Legislature(2019 - 2020)BUTROVICH 205
02/19/2019 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB33 | |
| SB34 | |
| 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 33-ARREST;RELEASE;SENTENCING;PROBATION
3:33:39 PM
CHAIR SHOWER announced the consideration of Senate Bill 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 asked Mr.
Skidmore to go through the sectional analysis for SB 33.
3:34:06 PM
JOHN SKIDMORE, Director, Criminal Division Department of Law,
Anchorage, provided the following overview of SB 33:
Section 1: Legislative intent. Expressing intent that
the Alaska Court System use videoconferencing for
pretrial hearings.
Section 2: Increases the amount of time available for
an arraignment to happen from 24 hours to 48 hours
from the time of arrest. Eliminates language related
to proceeding with an arraignment regardless of the
availability of a risk assessment conducted by a
pretrial services officer.
He advised that when the law changed in 2016, arraignments were
still held within 24 hours of arrest in 95 percent or more of
the cases. The expectation is that this will continue. The
benefit of 48 hours is that it allows more discretion in three
areas: 1) when arrests occur on weekends and holidays the
additional day provides relief for prosecutors who are not paid
to work on those days; 2) when a case is particularly complex it
may take more time to determine the appropriate charge; and 3)
when the volume of cases is high in any one day it may translate
to rushed analyses. He pointed out that when Alaska first
adopted the 48 hour rule in 2010, just two other states required
arraignments within 24 hours. The other states all had systems
that allowed more time.
3:38:21 PM
SENATOR KAWASAKI asked what happens when an individual is not
arraigned within the required time.
MR. SKIDMORE replied he has not encountered that, but a possible
consequence would be the case is dismissed, the defendant is
released, and the state would need to refile charges.
SENATOR MICCICHE noted that the language in the bill says,
"including Sundays and holidays" but it does not specifically
say "Saturday." He further noted that the language continues to
say that the requirement applies to municipal police officers
and the troopers. He questioned why that sentence remains in
Section 2 because there are only state courts.
MR. SKIDMORE explained that while Section 2 doesn't specifically
say weekends, it's clear that it is always 48 hours regardless
of what type of day it may have been. Regarding the second
question, he said the language makes it clear that this applies
in all cases whether the charge is by a municipality or the
state. He also agreed that there are no municipal courts, just
state courts.
CHAIR SHOWER asked if the specific listing of municipal police
officers and troopers blanket-covers any officer that might make
an arrest.
MR. SKIDMORE replied the rule is meant to be inclusive applying
to any and every peace officer who is making an arrest. While
there are officers beyond those two designations, he had not
considered whether an amendment was needed to be more specific.
CHAIR SHOWER commented that it seems to be a loophole.
MR. SKIDMORE continued.
Section 3: Eliminates language related to a risk
assessment conducted by a pretrial services officer.
He related that in some respects this is a conforming amendment,
but the language is also removed because the risk assessment
tool has fundamental flaws. If the policy decision is to
continue to use a risk assessment tool, it needs be refined
before it's used in state law.
Section 4: Eliminates language requiring a judicial
officer to review any condition of release that has
prevented the defendant from being released. Also
eliminates language requiring a judicial officer to
find by clear and convincing evidence that a less
restrictive condition cannot reasonably ensure the
defendant's appearance or the safety of the victim.
MR. SKIDMORE said removing the requirement that the court review
and change the conditions of release to allow a person to be
released appropriately returns the law to the pre-Senate Bill 91
language. Section 4 also appropriately eliminates the clear and
convincing evidence standard for the court to find that
additional restrictions are needed. This is a return to the
prior law that is based on a preponderance of the evidence in
what the courts believe to be appropriate.
MR. SKIDMORE continued.
Section 5: Eliminates inability to pay as a reason for
a judicial officer to conduct subsequent bail hearings
and a review of the person's conditions of release.
He explained that this provision indicates that the courts
should and can review a person's bail status if they have not
been released from custody after 48 hours, but the inability to
pay should not be considered new information because it was
considered initially.
Section 6: Conforming amendment. Eliminates reference
to AS 33.07.
Section 7: Largely reenacts the bail statute as it was
prior to January 1, 2018. Eliminates the requirement
that the release decision be tied to a person's risk
assessment score. Eliminates the presumptions of
release and the requirement that a judicial officer
find by clear and convincing evidence that no less
restrictive condition can ensure the appearance of the
defendant or safety of the community or victim before
a judicial officer can impose monetary bail.
MR. SKIDMORE explained that under current law, AS 12.30.011 ties
the risk assessment tool to the court's determination of what
bail would be appropriate. The implementation of that concept
was found to be flawed and Section 7 returns the law to pre-
Senate Bill 91 language almost verbatim. The exception is that
there is a rebuttable presumption that there is a substantial
risk that a person charged with certain types of crimes either
will not appear, or they pose a danger to the victim or others.
The language is different than the law pre-Senate Bill 91
because the Alaska Court of Appeals in Hamburg v. State of
Alaska found it was unconstitutional to say that reasonable bail
could not be set for certain persons.
Section 8: Eliminates the requirement that a pretrial
services officer not be available in the area before a
third-party custodian can be appointed.
He explained that current law says if the pretrial services
officers in the Pretrial Enforcement Division (PED) do not have
a PED officer available in a community, a court could consider a
third-party custodian. When a PED officer is available, third-
party custodians could not be considered. The premise of Section
8 is the reverse, and instead gives the court as many options as
possible in determining what conditions would be appropriate for
a person's release. He said the more options the court has, the
more likely it will find conditions other than monetary bail to
ensure the individual will appear for court hearings and present
the least risk to the community when they are released.
Section 9: Reenacts the prohibition on appointing
individuals who may be called as a witness in the case
from being appointed as third-party custodians.
He summarized that somebody with material information about a
case should not serve as a third-party custodian. This section
also ensures the third-party will be more objective and
reasonable than somebody who has a connection to the case.
3:52:14 PM
Section 10: Prohibits the court from granting jail
credit for time spent on electronic monitoring before
trial.
MR. SKIDMORE advised that this addresses the point that giving
somebody jail credit for being released pretrial on electronic
monitoring (EM) does not fit the Chaney criteria [State of
Alaska v. Donald Scott Chaney] for an appropriate sentence.
Section 11: Conforming amendment to the changes made
by section 10.
Section 12: Adds prosecuting authority to the list of
entities that can be notified if a person is
discharged from a treatment program for noncompliance.
He advised that prosecutors want notification so they can
request a bail hearing and the court can address the conditions
of release based on the person's discharge from a treatment
program for noncompliance.
Section 13: Limits the amount of jail credit that can
be granted for time spent in a treatment program to
180 days.
MR. SKIDMORE said Section 13, like Section 10, is designed to
create efficiencies and eliminate the incentive to extend
treatment as long as possible. He shared his experience that not
many treatment programs last longer than 180 days and opined
that a person who needs longer treatment should be convicted and
sentenced before following up with the appropriate treatment.
Section 14: Conforming amendment. Conforms to the
change made in section 2.
Section 15: Adds authority for the commissioner of the
department of corrections to supervise pretrial
defendants.
He explained that this addresses the elimination of the Pretrial
Enforcement Division and clarifies that the DOC maintains the
authority to supervise pretrial by its probation and parole
officers.
Section 16: Requires the commissioner of the
department of corrections to make officers available
to the courts for pretrial supervision. Also allows
the commissioner to contract with private entities for
electronic monitoring services.
MR. SKIDMORE explained that SB 33 provides that pretrial
supervision will be available in every community throughout the
state and this section allows DOC to contract with private EM
companies to help DOC conduct that supervision.
3:57:44 PM
SENATOR MICCICHE said he supports returning to private sector
electronic monitoring. He asked if individuals under electronic
monitoring could be held responsible for the cost of the
equipment, so they have some "skin in the game" and also remove
the cost burden from the state.
MR. SKIDMORE replied there would be potential for individuals to
be responsible for the cost of renting the equipment if they
were released directly to a private EM company, but he didn't
know if that possibility exists for individuals released to the
DOC for monitoring. He suggested directing that question to the
Department of Corrections representative.
3:59:52 PM
JEN WINKELMAN, Director, Division of Probation and Parole,
Department of Corrections, Juneau, said the department will need
to look into holding individuals responsible for the cost of
their private company electronic monitoring. The people being
monitored by the Pretrial Enforcement Division currently are not
paying for the EM services. The department will look into that
in the context of the bill, she said.
SENATOR MICCICHE requested she provide the information to the
chair when it's available. He also asked if the bill should
clarify that an individual on EM would be personally responsible
for keeping their EM equipment in working order. He noted a
provider in his district offered this suggestion.
MS. WINKELMAN said this matter also came up in the discussion of
SB 32 and is something the department will look into and provide
an answer to the committee.
CHAIR SHOWER offered his understanding that previously there
were 13 private EM companies in the state and now there are just
3.
MS. WINKELMAN said she wasn't sure about the numbers.
CHAIR SHOWER noted the head nod in the audience. He asked if DOC
was communicating with the private monitoring companies in the
state or waiting to see whether or not the bill advanced.
MS. WINKELMAN deferred the question to Ms. Goode
4:02:27 PM
KELLY GOODE, Deputy Director, Department of Corrections,
Anchorage, Alaska, advised that the department was waiting to
see what happens to the bill but would reach out to answer some
of the questions the committee has raised. She acknowledged that
Senator Micciche raised a good question and reiterated that DOC
would look into that and give the committee an answer.
CHAIR SHOWER said he raised the question because this industry
has been depressed and he was concerned about whether they could
quickly handle the load should the bill pass.
MS. GOODE said she would reach out to the companies that are
still in business and ask what "ramp up" would look like.
CHAIR SHOWER commented, "We don't want to turn that on and
suddenly realize we don't have the capacity."
SENATOR MICCICHE opined that electronic monitoring is a perfect
example of what the state should not be done in-house.
4:04:42 PM
SENATOR REINBOLD echoed the previous comments about making
individuals responsible for maintaining their EM equipment. She
requested information about the best and worst EM equipment
currently available.
MS. GOODE stated that DOC would look into matter and follow up
with their findings.
SENATOR REINBOLD emphasized that, "These people need to be held
accountable. Not only the defendant, but [also] the people who
are providing the services."
4:06:32 PM
CHAIR SHOWER observed that private contractors can generally be
held to a higher standard than the state. He opined that
requiring defendants to have skin in the game is a good idea and
that the people who work for these EM companies and live in the
community certainly have skin in the game.
SENATOR KAWASAKI asked how many people are currently on
electronic monitoring.
MS. WINKELMAN replied DOC currently has 887 people are on
pretrial EM, and just under 200 people who have been sentenced
are on electronic monitoring.
SENATOR KAWASAKI asked if DOC does all the pretrial electronic
monitoring.
MS. WINKELMAN answered yes.
SENATOR KAWASAKI asked how many of the people who are on
electronic monitoring post sentence are monitored by DOC versus
a private company.
MS. WINKELMAN replied the Department of Corrections is
monitoring all the people currently serving their sentence on
EM.
CHAIR SHOWER commented that the three remaining private EM
companies must be doing things in addition to electronic
monitoring in order to remain financially viable.
4:09:30 PM
SENATOR MICCICHE said he was thinking about requiring electronic
monitoring to be privatized; he believes that having defendants
compensate the private company for their monitoring would shift
the majority of the cost from the state. He asked what the
annual cost is to monitor the [887] people that are currently on
pretrial EM.
MS. WINKELMAN offered to follow up with the cost information.
SENATOR MICCICHE expressed interest in getting the answer.
Should the bill pass, he said the EM numbers and costs will
increase dramatically and he didn't believe the state should
pick up the peripheral segments of the costs that could be
picked up by the defendants.
4:11:28 PM
MR. SKIDMORE, responding to Senator Shower's earlier question
about the time to ramp up for increased electronic monitoring,
clarified that any proposal for electronic monitoring is
something the court evaluates. That requires the private EM
company to go into court to confirm they offer the service, what
it looks like, and that they are prepared to offer the service.
Referring to Senator Micciche's comment about mandatory EM, he
advised the committee to keep in mind that providing some
flexibility at the start would allow a slow transition to
private EM for the [887] people now on DOC electronic
monitoring. Subsequent cases would be under private EM provided
a private company was capable of taking on new cases. This would
allow the system to transition itself without a requirement in
the law.
CHAIR SHOWER commented that that approach makes sense.
4:13:16 PM
MR. SKIDMORE continued the Sectional Analysis for SB 33.
Section 17: Clarifies that probation officers may be
made available to district courts.
He advised that under current law, probation officers do
not have responsibilities in district court because they
are generally assigned to just felony cases. However, if
they were to handle pretrial services, they would have a
significant role in district courts. Section 17 ensures
that they are available to district courts as well as
superior courts.
Section 18: Adds pretrial supervision to the list of
duties which a probation officer may perform and
clarifies that when performing those duties probation
officers are pretrial services officers.
MR. SKIDMORE said this section helps transition the
responsibilities from a separate pretrial division to probation
and parole officers.
Section 19: Lays out the duties of a probation officer
when acting as a pretrial services officer. These
duties include arresting defendants and filing
criminal complaints for violations of conditions of
release.
He described these as critical components to ensure enforcement
occurs.
Section 20: Conforming amendment. Eliminates the
reference to AS 33.07, which is where the pretrial
services program is currently located. AS 33.07 is
repealed in the bill. SB 33 Sectional Analysis.
He explained this helps put the responsibility for pretrial
services with probation and parole officers.
Section 21: Eliminates the requirement that the
Department of Corrections report to the Alaska
Criminal Justice Commission on pretrial defendant risk
levels and charges and pretrial recommendations made
by pretrial services officers.
He explained that this maintains the authority within DOC to
supervise someone pretrial, but the risk assessment will not be
written up and sent to the courts. Therefore, a report is not
necessary.
Section 22: Conforming amendment to the changes made
in section 23.
He noted that this updates language in the court rules to
reflect the use of new technology. The term "television" is
updated to "two-way video teleconferencing."
Section 23: Expands the types of pretrial hearings
available to the Alaska Court System to use
videoconferencing.
MR. SKIDMORE said this section encourages judges to use video
teleconferencing by giving them the discretion to determine when
video teleconferencing would be used as opposed to a defendant
making that determination. He highlighted that discussion is
ongoing with the Court System to ensure that the language works
for the Court System. He noted that further changes may be
suggested later on.
Section 24: Allows a defendant or the defendant's
counsel to consent to a continuance of trial.
He explained that this is to help eliminate the requirement for
transportation to courts. Under current law, a continuance can
only occur with the defendant's consent. This has created
problems when the defendant refuses to consent to give their
attorney more time to prepare, the case goes to trial and the
defendant is convicted, and the defendant subsequently files for
post-conviction relief arguing that their attorney was
ineffective. This is an effort to streamline the process and
place the responsibility on the defendant's attorney to ask for
the continuance.
Section 25: Repealer section.
He said the first repealer is about credit for the sentencing
for pretrial electronic monitoring or treatment. The second
repealer deals with the Pretrial Enforcement Division; those
duties are transferred to probation and parole officers.
Section 26: Applicability section.
Section 27: Transition section. Ensures that the
Department of Corrections can still monitor any
defendant that is currently on pretrial release and
under the supervision of the Department of Corrections
despite the transfer of that authority from the
pretrial services program to probation.
Section 28: Uncodified law talking about the
requirement of a two-thirds majority vote to change
the Court Rules discussed in the bill.
Section 29: Effective Date. This Act takes effect on
July 1, 2019.
4:22:17 PM
CHAIR SHOWER questioned why the bill talks about danger to
victims, other persons, or the community, but does not talk
about property crimes despite their prevalence, in his area in
particular.
MR. SKIDMORE clarified that property crimes are not excluded
although not expressly called out. This is the same language
that existed prior to Senate Bill 91. He directed attention to
page 6 that lists the factors to be considered as to whether
somebody poses a danger to the community. DUI is one of those
crimes and all class A felonies fall in that category. Also,
subsection (c) on line 29 says a person who commits a felony
offense while on conditions of release is a presumption of
dangerousness and should be taken into consideration by the
courts.
CHAIR SHOWER asked if there are any associated Court Rule
changes.
MR. SKIDMORE replied he did not anticipate any Court Rule
changes other than those listed in the bill.
CHAIR SHOWER said he wanted that on the record.
4:26:27 PM
SENATOR REINBOLD opined that DUI is a person crime and she
believes in holding high or drunk drivers accountable. She said
she also wants a discussion at some point about a particular
couple who continue to drive impaired and without a license.
4:27:40 PM
SENATOR MICCICHE clarified that SB 33 is about pretrial bail
issues.
4:28:35 PM
CHAIR SHOWER found no further comments and stated he would hold
SB 33 in committee.
He recessed the meeting until 6:00 pm.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SSTA OFFICIAL AGENDA .pdf |
SSTA 2/19/2019 3:30:00 PM |
Agenda |
| SB 33 Transmittal Letter.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB0033A.PDF |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB 33 - Pretrial Highilghts.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB 33 - Pretrial Sectional.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-DOL-FN#1.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-DPS-FN#2.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-DOA-FN#3.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-DOA-FN#4.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-DOC-FN#5.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-DOC-FN#6.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB33-Court System-FN.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 33 |
| SB 34 Transmittal Letter.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| SB0034A.PDF |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| SB 34 Highlights.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| SB 34 - Probation and Parole Sectional.pdf |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| SB0034-1-2-012319-LAW-N.PDF |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| SB0034-2-2-012319-COR-Y.PDF |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| SB0034-3-2-012319-COR-Y.PDF |
SSTA 2/19/2019 3:30:00 PM |
SB 34 |
| Court System Fiscal Note.pdf |
SSTA 2/19/2019 3:30:00 PM |
Court System FN |
| SB33&34-GOA Bills Matrix 1-30-19.pdf |
SSTA 2/19/2019 3:30:00 PM |