Legislature(2001 - 2002)
04/27/2001 01:48 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 172-THERAPEUTIC COURTS/ SUPERIOR COURT JUDGES
CHAIRMAN TAYLOR announced HB 172 to be up for consideration.
REPRESENTATIVE PORTER, sponsor of HB 172, said the legislature has
been dealing with the DUI issue for years and most of the
progressive enhancements to that law have proven to be effective.
This bill addresses the drivers who have an addiction as opposed to
a problem with drinking and don't have the individual capacity to
stop. The Anchorage community has found that there is a small group
of multiple offenders who are continuing to drive and drink. "They
are killing people."
He explained this program and new approaches that are available in
the area of treatment, especially pharmaceuticals, have anecdotally
been successful at the district court level and should be expanded
to the felony DUI situation in Anchorage. HB 172 provides for a
pilot project in Anchorage and Bethel where it provides for the
involvement of local treatment programs and people who deal with
cultural diversity in our state.
CHAIRMAN TAYLOR said it appeared to him to take in all criminal
offenses that are alcohol related with the exception of the most
severe felonies.
REPRESENTATIVE PORTER explained that it asks that the court
concentrate on DWI offenders. The pilot program provides for a
fiscal analysis that deals with a certain number of felony DWIs.
That is the focus now, although there are a multitude of criminal
offenses that are alcohol related, between 70 to 80 percent. He
would not be opposed to gradually including some of those.
CHAIRMAN TAYLOR asked if admission into the therapeutic court
program in any way provides for deviation from the existing minimum
mandatories that are provided under the DWI law.
REPRESENTATIVE PORTER responded that the bill provides the
opportunity for that to happen, but it doesn't require it. "Once
the person is in the program, having been approved by the
prosecutor's office, the court has the discretion and the idea is
from our perspective to hold that sentence over the head of the
individual for as long as it takes to be assured of satisfactory
completion of the program.
CHAIRMAN TAYLOR said he believes there needs to be some inducement
to use the program, but if a person is prosecuted for a second or
third offense in Palmer, he gets a mandatory minimum sentence, pays
the fine and there is no prosecutorial discretion. However, if he
shows up in the Anchorage court, he could get the entire period of
imprisonment and the amount of fine including the presumptive or
mandatory minimum sentence suspended if he is successfully
completing court ordered treatment. "Who wouldn't jump into
treatment if the guy down the road is getting 100 plus years in
jail, suspension of his license for three or four years and you can
get all of that suspended by going through this court?"
REPRESENTATIVE PORTER said that was the idea of the program - to
have an inducement to get someone started in the activity of
meaningfully trying to change that addictive behavior.
CHAIRMAN TAYLOR asked, except for the additional cost of support
personnel, why we shouldn't provide the same level of discretion
for every judge who is dealing with alcohol offenses.
REPRESENTATIVE PORTER replied that the program in Anchorage has
only been going for about a year and a half, so results are just
anecdotal. The proof will come six or seven years from now. The
program is labor intensive and requires frequent returns by the
defendant and prosecution as part of the treatment process.
CHAIRMAN TAYLOR asked about equal protection.
REPRESENTATIVE PORTER replied that issue was not raised and he
would ask Mr. Guaneli about that. He personally thought they had
gone as far as they could go with personal incarcerations. There is
so much graphic evidence that hardly anyone responds to a revoked
or suspended license. He thought that this program would not have
100 percent success and there would always be that 10 percent that
would never get the message in any format.
Number 1655
SENATOR THERRIAULT asked why they couldn't set these programs up
everywhere when language says "to the extent feasible, the
therapeutic court shall use existing public agencies, medical
treatment."
REPRESENTATIVE PORTER replied that the labor intensity of this
program is in the state of evolution. "To make sure that we have
the capacity to do it correctly, we are suggesting that we should
have these two new courts…"
CHAIRMAN TAYLOR asked if they were going to have two Superior Court
judges in Bethel.
REPRESENTATIVE PORTER replied yes.
CHAIRMAN TAYLOR said that he doubted that they needed it, but it
was sad.
MS. JANET MCCABE, Partners for Downtown Progress in Anchorage, said
they had been working with Judge Wanamaker on the wellness court
and strongly supported HB 172. "Therapeutic courts are effective in
bringing about lasting change in alcohol addicted offenders. It's a
long difficult process for both the person who opts into the
program, the defender, and it also needs a lot of intensive
participation on the part of the judge."
She said that about 90 percent of their participants have stayed
sober and are doing well. She asked the committee to consider an
amendment. She said the wellness court is at the district court
level and none of the provisions in this bill affect the wellness
court since it applies to the Superior Court. She thought it was
important that the judge have the ability to reduce the mandatories
if someone completes the wellness court successfully.
CHAIRMAN TAYLOR asked what the difference is between a therapeutic
court and a wellness court.
MS. MCCABE replied that they are basically the same.
CHAIRMAN TAYLOR asked if the judge involved in the wellness court
in Anchorage was Judge Wanamaker.
MS. MCCABE said yes.
CHAIRMAN TAYLOR asked, if he was doing such a great job at a
district court level, why are they talking about creating two new
superior court positions for what's being done in the district
court today and is the model program.
MS. MCCABE replied that was considered long and hard. She said
there was a great need in Bethel and there were a lot of people in
Anchorage who are at the felony level who could benefit. The
wellness court doesn't touch that group of people.
CHAIRMAN TAYLOR said that was only because of silly jurisdictional
restrictions between superior and district court as to who is
busted for a felony and who is busted for a misdemeanor. He was
trying to figure out why they were going to add to a superior court
bench in Anchorage that was not overburdened by any means and not
assist a district court bench, which he knows is terribly
overburdened with mostly alcohol related offenses. He said they
should put two more district court judges in Anchorage and give the
superior court the authority to help out.
MS. MCCABE said these projects are intended to be demonstrations to
build up support and to really make an impact on the problem.
MR. BLAIR MCCUNE, Deputy Director, Alaska Public Defender Agency,
said they had done a lot of work on this bill and that it was
important that it gets done right. They don't want the public to
lose confidence in this process. He said that the program is
working really well so far. On the equal protection issue, the
program had to start somewhere. He didn't think there would be a
challenge based on not having it in one community opposed to
another. It's like a prosecutor might allow a plea bargain where
another prosecutor might not.
CHAIRMAN TAYLOR said he thought this was an important point and
they aren't talking about a particular prosecutor or discretion
that may be exercised. They are talking about changing the minimum
mandatory sentences that are currently required on every criminal
offense with the exception of major felonies. It says, "However,
not withstanding any other provision of law, the entire period of
imprisonment or fine including a presumptive or mandatory minimum
sentence may be suspended if the defendant has successfully
completed court ordered treatment."
MR. MCCUNE replied that he thought the legislature had looked at
the carrot and the stick and the type of intensive work that a
criminal defendant and participants would have to do in making all
treatment appointments. It would mean making considerable effort to
come to court every day and work with the professionals involved.
TAPE 01-25, SIDE B
MR. MCCUNE said that the court might think that burden was the
equivalent of a mandatory minimum sentence.
CHAIRMAN TAYLOR responded that they had one judge who could
exercise unlimited discretion with the defendant who is sitting in
one courtroom in Anchorage. The very same Superior Court judge
sitting out in Palmer has absolutely no discretion and will violate
state law should he fail to sentence to the maximum extent that law
requires. When he was practicing 25 years ago, it was very easy for
him to check to see if offenders were showing up for their antabuse
every day or following up with their social worker. He didn't have
to have another $2 million dollars to hire a judge who does nothing
but this. "I consider it a part of the job!"
MR. MCCUNE said they are in the type of situation where someone
gives a Rule 11 type of plea bargain. This puts a lot of pressure
on the defendant to complete this program successfully.
CHAIRMAN TAYLOR asked if they could amend the bill to provide the
same level of authority and the same criteria for meeting it to
both district and superior court judges across the state, leaving
it optional for that court if they wish to participate and utilize
this form of sentencing.
MR. MCCUNE replied that he didn't think there would be an equal
protection problem.
CHAIRMAN TAYLOR said he agreed with him as long as the discretion
is uniform among the judiciary. That one sentence changes the
minimum mandatory sentencing laws on every criminal offense in this
state with the exception of unclassified felonies, but it only
changes it if you walk in the right courtroom door. "That
definitely seems to be different as far as equal protection is
concerned."
He asked Mr. McCune to address the legal aspect.
MR. MCCUNE responded again that he didn't think equal protection
would be a problem because of what this requires of the individual
criminal defendant. It is far above requirements that are placed on
other defendants.
Number 2107
MR. DEAN GUANELI, Chief Assistant Attorney General, said:
For those of us in the criminal justice system, and I
include you in that because of your long experience, we
often get very jaded about offenders and we see them
coming back time after time, particularly the ones who
have alcohol problems. This is a program that really
deserves to be tried out, deserves to be used. I think it
can make some inroads in what is a real serious problem
in Alaska.
What this was designed to do was to focus on felony drunk
drivers. To be a felony drunk driver it has to be your
third or more conviction within five years and we
certainly have those who are more. They are tough nuts to
crack. The treatment people all tell us that…
MR. GUANELI explained that this program involved an intensive
period of 18 months of oversight by the court, the prosecutor, the
defense attorney, the probation officer and treatment providers.
It's so intensive that a lot of clients would rather go the jail
for the mandatory four months than go through this program. He
thought the courts would also consider the way they look at
treatment programs in terms of getting credit for time served. The
Lock and Nygren cases (Supreme Court) say that if you are ordered
to go to a treatment program that has conditions that really
restrict your liberty, you get credit for time served. "It's in
essence the equivalent of incarceration and you get credit against
your sentence."
MR. GUANELI said that he thought the court would give the
legislature a lot of latitude in trying out this program for those
reasons. He said the legislature has broad latitude in analyzing
where equal public facilities are going to be, particularly on a
pilot basis. The court has pretty definitive language after a
lawsuit against the Division of Health and Social Services.
CHAIRMAN TAYLOR agreed with the analogy of treatment, but he was
concerned with the loss of liberty. "There is no higher standard
that we look to in equal protection cases than loss of liberty."
He knows a family whose son is serving two and a half years in a
state institution for DWI and they have asked him why he hasn't
been placed in a program in that institution for treatment. He
doesn't know how to explain to them that their son has to stay
there for two and a half years, while a kid in Anchorage or Bethel
can work and get treatment. One is elective and the other is
mandatory.
MR. GUANELI said Senator Taylor had a good point, but he just
didn't think the court would say they couldn't start out with a
pilot program just because they don't have the budget for the rest
of the state.
CHAIRMAN TAYLOR said this bill would include more than just DWIs.
"This court can literally take anybody."
He wanted to know if they were going to limit to just drunks or try
and expand it. He wanted to know if the legislature could suspend
the effect of all state minimum mandatory sentences just for one
court and not be facing an equal protection problem.
SENATOR TAYLOR wanted to see some parameters where the person
didn't jump in to the program without some additional help. He
thought that other communities might have people who would want to
help with this kind of program and asked if they shouldn't be
entitled to do it, too.
MR. GUANELI responded that Anchorage was chosen because the
treatment infrastructure exists there. "That is why I think keeping
it in Anchorage to begin with for the first six months is a good
idea."
He said further that the court finds a relationship between
treatment and incarceration. To provide the incentive necessary for
defenders to go through the treatment program for 18 months, you
really have to give the judge the latitude to design a sentence and
even throw the mandatory minimums, to give particular offenders the
incentive to continue with these programs. "Throwing out the
mandatory minimum or giving the judges flexibility to do that is a
necessary part of making this treatment effective. I believe our
Supreme Court will recognize that."
He thought extending that flexibility throughout the state for all
offenses is wiping out all mandatory sentencing in Alaska.
CHAIRMAN TAYLOR said that would happen only to the extent another
judge would be flexible that this one "super judge" is now going to
do.
MR. GUANELI said that would do away with mandatory and presumptive
sentencing in Alaska.
CHAIRMAN TAYLOR asked why he should trust a judge who hasn't even
been hired yet to do that on all offenses with the exception of
unclassified felonies.
MR. GUANELI said he thought the court system would probably put one
of the sitting judges there, but maybe not.
SENATOR DONLEY said he didn't know the scope was so broad. He asked
if class B felonies were crimes of violence against a person.
MR. GUANELI replied that those would be included. "The intent in
Anchorage is to limit to the felony drunk driving, but in order to
try this out in a rural area, in Bethel, there are not sufficient
numbers of felony drunk driving offenses. It was felt to broaden it
out to allow others…Burglaries are a common offense and that's a
class B felony…"
SENATOR DONLEY asked what the role of the victim was in deciding
whether or not punishment should be waived in favor of treatment.
MR. GUANELI replied that is a good question. The prosecutor has to
agree for someone to be accepted into this program. If there is a
strong objection from the victim to someone not serving time, that
would be taken into consideration.
SENATOR DONLEY asked if the sponsor considered putting language in
statute that the victim should be consulted. He thought it was
important.
MR. GUANELI said he thought that was a legitimate concern, but he
hadn't talked to the sponsor about amending it.
CHAIRMAN TAYLOR said section 5, page 3, provides that the offender
could be living in a municipality of an area of the state without a
judge who can appoint someone to do the job for him. If that system
was workable out of Bethel, it ought to work out of Fairbanks.
MR. GUANELI said this program was set up based on guidelines used
in other states. It was designed particularly for the Bethel region
to be flexible because of the remoteness. No one knows how well the
program would work.
CHAIRMAN TAYLOR asked if this would help Judge Wanamaker's program.
MR. GUANELI said there was language stating that it's not intended
to bind the district court.
CHAIRMAN TAYLOR said that district courts deal with more mandatory
minimum sentences than anybody else and as a consequence Judge
Wanamaker has been making his program work within the minimum
mandatory sentencing. So he didn't have to offer them an extra day
or two less in jail to get them to come into his program. "I think
I know how he did it. He just hung more time over their heads…"
MR. TOM WRIGHT, staff to Speaker Porter, pointed out that language
on page 2 says, "Nothing in this act is intended to place
additional requirements on or make changes to other existing
specialized or general state courts."
He said the Judge Wanamaker's court was working under a federal
grant that runs out in a short time and they are looking for an
appropriation through the capital budget process so they can
continue. "This is a pilot project and nothing more. There may be
some things that aren't going to work like the part he just
mentioned about the rural areas. The Senate just passed a bill
granting VPSO to probation officer status and this could tie in
with that."
MR. GUANELI commented that although the Judge had some anecdotal
successes, this is designed to get at felony drunk drivers and he
is generally not handling cases at that level. "These are the
problem cases. These are the ones who are going to continue to
drink and drive if something isn't done."
CHAIRMAN TAYLOR said he appreciated Representative Porter bringing
this legislation forward. It is the most creative thing he had seen
in a long time. However, every agency wants to be paid more to go
do the job we think they ought to be doing in the first place,
which is concentrated more on alcohol related addiction.
MR. WRIGHT agreed.
CHAIRMAN TAYLOR asked if this program could operate without the
requested funds.
MR. WRIGHT responded that he would have to ask the courts.
CHAIRMAN TAYLOR asked if Judge Froelich was receiving any funding
in Juneau?
MR. GUANELI and MR. WRIGHT said they didn't think so.
CHAIRMAN TAYLOR said the words, "does not affect the jurisdiction
of other similar courts" intrigued him. He asked if there were any
other specialized courts.
MR. GUANELI replied that the state has a mental health court and a
drug court that has been funded with federal funds that's operating
in Anchorage.
SENATOR DONLEY said there doesn't appear to be any sunset on the
number of Superior Court judges if this program goes away.
MR. WRIGHT replied that it was his impression that if this program
didn't work, they would revisit that issue, but they wouldn't have
a problem with a sunset clause.
SENATOR DONLEY said he was thinking about language that would
require a specific consultation with victims since theirs was a
special circumstance of waiving mandatory sentencing.
MR. WRIGHT said he would discuss that with the sponsor.
CHAIRMAN TAYLOR noted that the sponsor has been a great advocate
for victims' rights.
CHAIRMAN TAYLOR said they would take this up again on Monday and
adjourned the meeting at 4:47 p.m.
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