Legislature(2019 - 2020)BUTROVICH 205
02/07/2019 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB34|| SB33 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 33 | TELECONFERENCED | |
| *+ | SB 34 | TELECONFERENCED | |
SB 34-PROBATION; PAROLE; SENTENCES; CREDITS
SB 33-ARREST;RELEASE;SENTENCING;PROBATION
3:35:24 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 34;
"An Act relating to probation; relating to a program allowing
probationers to earn credits for complying with the conditions
of probation; relating to early termination of probation;
relating to parole; relating to a program allowing parolees to
earn credits for complying with the conditions of parole;
relating to early termination of parole; relating to eligibility
for discretionary parole; relating to good time; and providing
for an effective date." and
SENATE BILL NO. 33; "An Act relating to pretrial release;
relating to sentencing; relating to treatment program credit
toward service of a sentence of imprisonment; relating to
electronic monitoring; amending Rules 38.2 and 45(d), Alaska
Rules of Criminal Procedure; and providing for an effective
date."
He stated that both bills were introduced by Senate Rules at the
request of the Governor. He advised that he asked the
commissioners of the Department of Public Safety (DPS) and the
Department of Corrections (DOC) and the attorney general to
provide opening remarks from a policy perspective. The director
of the Criminal Division of the Department of Law would follow
with a sectional analysis for each bill. He asked the committee
members to keep their initial questions at the 30-thousand foot
level for the broad policy perspectives and wait to direct the
detailed questions to Mr. Skidmore.
3:36:56 PM
AMANDA PRICE, Commissioner Designee, Department of Public
Safety, said she was thrilled to be before the committee to
support Governor Dunleavy's commitment to make communities
safer. SB 33 and SB 34 do that by returning tools to law
enforcement to move more quickly to make arrests and hold
offenders accountable.
3:37:43 PM
NANCY DAHLSTROM, Commissioner Designee, Department of
Corrections, introduced herself and advised that the director of
the parole board and director of probation and parole were with
her and available for questions.
3:38:10 PM
CHAIR SHOWER recognized that Representative Andy Josephson was
in the audience and that Senator Micciche had joined the
committee.
3:38:24 PM
KEVIN CLARKSON, Attorney General Designee, Department of Law,
thanked the committee for the invitation to talk about SB 33 and
SB 34. He described them as numbers two and three in a suite of
four bills designed to return needed tools to judges,
prosecutors, and law enforcement to respond to the rising crime
trends in the state.
He stated Senate Bill 91 sought to improve the criminal justice
system by changing the bail laws, which became effective in
2018. The idea was to release more people pretrial while also
maintaining community safety. Unfortunately, that became known
as the "catch and release" system, he said. It took too much
discretion from judges and limited their ability to evaluate
each case on the facts and each offender based on their criminal
history and ties to the community.
SB 33 corrects that by restoring judicial discretion when
considering pretrial release. Under SB 33, the panoply of
options available to judges include: release on own recognizance
(OR), unsecured bail, secured bail, release with electronic
monitoring by a private company, and release under the
supervision of a third-party custodian. The Department of
Corrections will maintain its ability and authority to monitor
pretrial release through its probation and parole officers.
ATTORNEY GENERAL DESIGNEE CLARKSON said SB 33 also seeks
efficiencies and justice. For example, it will encourage greater
use of video teleconferencing in almost all pretrial hearings.
This will greatly reduce the need to transport defendants, DOC
personnel, and prosecutors to court locations thus resulting in
significant cost savings. This is safer for officers and will
reduce the opportunity for contraband to be introduced into
correctional facilities. The bill also prohibits an offender
from receiving credit for pretrial release when he or she is on
electronic monitoring. This will avoid the problem of a
defendant prolonging pretrial release proceedings to reduce the
time or entirely avoid serving their ultimate sentence in jail
upon conviction.
He said defendants should always be encouraged to seek
treatment, but not to the extent that pretrial delay impacts the
victim's ability to get closure and the prosecutor's ability to
pursue the case. He opined that, "Pretrial delay is always a
friend of the defendant and it's never a friend of the victim or
prosecutors."
ATTORNEY GENERAL DESIGNEE CLARKSON encouraged the committee to
examine the bill closely and give serious thought to how it will
help the criminal justice system help Alaskans.
3:43:20 PM
SENATOR MICCICHE asked him to address the exacerbation of
release on own recognizance (OR) under the new bail schedule,
and whether SB 33 would send a message to the courts to return
the bail schedule to the direction of the legislature.
ATTORNEY GENERAL DESIGNEE CLARKSON said he believes judges will
have greater flexibility when deciding which pretrial release
conditions to adopt but they will look at the same factors. He
deferred further comment to Mr. Skidmore.
CHAIR SHOWER said he would reserve time for closing remarks at
the end of the hearing.
3:45:04 PM
ATTORNEY GENERAL DESIGNEE CLARKSON began his comments on SB 34
stating that it is designed to strengthen the tools used to
address probation infractions. It eliminates the caps on the
sanctions for those probationers who commit technical violations
or abscond. The bill returns discretion to judges to consider
the original crime(s) and technical violations of their terms of
release
SB 34 also changes the earned compliance credit from day-for-day
credit to a credit system wherein the offender receives one day
credit for every three days without a violation. Further, an
offender who commits a violation loses all of the credits they
earned up to the time of the violation. He opined that the
longer an individual goes without a violation, the greater
incentive they have to continue their good behavior.
With reguard to parole eligibility, the bill reimposes the
previous restrictions as to what crimes are eligible for
discretionary parole. SB 34 also eliminates a presumption of
release that has to be overcome by clear and convincing evidence
and returns discretion to the parole board. This will help
ensure that individuals who are released on parole are a good
risk and return safety to communities. Finally, the bill
eliminates good time credit for convicted offenders who are on
electronic monitoring.
He noted that Mr. Skidmore would walk through the sectional
analysis.
3:47:40 PM
CHAIR SHOWER asked Mr. Skidmore to start with the sectional
analysis of SB 34, but to feel free to begin with a 30-thousand
foot view of switching back from Senate Bill 91.
JOHN SKIDMORE, Director, Criminal Division, Department of Law,
said he would start his comments by reminding members that when
he testifies, he tries to provide insight on the law and how a
bill will impact the criminal justice system. It is not his role
to express his personal opinions about any particular bill. His
testimony is always on behalf of the administration.
He related that most of his comments during the hearings on
Senate Bill 91 were that the bill represented recommendations
that the former administration wanted to implement. He recalled
that throughout his testimony, he consistently counseled that it
would take time to understand how provisions in the bill would
play out. He said, "Whenever you make changes to a system, you
always need to evaluate it for whether or not you achieve the
desired result, whether or not there are unintended
consequences, and then you have to decide whether or not any
changes have to be made." He said that principle is consistent
with what he would describe today. He opined that, "These are
changes that I think folks are going to say are appropriate to
be making because of some of the concerns or the problems that
they have created."
3:50:19 PM
SENATOR COGHILL said he has always found Mr. Skidmore to be
honest as well as clear on the law and how it plays out.
However, because Mr. Skidmore does not bring the view of the
court or public defender to the discussion, he said he may ask
for those perspectives at some point.
CHAIR SHOWER clarified that there is no intention to rush these
bills, but to provide a thorough vetting and "get it right going
backwards."
3:53:17 PM
MR. SKIDMORE delivered the following sectional analysis for SB
34:
Section 1: Eliminates language related to caps on
technical violations of probation under AS 12.55.110.
Section 2: Eliminates language related to caps on
technical violations of probation under AS 12.55.110.
SENATOR COGHILL requested information, at some point, on how the
caps worked and the issues that came up on the timeline.
CHAIR SHOWER noted that the bill frequently uses the terms
"shall" and "may" and he would like some discussion, when "may"
is used, about what that means to the judge and if the
discretion is bounded sufficiently to ensure it does the right
thing.
MR. SKIDMORE continued:
Section 3: Makes the recommendation of a probation
officer for early termination of probation permissive
and at the discretion of the probation officer. Also
eliminates the timeline for when such a recommendation
must be made. Maintains requirement that the
probationer is in compliance with their conditions of
probation and has completed all of the required
treatment programs. Also maintains the prohibition on
unclassified felony, sexual felony, and domestic
violence offenders from being recommended for early
termination.
He explained that probation officers have the ability to
recommend to the court that a defendant does not need to remain
on probation. Senate Bill 91 encouraged this to occur by
requiring probation officers to make a recommendation. They did
not have a choice. Section 3 returns discretion to the probation
officer; it does not force a recommendation to occur.
SENATOR COGHILL pointed out that Section 3 does away with the
things the probation officer had to consider when making the
required recommendation. He asked Mr. Skidmore to review those
requirements.
MR. SKIDMORE read the deleted text starting on page 2, line 31,
through page 3, line 7, of the bill and agreed with the concept
Senator Coghill described. The condition upon which the
recommendation was required was twofold: first, either two years
or 18 months had elapsed; second, the defendant had not had any
violations during that time.
SENATOR COGHILL recalled the finding was that with that kind of
incentive, probationers were shown to be safer. He said he would
try to produce the data upon which that recommendation was
based.
3:58:25 PM
SENATOR KAWASAKI asked how many people had qualified for
probation termination under the two year or 18 month provision.
MR. SKIDMORE suggested he direct the question to the Department
of Corrections; he did not have that data. He noted that that
part of Senate Bill 91 was implemented in January 2017.
CHAIR SHOWER noted the experts online who might be able to
answer the question.
SENATOR KAWASAKI said he was willing to wait for the
information.
3:59:27 PM
MR. SKIDMORE continued.
Section 4: Reduces amount of time that a probationer
may decrease their length of probation for good
behavior to one day for every three days without a
violation.
He explained that under the current law, earned compliance
credits allow a probationer who goes 30 days without a violation
to reduce their probation by an equal 30 days. Section 4 changes
the calculation so that for every 3 days without a violation,
one day is removed from the period of probation.
SENATOR COGHILL said he'll be interested in seeing where that
has failed.
CHAIR SHOWER said he would like to see data that shows a trend
one way or the other.
SENATOR MICCICHE observed that the bill recognizes some value in
the earned compliance credit because it does not return to pre-
Senate Bill 91 when it did not exist.
MR. SKIDMORE said that's correct; it is not a complete repeal.
It adopts the concept that human behavior can be influenced
through both the stick and carrot method. Section 4 provides the
carrot, but it is a slightly smaller carrot than in current law.
SENATOR MICCICHE observed that sex offenders are not eligible
for earned compliance credit and a probationer who violates
their conditions of probation loses any credits they earned
prior to the violation.
MR. SKIDMORE responded that that is what Section 5 does.
CHAIR SHOWER advised that the committee wants to know what the
data shows so they are better able to make effective changes to
the criminal justice system.
4:03:43 PM
SENATOR REINBOLD pointed out that the bill still allows
individuals to get 33-percent credit while they are out on
probation.
MR. SKIDMORE confirmed that was correct.
SENATOR REINBOLD opined that Alaska ought to benchmark to other
states and questioned whether this is more lenient. She offered
her understanding that there were nine ways for individuals to
get out of jail after Senate Bill 91 passed.
MR. SKIDMORE said he knows that some, but not all, states are
using earned compliance credits and that the 3:1 ratio was just
adopted at the federal level in the First Step Act.
SENATOR REINBOLD clarified she was talking about states with
lower crime rates. She noted that some statistics show Alaska is
the most dangerous state in the nation. Because the Governor
wants to make Alaska the safest state in one year, she wants to
look at all the ways people can get out of jail more easily and
off probation more quickly. She also posed the question, "or is
supervision a good thing for these people?"
SENATOR MICCICHE said that when there is not a full repeal, he'd
like to see the data and the logic that supports that.
CHAIR SHOWER added that the bill will change, but it's
appropriate for the committee to look at the metrics that show
what is and is not working.
4:07:21 PM
SENATOR COGHILL said the intention in Senate Bill 91 was to
incentivize people to get treatment during probation and parole.
What Sections 4 and 5 will do is remove the ability for some
people, certain sex offenders in particular, to be in a program.
He said he'd like to see data that shows that that aspect of
Senate Bill 91 was not successful.
MR. SKIDMORE pointed out that the language that allows certain
sex offenders to earn credits for complying with the conditions
of probation was removed from Section 4 because Section 5
prohibits earned compliance credit for sex offenders.
Section 5: Prohibits a sex offender from earning
credit against their period of probation. Also
mandates that a probationer lose all of the credits
they have accrued if they are found in violation of
probation, requiring the accrual to start over.
He explained that sex offenders on probation are monitored
through what is call the containment model that imposes a series
of conditions. He said it has been extremely successful and
should not be shortened for sex offenders. Because probation is
what allows them to succeed so well, the intention is to
completely exempt sex offenders from reductions of probation. He
said DOC can discuss the details about why it is so successful,
but as a prosecutor for 20 years he can attest to its success.
Section 5 also establishes that an individual who is found to be
in violation of probation will lose all credits accrued to that
point. The idea is to encourage people to continue good behavior
because, "the longer they go, the bigger that carrot is for them
and they don't want to risk losing it." Addressing Senator
Reinbold's question about how the bill compares to other states,
he said this concept is not found in the federal First Step Act.
He did not know if other states use it.
SENATOR COGHILL noted that this information was not discussed
several years ago.
MR. SKIDMORE agreed.
4:11:56 PM
SENATOR REINBOLD opined that the committee needs a compare and
contrast document for the Governor's bills like Legislative
Legal Services prepares for the bills it drafts. She added that
at a high level she was supportive of all the Governor's crime
bills, but she needed to see where they differ from Senate Bill
91.
MR. SKIDMORE directed attention to the bill matrix in the
packets. It shows the progression of the law prior to Senate
Bill 91, how it was changed by Senate Bill 91, how it was
changed by Senate Bill 54 or House Bill 312, and what SB 32, SB
33, and SB 34 do. He acknowledged that the matrix does not
provide information about the specific sections of Senate Bill
91 that are not touched by these three bills. He offered to
follow up with a synopsis.
SENATOR REINBOLD said she was accustomed to seeing a document
that has red and blue text that indicates the new and old
language respectively. She asked if he could provide that.
MR. SKIDMORE said he has not seen that type of document.
4:14:39 PM
SENATOR COGHILL advised that once the administration's bills are
amended, Legislative Legal Services can provide that format.
SENATOR REINBOLD reiterated her preference to immediately have a
red and blue text side-by-side comparison.
MR. SKIDMORE moved to Section 6.
Section 6: Amends duties of a probation officer to
require that a probation officer consider recommending
early termination of probation. Also eliminates the
requirement to use administrative sanctions before
filing a petition to revoke.
He directed attention to the deleted language on page 4, lines
23-30, and page 5, lines 2-8. Both subsections referred to
administrative sanctions. He clarified that DOC still has the
ability to use administrative sanctions, but at the policy
level. Thus it does not need to be in the statutes.
MR. SKIDMORE pointed out that the language on page 5, paragraph
(7), regarding termination of probation says the probation
officer "shall consider recommending termination" of probation
as opposed to "shall recommend termination." This returns
discretion to the probation officer.
4:17:32 PM
SENATOR KAWASAKI asked him to reiterate the reason for removing
administrative sanctions and incentives.
MR. SKIDMORE explained that one of the concepts in Senate Bill
91 was to reduce the number of petitions filed in court for
probation violations. The bill codified the requirement for DOC
to develop a program of administrative sanctions or incentives
to try and get compliance. He reiterated that the department is
able to have policies that do or do not use administrative
sanctions or incentives. Having administrative sanctions in
statute caused problems because it required regulations to be
adopted and that has not happened.
SENATOR KAWASAKI summarized that regulations have not been
adopted and were not adopted prior to Senate Bill 91.
MR. SKIDMORE confirmed that there were no regulations
previously, there are none now, and there would not be any in
the future. Now there is a written policy and DOC has the
discretion to continue that policy or not.
SENATOR COGHILL commented that the policy in statute indicated a
preference for adopting regulations; now that DOC has the
discretion, it appears that they may not adopt regulations.
MR. SKIDMORE suggested that was a question for DOC; he was
giving the legal analysis of what these changes allow.
Discretion is returned to the department to manage their
resources.
Section 7: Requires an application for discretionary
parole to be submitted to the parole board before a
person can be considered for discretionary parole.
He explained that under current law, an inmate is not required
to apply, but the parole board is required to consider them for
parole automatically once they have served a sufficient amount
of time. The proposed change requires the inmate to apply for
parole; consideration for parole does not happen automatically.
SENATOR COGHILL recalled that some of the discussion was about
addressing the number of petitions that were filed but were
never considered by the board.
MR. SKIDMORE recalled the discussion was that a number of
inmates simply do not apply for discretionary parole and the
intent was to ensure that every inmate who was eligible would be
considered. He suggested asking the parole board for the data,
but he understands that a number of inmates still do not show up
for their hearing. It is a waste of resources for the board to
schedule hearings for those inmates who are not interested in
parole, he said.
SENATOR COGHILL said he disagrees with the practical outplay but
would stay open to the discussion.
4:24:48 PM
CHAIR SHOWER asked what mechanism is available for inmates who
have a learning disability and may not know they have the option
of applying.
MR. SKIDMORE suggested he asked the parole board.
4:25:36 PM
SENATOR REINBOLD voiced support for Section 7.
SENATOR MICCICHE asked which section addresses the timing of
parole hearings.
MR. SKIDMORE said a provision in Senate Bill 54 encouraged
parole hearings to occur more frequently than they had in the
past. Nothing in SB 34 talks about that concept, but timing is
addressed in an upcoming section.
SENATOR MICCICHE said he could wait.
MR. SKIDMORE turned to Section 8.
Section 8: Returns discretionary parole eligibility to
where it was prior to January 1, 2017. Makes the
following crimes ineligible:
• Non-sex class A felonies (Robbery 1, Assault 1, Arson
1);
• B felonies if the person had one or more prior felony
convictions;
• C felonies if the person had two or more prior felony
convictions; and
• B and C sex felonies (Sexual Assault 2, Sexual Abuse
of a Minor 2, Distribution of Child Pornography).
CHAIR SHOWER asked for a layman's explanation as opposed to a
legal definition of crimes such as robbery in the first and
second degrees.
MR. SKIDMORE explained that robbery in the first degree is the
taking of property from another person using significant force.
Assault in the first degree is the most serious level of assault
and generally involves serious physical injury. Arson in the
first degree is intentionally setting a fire that causes harm to
another person as well as damage to the property. The concept of
class A and B felonies captures the repeat offender. Class B and
C sex felonies are generally talking about sexual contact. Some
levels of penetration involving incapacitated individuals are
the second level of seriousness of sexual assault. Sexual
assault is generally committed against a non-consenting adult.
Sexual abuse of a minor is about engaging in a sex act with a
person who is under the appropriate age for that conduct to
occur.
CHAIR SHOWER said some of the discussion will be about putting
repeat offenders and violent offenders behind bars while
ensuring that non-violent offenders are not put in the prison
system when they don't need to be there.
MR. SKIDMORE clarified that robbery in the first degree requires
that a person is armed with a deadly weapon and they represent
by words or conduct that they have the weapon is on their
person. Assault in the first degree is causing someone serious
physical injury.
SENATOR REINBOLD asked him to define discretionary parole pre-
Senate Bill 91 and what that bill allowed.
MR. SKIDMORE explained that prior to Senate Bill 91, the crimes
set out in Section 8 were not eligible for discretionary parole.
SB 34 reinstates the pre-Senate Bill 91 law so those crimes
would not be eligible for discretionary parole.
SENATOR REINBOLD summarized her understanding that Senate Bill
91 expanded the law to allow: non-sex class A felonies (Robbery
1, Assault 1, Arson 1); B felonies if the person had one or more
prior felony convictions; C felonies if the person had two or
more prior felony convictions; and B and C sex felonies (Sexual
Assault 2, Sexual Abuse of a Minor 2, Distribution of Child
Pornography) to be eligible for discretionary parole.
MR. SKIDMORE said yes.
4:35:35 PM
SENATOR MICCICHE suggested that people would find it helpful if
he explained where there has been a full repeal of Senate Bill
91. For example, Section 8 fully repeals the Senate Bill 91
expanded eligibility for discretionary parole.
MR. SKIDMORE said that's correct.
SENATOR COGHILL stated his intention to ask the parole board how
many offenders in those crime categories have applied for
discretionary parole and how many were problematic.
MR. SKIDMORE continued.
Section 9: Eliminates a presumption of release and
thereby returns discretion back to the parole board
when determining release on discretionary parole.
He explained that Senate Bill 91 created a presumption of
release because it used the term "shall" when it talked about
releasing a person unless there is clear and convincing evidence
that the person should not be released based on four criteria
that were already in the law. Section 9 is a full repeal of that
provision in Senate Bill 91. It says that instead of creating a
presumption that someone shall be released, the decision is
returned to the discretion of the parole board.
CHAIR SHOWER requested any data that was available related to
Section 9.
4:38:25 PM
MR. SKIDMORE continued.
Section 10: Allows the parole board to make a person,
who does not meet the factors in section 9, ineligible
for further consideration of discretionary parole or
to have the person serve additional time before they
can be considered again for discretionary parole.
He explained that Senate Bill 91 tried to streamline the parole
application and hearing process thereby eliminating the parole
board's ability to make case-by-case determinations on whether
or not an offender is a good candidate for parole. Section 10
would be a complete repeal of that aspect of Senate Bill 91.
4:40:10 PM
SENATOR COGHILL asked if Section 10 uses pre-Senate Bill 91
language.
MR. SKIDMORE answered in the affirmative. The language in
Section 10, [AS 33.16.100(h)], is identical to the language in
AS 33.16.100(e) that was repealed when Senate Bill 91 was
enacted.
4:40:50 PM
SENATOR MICCICHE asked him to clarify that not every case
qualifies for discretion on parole eligibility.
MR. SKIDMORE said the limitations he discussed in Section 8
about who is eligible for parole still exist. For Section 10 he
described a person who is eligible and does apply for
discretionary parole. In those cases, the parole board has the
ability to say an individual is or is not a good candidate for
parole now or in the future.
SENATOR COGHILL asked if the tool is added back because Section
9 eliminates the presumption.
MR. SKIDMORE replied Section 9 removes the language about the
board using the clear and convincing evidence standard when it
analyzes four factors to consider whether or not somebody is a
good candidate for release. Those factors existed prior to
Senate Bill 91 and those factors have not changed. What has
changed is the presumption to be applied. Prior to Senate Bill
91, the board would consider those factors and decide whether or
not the individual was a good candidate for parole. After Senate
Bill 91, the board was required to release the individual unless
they found by clear and convincing evidence that one of those
factors indicated that the person should not be paroled. Also,
the presumption was not a presumption of release. It was that
the parole board would decide whether it thought the person was
a good candidate or not.
4:44:30 PM
MR. SKIDMORE continued the sectional.
Section 11: Conforming language regarding the
requirement that a person fill out an application for
discretionary parole.
Section 12: Eliminates time restriction on when a
person may be discharged from parole, returning
discretion back to the parole board.
He explained that Section 12 eliminates the mandatory
recommendation that a person be released from parole after one
year in which they had no problems. It returns that discretion
to the parole board to determine whether or not the person
remains on parole.
SENATOR KAWASAKI asked if deleting the language changes the
meaning such that the parole board could release somebody before
one year has passed.
MR. SKIDMORE replied the parole board has always had the ability
to discharge somebody from parole before one year. Senate Bill
91 said that at that one-year mark the board is required to make
the recommendation unless the individual has committed a
violation. This gives the probation officer and the board
greater discretion.
SENATOR KAWASAKI said he would look at the statutes.
MR. SKIDMORE continued.
Section 13: Gives a parole officer the discretion to
make a recommendation to the parole board that a
person's parole be terminated. Maintains requirement
that the probationer is in compliance with their
conditions of probation and has completed all of the
required treatment programs. Also maintains the
prohibition on unclassified felony, sexual felony, and
domestic violence offenders from being recommended for
early termination.
He noted that this section eliminates the term "shall" and
instead says the parole officer "may" recommend early discharge
for a parolee who has met the treatment condition of parole. The
requirement to complete one year on parole is eliminated.
Section 14: Eliminates language referencing technical
violations of parole under AS 33.16.215.
He said this is a conforming amendment for parole; he would talk
further about technical violations when he discusses the
repealers.
Section 15: Eliminates language related to tolling [of
parole] when a person absconds [on the loose and not
reporting] from parole (conforming to repeal of AS
33.16.215 regarding technical violations of parole and
sanctions for absconding) and prohibiting the parole
board from extending the person's parole beyond the
maximum release date.
He reviewed the concepts of absconding and tolling and explained
that the purpose of setting conditions of probation and parole
and monitoring the person during that period, is to help them
transition from the institution to a productive member of
society.
4:50:02 PM
SENATOR MICCICHE asked if the parole board has the ability to
penalize someone who absconds.
MR. SKIDMORE replied the parole board has broad discretion when
it determines what sanctions to impose. He noted that Section 15
returns full discretion to the board.
SENATOR COGHILL recalled that the former commissioner
recommended that provision for situations such as difficulty
getting to court. He said he'd look at this section a little
more.
MR. SKIDMORE clarified that he was not commenting on why it was
implemented. He was discussing what the section means
operationally.
Section 16: Reduces amount of time that a parolee may
decrease their length of parole for good behavior to
one day for every three days without a violation.
He said the concept of earned compliance credit that was
discussed earlier for probation also applies to parole. Instead
of 30 days credit for 30 days without a violation, Section 16
provides one day credit for every three days without a
violation.
Section 17: Prohibits a sex offender from earning
credit against their period of parole. Also mandates
that a parolee lose all of the credits they have
accrued if they are found in violation of parole,
requiring the accrual to start over. Page 11 of the
bill.
He said this is the same concept that was discussed for
probation, only this applies to parole. He emphasized that the
period of parole is not reduced for sex offenders. He reiterated
that those offenders should be on parole for as long as possible
because the data indicates that is very successful. He noted
that this section also provides that a parolee loses all credits
they have accrued if they have a violation.
Section 18: Prohibits a person from earning good time
for time spent on electronic monitoring post-sentence.
He said the rationale for this provision is that the person on
electronic monitoring has far greater freedom than a person in
jail. They have already been awarded the significant benefit of
not being in the institution.
SENATOR COGHILL said part of the idea was to incentivize
treatment, but it has not proven to be as beneficial as
anticipated. Nonetheless, he said he would still like to look
for incentives for treatment.
SENATOR MICCICHE requested help locating AS 33.20.010(a).
MR. SKIDMORE read the existing subsection (a) of AS 33.20.010.
and explained that Section 18 prohibits the good time earned
while on electronic monitoring that is in current statute.
SENATOR COGHILL recalled that part of the discussion was about
finding a way to keep people from staying in jail and adding to
their criminogenic behavior. He acknowledged that Senate Bill 91
went too far, but said he was still interested in finding a way
to incentivize treatment.
SENATOR KAWASAKI asked for confirmation that Section 18
completely repeals those provisions of Senate Bill 91.
MR. SKIDMORE confirmed it is a full repeal.
SENATOR KAWASAKI asked if halfway houses and other inpatient
treatments qualify as a treatment program in this case.
MR. SKIDMORE said he did not know.
CHAIR SHOWER asked him to follow up with the answer.
5:02:25 PM
SENATOR REINBOLD, responding to Senator Coghill, related that
prosecutors have told her that they no longer have anything to
hold over offenders' heads [in terms of jail time] so there is
no incentive to get treatment. She expressed hope that that
would enter into the discussion at a future time.
SENATOR COGHILL said he understands that, but these are
probationers which is different.
MR. SKIDMORE continued.
Section 19: Eliminates the requirement that the
Department of Corrections submit a report to the
Alaska Criminal Justice Commission regarding the
sanctions imposed under the administrative sanctions
program which is repealed in this bill.
He explained that this is a conforming amendment. SB 34
eliminates administrative sanctions from the statutes and this
section eliminates the requirement to report on them to the
commission.
Section 20: Repealer section.
He said he would only highlight certain repealers such as
technical violations. He described examples of the conditions
that probationers and parolees are required to follow, noting
that technical violations of these conditions are not defined as
a new criminal offense. He related that during the discussion of
Senate Bill 91, there was talk about replicating the concept of
the PACE program, which is swift and certain sanctions for
those who violate conditions of probation and parole. The idea
is that the petition to revoke, the admission or denial of
guilt, and adjudication would occur quickly, and the sanction
would be certain. That is the goal and that program has been
found to be very effective. However, in Alaska the component
about swiftness is missing. He said he does not know if the
petitions to revoke are filed quickly, but he does know that
they are not decided quickly.
What happened is that provisions throughout the law say that for
a first violation a person will be placed in jail for a maximum
of three days. After that time, they will be released because
they have already served the maximum time. He posited that the
cap may have been built into the law anticipating the process
wouldn't happen as quickly as desired. I'm here to tell you
it's not happening in a week. It's not happening in two weeks,
he emphasized. The process is not swift, and that delay does not
result in a sanction close in time to when the violation
occurred, which diminishes its effectiveness, he said. The
process is neither swift nor certain. This is the first problem.
The second problem prosecutors encountered is the court
interpretation of the allegations that are filed in a case. He
explained that in a criminal case, each conduct of criminal
behavior is a separate allegation or charge. For example,
failure to report, consuming alcohol, losing a job, changing
residence, and contact with other known felons could all be
filed in a single petition even though they are five separate
charges. In other cases, a single allegation or charge is filed
in a petition. The problem is that criminal justice reform
eliminated the ability for the parole board or the judge to take
into consideration not only the number of allegations but also
the underlying offense. They are all treated the same.
To exacerbate this problem, all petitions filed after a persons
first violation are considered the first petition amended, not a
second and subsequent petition. The courts interpreted that to
mean all the amendments to the petition still have a cap of just
three days. We have cases in which people have had their
petitions amended multiple times and still only had [jail time
of] three days for that first violation, he emphasized. He
further stressed that not considering the number of allegations
and how they interact with the underlying offense has created
huge problems. Clearly, the caps for technical violations did
not work out as hoped. He reminded the committee that he talked
about this concern when Senate Bill 91 was considered but the
law nevertheless ended up this way and it has been a problem
from the beginning.
MR. SKIDMORE said the department litigated in an effort to get
the courts to change their interpretation, but to no avail. He
highlighted that no other state in the country addresses its
probation and parole system in this way, and it is not working
in Alaska. Thus, the caps are repealed.
He offered to discuss the repealers in other statutes if any
member had a question.
Section 21: Applicability.
Section 22: Effective date. This bill takes effect on
July 1, 2019.
5:13:41 PM
CHAIR SHOWER remarked that he asked for forceful testimony and
the foregoing fulfills that request.
SENATOR MICCICHE noted that the applicability dates apply to
sentences imposed on or after the effective dates of those
sections for conduct also occurring on or after the effective
date of those sections. He asked if there has ever been a case
where the sentences imposed on or after an effective date can
apply to conduct that occurred before the effective date.
MR. SKIDMORE clarified that this is not about the conduct of the
underlying crime but of the conduct for the petition of the
probation or parole violation That being said, the answered is
no; the offender has to be advised of the potential sanctions
prior to committing the conduct otherwise it is a violation of
due process.
SENATOR KAWASAKI referenced the caps in Section 19 and said he
agrees that people are stacking offenses. He asked how much of
that is based on the fact that the alleged violations are
generally not adjudicated swiftly, in the three-day window.
MR. SKIDMORE said he did not have data as to the number of
people who ended up with repeat violations, but it was common.
Complaints about this provision came in from all 12 prosecutor
offices. He agreed that swiftness plays a role but there are
other factors in play and it's difficult to separate them. He
opined that there will also be problems providing data as
changes are considered because a host of things were changed
simultaneously. This makes it difficult to impossible to isolate
all the factors to evaluate them individually.
5:19:00 PM
SENATOR REINBOLD commented that she likes the bills more all the
time, but they don't go far enough. She thanked Mr. Skidmore for
the presentation and the media for doing an excellent job of
letting the folks at home stay abreast on this important topic.
SENATOR MICCICHE said he is carefully evaluating the bills and
supports the repeal and replacement of Senate Bill 91 to more
responsive statutes. However, he will be very careful not say a
bill does not go far enough this early in the process.
5:20:46 PM
SENATOR KAWASAKI highlighted that this is not a repeal and
replace of the entire Senate Bill 91. He cited compliance
credits as an example where some value has been shown and the
provision is not being fully repealed. He asked if there were
other aspects of Senate Bill 91 that are good practical measures
but are not in SB 34.
MR. SKIDMORE said yes, a number of crimes were eliminated from
the criminal code while the penalties were reduced for things
like promoting an exhibition of fighting animals, obstructing
highways, and dealing with gambling. A subsection of arson was
added into the penalties, provisions for murder were increased,
and the increased victims' rights which Senate Bill 91 provided
are not changed. A suspended entry of judgement was created,
which was to work in conjunction with the suspended entry of
sentence. The suspended entry of judgement is retained and will
be a valuable tool going forward in terms of how to address
individuals addicted to drugs.
He summarized that there are a number of provisions in Senate
Bill 91 that are not changed at all, but throughout the three
bills there are things like earned compliance credits that are
not completely repealed. They are modified but the concept
remains. He estimated that the bills touch on 90-95 percent of
the concepts in Senate Bill 91, but some are completely
retained. "There are certainly very good things that were done
in Senate Bill 91 that are still here. But there are a lot of
things that we went too far and we're trying to adjust them
here. And that's what these suite of bills does in [SB 32, SB
33, and SB 34]."
CHAIR SHOWER requested a list of those things that are not
proposed to be fully repealed. He opined that the committee
would like the opportunity to review that data because the
public expects a repeal effort. People on both sides of the
political spectrum are upset and it is important to get it right
this time. "We better be able to show them what we've done to
make it right," he said. In the rush to get these bad actors off
the streets and behind bars it's important to remember the
presumption of innocence and that the constitution matters. This
committee, in particular, should be looking to see that in this
rush to judgement, all citizens are protected. "But don't get me
wrong, if somebody's a bad actor and they need to be behind
bars, we should put them there for the safety of our citizens,"
he concluded.
CHAIR SHOWER held SB 33 and SB 34 in committee for further
consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SSTA Agenda Week of 2.04.19.pdf |
SSTA 2/7/2019 3:30:00 PM |
Agenda |
| SB0033A.PDF |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33 Transmittal Letter.pdf |
SFIN 4/30/2019 1:30:00 PM SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33 - Pretrial Sectional.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB0034A.PDF |
SJUD 3/8/2019 1:30:00 PM SSTA 2/7/2019 3:30:00 PM |
SB 34 |
| SB 34 Transmittal Letter.pdf |
SFIN 4/30/2019 1:30:00 PM SJUD 3/8/2019 1:30:00 PM SSTA 2/7/2019 3:30:00 PM |
SB 34 |
| SB 34 - Probation and Parole Sectional.pdf |
SFIN 4/30/2019 1:30:00 PM SJUD 3/8/2019 1:30:00 PM SSTA 2/7/2019 3:30:00 PM |
SB 34 |
| SB 33 - Pretrial Highilghts.pdf |
SFIN 4/30/2019 1:30:00 PM SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 34 Highlights.pdf |
SJUD 3/8/2019 1:30:00 PM SSTA 2/7/2019 3:30:00 PM SSTA 2/26/2019 3:30:00 PM |
SB 34 |
| SB 33-DOA - OPA-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33 - DOA-PD-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33 - DOC-PopMgmt - FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33 -Law-CrimDiv-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33-DPS-AST-PrisTrans-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB34-DOC-PopMgmt-IDO-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 34 |
| SB34-DOC-PopMgmt-PP-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 34 |
| SB34-Law-CrimDiv-FN.pdf |
SSTA 2/7/2019 3:30:00 PM |
SB 34 |
| SB0033-6-2-012319-COR-Y.PDF |
SSTA 2/7/2019 3:30:00 PM |
SB 33 |
| SB 33 & 34-GOA Bills Matrix 1-30-19.pdf |
SSTA 2/7/2019 3:30:00 PM |