24-7.
MR. WILLIAMS replied that he had only heard them peripherally
and he does not have direct evidence on those cases. He
acknowledged that he has not looked into the cases or had his
team investigate them, specifically, and feels uncomfortable
saying whether they are true or not.
CHAIR LEDOUX inquired as to whether the contract with DOC
requires the independent contractor to have someone available
listening for the monitor 24-7.
MR. WILLIAMS explained he is not familiar with the
specifications of the contract and assumed there are certain
provisions laying out what is expected of the contractor.
1:43:42 PM
JEFF EDWARDS, Executive Director, Board of Parole, Department of
Corrections, said he was available for questions.
CHAIR LEDOUX asked whether he had listened to her questions with
respect to the private contractors and electronic monitoring.
MR. EDWARDS related that it is not his area of expertise and
hesitated to go into specifics with regard to private
contractors. He said he does know that individuals may hire a
private electronic monitoring company to place themselves on
electronic monitoring. He was uncertain whether they contracted
through DOC because DOC utilizes its own electronic monitoring
program. He noted he was unaware of any contracts DOC has with
private contractors which sometimes can be problematic because
the Board of Parole does not have specific oversight of those
individual private agencies.
1:44:5 3 PM
CHAIR LEDOUX expressed that she was uncomfortable with private
contractors operating what is definitely a state function and
maybe not performing in the manner they should.
REPRESENTATIVE CLAMAN referred to notes on the spreadsheet,
which he read: "Pretrial does not grant DOC the authority to
enter into contracts for the supervision of pretrial defendants
who have been released." He said he is trying to determine which
bill reads they can, and which bill reads they can't. He
offered that he received a note from Mr. Shilling advising that
neither bill prohibits them from doing it and that they have the
authority today. He acknowledged confusion as to what the
different bills do and how they differ from one another because
it appears as though both bills, in the pretrial context, are
allowed to contract out.
1:46:00 PM
MR. WILLIAMS advised that the department has the authority to do
it one way or the other, and that it is a policy issue around
whether or not it is a good idea. He reiterated that he is
uncomfortable with getting into the area of electronic
monitoring nuances, but the department has the authority to
supervise and contract out. He provided that the issue is
whether or not electronic monitoring should be contracted out,
and he fully hears the concerns of the committee.
CHAIR LEDOUX noted she was reading the explanation that read:
"Does not grant DOC the authority to enter into ..."
1:47:07 PM
MR. SHILLING agreed that it is confusing. He explained that
under HB 205, no explicit authority is granted to give DOC the
ability to contract out. The department does not need that
explicit authority in statute because they already can. He
clarified that SB 91 went out of its way to provide that
explicit authority, despite not needing to, to make it crystal
clear that private electronic monitoring companies could be
contracted with. In the event the House Judiciary Standing
Committee desires to prohibit that type of contracting it would
need to put that in the bill, he opined.
CHAIR LEDOUX surmised that SB 91 may include something it really
didn't need to add in because the department already has the
authority to enter into contracts. She advised that the policy
call for this committee is whether it believes the department
should have the ability to enter into contracts with private
enterprises, to have the oversight of what is a legitimate
governmental function, which is probably one of the few things
this committee can all agree upon.
REPRESENTATIVE CLAMAN opined it is DOC's call today as to
whether it sends someone out on electronic monitoring and count
that as prison time. Currently, he asked, is DOC putting people
in custody out on pretrial electronic monitoring and saying it
does not want them in custody and will move them someplace else,
and the person is on electronic monitoring.
1:49:32 PM
MR. WILLIAMS agreed, and he said that part is currently going on
with the state. He clarified there is a provision for a person
eligible for private electronic monitoring to pay a private
contractor and the department is not involved in any of the
business dealing with regard to those folks. The contemplation
here is whether to encourage the consideration to have the state
contract out, as can be done currently without the language. He
noted it seems to encourage the prospect of that. In terms of
leading the department, he said he will do the safest and best
thing, especially in the arena of pretrial. He described it as
a large policy call about whether or not the department will do
it, and the issue is whether or not the language is needed in
the bill which somewhat opens the door a bit more to encourage
it.
REPRESENTATIVE CLAMAN related that a person pays a private
electronic monitoring company to electronically monitor them
while they are released pretrial. He asked whether, currently,
the department is letting people out of jail pretrial on
electronic monitors, for those in the custody of DOC who didn't
bail out.
MR. WILLIAMS deferred to Ms. Dagle, Department of Corrections.
1:51:39 PM
SHERRI DAGLE, Public Information Officer, Office of the
Commissioner, Department of Corrections, said that the
Department of Corrections (DOC) does not do pretrial electronic
monitoring, that is handled through the Alaska Court System as
anything pretrial does go through a private contractor. Once a
person is sentenced DOC can then place that person on electronic
monitoring if they meet certain criteria. She remarked there is
a large packet of information a person must first fill out and
they must meet a certain classification score in order to be
released on electronic monitoring. The department will closely
monitor a person on electronic monitoring for anything post-
sentence and, she noted, only a certain number of people are let
out. Pretrial, the department does not have any authority over
that and the people are monitored by a private company.
1:52:41 PM
REPRESENTATIVE CLAMAN referred to post-sentence and asked
whether the department actually owns the electronic monitors and
bracelets, or post-sentence are they contracting with private
entities that have the bracelets and the technology that follows
them around.
MS. DAGLE advised the department actually owns that equipment.
REPRESENTATIVE CLAMAN referred to pretrial today and said the
department is not involved at all.
MS. DAGLE answered in the affirmative.
REPRESENTATIVE CLAMAN noted that the interesting question
becomes whether the committee wants to authorize the department
in the pretrial context to release people on electronic
monitoring. These are the people who essentially would
otherwise be in jail because if they had gotten out as a matter
of bail they wouldn't need the department's electronic
monitoring. The questions are whether to allow pretrial release
from the department and if the committee does allow, does the
department have to do it themselves, or does the committee allow
the department to pay a contractor to do the same thing.
MS. DAGLE answered, correct.
1:53:56 PM
CHAIR LEDOUX offered a hypothetical situation wherein someone is
not out on pretrial bail because they haven't been convicted
yet. The question before the committee then becomes whether to
require the Department of Corrections to monitor these folks, or
allow the Department of Corrections to contract with other
people. She asked whether she was correct.
MS. DAGLE replied that it is correct.
1:54:37 PM
CHAIR LEDOUX remarked that that brings up another question, and
said if the committee is considering requiring the Department of
Corrections (DOC) to oversee the people who can't make bail, why
should the committee say that for all of the people who can make
bail, DOC is not involved at all.
She opined that some of these cases, Mr. Williams and she heard
about, are people on pretrial. She asked what it would take to
make sure the department has oversight over everyone on
electronic monitoring, whether out on bail or in custody. She
asked whether Ms. Dagle understood her point.
MS. DAGLE responded that she did understand and opined that
anytime someone is allowed out on electronic monitoring there
will be a certain amount of risk. She advised that the point is
to measure that risk and what society is comfortable with, which
is a policy question.
1:56:10 PM
CHAIR LEDOUX referred to the interplay under this bill and said
that for a lot of people bail just isn't going to be required
anymore. She pointed out that bail will be on a different sort
of consideration because it will not be whether a person does or
does not have money to make bail. She asked how that fits into
all of this, if it does.
MS. DAGLE stated that she was unsure that it does, and she is
not sure how to answer the question.
REPRESENTATIVE CLAMAN opined that not only are the standards
being changed, but one of the concepts of the bill is a risk
assessment to attempt to have a smaller population of people in
jail pretrial. Under the bill there would be a pretrial agency
to provide a supervisory role in pretrial release and it would
have some electronic monitoring capacity. The judge decides,
based on the risk analysis, whether a defendant, rather than
posting $500, needs to be released on electronic monitoring.
The question then becomes whether DOC will be the only agency to
provide electronic monitoring under the system they currently
have for post-sentence people, or to allow DOC to determine
whether it makes the most sense to hire contractors.
1:58:06 PM
CHAIR LEDOUX voiced that it sounds like the Department of
Corrections (DOC) is not involved at all when defendants are
just out on bail.
MS. DAGLE responded correct, although, in the event this
legislation passes with the creation of the pretrial unit, it
will be the entity responsible for monitoring those released
pre-sentence.
CHAIR LEDOUX said the department will be responsible, under this
bill, for everyone.
MS. DAGLE agreed.
CHAIR LEDOUX surmised it becomes the committee's policy call as
to whether or not it is appropriate that the department can
contract this out or whether the department needs to be
responsible itself.
1:59:14 PM
TONY PIPER, Program Manager, Division of Behavioral Health, said
he was available for questions.
CHAIR LEDOUX requested an explanation as to how the 24/7 program
works, and how someone can be put into the 24/7 program.
MR. PIPER explained there is a real time database where all
information is placed by the provider performing the testing.
He explained it will flag anyone who tries to come in early one
day and late another day, and it is calculated to ensure people
are testing consistently every 12 hours. Also, he noted, a
urinalysis test is available that can go back and test up to 80
hours for alcohol if anyone missed the test or for some reason
it looks like they are gaming the system.
CHAIR LEDOUX surmised that the test will always be the same time
every day. She remarked that that sounds easy for the person
that blows at 12:00 noon, and then has a beer or martini.
MR. PIPER explained that the alcohol testing should be able to
capture anyone using alcohol during that time.
CHAIR LEDOUX argued that a person blows at 12:01 p.m., takes the
test and then goes out and has a liquid lunch, and unless they
get really drunk, it should be out of their system by midnight
if the test is performed at the same time each time.
MR. PIPER explained that it is performed about the same time
every day. There are hours of operation that gives them a two-
hour period they can come in, but they have to be in at about 12
hour intervals. Within that 12 hour period they consistently
find that individuals are alcohol free. He noted this 24/7
program is based upon a research program out of South Dakota,
Montana, and North Dakota
2:02:11 PM
CHAIR LEDOUX expressed that, of course, the people are alcohol
free because it doesn't take 12 hours to get the alcohol out of
a person's system, unless they have had a heck of a lot of
alcohol. But just a few drinks here and there, they could have
some at lunch and then by midnight the person should be alcohol
free. She asked whether she was wrong.
MR. PIPER agreed that it is possible, but the random checks,
going back to 80 hours, would also catch them and the test is
random so the participants never know when it is coming.
2:03:35 PM
CHAIR LEDOUX then read the list of witnesses available to answer
questions and asked whether the committee would like to further
discuss the differences of the two bills. She advised committee
members to submit any amendments to Amy they may want
incorporated into SB 91 that are not in HB 205. She further
advised that those amendments will be discussed, and public
testimony will be offered, on Wednesday.
REPRESENTATIVE KELLER asked for clarification as to whether she
was considering moving the HB 205 version instead of SB 91.
CHAIR LEDOUX explained that the committee will hear SB 91 on
Wednesday, and commented that except for all practical purposes,
SB 91 will actually be HB 205. Mr. Shilling explained the
differences within the two bills, and Chair LeDoux said she
would like members to determine what language within SB 91 is
better than the language within HB 205 to be offered as an
amendment to HB 205. She explained it is easier dealing with HB
205 for purposes of Legislative Legal and Research Services
drafting a document into something the committee can ultimately
move to the House Finance Committee.
[SB 91 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 91 - CS ver Y.A (FIN).pdf |
HJUD 4/11/2016 1:00:00 PM |
SB 91 |
| SB 91 - Policy Differences HB205 to SB 91.pdf |
HJUD 4/11/2016 1:00:00 PM |
HB 205 SB 91 |