Legislature(2019 - 2020)ADAMS ROOM 519
04/18/2019 09:00 AM House FINANCE
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Criminal Justice Review: the Story of Offender Joe | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
April 18, 2019
9:00 a.m.
9:00:07 AM
CALL TO ORDER
Co-Chair Wilson called the House Finance Committee meeting
to order at 9:00 a.m.
MEMBERS PRESENT
Representative Neal Foster, Co-Chair
Representative Tammie Wilson, Co-Chair
Representative Jennifer Johnston, Vice-Chair
Representative Dan Ortiz, Vice-Chair
Representative Ben Carpenter
Representative Andy Josephson
Representative Gary Knopp
Representative Bart LeBon
Representative Kelly Merrick
Representative Colleen Sullivan-Leonard
Representative Cathy Tilton
MEMBERS ABSENT
None
ALSO PRESENT
Nancy Meade, General Counsel, Alaska Court System; Jen
Winkleman, Director, Probation, Parole, and Pretrial
Division, Department of Corrections; Kelly Goode, Deputy
Commissioner, Department of Corrections; Kelly Howell,
Special Assistant, Department of Public Safety.
PRESENT VIA TELECONFERENCE
John Skidmore, Director, Criminal Division, Department of
Law
SUMMARY
PRESENTATION: CRIMINAL JUSTICE REVIEW: THE STORY OF
OFFENDER JOE
Co-Chair Wilson reviewed the meeting agenda. She detailed
that the committee would review the criminal justice system
since the passage of SB 91 - OMNIBUS CRIM LAW & PROCEDURE;
CORRECTIONS [CHAPTER 36 SLA 16 - 07/11/2016].
^PRESENTATION: CRIMINAL JUSTICE REVIEW: THE STORY OF
OFFENDER JOE
9:01:27 AM
NANCY MEADEE, GENERAL COUNSEL, ALASKA COURT SYSTEM,
presented a neutral explanation of the recent changes to
Alaska's criminal law with the implementation of SB 91 in
2016 and issues that transpired since its passage. She
detailed that the approximately 110 pages in SB 91
addressed substantial amounts of complex criminal law. She
provided a brief overview of her presentation. She would
review the major categories in the following order:
pretrial, sentencing, controlled substances, probation, and
parole.
9:03:06 AM
Ms. Meade listed the other major provisions contained in
the bill that she would only address upon request relating
to: driving with a suspended license, failure to appear,
suspended entry of judgement, revisions to the Alcohol
Safety Action Program (ASAP), victims access to
information, first offense sentencing for Driving Under the
Influence (DUI), limited licenses for felony DUIs, theft
threshold between felonies and misdemeanors, reinvestment
in Community Residential Centers (CRC), and crimes
downgraded to violations.
Co-Chair Wilson relayed that the items that would not be
heard during the meeting would be heard the following week.
Representative Carpenter asked if the PowerPoint
presentation was Ms. Meade's. Ms. Meade replied in the
negative. She did not have a PowerPoint.
Ms. Meade clarified that the Court System remained
completely neutral on any past or future changes to
criminal laws. She began with pretrial changes that were
implemented in SB 91 in 2016. She elucidated that the
provisions in SB 91 were phased-in. Most of the pretrial
provisions had a delayed effective date of 2018. The
Pretrial Enforcement Division (PED) created in SB 91 had
currently only been intact for a little over one year. She
reported that the first pretrial revision related to the
"time for first appearance" between a defendant and a
judicial officer after arrest was changed from 48 to 24
hours. She elaborated that the provision had little effect
on many court system procedures because the court had
routinely scheduled first appearance or arraignment within
24 hours. The statute previously allowed a felon to be held
for 48 hours to allow prosecutors time to prepare for a
bail hearing. The amount of time had been a subject of much
discussion and the bill excluded many Class C felonies,
since many Class C felonies' penalties did not include
incarceration. Subsequently, the time provision was revised
in SB 54 - Crimes; Sentencing; Probation; Parole [Chapter 1
4SSLA 17 - 11/26/2017], which expanded the circumstances
when the 48 hour time period could be granted.
Subsequently, the time for first appearance was fully
reversed in HB 312 - Crimes/Crim Pro; Controlled
Substances; Bail [CHAPTER 22 SLA 18 - 06/14/2018], which
was expanded to any felony or misdemeanor defendant with
out of state convictions. She added that district
attorney's (DA) rarely request the 48 hour time period.
9:08:10 AM
Co-Chair Wilson asked how difficult it was to find out- of-
state convictions. She asked whether it depended on the
state. Ms. Meade replied that finding the information was
under the purview of the Department of Law (DOL), that had
access to data bases. She noted that the issue was
discussed during bail hearings. She deferred further
questioning to the department.
JOHN SKIDMORE, DIRECTOR, CRIMINAL DIVISION, DEPARTMENT OF
LAW (via teleconference), replied that the Alaska Public
Safety Information Network (APSIN) database was also
connected to an FBI database that provided information
about out-of-state convictions. He noted that the database
was unclear about whether a conviction had occurred, and
the department attempted to contact law enforcement in
other states to confirm information in the database. He
indicated that the database was not comprehensive and only
included criminal history that was reported to the FBI by
another state.
9:10:28 AM
Ms. Meade addressed a defendants first appearance in court.
She expounded that the primary change stemmed from the fact
that SB 91 established a new division, the Pretrial
Enforcement Division (PED)(previously the Pretrial
Enforcement Section) within the Department of Corrections
(DOC) to deal with pretrial. The division's two main jobs
described in AS 33.07 were to perform risk assessments and
exercise supervisory functions over defendants in pretrial.
She explained that risk assessment was required within 24
hours of arrest and determined the assessment score and
categorization that the PED officer transmitted to the
court. She related that a substantial effort went into
creating the risk assessment "tool" (referred to as "the
tool") that determined whether the defendant would appear
for court hearings and/or if a threat to public safety
existed; considered a risk for "new criminal arrest." She
explained that the defendant received two scores: the risk
of failure to appear and the new criminal arrest (NCA)
scores. The test employed the rankings low, moderate, or
high risk. The court received the rankings at the bail
hearing in an electronic report that listed an out-of-state
history, if applicable, and a list of statutory
recommendations that pretrial believed was appropriate for
the offender.
9:14:41 AM
Ms. Meade continued that the court applied the report to
the bail statute; AS 12.30.011, which delineated what the
ramifications were according to the score. She interjected
that due to the complexity of the statute, many judicial
officers developed a "matrix" to decipher the statute
according to a charge and ranking. The categories created
some controversy and opposition when SB 91 had passed due
to some charges and rankings requiring mandatory "allowable
release on own recognizance" (OR). She relayed that
mandatory OR was authorized for misdemeanors or Class C
felonies related to drugs, theft, and weapons charges that
were not a crime against a person, related to domestic
violence (DV), a sex crime, or DUI, and assessed at low or
moderate. The rest of the categories in statute were
presumed unless clear and convincing evidence existed that
bail or jail was necessary for public safety or to assure
appearance in court. Other unclassified categories carried
no assumptions and the court determined the outcome upon
the preponderance of evidence.
Co-Chair Wilson remembered that the pretrial assessment
statute in SB 91 had subsequently been changed. Ms. Meade
answered in the affirmative.
Representative Carpenter referred to "the tool" and asked
who applied the tool and determined the scores. Ms. Meade
replied that the risk assessment was determined by the PED
officers under DOC.
Representative Carpenter repeated his question.
JEN WINKLEMAN, DIRECTOR, PROBATION, PAROLE, AND PRETRIAL
DIVISION, DEPARTMENT OF CORRECTIONS, answered that the
pretrial services officers conducted the assessment prior
to the defendant's arraignment. The department referred to
the risks as the "Alaska two scales;" failure to appear and
new criminal activity.
9:19:50 AM
Representative Sullivan-Leonard referred to the list of
crimes under the Class C felons released on OR and asked
for a reiteration of the list. Ms. Meade emphasized that
the list under SB 91 was no longer the law and subsequently
changed. She reiterated that mandatory OR had applied to
all Class C felonies except for crimes against persons,
failure to appear, violating conditions of release, DUI,
refusals, sex crimes, and DV crimes.
Representative Josephson asked whether the AS.11.61 (1161)
crimes had been treated less severely than other violent
crimes in SB 91.
Co-Chair Wilson advised caution during the discussion
regarding SB 91. She wanted to engage in a neutral
examination of the effects and focus on the remaining
current law and what had been changed.
Ms. Meade answered that she was not certain about the
conduct related to weapons Representative Josephson was
referencing. Representative Josephson recounted that the
Court System had promulgated a new bail schedule in advance
of SB 91. He inquired whether the new schedule was
implemented in anticipation of the bill or would have been
revised regardless. Ms. Meade answered that the presiding
judge had revised the bail schedule in 2016, which had been
changed three or four times since then. She believed that
the bail schedule was changed in order to develop a
statewide unified bail schedule.
Co-Chair Wilson asked how the bail schedule fit under
pretrial.
9:23:41 AM
Ms. Meade answered that the bail schedule was not affected
by the pretrial changes. She explained that the bail
schedule applied to certain misdemeanors that allowed for
release via bail at the jail or for certain other
misdemeanors with a set of established bail or OR that did
not relate to domestic violence or stalking. However, other
misdemeanors were not subject to release under the bail
schedule.
Co-Chair Wilson asked for verification that the previously
mentioned misdemeanors were not included in pretrial
statistics because the defendant was released prior to
pretrial. Ms. Meade replied in the affirmative. She
elaborated that SB 54 - CRIMES;SENTENCING;PROBATION;PAROLE
[CHAPTER 1 4SSLA 17 - 11/26/2017] clarified that pretrial
assessment did not apply to out of custody defendants who
would be arraigned later. Co-Chair Wilson asked how many
individuals fell into the out of custody defendant's
category. Ms. Meade answered that the number was unknown
due to the difficulty of finding the data related to
misdemeanants released under the bail schedule.
Vice-Chair Ortiz asked for a summary of the arguments for
the development of the risk assessment tool and the issues
that caused a change in risk assessment.
9:26:28 AM
Ms. Meade answered that many jurisdictions around the
country had been looking at "smart justice:" a reform of
the criminal justice system with an emphasis on recidivism.
She explained that social scientists had determined that
one improvement was to grant the judge more discretion in
the pretrial process by providing more information via a
risk assessment tool. She explained that SB 91 mandated
that DOC would create the tool. The department took
advantage of free outside expertise provided by specific
organizations. The experts gathered data from Alaska case
files from DOC, the Department of Public Safety (DPS), and
Judiciary and evaluated offenders' propensity to recidivate
and developed the tool specific to Alaska from the data.
The tool had not changed since implementation, but some of
the public outcry concerned mandatory OR for crimes like
vehicle theft (Class C felony). She offered that HB 312 was
in response to mandatory OR and the mandatory release
provisions were removed under the bill. She added that all
the mandatory OR categories were changed to presumption of
OR unless clear and convincing evidence that conditions
were necessary to protect public safety and ensure court
appearances. The provisions were effective in June 2018.
She mentioned that the OR provisions under SB 91 were
quickly adjusted by the legislature and were only in effect
from January 1, 2018 through June 15, 2018.
9:30:19 AM
Vice-Chair Ortiz asked about the OR adjustments that came
about as a result of concerns. He asked whether it was a
matter of perception that the law "was a bad thing." He
surmised that not enough time had passed to determine
whether data backed up the concerns. Ms. Meade was
uncertain why the legislature made the rapid change to the
law. She pointed to a couple of high profile cases where
defendants had been released OR and the legislature
determined that mandatory release was not appropriate and
"general" opposition by some members of the public.
Co-Chair Wilson asked if a risk tool had already existed.
Ms. Meade answered that the risk tool had been invented for
Alaska based on Alaska data. The state could have used off
the shelf tools or tools from other states. The risk tool
was validated upon Alaskan populations to try to avoid
cultural disparities.
Representative Carpenter declared that judges had been
placed in their position to discern and seek justice. He
asked how the PED officers were making the decision to
discern the two risks measured by the tool. He believed
that the tool was "tying the judges hands through the
matrix. Ms. Meade responded that the tool did not call for
any discretionary decision making by the officers. She
exemplified one question that asked whether the defendant
had any arrests prior to the age of 21 and if the data
indicated a positive answer, points were added to the
score. Representative Carpenter asked if the tool was
solely data based. Ms. Meade replied in the affirmative.
Representative Josephson asked what the presumption for OR
release had been prior to SB 91. Ms. Meade replied that AS
12.30.011(a) provided for OR but subsection (b) specified
that if more was needed to protect public safety and ensure
court appearances the court could impose monetary bail or
other conditions. The clear and convincing evidence
standards were not included.
9:35:04 AM
Vice-Chair Johnston wondered whether the state continued to
use the tool even though major revision were made to the
law limiting mandatory release. Ms. Meade answered that SB
91 mandated use of the tool for everyone in custody. HB 312
did not change that requirement but altered the conditions
regarding mandatory releases. She was concerned about
continued data collection. She asked for verification that
data continued to be collected. Ms. Meade indicated that SB
91 mandated that the Criminal Justice Commission, staffed
by the Judicial Council, collect data on all aspects of
criminal justice reforms in SB 91. Since the law had been
in effect for 1.3 years some data had been collected, but
not enough to form a full picture to determine its
effectiveness.
Co-Chair Wilson cited that currently 45 percent of
criminals were unsentenced and asked who would not qualify
for pretrial. Ms. Meade replied that some defendants could
not meet the conditions of release or make bail. She
reminded Co-Chair Wilson if there was a presumption a
person would be released OR, a judge could make a different
determination to keep the individual in jail. The
determination could be made for any charge if the judge
made the finding.
Co-Chair Wilson thought that pretrial assessment would
determine who was at high risk of causing harm and that
non-violent more minor defendants would not be assessed
solely based on ability to pay bail. She believed that 45
percent represented a huge number of individuals in
pretrial. She wondered how most of the 45 percent of
incarcerated pretrial defendants would be categorized. Ms.
Meade agreed that the goal of smart justice was to better
identify people who needed to be in jail versus others who
did not present a threat to the public and incarceration
was unnecessary. She deduced that in general, if assessed
correctly, the more violent individuals with higher risk
scores would be detained in jail and those representing no
threat to the public would be released OR. Co-Chair Wilson
asked whether the individuals in pretrial could be imposed
conditions of supervision or ankle monitoring.
9:41:37 AM
Ms. Meade answered that the Pretrial Enforcement Division
also had authority to supervise individuals released during
pretrial. She provided the example that a judge could order
pretrial release on the condition of drug treatment under
the oversight of PED officers. She reported that the judge,
under the new bail statute in SB 91 were able to release
many more individuals without monetary bail requirements
but placed conditions to ensure the individual was not a
threat to the community.
Co-Chair Wilson asked if the individuals received credit
for pretrial time served. Ms. Meade answered that they
could receive credit only on electronic monitoring (EM).
Co-Chair Wilson asked whether the defendant received credit
for time served under conditions of supervision. Ms. Meade
answered in the negative. She detailed that a person would
accumulate credit for pretrial time served if constraints
were in place. A person could get pretrial credit for time
spent on EM under imposed conditions or for time spent in
certain treatment facilities. Co-Chair Wilson surmised that
a person could also be on EM but would not get time served.
Ms. Meade answered in the affirmative.
9:45:13 AM
Co-Chair Wilson thought that there was a misperception that
individuals all received time served on EM and was unaware
of the parameters placed on gaining time served.
Representative Josephson guessed that more people were
currently being released under OR conditions because the
standard was still higher than what it was prior to SB 91.
Ms. Meade understood the assumption but did not have the
data to support his hypothesis. Representative Josephson
asked why the data did not exist. Ms. Meade replied that no
entity was set up to be a central data collection entity.
The Court System's case management system had not been
designed to draw conclusions. She added that the Judicial
Council was trying hard to get the data by piecing together
any relative data from all involved agencies.
Representative Josephson surmised that if more people were
released there would be fewer plea bargains and potentially
more trials, which could impact Judiciary. He recalled from
personal experience as an attorney that often individuals
opted for plea bargains because they could not afford jail
regardless of innocence or guilt. He pondered how criminal
justice reform "played out" in the real world in terms of
cost to agencies, case work, and "overall" justice.
9:48:36 AM
Ms. Meade responded that she had not seen information
proving Representative Josephson's premise. She did not
know of any evidence to prove that people released OR were
pleading guilty at a lower rate than those retained in
jail. She understood the scenario of forcing a person into
a plea or remain in jail. She did not know what it meant
for criminal justice and had not seen an increase in trials
because people had been released OR.
Ms. Meade wrapped up her section on pretrial. She reported
that many individuals released OR had supervision
(approximately 50 percent) by PED officers, which only
happened under SB 91. She observed that supervised OR
release had been viewed as beneficial to those released
pretrial and for public safety.
Representative Carpenter relayed that he heard much
criticism about the assessment tool. He asked how threat
was defined: physical or threat to recidivate. Ms. Meade
answered that she had meant risk, not threat. She clarified
the tool used data to measure the risk of a defendant
committing a crime and face new criminal arrest if released
or fail to appear in court. Representative Carpenter was
interested in the data point. He wanted to know what the
data was that was used to identify a potential threat or
failure to appear. Ms. Meade deferred the question and
related that the specific questions about the tool were
included in a presentation that would be heard later in the
meeting. Representative Carpenter asked about a case where
the judge could discern to rule differently than the tool's
ranking. Ms. Meade replied that DOC determined the
assessment score that was provided to the judge. She
provided an example of a defendant with a moderate score in
court charged with a crime against a person, at arraignment
the judge could determine that bail or other conditions
were warranted even if the matrix presumed an OR would be
appropriate. The judge had discretion to find clear and
convincing evidence that a person would be a risk and rule
contrary to the assessment score.
9:53:54 AM
Representative Carpenter asked whether the options afforded
by the tool were the only options if the tool did not
exist. Ms. Meade communicated that the conditions imposed
by the judge was not established by the tool - the tool
simply conveys what subsection of the bail statute was
applicable. A person could be presumed OR by a charge, but
the attorneys in the room may try to provide evidence to
show the person was a danger. A judge may rule that clear
and convincing evidence demonstrated that pretrial
incarceration was necessary.
Co-Chair Wilson asked the same question of DOL. She
wondered whether the risk assessment was the overriding
factor at arraignments.
Mr. Skidmore replied that the answer was mixed. The tool
set the presumptions that the court must apply in a case.
The presumptions were different and more difficult to keep
someone in jail than prior to SB 91 pretrial. Subsequently,
with the adoption of HB 312 in 2018, the presumptions
provided the court the ability to look for evidence and set
other conditions if necessary. He relayed that DOL
prosecutors felt that the results of working with the tool
was varied. A prosecutor working on a drug case recounted
one defendant who was released OR before arraignment who
had been released 10 to 12 times prior to the current
charge; the defendant committed one crime and was brought
back for offending numerous times but was still released.
He emphasized that it was not statistical evidence and he
could not comment on how frequently it occurred. He
offered that similar instances were reported to him by
other prosecutors. He stated that DOL continued to
experience issues that were cause for concern.
9:58:35 AM
Co-Chair Wilson asked for clarification about whether the
attorneys brought evidence forward to the judge, or did the
judge find the information about the defendant. Mr.
Skidmore answered that in a bail hearing the prosecution
and defense both presented information and the judge
ultimately decided.
Representative Carpenter understood that a presumption of
innocence was implied, and a judge must make decisions
based on data in a matrix. He stressed that the pain his
constituents were feeling was due to the picture presented
by Mr. Skidmore. He believed that "justice was not being
served" and that defendants were being released and were
immediately committing crimes again. He was trying to
determine why the person with the responsibility to discern
whether a person should be behind bars or released was
relying on a matrix he believed was flawed. He opined that
the tool was "tying judges' hands." He surmised there was
either an issue with judgement or there was a problem with
the tool. He felt the tool was the "fundamental problem".
Co-Chair Wilson noted that the questions being asked were
relevant. She contended that prior to SB 91 "the tool was
the judge." She reiterated that subsequently, the
legislature had changed the law to a limited extent to
allow judges more discretion but not full discretion. She
deduced that unless a prosecutor had convincing evidence to
the contrary, a judge would automatically use the matrix
and possibly release the defendant. She concluded that if
the tool was allowing people to reoffend, the tool needed
statutory revision.
10:02:46 AM
Representative Carpenter believed that there was a larger
problem that needed to be fixed and "could not hold a tool
accountable." He asserted that a process existed that could
hold a judge accountable and stated that he was not
implying all judges were "bad" or lacking perspicacity.
Co-Chair Wilson countered that the legislature created the
statute requiring the use of the tool "overriding the
judge." She believed that the legislature was at fault for
creating the statutes dictating what comprised the tool.
Neither the judge nor the tool could be blamed. She
questioned whether the statues governing the tool needed
to be changed or whether to return full discretion to
judges.
Vice-Chair Johnston asked what the legislature did in
HB 312. She remembered that more discretion was returned to
the judges but was not sure of the full extent. She voiced
that before the legislature attempted to remediate more
issues, she wanted to know why the results were not as
expected.
10:05:09 AM
Ms. Meade indicated that the changes in HB 312 fully
eliminated the mandatory release category, which granted
the judge more discretion in some cases. The legislation
also provided the judge the ability to consider the
person's out-of-state history when setting conditions of
release, which were not considered in the tool. The judge
was granted more discretion but not complete discretion in
HB 312.
Vice-Chair Ortiz remembered that the risk assessment tool
was developed out of national reform efforts. He asked who
recommended the tool. Ms. Meade answered that the tool was
required by SB 91 and PED had the job of establishing the
tool. The Judicial Council was involved in staffing the
group that examined the state's data and developed the
tool. Vice-Chair Ortiz asked if any evidence existed that
the tool created problems for judges. Ms. Meade relayed
that some judges liked the tool and others did not believe
it was helpful. Whether a judge liked the tool or not, they
applied it because of the statutory requirement.
Co-Chair Wilson asked who had approved the specific tool
currently in use. Ms. Meade answered that the statute
stated that the DOC commissioner "shall adopt a tool." She
recounted that the tool's development took much time and
effort. Subsequently, a group under DOC "unveiled" the tool
and it had been adopted later by the Criminal Justice
Commission, created by the legislature in 2015. Co-Chair
Wilson surmised that the tool was untested and had been
implemented by DOC. She deduced that the Criminal Justice
Commission and DOC had likely never developed a similar
tool. She recognized the good intent of the group despite
its inexperience. She noted that data was so far,
insufficient to determine the efficacy of the tool.
10:10:30 AM
Ms. Meade amended Co-Chair Wilson statement regarding DOC
lacking the expertise to develop the tool. She informed the
committee that DOC had employed experienced professional
social scientists to look at data and come up with a tool
that would work for Alaska. She countered that the tool had
been created by people who knew what they were doing. She
added that before the tool had been unveiled, they had
performed testing to protect against regional and cultural
disparities. Currently, retesting was underway by the
University of Alaska to see if modifications would be
advisable.
Co-Chair Wilson asked if any of the individuals involved
had ever made a tool in the past. Ms. Meade pointed to one
participant named Dr. Kristen Bechtel [Director of Criminal
Justice Research, Arnold Ventures] had created a tool for
other jurisdictions. Co-Chair Wilson opined that "a tool
that let people out of jail 10 times had problems."
Representative Josephson understood that under SB 91 the
judge could not act on that person's criminal activity in
another state. Currently, under HB 312 it was possible. He
asked if judges could go a step further under HB 312 and
hold the person in jail or could they only "enhance or
toughen up release conditions." Ms. Meade confirmed that
the "out-of-state criminal history was not accounted for in
the risk score itself." She noted that the reason had to do
with access to FBI data. She outlined that when the tool
was being developed the FBI refused to release certain
information necessary for the validation process. She
elaborated that a defendant was quired regarding
convictions in the past five years but, the tool did not
score for out-of-state convictions. However, the judge was
presented with additional information on the bottom of the
PED report at the arraignment and DOL could offer more
information concerning a person's out-of-state criminal
history. If the judge determined that clear and convincing
evidence was presented, a person could be held in jail. In
addition, if the court released a defendant OR the judge
could examine the out-of-state convictions and impose
conditions of release.
10:15:12 AM
Co-Chair Wilson requested to begin the PowerPoint
presentation.
Ms. Winkleman provided a PowerPoint presentation titled
"Criminal Justice Review: The Story of Offender Joe" (copy
on file). She began on slide 1 of the presentation titled "
Offender Joe's First Offense:"
Arrested for Misconduct Involving Controlled Substance
II
Upon arrest, Pretrial Officer completes the risk
assessment tool and forwards to the courts
The risk assessment tool is used to determine a
defendant's risk of re-offending and failure to appear
Offender Joe scores a 4, so the Judge releases to
Pretrial Enforcement Supervision
Ms. Winkleman informed the committee that the risk
assessment tool was "static" and did not require an
interview with the defendant. In addition, PED utilized
data bases to gather available out-of-state information.
She indicated that the tool was developed with the Crime
and Justice Institute, using their research and analysis.
She explained that the institute examined data from
approximately 20,000 cases statewide and used its
experience with risk assessment tools elsewhere in the
country. She confirmed that the University of Alaska was
currently examining the risk assessment tool to determine
whether adjustment was necessary.
Co-Chair Wilson wondered what the chances were of releasing
a newcomer to the state, who offended within days of
arriving, with a dangerous out-of-state record because the
system was moving so quickly. Ms. Winkleman replied that
the scenario depended on whether the out-of-state
information was available in the databases DOC could
access. Co-Chair Wilson surmised that it was possible a
dangerous person could be released. Ms. Winkleman answered
in the affirmative.
10:22:28 AM
AT EASE
10:23:06 AM
RECONVENED
Ms. Winkleman moved to slide 2 titled "New Criminal Arrest
Scale" and addressed the scale on the slide. She explained
that the pretrial risk assessment was referred to as the
"AK2S." The chart illustrated the scale from one to ten
that weighed six risk factors. The scale was used to
determine a score of one to ten.
Co-Chair Wilson asked whether the probation officer entered
the data. Ms. Winkleman answered that a "pretrial services
officer" was an officer of the court, which meant that they
had authority in district court for misdemeanants versus a
probation officer. A pretrial services officer, "otherwise
known as a probation officer" via statute, performed the
risk assessment and provided it to court and was the same
officer who would also perform pretrial supervision.
Vice-Chair Johnston referenced how a person's out-of-state
record was reported in Alaska. She asked if it was up to
DOL to follow up for the judge.
Ms. Winkleman deferred to Ms. Meade and Mr. Skidmore.
Ms. Meade concurred with Mr. Skidmore and reiterated that
the arraignment was an "adversarial proceeding" and the
judge would view the DOC report and the prosecutor would
bring forward more information regarding out-of-state
criminal history. The defense could argue the prosecutors
point with its own information.
10:26:47 AM
Representative Carpenter looked at the last bullet on slide
1 related to offender Joe scoring a 4, which released him
to the PED. He asked if it meant the judge determined that
releasing him to PED was appropriate or because the tool
prescribed the action due to the score. Ms. Winkleman
replied that the score is merely a tool DOC provided to the
court and was only one factor a judge took into
consideration. Representative Carpenter felt his question
was not answered and reiterated his question. Ms. Winkleman
responded that the score reflected whether a person was a
low, moderate, or high risk. The judge looked at the bail
schedule corresponding to the score and determined what
factors she would consider.
Representative Carpenter wanted more clarity. He asked
whether a judge had the authority to disregard the tool to
do what he thought was best for the individual. Ms. Meade
replied in the negative. She stated that the statute
mandated that the judge had to take the tool's score into
account in his decision making. She clarified that the
statute, AS.12.30.011 held the judge to the action dictated
by a level 4 score, which was OR unless clear and
convincing evidence was offered that the judge should rule
otherwise. She emphasized that the conditions were set via
statute and not by the tool nor the judge's discernment.
She expanded that what was considered clear and convincing
evidence was affected by the judge's decisions, which lead
to arguments regarding whether more sentencing was prudent.
She declared that "the tool cannot be disregarded because
of the statute that said the tool drives the decision
making."
10:30:17 AM
Representative Carpenter thought he better understood the
problem now.
Co-Chair Wilson inquired that if no one in the court room
could counter the score with more evidence, the judge had
to release the person according to the matrix. Ms. Meade
answered that it was not a "must" but was a presumption
that required clear and convincing evidence to overcome the
presumption. Co-Chair Wilson surmised that the tool was a
"must." She declared that unless other circumstances were
brought up the judge's hands were tied. Ms. Meade conceded
that she agreed to Co-Chair Wilson's statement in "some
respects" but maintained that clear and convincing evidence
had to be provided to the judge to overcome the assessment.
Representative Carpenter offered that the individual
sitting on the bench had the responsibility to make a
judgement. He opined that by removing their discretion, the
state was paying judges to do less because they were only
authorized to follow a matrix.
Representative Josephson remarked that the same increased
presumption was created in discretionary parole and more
evidence was necessary. He agreed with Representative
Carpenter. However, he did not agree that the former
criminal justice system was a good one and that two million
people should be incarcerated in the United States (US). He
believed that "the preponderance standard was more robust
than we realized."
Vice-Chair Ortiz relayed that he had not voted for SB 91,
but the decision making process had been complicated and he
was still uncertain about his vote. He spoke to the goal of
making a better criminal justice system. He didn't believe
the data existed to justify changing the law. He noted that
SB 91 was only in effect a very short time and was adjusted
again with HB 312 and was concerned that the legislature
was currently considering further adjustments. He
acknowledged the concerns of citizens but expressed
frustration with enacting changes without data as
justification. He referenced Vice-Chair Johnston's earlier
comments that the state currently lacked updated data. He
reminded the committee that the reforms were partially
enacted to create savings due to significant costs. He
indicated that the fiscal concerns remained a reality. He
felt the legislature was trying to develop a more perfect
system, but he did not believe it would ever happen. He
pointed out that people were still incarcerated for first
and second time drug offences and it was probably not the
best solution. He found the current situation extremely
frustrating. He thought the efforts were almost pointless.
10:37:03 AM
Co-Chair Wilson understood his concerns and stated that she
had voted for SB 91 and believed that the data was a huge
missing piece of the problem. She offered that her main
concern was not the costs but addressing the high
recidivism rate of 67 percent. She had discerned that the
state was not getting results by continuing in the same
manner. She discussed that the course was making revisions
without the data, but the legislature had been told the
data did not exist yet. She suggested that regardless of
insufficient data, constituents' concerns about crime
reflected the "real world" experiences. The question became
how to take the real world data and make applicable
corrections into law. She emphasized that the prudent
matter was how to measure the effect of the revisions the
legislature had enacted.
Vice-Chair Ortiz agreed if the effects could be accurately
measured; however, there were myriad of social and other
factors existing related to an increase in crime rate. He
would like to believe that the reason was SB 91, but he did
not believe the conclusion was real. He suggested waiting
for the data and stressed that the legislature was
attempting to enact significant changes without the facts.
He conceded that his suggested course of action did not
satisfy constituents.
10:40:38 AM
Vice-Chair Johnston observed that currently data was more
easily collected and was hopeful to receive more criminal
justice data, although costly. She referenced concern
related to judges' discretion and noted that some
discretion had been returned to judges through an
adversarial process in courts. She discussed providing the
tools needed by DOL and the Department of Administration
(DOA) [Public Defender Agency] to provide the judge enough
information to make the decisions. She noted that Alaska
had incarcerated a large population and believed that it
was larger than necessary. She emphasized that the criminal
justice issues were a significant financial problem.
Co-Chair Wilson asked Mr. Skidmore to contribute to the
discussion.
Co-Chair Wilson asked whether Mr. Skidmore believed that
currently the data existed for the legislature to drive its
decision making process. She asked Mr. Skidmore to relay
his personal experiences with how the tool was working in
court.
10:43:34 AM
Mr. Skidmore heard the frustration expressed by the
committee related to current data. He added that he was
aware of the publics' frustration based on its perception
of how the criminal justice system was operating. He also
heard from prosecutors around the state about their
frustrations with the pretrial process. He reiterated that
he did not have all the specific statistics the legislature
was seeking but took as evidence the shared frustrations he
heard from multiple parties: the public, law enforcement,
and prosecutors who spoke about the same issues. He
considered that what had changed was the law and whether
there were measures available to alleviate the frustrations
within the law. He was uncertain whether specific data
could address all the concerns voiced by the committee. Co-
Chair Wilson asked if Mr. Skidmore believed the pretrial
system was better than the prior system. Mr. Skidmore
replied in the negative. Co-Chair Wilson asked if Mr.
Skidmore would eliminate the current pretrial system. Mr.
Skidmore answered that he would make modifications. He did
not believe the current system was superior to the past
system. He would consider what would replace the process if
the current system was removed. He believed there were some
changes needed that had not been sorted out yet. He
believed more study was necessary on the pretrial
assessment tool and did not believe it was working well. He
questioned how to do further study without turning Alaska's
pretrial process into an experiment.
10:47:06 AM
Co-Chair Wilson reported the committee would take several
more questions on pretrial. She subsequently wanted to hear
from Mr. Skidmore on what a superior system would look
like.
Representative Josephson deduced that if the pretrial
assessment tool was eliminated, he believed that the hiring
of 60 additional PED officers was a positive result. He was
pondering how that outcome could be viewed negatively.
Co-Chair Wilson requested the answer be deferred until Mr.
Skidmore responds. She wished to return to the presentation
and finish the slides related to pretrial.
10:48:54 AM
Ms. Winkleman moved to slide 3 and addressed a graph titled
"NCA Rate by Total Score." [New Criminal Arrest (NCA)] She
asked Mr. Skidmore to comment. Mr. Skidmore clarified that
a risk assessment score of 4 was not considered moderate.
He relayed the scale:1-5 was low, 6-9 was moderate, and 10
was high. He pointed to the graph on slide 3 and noted that
the X axis score of zero represented a 14 percent risk
level and on the Y axis up to a 58.1 percent risk level
with a score of 10. He related that when SB 91 was written
the three risk assessment categories were chosen without
data. Subsequent data had determined that there were 5
categories; very low, low, moderate, moderately high, and
high. He expounded that since only 3 categories were
created via statute the 5 categories had to be collapsed
into three. He illustrated that a score of 14 percent to
36 percent risk corresponded to a score of 5 and was
considered low, moderate was represented by a score of 6 at
43.1 percent, and a score of 9 at 53.5 percent risk was
high. He cited slide 2 that contained the NCA scale and
ascertained that the first factor: if the person was not
arrested before the age of 21, would never score high on
the scale regardless of other factors. He indicated that
the assessment tool set the standard by which the court
started from - the presumption the court used to decide
release factors. He believed that relative to the risk
factor and weights the scores posed the "fundamental issue"
for prosecutors and not a risk assessment tool itself. He
believed a risk assessment tool could bring consistency to
the process and was sensible. He countered that when
considering the current scale, the risk assessment tool was
a concern.
10:53:59 AM
Representative Josephson asked for verification that if a
person did not become an offender until the age of 21, they
could never be considered a highly ranked risk offender on
the scale. Mr. Skidmore responded in the affirmative. He
explained that the highest the person could be ranked was a
9 in the scenario.
Ms. Winkleman turned to slide 5 titled "Failure to Appear
Scale." She reviewed the six risk factors indicated on the
chart.
Age at first arrest in DPS history
Total number of prior FTA warrants ever
Total number of prior FTA warrants in the past 3 years
Current IFTA charge (or violation)
At least one property charge on current arrest/case
At least one motor vehicle charge on current arrest/
case (non - DUI)
Ms. Winkleman explained that the 6 factors were considered
for the second part of the scale (Failure to Appear)
regarding new criminal activity.
Representative Josephson asked what a property or motor
vehicle charge had to do with failure to appear. Ms.
Winkleman deferred to Mr. Skidmore.
Mr. Skidmore clarified that he had not been part of a group
that set up the risk assessment, he had been part of a
group that reviewed it. He answered that the property
charge was under AS.11.46. Representative Josephson did not
understand the answer.
Co-Chair Wilson clarified Representative Josephson's
question. Mr. Skidmore elaborated that the charge had to be
a crime under AS.11.46.
Representative Josephson was trying to determine why a
property charge was relevant to whether a person would
appear in court and relevant to having committee other
crimes. Mr. Skidmore was unable to answer the question. He
elaborated that according to Alaska criminal history data,
one of the common denominators for failure to appear was
when a person had prior property crime charges.
Co-Chair Wilson surmised that the scale's creators
"obviously had data."
10:58:47 AM
Representative Carpenter believed that the data was "cherry
picked." He felt that what passed the commonsense test was
that a factor that considered alcohol or drug convictions.
Mr. Skidmore replied that the data examined was related to
convictions and alcohol or drug issues were not necessarily
reflected in the convictions themselves. He expounded that
convictions did not specify whether a person also had
alcohol or drug issues. He remarked that DUI convictions or
misconduct involving a controlled substance might be
indicative of substance abuse. He added that most of the
property or violent crimes convictions did not consider
substance abuse issues and was unable to be factored into
the risk assessment tool. He concluded that the issue posed
the question of how the assessment tool should be utilized.
Representative Carpenter restated his concern that the
judge's hands were tied if they concluded that an alcohol
or drug issue was involved. Mr. Skidmore answered that a
judge was able to consider substance abuse, but it had to
amount to clear and convincing evidence that the person
would not appear in court or commit a new crime. He
elaborated that previously a judge could weigh a
preponderance of evidence to justify his concern versus the
current condition of clear and convincing evidence on a
case by case basis.
Co-Chair Wilson deduced that the data at the time the scale
was developed was only analyzing individuals released
pretrial and did not include those incarcerated pretrial.
She thought that aspect skewed the data.
11:03:03 AM
Mr. Skidmore believed her statement was accurate. He agreed
that the researchers could only analyze the data for
defendants who were released pretrial because a person in
custody would not give an accurate assessment of how they
would perform during release. He contemplated how the risk
assessment currently worked since larger numbers of
defendants were released pretrial.
Ms. Winkleman moved to slide 6 and reviewed a chart titled
"FTA Rate by Total Score." She returned to slide 5 and
explained that regarding the failure to appear risk, the
property and motor vehicle charges were charges on the
current offense and not a part of the defendant's history.
She concurred that the researcher had found higher risks
for a defendant with property or motor vehicle charges;
therefore, was included in the scale.
Mr. Skidmore interjected that the same issue existed with
the FTA scale as with the NCA scale with four categories
instead of five. He pointed to the four categories on slide
7 titled "FTA Rate by Total Score Ranges." He expanded that
decisions regarding how to reduce four categories into
three had to be made in advance of 2018 to follow the law.
Representative Merrick asked what elements comprised a
motor vehicle charge. Mr. Skidmore replied that it applied
to vehicle theft. He listed examples of property crimes:
theft, forgery, criminal mischief. He summarized that
stealing or causing damage to property was the type of
conduct encompassed under property crimes.
11:07:33 AM
Ms. Winkleman moved to slide 8 [no title]:
Several weeks later, while out on pretrial
supervision, Offender Joe is arrested on another
Misconduct Involving a Controlled Substance II charge
and Violating Conditions of Release.
Pretrial Officer completes risk assessment tool
(score remains a 4) and provides the report to the
Court
Offender Joe still scored low (4) and the Judge
releases him on Pretrial Supervision
again
This may repeat until Joe does not commit a new
crime or the judge sets conditions that cause Offender
Joe to remain in custody
Ms. Winkleman expounded that PED had two functions:
performing risk assessment and providing supervision to
pretrial defendants. The supervision was dictated by the
risk score and the judge's conditions. She commented on the
third bullet point; the first two steps were steps repeated
with any new crimes until Joe stopped committing new crimes
or the judge set conditions that prohibited Joe from being
released from custody. She added that an individual can be
placed on pretrial supervision on multiple cases.
11:09:44 AM
Co-Chair Wilson wondered why the tool did not make a
distinction between the first offense and multiple
offenses. She would never have guessed a person could
reoffend on the same charge and be released pretrial
multiple times. She asked what the point was. Ms. Winkleman
offered that she had not been part of writing the risk
assessment. She explained that the risk assessment was a
static tool and did not address the issue.
Co-Chair Wilson believed that statue did not specifically
mandate the use of the current tool over others and
wondered if she was correct. Ms. Meade replied in the
affirmative. Co-Chair Wilson asked what statute prohibited
DOC from correcting the assessment tool. She thought that
allowing pretrial release multiple times was "insane." She
had heard of the scenario for domestic violence charges and
not only regarding property crimes. She inquired whether
DOC was attempting to correct the tool.
KELLY GOODE, DEPUTY COMMISSIONER, DEPARTMENT OF
CORRECTIONS, affirmed that the department shared her
concerns. She reported that the risk assessment tool was
being addressed in the governor's other crime bills.
Co-Chair Wilson believed that legislation was not necessary
for DOC to enact changes. She asked why DOC would not make
corrections to the tool. Ms. Goode replied that DOC was
talking to DOL about the issue. She agreed the issue needed
to be addressed. She indicated that considering what
constituted the right fix was currently under discussion.
The department wanted to fix the tool if it was not going
to be eliminated. Co-Chair Wilson thought the entire
committee believed that multiple pretrial release was
wrong. She emphasized that the departments were the
experts, not the legislature and she found it remarkable
that tool was not currently corrected. She concluded that
the problem was known and did not require a statute change
to address it, yet the administration was looking to the
legislature to fix the problem. She expressed exasperation
over the issue.
11:15:24 AM
Representative Carpenter asked for verification that DOC
owned the tool. Ms. Goode answered in the affirmative.
Representative Carpenter asked if DOC could change the
tool. Ms. Goode replied in the affirmative. Representative
Carpenter asked why the department was waiting to change
the tool. Ms. Goode replied that prior legislation had
proposed to eliminate the tool. The department was waiting
to see the outcome.
Co-Chair Wilson asked Mr. Skidmore when DOL began to
observed issues involving multiple release. Mr. Skidmore
replied that prosecutors had experienced the issue shortly
after the reforms were implemented 2018. He noted that the
department was still evaluating the changes subsequent to
SB 91's rollout. He pointed to Section 117 of SB 91 that
discussed AS 33.07.020 subsection 5 and reported that the
statute authorized approval of a risk assessment instrument
that was "objective, standardized, and developed based on
analysis of empirical data and risk factors relevant to
pretrial failure." He underlined that in order to change
the tool, the statute required a whole new process to
change the tool. He posed the question of whether the
legislature wanted to follow the process in statute to
change the tool or find another solution regarding DOCs
management of the tool. He voiced that DOC currently had to
follow the statute enacted in SB 91.
Representative Carpenter was trying to identify who had
"personal responsibility for the failure of the tool." He
wondered whether someone from DOC "understood what a
measure of effectiveness was." He inquired whether the
correct data was collected or if the issue was being
ignored until another process was put in place. Ms. Goode
related that that was the reason the University of Alaska
Anchorage (UAA) was trying to validate the tool. In
addition, DOC reached out to the experts who created the
tool. Representative Carpenter suspected the department had
the expertise and knew the criminals in the system to start
collecting the data to evaluate the tool. He pondered how
UAA could understand the problems better than DOC. He
wanted DOC to figure out a way of collecting the data to
formulate a solution. He wondered whether the data was
being collected. He deduced that it would be difficult to
know whether the tool was effective if there was no measure
of effectiveness.
11:21:38 AM
Co-Chair Wilson asked whether DOC had the statutory ability
to alter one portion of the tool rather than the entire
risk assessment system. Mr. Skidmore responded that the
department was required to revise the entire system. He
cited the remainder of AS.33.07.020:
Sec. 33.07.020. Duties of commissioner; pretrial
services.
The commissioner shall
(1) appoint and make available to the superior
court and district court qualified pretrial
services officers;
(2) fix pretrial services officers' salaries;
(3) assign pretrial services officers to each
judicial district;
(4) provide for the necessary supervision,
training, expenses, including clerical services,
and travel of pretrial services officers;
(5) approve a risk assessment instrument that is
objective, standardized, and developed based on
analysis of empirical data and risk factors
relevant to pretrial failure, that evaluates the
likelihood of failure to appear in court and the
likelihood of rearrest during the pretrial
period, and that is validated on the state's
pretrial population;
Mr. Skidmore emphasized the words "validated on the state's
pretrial population." He delineated that the data had to be
collected from the entire pre-trial system, which DOC was
doing. The university was involved in order to validate the
state's pretrial population, which entailed collecting
criminal histories from DOC and other entities outside of
the department. The validation process was a social science
and statistical process from a broad perspective versus
looking at everyone currently in the system. The process
had to address the entire system; therefore, data
collection would have to include all the population. He
furthered that the only way to address risk assessment case
by case was for the system to provide the judge parameters
to make decisions and lessen the influence of the tool,
which were dictated by statute.
Vice-Chair Johnston referred to slide 8 and noted that Joe
had a low score of 4 since only 2 points were awarded for
prior arrests in 5 years and 2 points for prior arrests in
3 years. She asked whether her statement was correct. Ms.
Winkleman responded in the affirmative. Vice-Chair Johnston
deduced that no matter how many arrests the offender only
received 2 points if no probation or incarceration took
place, which kept the score static. She asked whether her
statement was correct. Ms. Winkleman responded
affirmatively.
Vice-Chair Johnston asked whether a judge had the option of
detaining a repeat offender if the district attorney had
adversarial information. Ms. Meade answered in the
affirmative. She reiterated that to overcome the
presumption of OR, clear and convincing evidence was
necessary.
11:26:48 AM
Vice-Chair Johnston believed that "there were some answers
available" regarding the issue, albeit not answers the
committee may want. She approved that the agencies were
studying the data. She referenced the national organization
Americans for Prosperity that championed criminal justice
reform due to the high cost of incarceration. She added
that all sides of the political spectrum had identified the
high cost of incarceration as one factor in driving the
reform discussion. She pointed out that particularly in
Alaska, reform was a financial discussion.
Representative Josephson maintained that the concern with
SB 91 was that the economy and the public bore the costs of
crime. He respected the work of the University but opined
that it was on the side of criminal justice reform. He
voiced concerns about the University independently doing
the data analysis. He believed the University was broadly
supportive of the principles of SB 91. He wondered whether
UAA's bias would drive the results of further analysis.
Co-Chair Wilson surmised that the committee should hear
from the University.
Ms. Meade informed the committee that Dr. Myrstol [Brad A.
Myrstol, Ph.D., Associate Professor, UAA] from the UAA
Justice Center had testified before the committee. She
noted that Mr. Mistral was well respected, and she had not
heard of any implications of bias.
11:30:27 AM
Co-Chair Wilson asked Mr. Skidmore for concluding remarks
regarding pretrial issues and remedies that the legislature
could consider.
Mr. Skidmore encouraged the committee to think about
whether it wanted the state to utilize an assessment tool.
He thought it was beneficial to bring uniformity in
evaluating certain types of convictions, but he cautioned
against "stripping discretion from judges." He agreed that
a judge was placed on the bench to make decisions and use
the discretion built into the system at "every level." He
recognized the importance of providing some statutory
guidance but asserted that taking a judge's discretion away
did fundamental harm to the system. He delineated that
statutes were static, and the system was designed to rely
on discretion due to the nuances related to crimes; how the
crime was committed, the criminal's background, criminal
history, and substance abuse issues. He contended that it
was impossible to legislate every decision necessary to
allow judges to consider and weigh all the factors. He
described the system as an adversarial system, where the
prosecutor and defender presented varied points of view and
the judge decided. He reiterated that the more the state
tried to remove a judge's discretion, the further the
system moved away from its design. He favored adding
additional officers and options for the courts to consider
related to conditions of release. The more tools the
legislature could provide to the courts increased the
likelihood the appropriate tool would be available.
11:35:58 AM
AT EASE
11:45:57 AM
RECONVENED
Co-Chair Wilson announced the next section that Ms. Meade
addressed was sentencing.
Ms. Meade addressed sentencing changes under SB 91. She
reported that sex crime sentencing was not altered under SB
91. She elaborated that the presumptive ranges were
increased for Murder I and Murder II. She instructed the
committee that all crimes were categorized by a class.
Felony classification was as follows from the worst type:
Unclassified, Class A, Class B, and Class C. Offenses that
decreased in severity and impact was Classified as a
misdemeanor having two classes A and B. The remainder were
considered violations that were either traffic infractions
or minor offenses. She indicated that SB 91 did not affect
violations. She continued that the presumptive range for
Murder I was increased from 20 to 30 up to 99 years. Murder
in the second degree was increased from 10 to 15 up to 99
years. The sentencing changes in SB 91 had been in effect
since July 2016. She explained that the maximum presumptive
ranges for all felonies did not change with SB 91. The
maximum was: Class A - 20 years, Class B - 10 years, and
Class C- 5 years. However, felony presumptive ranges had
been decreased by SB 91, mostly by 2 years. She exemplified
that the presumption for a first time Class A felony had
changed from 5 to 8 years to 3 to 6 years.
Co-Chair Wilson asked for a definition of presumptive. Ms.
Meade complied. She explained that a judge would sentence
someone to the presumed amount of time unless certain
mitigating or aggravating factors existed. The judge could
lower the presumed sentence by mitigators or raise the
presumed sentence through aggravators.
11:50:56 AM
Representative Merrick asked whether the presumptive range
had been decreased by two years for cost saving purposes.
Ms. Meade replied that the change had been made for a
variety of reasons. She elaborated that studies
demonstrated that long jail sentences did not lead to
rehabilitation and could lead to increased recidivism by
the increased exposure to criminal elements.
Ms. Meade continued to address sentencing. She shared that
"the issue that had raised the most consternation was the
Class C felony" provision with the presumption of probation
only and suspended time of up to 18 months. A first time C
felon could not go to jail. She added that vehicle theft
was a class C felony. The public raised concerns that
sentencing for first time vehicle theft did not include
incarceration. The law had subsequently been changed by SB
54 - Crimes; Sentencing; Probation; Parole [Chapter 1 4SSLA
17 - 11/29/2017] that increased one time vehicle theft from
zero to two years, one to four years for a second offense,
and increased certain sentences within Class A felony
offenses. She summarized that SB 54 reversed many of the SB
91 changes for the crimes she listed.
Co-Chair Wilson asked for verification that the level of
sentencing for vehicle theft was at present what it had
been prior to SB 91. Ms. Meade agreed that was the case
for a first offense. Co-Chair Wilson asked what the range
was for a second offense. Ms. Meade replied that the
presumed sentence for a second offense C felony vehicle
theft was 2 to 4 years and was currently 1 to 3 years.
Representative Merrick asked about the zero to two years
for a first time felony. She asked whether the zero
included a mandatory sentence. Ms. Meade replied in the
negative and added that zero years was a possible outcome
for a first time felony. Representative Merrick inquired
what the circumstance for a zero year sentence was. Ms.
Meade deferred to Mr. Skidmore.
11:55:03 AM
Mr. Skidmore responded that there were many Class C
felonies that the provisions applied to. He could provide
complete information in writing. He elaborated that some
were: assault in the third degree, vehicle theft, theft in
the second degree, and criminal mischief. He exemplified
that an assault in the third degree could involve causing
fear (e.g. pointing a gun at a person or threatening
someone with a bat) or physical assault. There was a wide
range of conduct under the category. The presumptive range
was elevated when there was a prior felony offense, but the
zero to two years was the presumptive range regardless of
the person's criminal history. He detailed that a judge had
to consider the totality of circumstances when sentencing.
He exemplified that if a person committed a theft because
of hunger and trying to feed their children it was illegal
but more understandable than someone aiming to gain a
profit or harming another person.
11:58:05 AM
Representative Merrick stated that previously under SB 91 a
person could commit a first time vehicle theft and receive
probation. She asked whether currently a judge could
sentence zero jail time for the crime. Mr. Skidmore
answered in the affirmative. SB 54 had given a judge
discretion to impose jail time or probation only. He added
that under SB 91 the judge was unable to impose
incarceration.
Ms. Meade added that it was extremely rare for a person to
receive no jail time for a Class C felony.
Vice-Chair Johnston discussed that SB 54 changed the Class
C felony sentencing. She noted that sentencing for Class B
felonies had not been changed under SB 54. Ms. Meade
replied in the affirmative and added that the first time
Class B felony presumption was also zero to two years. She
relayed that there had been discussion about the
constitutionality and proportionality between the
sentencing for both crimes.
Representative Carpenter asked about the prior Class B
felony sentencing range. Ms. Meade answered that it had
been one to three years.
Representative Josephson asked for verification that prior
to SB 91 a person could receive no jail time for a Class C
felony. Ms. Meade agreed. Representative Josephson stated
that case law and statutory law properly restrained a
judge's discretion within ranges to achieve parity. Ms.
Meade replied in the affirmative. She elucidated that
within presumptions, sentencing factors were considered
because proportionality and equality was needed with
respect to other crimes and sentencing.
Ms. Meade addressed misdemeanor sentences; Class A and B.
She explicated that Class A sentences were changed to a
maximum of 30 days in jail, with numerous exceptions.
Previously the sentence had been a one year maximum. The
sentence was still a maximum of one year if the crime was
the most serious type of its classification and if it was
the second time for a similar offense. The 30 day sentence
typically applied to first offenders with similar crimes.
She added that certain crimes were prescribed a sentence of
up to one year i.e. assault IV, which was a common type of
assault with domestic violence, commonly called a "fear
assault." She listed other crimes that could receive a
sentence of up to one year: sexual assault IV, sexual abuse
of a minor IV, indecent exposure of a person under the age
of 16, harassment I, and sending explicit images of a minor
over the internet.
12:05:19 PM
Representative Josephson asked why assault IV was
considered a fear assault. Ms. Meade clarified that it was
her understanding that the primary assault IV was
considered a fear assault because it was the most common
charge in domestic violence cases. She was uncertain her
answer was correct. Representative Josephson thought that
she was incorrect. He noted that a person who hit their
spouse was also charged with an assault IV.
Mr. Skidmore answered that assault IV had three
subsections. He confirmed that fear assault was one type of
Assault IV and causing physical injury was also classified
under Assault IV. Representative Josephson stated that one
of his greatest concerns about SB 91 related to the current
discussion. He indicated that AS 18.66 contained the
definition of domestic violence. He related that the
exceptions to the 30-day cap only related to assault IV. He
exemplified that if a husband took a bat and destroyed
property during an altercation, he believed that the action
was a crime of domestic violence and was fear inducing. He
asked whether the scenario would be capped by 30 days, even
though another person was not actually physically injured,
but was a crime of domestic violence. Mr. Skidmore agreed
it was a crime of domestic violence; it would be capped at
a sentence of 30 days.
12:08:30 PM
Ms. Meade relayed that the final change made to Class A
misdemeanor under BSB 91 was increasing maximum fines from
$10 thousand to $25 thousand. Co-Chair Wilson asked how
many offenders paid the fine. Ms. Meade was uncertain. She
remarked that many people did not pay the fine. Co-Chair
Wilson remarked that an unpaid fine was not much of a
penalty. She asked whether a judge could impose community
service or another condition that had an impact. Ms. Meade
answered that community work service was not available in
all parts of the state. She offered to research whether
fines could be converted to community work service under SB
91. Co-Chair Wilson asked whether data was collected on
fine collection. Ms. Meade was uncertain regarding data but
acknowledged that DOA collected court fines through
collection efforts.
12:10:42 PM
Representative LeBon noted that collection efforts impacted
an offender's credit record.
Representative Carpenter asked if failing to pay a fine was
a crime. Ms. Meade did not believe it was a crime.
Mr. Skidmore replied in the negative and added that not
paying a fine was not a crime but could be considered a
violation of probation. He furthered that if non-payment
was willful and the offender could pay, the person could
potentially serve some time.
Co-Chair Wilson thought Mr. Skidmore described a double
standard. She provided a scenario where a person who had a
low paying job would have to pay the fine whereas a person
without a job did not have to pay. Mr. Skidmore answered it
was not a double standard and all types of factors had to
be taken under consideration with willful non-payment.
12:13:41 PM
Representative LeBon observed from personal experience that
child support enforcement was vigorously pursued by the
state.
Representative Carpenter noted that the constitution
specified that criminal policies were supposed to deter
crime. He reasoned that imposing a fine that never got paid
did not seem to meet the intention of deterring crime. He
thought the statute needed revision.
Ms. Meade referenced Representative Josephson's earlier
comment about discretion. She reported that it would be
rare for a judge to impose a $10 thousand fine for a Class
A misdemeanor. The judge would weigh the circumstances and
try not to do harm to someone with no ability to pay.
Representative Carpenter observed that according to
CourtView many people were not paying their fines. Ms.
Meade agreed that there were many unpaid fines.
Co-Chair Wilson remarked that CourtView would not show the
circumstance for non-payment. Ms. Meade agreed with the
statement.
Representative Carpenter wondered why multiple misdemeanors
under different categories were treated individually. Ms.
Meade thought he was referencing her statement regarding
"an enhancer," that provided a sentence of up to one year
for certain A misdemeanors with past convictions for
conduct similar in nature but if not similar, the offender
was sentenced individually. She recounted that the
deliberation focused on what the appropriate jail time for
misdemeanants was. The default sentence was chosen at 30
days unless it was a second offense for a similar crime,
which was accorded a tougher sentence.
12:18:03 PM
Representative Carpenter wanted to know whether the judge
had the discretion to protect the public by putting an
offender in jail instead of continuing to cause problems.
He felt that the unrelated misdemeanors should be
considered in totality. He reasoned that the public's
safety was in jeopardy if a pattern could not be detected
by the judge.
Co-Chair Wilson asked if there was a certain number of
misdemeanors that made someone a felony. Ms. Meade answered
there were some misdemeanors that aggregated charges to a
felony. She exemplified, DUIs and theft. She noted there
may be other instances.
Ms. Meade moved to address B misdemeanor sentencing. She
reported that B misdemeanor offenses were the lowest level
of crime. The jail time was capped at 10 days under SB 91
lowered from 90 days except for crimes related to sending
explicit photographs online and online harassment. The
misdemeanor statute in SB 91 had many specific exceptions
relating to theft, certain drug possessions, disorderly
conduct, and violating conditions of release. She shared
that the Theft I (theft of $250 or less) sentences that
eliminated jail time caused significant public concern and
had been changed under SB 54. She reviewed the jail time
for the offense. The Theft I offense was sentenced to 5
days for the first offense, 10 days for the second, and 15
days for the third with the fourth offense aggregating to
an A misdemeanor.
12:22:32 PM
Ms. Meade referenced drug possession in amounts that were
indicative of non-intention to distribute; misconduct
involving controlled substances in the fourth and fifth
degree were treated as misdemeanors except for the date
rape drug. She specified that under SB 91 the first two
offenses were sentenced to suspended jail time and
probation. In addition, disorderly conduct had a set
maximum of 24 hours and violations of conditions of release
had a set maximum of 5 days.
Representative Josephson asked for verification that the
administration had determined that no active jail time for
misconduct involving controlled substances IV and V was a
healthcare crisis and could not leverage any penalty until
the third conviction. He asked for verification that "the
administration wanted to vigorously work on the situation."
Mr. Skidmore answered that currently drug possession did
not carry any "significant penalties." He had observed a
dramatic decrease in referrals and filings related to drug
crimes had occurred. The department found it very
concerning because it meant there were numerous individuals
not receiving some sort of intervention that they were
previously receiving.
Co-Chair Wilson cautioned that currently the committee did
not have crime legislation to consider and the purpose of
the meeting was to understand the current status of crime
legislation and its ramifications.
12:26:52 PM
Representative Josephson asked whether a person was found
to be "visibly doing heroin" the penalty would be a
misdemeanor but with no jail time if it was a first
offense. Mr. Skidmore answered in the affirmative.
Representative Josephson asked if there would be no jail
time if charged for the same offense again. Mr. Skidmore
answered in the affirmative. Representative Josephson
inquired whether it was the administration's position that
an offender with a heroin problem may not get treatment
unless sentencing was toughened to include jail time,
forcing the person into an option. Mr. Skidmore responded
in the affirmative. He expounded that the department's view
was that without a negative consequence to incentivize
changing the person's behavior it would not change. He
added that addiction required incentives to reverse the
behavior. He reported that the state experienced a 68
percent decrease in drug related felony filings between
2016 and 2018, which amounted to 679 fewer cases. He
expected the felony drug charges to drop to misdemeanors
but found a 61 percent decrease in drug filings for
misdemeanors as well. He deduced that "the bottom had
dropped out of all drug prosecutions in the state of
Alaska." He warned that the data was cause for concern.
Co-Chair Wilson asked if the individuals were not being
arrested. Mr. Skidmore did not know the answer. He believed
the answer was no, but he did not have arrest statistics in
front of him. He did not know whether the exact percentages
applied to arrests. Co-Chair Wilson surmised that if the
individuals were not arrested, they could not be counted.
She wondered whether DPS had the data.
12:30:56 PM
KELLY HOWELL, SPECIAL ASSISTANT, DEPARTMENT OF PUBLIC
SAFETY, could only speculate and offered to provide an
answer in writing.
Representative Carpenter voiced that the pretrial tool did
not account for the cycle of crime related to drug use. He
expressed a desire to remedy the problem. Co-Chair Wilson
agreed.
Co-Chair Wilson reiterated the discussion would resume the
following Monday afternoon.
ADJOURNMENT
12:34:31 PM
The meeting was adjourned at 12:34 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Criminal Justice Review - FINAL 4-18-19.pdf |
HFIN 4/18/2019 9:00:00 AM |
HFIN |