Legislature(2015 - 2016)GRUENBERG 120
03/30/2016 01:00 PM House JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| HB205 | |
| HB317 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 317 | TELECONFERENCED | |
| *+ | HB 236 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 205 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 30, 2016
1:03 p.m.
MEMBERS PRESENT
Representative Gabrielle LeDoux, Chair
Representative Wes Keller, Vice Chair
Representative Neal Foster
Representative Bob Lynn
Representative Charisse Millett
Representative Matt Claman
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
Representative Kurt Olson (alternate)
COMMITTEE CALENDAR
HOUSE BILL NO. 205, "An Act relating to conditions of release;
relating to community work service; relating to credit toward a
sentence of imprisonment for certain persons under electronic
monitoring; relating to the restoration under certain
circumstances of an administratively revoked driver's license,
privilege to drive, or privilege to obtain a license; allowing a
reduction of penalties for offenders successfully completing
court- ordered treatment programs for persons convicted of
driving under the influence; relating to termination of a
revocation of a driver's license; relating to restoration of a
driver's license; relating to credits toward a sentence of
imprisonment, to good time deductions, and to providing for
earned good time deductions for prisoners; relating to early
termination of probation and reduction of probation for good
conduct; relating to the rights of crime victims; relating to
the disqualification of persons convicted of certain felony drug
offenses from participation in the food stamp and temporary
assistance programs; relating to probation; relating to
mitigating factors; relating to treatment programs for
prisoners; relating to the duties of the commissioner of
corrections; amending Rule 32, Alaska Rules of Criminal
Procedure; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 317, "An Act relating to forfeiture to the state;
relating to criminal law; amending Rules 3, 4, 11, 12, 16, 32,
32.2, 32.3, 39, 39.1, and 42, Alaska Rules of Criminal
Procedure, Rules 501, 801, and 803, Alaska Rules of Evidence,
and Rules 202, 209, and 217, Alaska Rules of Appellate
Procedure; and providing for an effective date."
- HEARD & HELD
HOUSE BILL NO. 236
"An Act relating to marriage solemnization."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 205
SHORT TITLE: CRIMINAL LAW/PROCEDURE; DRIV LIC; PUB AID
SPONSOR(s): REPRESENTATIVE(s) MILLETT
04/17/15 (H) READ THE FIRST TIME - REFERRALS
04/17/15 (H) JUD, FIN
03/11/16 (H) JUD AT 12:30 AM GRUENBERG 120
03/11/16 (H) -- MEETING CANCELED --
03/12/16 (H) JUD AT 2:00 PM GRUENBERG 120
03/12/16 (H) -- MEETING CANCELED --
03/14/16 (H) JUD AT 12:30 AM GRUENBERG 120
03/14/16 (H) Heard & Held
03/14/16 (H) MINUTE (JUD)
03/16/16 (H) JUD AT 12:30 AM GRUENBERG 120
03/16/16 (H) Heard & Held
03/16/16 (H) MINUTE (JUD)
03/18/16 (H) JUD AT 12:30 AM GRUENBERG 120
03/18/16 (H) Heard & Held
03/18/16 (H) MINUTE (JUD)
03/21/16 (H) JUD AT 12:30 AM GRUENBERG 120
03/21/16 (H) Heard & Held
03/21/16 (H) MINUTE (JUD)
03/21/16 (H) JUD AT 5:00 PM GRUENBERG 120
03/21/16 (H) Heard & Held
03/21/16 (H) MINUTE (JUD)
03/22/16 (H) JUD AT 5:00 PM GRUENBERG 120
03/22/16 (H) Heard & Held
03/22/16 (H) MINUTE (JUD)
03/23/16 (H) JUD AT 12:30 AM GRUENBERG 120
03/23/16 (H) -- MEETING CANCELED --
03/23/16 (H) JUD AT 1:00 PM GRUENBERG 120
03/23/16 (H) -- Continued from 3/22/16 --
03/28/16 (H) JUD AT 1:00 PM GRUENBERG 120
03/28/16 (H) Heard & Held
03/28/16 (H) MINUTE (JUD)
03/30/16 (H) JUD AT 1:00 PM GRUENBERG 120
BILL: HB 317
SHORT TITLE: FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL
SPONSOR(s): REPRESENTATIVE(s) WILSON
02/17/16 (H) READ THE FIRST TIME - REFERRALS
02/17/16 (H) JUD, FIN
03/30/16 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
CATHLEEN MCLAUGHLIN, Director
Partners Reentry Partners Reentry Center
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 205, discussed
reentry.
BRENDA STANFILL, Commissioner
Alaska Justice Commission
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 205, discussed
victims.
SYLVAN ROBB, Policy Analyst
Office of Management & Budget (OMB)
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 205, answered
questions.
KACI SCHROEDER, Assistant Attorney General
Criminal Division
Legal Services Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: During the hearing of HB 205, answered
questions regarding restitution.
TAMMIE WILSON, Representative
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 317 as prime sponsor.
KEVIN FITZGERALD
Attorney
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 317, testified in
favor of the bill.
JOHN SKIDMORE, Director
Legal Services Section
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 317, testified and
answered questions.
ACTION NARRATIVE
1:03:27 PM
CHAIR GABRIELLE LEDOUX called the House Judiciary Standing
Committee meeting to order at 1:03 p.m. Representatives Keller,
Lynn, Millett, Claman, Foster, and LeDoux were present at the
call to order. Representative Kreiss-Tomkins arrived as the
meeting was in progress.
HB 205-CRIMINAL LAW/PROCEDURE; DRIV LIC; PUB AID
1:04:08 PM
CHAIR LEDOUX announced that the first order of business would be
HOUSE BILL NO. 205, "An Act relating to conditions of release;
relating to community work service; relating to credit toward a
sentence of imprisonment for certain persons under electronic
monitoring; relating to the restoration under certain
circumstances of an administratively revoked driver's license,
privilege to drive, or privilege to obtain a license; allowing a
reduction of penalties for offenders successfully completing
court- ordered treatment programs for persons convicted of
driving under the influence; relating to termination of a
revocation of a driver's license; relating to restoration of a
driver's license; relating to credits toward a sentence of
imprisonment, to good time deductions, and to providing for
earned good time deductions for prisoners; relating to early
termination of probation and reduction of probation for good
conduct; relating to the rights of crime victims; relating to
the disqualification of persons convicted of certain felony drug
offenses from participation in the food stamp and temporary
assistance programs; relating to probation; relating to
mitigating factors; relating to treatment programs for
prisoners; relating to the duties of the commissioner of
corrections; amending Rule 32, Alaska Rules of Criminal
Procedure; and providing for an effective date."
[Before the House Judiciary Standing Committee was CSHB 205,
labeled 29-LS0896\H, adopted in the 3/14/16 meeting.]
CHAIR LEDOUX advised that the committee will continue testimony
regarding reinvestment policies.
1:04:36 PM
CATHLEEN MCLAUGHLIN, Director, Partners Reentry Center, offered
to answer questions regarding justice reinvestment from the
standpoint of the Partners Reentry Center and holding people
accountable. She explained that the center opened in August
2013, and since that time it has served 2,992 individuals, and
since July 1, 2015 through March 30, 2016 there are 943 new
individuals in the program with another 222 in the program
previous to the beginning of this fiscal year, and its budget
was to serve 500 but due to the need it will exceed that amount
by a long shot. She further explained the Partners Reentry
Center takes people who would otherwise be homeless. It
provides, on a partnership basis - not through entitlement, the
ability to obtain short-term housing for 45-60 days, the
opportunity to get into permanent placement housing, and the
opportunity to obtain employment or get back on Supplemental
Security Income (SSI) or other benefits that will allow them to
become self-sufficient within 60 days upon release.
1:06:57 PM
MS. MCLAUGHLIN explained that as of this morning, data shows
that its daily attendance is between 62-94 people each day and
operates as an immediate provider of services because people are
served the day they walk in. The Partners Reentry Center asks
for the person's commitment to work with them because
statistically it has found that if it can hold onto people, who
would otherwise be homeless, to be in the program one-to-two-to-
three times per week they have a higher likelihood of success.
She said it is focused on issues from the "Boots on the Ground,"
and opined that several of the House Judiciary Standing
Committee members may have come to the Partners Reentry Center.
She related that the Partners Reentry Center does have enough
housing with 12 sites in Anchorage and enough beds available,
but it does shepherd its resources carefully so it can serve as
many people as necessary while it refers them out to other more
long-term reentry programs. Of the individuals who were in the
Partners Reentry Center's program during the month of February,
she noted, it had 62 hires for employment, and it started a
Native reentry group which is up to 25-30 Native reentrants who
are goal driven to advocate for themselves to go back to their
villages.
1:08:35 PM
MS. MCLAUGHLIN explained that the Partners Reentry Center has
been using that with a restorative justice model and its goal is
to try to get people back to more culturally relevant areas if
their villages invite them back and there is not a public safety
risk. The reality with justice reinvestment is that 90-95
percent of all people incarcerated will be released and rather
than deny that fact, the Partners Reentry Center embraces it and
asks how to be certain these people have the healthiest
transition if they don't have a support system in place. She
pointed out that the Partners Reentry Center aggressively
performs in-reach and pre-release planning at all of the
institutions, and its highest volume comes out of the Goose
Creek, Palmer, and Hiland Mountain Correctional Centers. She
said the "inside and out program" was recently transferred to
the Partners Reentry Center at retiring Justice Dana Fabe's
request, and it will aggressively follow through at the Hiland
Mountain Correctional Center.
1:09:58 PM
MS. MCLAUGHLIN offered that the Partners Reentry Center is
involved in the Vivitrol program because there were too many
overdoses of heroin and the misuse of alcohol. She explained
that it is a no cost event for the state as the Partners Reentry
Center is doing it without grant monies. Vivitrol is a shot
version of the oral Naltrexone and the goal is to get opioid,
heroin, or alcohol addicted people the shot as soon as release
is possible because it has been found that people with high
addiction rates, with those three substances, usually recidivate
within the first thirty days, she explained. Currently, it is a
pilot program and the Partners Reentry Center receives the first
shot free of charge, and they then sign people up for Medicaid
in order that the second through fourth shots are paid under
Medicaid. As of today, she advised, the Partners Reentry Center
has 49 people in that program, 28 of which accepted Vivitrol, of
those 28, 4 have recidivated. She continued that of the 21
people declining Vivitrol, 19 have been re-incarcerated within
the first 30 days of release, and of the two individuals still
out there is a warrant for one for failure to report. The
Partners Reentry Center is using that as an opportunity to try
to deal with the heroin, opioid, and alcohol addiction issues,
and is working with the Matanuska-Susitna Valley to determine
whether the Vivitrol program can be expanded into that area.
She noted there are many peer groups and the Partners Reentry
Center's goal is simple "if you touch people who are coming back
into society after whatever length of stay that they have
incarcerated, you give them a sense of hope, a positive
attitude, and a path, they have a higher likelihood of success."
The Partners Reentry Center would like to see other communities
around the state have an opportunity to offer this type of
program in their local areas, thereby, allowing people to go
home, to have some restorative justice and healing within the
communities, she said.
1:12:51 PM
REPRESENTATIVE MILLETT asked the total of the Partners Reentry
Center's budget, including the staff levels. She further asked
if this bill were to pass with the reinvestment how she
anticipates the Partners Reentry Center's build up time to
increase care for the influx of people.
MS. MCLAUGHLIN answered that she is committed to being available
to anyone who would otherwise be homeless, coming out of jail
with a felony or misdemeanor with an Alaska Alcohol Safety
Action Program (ASAP) or treatment component. The Partners
Reentry Center has been able to give these services to everyone
qualifying under those two requirements. Their budget for FY16
was $550,000 and it was enhanced by an AHFCB half of $146,000.
There are six staff working full time and she commented that it
is understaffed and needs to be better staffed to perform real
time data entry and real time services because it cannot have
people wait. She pointed out that if people are homeless the
people who fail are the people the Partners Reentry Center can't
pass off on a quick referral to substance abuse treatment or
mental health treatment and; therefore, it is committed to
serving people the day they walk through the door. Together
with the six staff, she explained, there are five practicum UAA
students that the Partners Reentry Center hosts, and one
(indisc.) trainee through the Department of Labor & Workforce
Development (DLWD) who was a successful reentrant and is now
paid through the DLWD and staffed at the Partners Reentry
Center. She explained that it also collaborates with the Cook
Inlet Tribal Council (CITC) to have substance abuse assessments
completed the week people release, "so they come over and do
that," and the Partners Reentry Center borrows from CITC for
that purpose.
1:15:52 PM
MS. MCLAUGHLIN related that the model Partners Reentry Center is
using is that it is the hub in that a person comes in and is
referred out as quickly as possible or gets people signed up for
Medicaid and PFDs. She stated that Commissioner Dean Williams,
Department of Corrections (DOC) wanted to be certain that was
being done. The Partners Reentry Center also collaborates with
all other entities and performs quick referrals within the first
thirty days of release. In response to how long it would take
to ramp up for additional people she answered that due to the
model, which is participant centered, the Partners Reentry
Center does need more staff without question, but it will not
turn someone away because it is understaffed. She remarked that
the Partners Reentry Center's ask has been $685,000 for FY17,
which would include one additional staff member.
1:16:59 PM
REPRESENTATIVE MILLETT asked where clients go to receive their
shots when volunteering to go through the long-term shot
program, and who is administering the shots.
MS. MCLAUGHLIN responded that it is done two ways: through
myHealth Clinic with a health practitioner working on her Ph.D.
for medically assisted treatment and she provides the majority
of the shots; and the Alaska Native Medical Partners Reentry
Center. She reiterated that the shots begin the day people are
released from jail.
MS. MCLAUGHLIN, in response to Representative Lynn, advised that
myHealth Clinic is on Abbott in South Anchorage.
1:18:05 PM
CHAIR LEDOUX asked Ms. McLaughlin to explain the shots.
MS. MCLAUGHLIN responded that the Vivitrol shot is a sensory
limiter wherein if someone attempted to use alcohol, heroin, or
an opioid they would not have any kind of enhanced effect. It
doesn't make a person sick, it just stops the sensory benefits a
person would think they would receive from those drugs. The
shot is given in the buttock every 28 days, and the recommended
expectation for the use of the shot is six to twelve months,
although it depends upon the individuals. For example, when she
travels to Hiland Mountain Correctional Center she will tell
individuals who have found themselves rearrested several times
because of opioid, heroin, or alcohol use, if they want to
partner with the Partner Reentry Center when released they will
have a shot ready the day of release, and it will make certain
the person gets to myHealth Clinic and receives the shot. She
explained that in tandem with the shot, it also mandates that
people have behavioral treatment component, such as substance
abuse counseling, or Moral Reconation Therapy (MRT), or attend
peer-to-peer groups because the shot will only get the person so
far in stopping physical cravings for these drugs. She pointed
out that unless the underlying reason for the use of the drugs
or alcohol is determined, the program will not be sustaining.
She opined that the actual compound within Vivitrol is the same
as Naltrexone and Norcan, which is the drug used to try to
reverse an overdose.
1:20:18 PM
CHAIR LEDOUX asked about Antabuse.
MS. MCLAUGHLIN explained that this is not like Antabuse because
it does not make a person sick, it just causes the person to
stop craving the desire for those drugs themselves. For
example, she related they have an individual who was very
addicted to Suboxone and heroin, and is on his third shot of
Vivitrol. He advised her that previously when he saw a Suboxone
pill he would sweat and anxiously hope he could get that pill
into his body, and a Suboxone pill on the street is usually $80.
She said he related that due to the shot he is fully employed,
paying rent, and when triggered in that manner it has had no
effect on him because he is not craving it. Vivitrol is not a
drug that causes addiction; therefore, if a person stops the
shots there is no withdrawal although the cravings will return
unless the person has learned how to address them.
CHAIR LEDOUX asked whether she meant the psychological cravings
will return.
MS. MCLAUGHLIN agreed and said the psychological cravings will
return and basically the shot tries to give the brain a rest
from the drugs so it can start retooling itself.
1:21:51 PM
CHAIR LEDOUX asked whether it eliminates physical cravings.
MS. MCLAUGHLIN said correct, in that it is a sensory blocker and
if a person tried to drink on Vivitrol the person would not
become intoxicated because it blocks those senses.
CHAIR LEDOUX asked whether it would work to ease the pain of
withdrawal.
MS. MCLAUGHLIN answered no, it will put the person immediately
into withdrawal. With alcohol, she said, the shot can be given
within two to three days of someone using alcohol. While with
heroin, the person must be free of heroin in their system so it
requires an approximate seven day to ten day wait in order to
take the shot. That is why, within their program, it is
imperative that the shot is given the day upon release because
there would not be an opportunity to go out and use, she
explained.
1:23:15 PM
REPRESENTATIVE KELLER surmised that the shots without the backup
treatments offer disappointing results. He asked her to explain
MRT and peer groups because he would like to know whether there
are plenty of services working with individuals to retool their
life patterns and replace the vacancy left there by the
addiction.
MS. MCLAUGHLIN replied that Representative Keller is absolutely
correct, unless a person gets into the underlying reasons, the
point of failure for Vivitrol is after a person stops taking
Vivitrol and the cravings return, and if the person has not
determined the source of the cravings they will go back to
using. She stressed it is key that the behavior management
component is included. The Partners Reentry Center has an
individual, Robert Champion, MRT Facilitator at the McLaughlin
Youth Center, who offers groups at the Partners Reentry Center
filled with individuals on Vivitrol so they have the capacity to
do it, she said. She related that she likes MRT as a model
because it is 12 weeks to 16 weeks that gets into cognitive
behavioral changes, and for some people that works. She noted
individuals with jobs, who have a life, and are doing okay but
cannot dedicate a tremendous amount of time to a substance abuse
intensive treatment program. She said they offer peer-to-peer
group three times a week, they also partner with the Cook Inlet
Tribal Council, and the Anchorage Native Justice Centers for
their men's and women's groups. She explained that if
individuals are over-programmed and are required to do too many
things, they are being set up to fail. Therefore, the Partners
Reentry Center is trying to give people tools to move forward in
a healthy manner but not over-programming them to the point they
have to decide whether to live homeless or without food in order
to pay for their substance abuse treatment. She said she does
not want to be disrespectful to any substance abuse programs but
the wait lists and the delay in getting assessments is causing
people to fail before getting into the programs.
1:27:06 PM
REPRESENTATIVE KELLER asked whether the Partners Reentry Center
has been around long enough to accumulate data as to its success
rate.
MS. MCLAUGHLIN advised that Partners for Reentry started the
program during second week of September, and she reiterated the
information regarding the 49 individuals she previously
explained. They have looked at other programs to compare
themselves to and they have not found any programs being
conducted in this manner. Although, Arizona asked the Partners
Reentry Center to assist with a pilot program that would be
modeled after what is being done in Alaska because it is showing
some promising results at this point. She stated she is hopeful
that with the benefit of Jill Green, health practitioner,
performing the injections and working on her thesis that they
will acquire more data. The Partners Reentry Center has a real
time data base and every time something happens it is put into
their system immediately, track it, and perform more analysis,
such as who were these people, what was their intensity of drug
usage, how many times did they violate or have new charges, and
she related that they will be able to do that but not yet.
1:29:46 PM
REPRESENTATIVE LYNN commented that her patrons live all over
town and ask how they typically get to the facility.
MS. MCLAUGHLIN answered that Partners for Reentry facility is at
419 Barrow Street, and myHealth Clinic for the shot injections
is located off of Abbott.
1:30:23 PM
REPRESENTATIVE LYNN reiterated his question and asked how the
patrons typically get to the facility.
MS. MCLAUGHLIN explained that the bus goes right there and they
ask them to take the bus but if there is any hesitancy or if
they are not from Anchorage, the Partners Reentry Center has
taxi vouchers that will allow them to get to the facility to get
their shot and have them take a bus back to their housing.
REPRESENTATIVE LYNN asked who pays for the shot.
MS. MCLAUGHLIN related that their patients are homeless with no
money and it paid by asking the drug manufacturer to give them
the first shot free and they have been willing to do that. She
reiterated that the first shot is free and they then sign people
up immediately for Medicaid if Medicaid eligible, and the
remaining shots are paid through Medicaid.
1:31:53 PM
REPRESENTATIVE MILLETT referred to her statement that another
place for shots was the Alaska Native Medical Center and assumed
it pays for the shots for their clients and back-bill Medicaid.
MS. MCLAUGHLIN answered in the affirmative.
CHAIR LEDOUX thanked her for testifying and noted that she had
been to the Partners Reentry Center and expressed it is a
phenomenal program.
1:33:25 PM
REPRESENTATIVE CLAMAN referred a question to Brenda Stanfill and
asked how this bill will improve the lot for victims.
Obviously, he said, a target is that there will be a reduction
in the crime rate and the best thing victims will see is not
being a victim.
1:34:12 PM
BRENDA STANFILL, Commissioner, Alaska Justice Commission, said
she has put a lot of thought into that question in terms of
looking at this as each victim of crime versus looking at a
bigger picture of Alaska in that "we're all in this together."
She related that this is only the first building block and in
moving forward and reviewing these specific bills, this is the
first year of the commission working fully through to set what
she considers to be a foundation. It is known that changes have
to be made in the state's criminal justice system and initially
the commission, in attempting to determine who the current
system worked for, went around the table and realized that
victims, offenders, judges, and defense and prosecution are not
happy. The commission then tried to create something that is
actually working by looking at the victims as being part of the
process. She noted some push back on pretrial and said that, to
her, pretrial means the state will do the upfront work to
determine how to hear victims' voices and complete the risk
assessments. If a judge is expected to release someone on their
own recognizance, she opined that the judge will listen closer
to a victim's voice and be certain restraints are in place to
keep the victim and public safe rather than just ordering $500
bail and no contact with the victim. She related that in
having a Pretrial Services Office the state can speak with the
victim to uncover more information for the risk assessment, and
begin to consider whether this defendant could have a suspended
entry of judgment, which is a totally different concept than the
current process. She offered a scenario of a 19 year old making
a dumb mistake by vandalizing someone's property or something
within a group of peers, and now there is a high dollar crime,
and said that pretrial services can take the time to possibly
determine that this is a youthful offender and the state could
order one year to pay the victim back for their damages,
including community work service, and if they do it in one year
they do not have a record. Consequently, she pointed out that a
huge hole has not been dug for the 19 year old to have to dig
out of to make the victim whole.
1:37:52 PM
MS. STANFILL said the bill may be taking away some prison time
but it is known that prison is not changing people, and while it
may make the public feel better because their punishment is
jail. She commented that when speaking with most people living
a portion of their lives in jail they will say it's not a bad
place to be, because Alaska does not have uncomfortable jails.
She stated that the state would like to get the people before
jail is a part of their system and that there may be other
options besides jail to use as a punishment. She then commented
that the state could look at holistic ways in terms of
restorative justice because victims are not being put back
intact, and sometimes the crime is so horrendous there is no way
the victim can be put back intact, and what can be done to
provide more support services in that situation. Currently,
$360 million is put into the Department of Corrections (DOC)
verses approximately $15 million for victims' services. The
state needs to get to the point that it is spending as much time
focusing on victims and their health and making them whole as it
is on the DOC, she related.
1:39:21 PM
REPRESENTATIVE CLAMAN noted that he has been in jail many times
professionally and commented that each time he goes in he does
not have the thought that he wants to be there. Although, some
people may feel it is better than life on the streets, it is a
miserable place to be and the public doesn't want to be there
either, he remarked.
CHAIR LEDOUX referred to Ms. Stanfill's statement that jail is
not an uncomfortable place in relationship to punishment, and
she expressed that some crimes society needs to punish.
Possibly this is not the politically correct comment, she
remarked, but maybe it should be an uncomfortable place.
MS. STANFILL noted that she shares in those thoughts and jail
does limit freedom and certain things. Meanwhile, victims are
doing everything they can to have a place to live after the
person paying child support is now incarcerated, including how
to pay the bills. At the same time, the person in jail has
three square meals, a place to sleep, and it's nice and warm,
and they are not sharing a bed with their children. She
explained that when she says jail is not bad, she means that in
the way of Alcatraz and the movies and opined that is not what
Alaskan jails are. Interestingly, the Fairbanks Correctional
Center's statistics are flat until October through March because
people are cold. The hope is to get that person warm without
committing a crime, she said. Currently, the state can't get
ahead of it enough to focus on it because all of the state's
resources are sucked into paying those hard bed dollars.
1:42:01 PM
CHAIR LEDOUX surmised that when she comments the jails are not
that uncomfortable, she is comparing it to the movie, "Midnight
Express."
1:42:19 PM
REPRESENTATIVE LYNN offered the old saying for a lot of people
not leading a successful life, "three hots and a cot." He
commented that at one time prisons were called penitentiaries,
which is where penance comes from, being punished at a
penitentiary and paying penance. Currently, the state has
morphed into correctional centers as it is not trying to punish,
but rather to correct. He said there should be some punishment
element and not just to correct, such that parents punish their
children by taking away the car keys. He remarked that jail
should not be comfortable, although, on the other hand it should
be a safe place. He reiterated that the bill is changing it
from penitentiary with penance to corrections.
MS. STANFILL related that quite a few young men in both the
House of Representatives and the Senate committee meetings have
testified to the changes they were able to make after receiving
intensive treatment while in jail. Unfortunately, she noted,
the intensive treatment piece is missing because it was taken
away and that intensive treatment was a key part of their
testimonies. The corrections portion needs to be put back
because, currently, the state is just looking at the penalties
and it doesn't have the systems and processes in place to make
the corrections, she stressed.
1:45:14 PM
REPRESENTATIVE KELLER referred to tying in the importance of
jobs for inmates because if they do have a job they have the
opportunity to pay restitution and continue to care for those
depending upon them. The plan of the Alaska Criminal Justice
Commission for the future is to take away some of the barriers
to employment. Also, the concept is to make sure people locked
up don't just sit around, but that there actually is a work
penalty or reward, and that element must be built in if the
system is to reform, he opined.
1:47:52 PM
SYLVAN ROBB, Policy Analyst, Office of Management & Budget
(OMB), said she is available to answer questions.
REPRESENTATIVE CLAMAN reminded Ms. Robb that the committee
requested an idea of the savings from this bill independent of
the governor's separate cuts.
MS. ROBB answered that when taking out the $8 million Governor
Bill Walker's reduction, the five year savings from the reforms
included in this bill are $11 million, which would be the net
savings after reinvestment.
MS. ROBB, in response to Representative Claman, answered that
the net savings would be for five years. She added that it is
worth noting that the Department of Corrections' budget will
still be reduced by an additional $40 million during that time
period.
CHAIR LEDOUX surmised that the $40 million has nothing to do
with this bill.
MS. ROBB responded that Chair LeDoux is correct.
CHAIR LEDOUX asked why it is being discussed here.
MS. ROBB opined that she wanted to clarify those numbers and
that the Department of Corrections will have that budget
reduction. She related that Chair LeDoux is correct in that it
is not part of this, so the net savings over five years from HB
205 is $11 million.
1:49:52 PM
REPRESENTATIVE MILLETT advised that she has requested an
opportunity to speak with Governor Walker about HB 205 to
determine whether he supports, is neutral, or is out of favor
with the commission's recommendations and the bill.
REPRESENTATIVE CLAMAN asked Kaci Schroeder to give the committee
a description of the current restitution system, and the
measures in place for a victim experiencing $1,500 worth of
property stolen.
1:51:30 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Legal Services Section, Department of Law, said that Alaska's
current restitution statutes are fairly robust in that if a
victim of a crime is entitled to restitution it is something the
prosecutors frequently seek. The restitution is incorporated
into the plea negotiations and the prosecution seeks it after
trial as part of sentencing. They ask that judges make it both
a part of their sentence and their probation, and it is
important to note that restitution is a civil order so it does
extend beyond the life of the criminal case. After the
restitution order is made, if the victims choose they can try to
collect on their own or ask the Department of Law (DOL) to
assist. She offered that DOL has a collections unit dedicated
to collecting restitution and child support collections.
Unfortunately, DOL does not have an attorney dedicated solely to
collections, but the collections unit focuses on garnishing
PFDs. Although, it does have other avenues for collections
available to them; however, in its experience garnishing wages
or bank sweeps are not particularly helpful because often
probationers do not have steady employment and don't make a lot
of money so getting restitution piecemeal sometimes is not that
effective. The PFD offers a way to one-time collect a large sum
of money and the unit also takes voluntary payments from
probationers who are paying.
1:53:12 PM
REPRESENTATIVE CLAMAN asked how much money the Department of Law
collected in 2015 for restitution.
MS. SCHROEDER advised that the collections unit collected just
under $2.8 million, and it currently has 8,000 open restitution
cases.
1:53:40 PM
REPRESENTATIVE CLAMAN referred to people on probation and parole
and asked whether it is a condition of all of those people to
make restitution payments as a condition of their probation.
MS. SCHROEDER reiterated that the Department of Law seeks
restitution both as a term of the sentence and as a term of
probation.
REPRESENTATIVE MILLETT asked the order in which restitution is
paid.
MS. SCHROEDER responded that child support is first and
restitution is second.
REPRESENTATIVE MILLETT surmised that child support garnishment
would continue through completion of the back child support
being paid, and in the meantime the victim's portion would wait
until the back child support is paid and the restitution then
goes to the victim. She asked how often that happens.
1:55:01 PM
MS. SCHROEDER asked Representative Millett to clarify her
question.
REPRESENTATIVE MILLETT said that the civil liability goes
throughout the life of the person, and asked how long it takes
to get the checks into the hands of the victims after child
support is paid.
MS. SCHROEDER responded that it would be difficult to say
because child support payments vary in their amounts and the
order may stipulate how much money to take and leaving some
money DOL could collect for restitution.
REPRESENTATIVE MILLETT asked whether Ms. Schroeder had charts
depicting how many years out some victims receive restitution.
She referred to the order in which restitution is paid in that
victims are second, acknowledging the need for the payment of
back child support. She related the need to balance that with
the victims who sometimes don't receive restitution for 10-15
years.
MS. SCHROEDER responded that she spoke with the lead attorney in
the collections unit and they do not track the amount of
restitution owed versus how much has been paid per order. It is
difficult to say how long victims wait, although, she offered
that they can wait an exceeding long time and often they are not
paid at all.
1:56:52 PM
REPRESENTATIVE MILLETT opined that the data she is looking for
is not tracked, and asked whether anyone tracks that information
other than the Department of Law.
MS. SCHROEDER said she does not know anyone that would be
tracking that information, and that the collections unit is very
small and it is overwhelmed with its workload which can be part
of the reason for not tracking.
REPRESENTATIVE MILLETT said that possibly restitution could be
restructured wherein at the same time the arrears in the child
support are being paid, the victims are also recognized with
some portion of restitution during the time PFDs and wages are
garnished.
CHAIR LEDOUX commented that she understands where Representative
Millett is coming from but the child support arrears are usually
done when someone is on public assistance within the child
support enforcement agency. Therefore, when collecting for
child support, the state is actually collecting not for the
children anymore because the children have been paid by the
state, but collecting for the state to [repay] public
assistance. She pointed out that if the state ceases collecting
as much money for the state it will be more expensive to the
state. That is not saying that the legislature shouldn't
necessarily be doing it that way but, she opined, it will have
some fiscal impact on the state.
MS. SCHROEDER responded that Chair LeDoux is correct, that is
one of the reasons PFDs are garnished for child support payment,
and opined there are probably other ways but that is outside of
her knowledge base.
2:00:06 PM
REPRESENTATIVE KELLER pointed out that the committee is told on
the one hand that Alaska has the most robust restitution laws
around and yet the total amount of money victims have received
is unknown. He then asked for the total restitution compared to
the amount of money collected because "certainly" that can be
determined. He said he assumes the courts keep records of the
restitution orders which will provide a total amount of
restitution, and then DOL handles the collection so that should
be an easy comparison and he would like to see the number. He
pointed to the question of where the collected money goes and
how much goes to the state and how much to victims and said the
committee has to get to the bottom of this and start by
comparing how the state is doing on restitution.
MS. SCHROEDER opined that she does not know whether DOL has the
numbers as to the amount the outstanding judgments total, but
she will ask. She further opined that she does not know whether
the court system tracks that information, and noted that the
Department of Law (DOL) does not execute every restitution order
because sometimes victims take it into their hands to execute on
the order.
REPRESENTATIVE CLAMAN referred to the priority of child support
over restitution and surmised it would be applied if there is a
levy made on a PFD.
MS. SCHROEDER said he was correct, and the priority order is for
PFD garnishments.
REPRESENTATIVE CLAMAN offered a scenario of someone being on
probation or parole and part of their condition is that the
person must write $100 for restitution once a month, and get a
receipt. He described that as a voluntary payment and even if
that person owes child support if the probation officer says he
doesn't care about the child support, the person still needs to
pay the restitution.
MS. SCHROEDER answered that he was correct.
2:03:04 PM
REPRESENTATIVE CLAMAN asked whether she knew the differentiation
between the amounts collected through levies from the PFD versus
amounts collected for restitution in voluntary payments.
MS. SCHROEDER answered that she does not have that data but she
would check on it.
2:03:24 PM
CHAIR LEDOUX asked whether she had any suggestions as to what
the committee could actually do to beef up the robust
restitution system because if people are waiting 10-15 years for
their money it may not necessarily be working. She said she is
aware that "you can't squeeze money out of a rock ... a turnip."
MS. SCHROEDER agreed, and offered that an issue is that people
do not make a lot of money and sometimes restitution is in large
amounts. She offered that she does not have a lot of ideas but
DOL would evaluate any ideas the committee offers to determine
how it would work. As far as a robust system, she opined that
Alaska has a robust system as far as being able to order and
obtain judgments that order restitution, and the collections
issue may not be as robust.
[HB 205 was held over.]
HB 317-FORFEITURE: NO CIVIL IN REM; ONLY CRIMINAL
2:05:05 PM
CHAIR LEDOUX announced that the next order of business would be
HOUSE BILL NO. 317, "An Act relating to forfeiture to the state;
relating to criminal law; amending Rules 3, 4, 11, 12, 16, 32,
32.2, 32.3, 39, 39.1, and 42, Alaska Rules of Criminal
Procedure, Rules 501, 801, and 803, Alaska Rules of Evidence,
and Rules 202, 209, and 217, Alaska Rules of Appellate
Procedure; and providing for an effective date."
2:05:15 PM
TAMMIE WILSON, Representative, Alaska State Legislature,
paraphrased the following sponsor statement [original
punctuation provided] as follows:
House Bill 317 protects the private property rights of
innocent citizens by requiring that Alaska's revered
and dedicated law enforcement agencies, convict
individuals of a crime before permanently seizing
private property. Alaska's "civil asset forfeiture"
laws have been reported to be among the worst in the
country, allowing private property to be permanently
taken from individuals suspected of crimes, even if
they are never charged, much less found guilty.
Across the nation, civil asset forfeiture laws have
gained notoriety in recent years for rampant abuse and
deliberate circumvention of due process. Well-
documented cases of policing for profit have sparked a
wave of reform nationwide. In Alaska, local law
enforcement only need to show probable cause to seize
property. Failure to challenge a seizure within a
given timeframe results in an automatic and permanent
forfeiture. These problems are compounded by an
incentive for law enforcement to seize as much as
possible, since 75-100% of the revenues generated from
civil forfeitures flow back to the local agency.
Moreover, there is no requirement that Alaska
authorities collect or report data on their
forfeitures.
While assets may be reclaimed, civil asset forfeitures
places the burden on individuals to fight the
bureaucracy to prove that their assets were not gotten
through ill means, or that they did not consent to
using their property for an illegal purpose. Civil
cases do not provide for free legal assistance, so for
individuals that cannot afford private representation,
the process is intimidating at best, and ill-fated at
worst. HB 317 would require that an individual be
convicted of an actual crime before forfeiture
proceedings can take place, and would protect
guiltless spouses and family members from property
loss as a result of the process. The bill would also
impose transparency and accountability for civil asset
seizures and reduce financial incentives for abuse, by
providing that any revenues that do flow back to the
state as a result of federalized proceedings, are
deposited in the General Fund.
This bill reaffirms our confidence in local law
enforcement, as well as the most basic tenets of
Constitutional law and values. Convicted criminals
will still see the fruits of their crime confiscated
by the state, but innocent Alaskans can rest easy
knowing they will no longer be deprived of property
without due process.
2:09:08 PM
REPRESENTATIVE WILSON said the bill asks that "if you are going
to take something until someone has their day in court, you
should take good care of it. I would have already expected that
to have happened." She referred to the fiscal note from the
Department of Public Safety (DPS) and read as follows: "Passage
of this bill could potentially increase costs to the Alaska
Wildlife Troopers with respect to managing illegal taken fish
and game statewide." She said it is not illegal until someone
has their day in court and until they are proven guilty "we do
expect you to take care of things." She then referred to the
Department of Law's (DOL) fiscal note in the amount of $2
million, which stated it would require eight additional
attorneys and eight assistants for each attorney. If the
department needs eight additional attorneys, she asked how much
is being taken from Alaskans, who is receiving it, and where is
it going. She explained that the bill does four things:
criminal conviction before forfeiture, provides a consistent
overall process for forfeiture, a transparent accounting, and
revenues for forfeiture will go to general fund and not
necessarily to the agencies deciding whether or not they get to
keep it.
2:11:28 PM
CHAIR LEDOUX asked whether there is anyone seriously against
this bill, but the question was answered by the fiscal notes.
REPRESENTATIVE WILSON related that the commissioner of the
Department of Public Safety (DPS) advised that he did not like
the bill, and the representatives from DOL and the Alaska Court
System have discussed their issues and they are working on them.
She further related that this is good for Alaska and they should
be excited about making sure the legislature does the right
thing for Alaskan residents.
2:12:30 PM
REPRESENTATIVE LYNN opined that if property is forfeited to DPS
or the state, and if [a person] does not act within an
appropriate period of time, the agency can take the airplane or
boat and give it to the federal government and he doubts the
owner would ever see it again.
REPRESENTATIVE WILSON advised there is a process to where a
person has a limited amount of days to put in paperwork, and if
the person doesn't do it the agency has the right to keep it.
2:13:07 PM
REPRESENTATIVE LYNN asked whether it goes from the state agency
to the federal government.
REPRESENTATIVE WILSON opined that it could be a federal case and
it could go in that direction but the person would have had to
break federal law. She related stories that when the state
doesn't have enough evidence the state will turn it over to the
federal government and allow them to pursue the action.
CHAIR LEDOUX said she presumes that if the federal government is
charging an individual and seizing property initially, that as
draconian as Alaska's forfeiture laws are, that probably the
federal laws are at least equal if not surpassing Alaska law.
She surmised that the bill doesn't do anything with the federal
seizure of assets.
REPRESENTATIVE WILSON explained that the federal government can
still charge but currently there is an agreement that some of
the money comes back to the state. In those cases it would not
come back to the troopers or any other agency, and is directed
to the general fund. The bill would not change [federal] laws
or processes in any fashion, she said.
2:14:41 PM
REPRESENTATIVE KELLER referred to the offenses subject to
forfeiture, on pages 6-7, and asked her to explain the types of
crimes being discussed.
REPRESENTATIVE WILSON responded that many are mandatory having
to do with drinking and driving and she then deferred to Kevin
Fitzgerald.
REPRESENTATIVE KELLER referred to the outline for the forfeiture
process under the bill and asked whether she is saying that it
is not currently there, and she included it. He further asked
whether other states have clear standards on forfeitures as a
model.
REPRESENTATIVE WILSON replied yes, and this has come from the
states that are rated as "A" or "B" and not "D" as Alaska is.
2:15:57 PM
REPRESENTATIVE KELLER advised he likes the bill, but he would
like a description of the crimes.
REPRESENTATIVE WILSON reiterated that Mr. Fitzgerald could speak
to that issue.
CHAIR LEDOUX opened invited testimony.
2:16:42 PM
KEVIN FITZGERALD, Attorney, said he has been in practice as a
prosecutor and a defense attorney for over 27 years, and is in
in favor of the bill. He opined that the dual aim of the bill
is to put into play standardized and centralized procedures
designed to protect the rights of property owners and interested
parties while at the same time not undermining the ability of
the government to seize or ultimately forfeit property nor to
place undue burdens on the court in doing so. He said in the
perspective of a practitioner that practices in the areas
implicated by the existing forfeiture law, which includes fish
and game, Medicaid, and other areas, he is advocating for the
bill. In response to the question concerning offenses subject
to forfeiture, he advised that they include liquor, assault,
property, drugs, and DUIs. He described it as having quite an
expansive scope and it's intended to be that way in order to
centralize and standardize procedures for any number of
different areas that are in some measure disparate, or contrary
to each other, and difficult to find. As a practitioner, he
said the current law as it addresses forfeiture is broken,
confusing, ill understood even by those practicing in these
areas, frequently applied in a haphazard or ad hoc fashion, is
neither standardized nor centralized, and appears to be a
vehicle increasingly used by prosecution to impose sanctions.
He reiterated the benefits of this bill as being profound in
providing a standardized and centralized process for forfeiture.
He then related a case he has of seized property spanning over
the course of four years regarding current law and after
explaining the details of the case, he commented that this
particular case is not unusual and the circumstances and issues
raises over the forfeiture law are not unique to that case. He
then reiterated that he strongly supports the passage of the
bill to give standardize and centralized rules governing
Alaska's forfeiture law.
2:27:59 PM
REPRESENTATIVE CLAMAN referred to Mr. Fitzgerald's earlier years
as a prosecutor and asked his perspective regarding civil
forfeiture, whether he ever used it, and in what cases.
MR. FITZGERALD explained that it wasn't used often as much as it
is now being used, or used for items of significance. Case law
does reference occasional cases in which airplanes had been
seized, but he estimated that the forfeiture law is being used
as a tool more frequently to obtain significant items of
property. He opined that when it was used when he was a
prosecutor it was largely items that would be characterized as
contraband and he does not remember any actions pursued pursuant
to the forfeiture and what typically now is the avenue used in
the fish and game context under AS 16.05.109 or 16.05.195. In
answer to the question he reiterated that it is being used more
often now.
2:30:10 PM
REPRESENTATIVE CLAMAN asked whether, within his current
practice, he is in federal court as well as state court.
MR. FITZGERALD answered that he is in both courts and the
federal arena offers even less protections than Alaska's current
forfeiture law.
REPRESENTATIVE CLAMAN asked whether he sees a difference in how
this is being used in drug cases and the forfeiture of property
that may be the benefits of massive drug profits versus fish and
game and fish and wildlife forfeiture cases that shut entire
businesses down for violations.
MR. FITZGERALD remarked that the difference in many instances
within the fish and game context occurs on a state level and
occasionally it is in the federal level as well, but under the
Lacey Act [16 USC 3371-3378] it must be predicated on a
violation of state fish and game law. In a drug context, it is
not uncommon that the state charges are more focused on
individuals and the state side does do co-defendant cases but
the federal government, because of its sentencing guidelines,
utilizes a lot more conspiracy multi-defendant cases involving
10-30 individuals. In the event an individual is charged with a
drug crime at the state level, Mr. Fitzgerald said he doesn't
see a lot of attempts at forfeiting property, and typically if
the defendant does not play ball with the state authorities the
matter is referred to the federal authorities who are happy to
help. He remarked that under federal law it can be scary with
regard to what is seized, the nexus between the properties
seized, and the offense can be extraordinarily de minimis. An
individual really has no recourse at all other than under the
Eighth Amendment, which is cruel and unusual punishment, and the
way that has been defined under federal law is unless the
property amounts to twice what the otherwise applicable fine
would be, the individual does not have cruel and unusual
punishment. Since most of the crimes proceeded in federal court
are $500,000 at least fine range such as million dollar plus
items such as houses, he explained.
2:35:23 PM
JOHN SKIDMORE, Director, Legal Services Section, Criminal
Division, Department of Law (DOL), said he has been a prosecutor
for the last 18 years, and has not practiced often in the area
of drug offense but he supervises the prosecutors within the
state. He said he previously expressed to Representative
Wilson, and now to the committee, the Department of Law's (DOL)
interest and commitment in working on trying to standardize and
centralize forfeiture law in Alaska. He agreed that the current
forfeiture law is scattered in at least seven different titles
and it addresses different types of crimes. He advised that
within those seven different titles it describes the procedure
or process at varying levels, and the Alaska courts have filled
in the procedures or processes that are left vacant in some of
the various titles. The result has been a complex system in
trying to understand how forfeiture law works, and he agrees
that is an issue and that trying to standardize and centralize
is an excellent idea. Although, he commented, the issues
between that [intent] and this bill are that this bill adds
additional processes that may or may not be the intended
consequences. For example, he said, in current law a person can
forfeit property in a criminal case at a sentencing when there
is a preponderance of the evidence that the item is connected to
the case and should be forfeited.
2:37:30 PM
MR. SKIDMORE explained that HB 317 creates a separate process
tracking the criminal process to deal with those forfeitures
because it wants the state to file separately against property
to be forfeited, hold separate hearings to decide what should
happen with the property, and raise the burden of proof from
preponderance of the evidence to clear and convincing. He
related that those are the sorts of things that resulted in
DOL's fiscal note. He agreed that the process would be labor
intensive but that doesn't mean it is not possible to
standardize and centralize without having some of the
requirements, thereby, eliminating the fiscal note. He
reiterated that the department is committed to working with
folks on those things, but there are important issues to look at
which are ultimately policy decisions for the committee to
decide. He pointed out that in discussing forfeiture ...
2:39:08 PM
REPRESENTATIVE CLAMAN referred to Mr. Skidmore's statement and
said that due to the fiscal note it is more than a policy call
because it is now about how much money is being dedicated to
certain functions of government.
2:39:49 PM
REPRESENTATIVE KELLER said the policy here is the Department of
Law (DOL) and the state's justice branch of the whole
government, and it appears that the things Mr. Skidmore said
need to be dealt with are fundamental. He referred to the job
not getting done and asked why it takes more money to get it
done, why hasn't the committee heard about this before, why
aren't things being done right, and how does he attach a price
tag to doing things right. He said he realizes that different
sections of law were added on but it appears DOL would have come
forward with proposed legislation to fix this on its own rather
than the legislature trying to build it. He related that part
of the reason he is in Mr. Skidmore's face is that time is
running out, the session is moving along, and this sounds like a
critical item to deal with.
2:41:02 PM
MR. SKIDMORE responded that this is an issue the department has
been looking at, and pointed out that there is a distinction
between forfeiture and seizure that has been somewhat lost in
the discussion. For example, when Mr. Fitzgerald discussed the
airplane being seized, he said, it was seized pursuant to search
warrants in a criminal case. He remarked that he was unaware of
that particular case and did not know whether it was evidence
seized for purposes of that case, There are legal restrictions
on the department regarding its obligation to preserve if it is
going to trial under Thorne v. Department of Public Safety, [774
P.2d 1326 (1989)], or if it's strictly about seizure. He
referred to a DUI case and driving a vehicle, and said if that
vehicle is seized pursuant to a search warrant or incident to
arrest, it may be that the vehicle is evidence in the case
because the defense may allege the bad driving, observed by the
officer, is the result of the vehicle having faulty mechanics.
The department is then required to preserve that vehicle so the
information can be presented at the time of trial, which has
nothing to do with whether or not that vehicle is going to be
forfeited at the end of the case. He extended that it may be
that it's not going to be forfeited and it is just about using
it for evidence, or it may be a case in which the DUI is a
felony DUI or something else egregious, and not only was that
vehicle needed for evidence but then later was also subject to
forfeiture. He explained that it is easy to confuse those two
things and he opined the area that needing the most work is
returning property that is not needed in the criminal case and
should not be subject to forfeiture. He stated that for the
past three years while he has been director of the criminal
division it has worked on trying to return property to citizens
across the state. There are problems of where impound yards of
law enforcement agencies have more vehicles than should be
there, and that various policies have been instituted and
practices to get vehicles returned to people. He opined there
is evidence in evidence lockers within law enforcement agencies
around that state that are not subject to forfeiture and that
property needs to be returned. The law requires a process to be
followed in order to get property returned and it should be
looked at, which is separate from property seized, ultimately
subject to forfeiture, and whether or not that forfeiture is
appropriate. He related that [there are provisions] in HB 317
that he is not certain address the seizure problems because it
focuses on forfeiture, although there are areas it seems to
cross over. He said he views those as two separate issues, and
the seizure and returning things is an area to work on and
forfeiture needs to be standardized and centralized. The law in
Alaska regarding how forfeiture is supposed to work, he opined,
is not broken, it is just not in one place that is easy to
follow.
2:44:59 PM
CHAIR LEDOUX referred to Alaska's forfeiture law and said that
sometimes a case can be dismissed against a person and yet the
state will continue in an in rem action for forfeiture, not
seizure. For example, she said, take a drug case and the person
is acquitted, she asked whether the state is ever able to
forfeit the property when someone is acquitted.
MR. SKIDMORE responded that the vast majority of materials
seized should be returned, with the exception of seized cocaine
and the department unable to prove its case.
CHAIR LEDOUX expressed that she knows the department is not
going to give back the cocaine, but what about the house.
MR. SKIDMORE said he would change it to a different type of
case, such as fish and game, because there are certain types of
items in fish and game cases that are also illegal to possess.
For example, in most of the state when hunting moose the antlers
must be of a certain size and a hunter may have innocently shot
a moose that was not legal, it is illegal to possess that animal
thereafter. The seized gun in that case would have been
returned, but not the moose because it is illegal to possess.
Generally, he said, the department does not use civil in rem
forfeiture proceedings in criminal cases. He referred to the
case Mr. Fitzgerald discussed and although Mr. Fitzgerald said
it was not an exception, he disagreed because he does not
believe the department is using civil in rem forfeitures in the
vast majority of cases other than the example offered.
2:47:30 PM
CHAIR LEDOUX asked whether civil in rem forfeitures are being
used and further asked whether he was willing to say that the
department is prohibited by law, and that the department never
does it for something such as, a house, gun, airplane, or a
legal item. She expressed that she can't see any justification
whatsoever when someone hasn't been convicted of something to
seize their legal property. She stressed that if the department
can't get the person under criminal law, she finds it repugnant
that the department would try to do it through a civil
forfeiture proceeding, and she wanted to know whether or not it
is used.
2:48:31 PM
MR. SKIDMORE answered that the only case he is aware of in which
civil forfeiture has been attempted to be used like that is the
case Mr. Fitzgerald discussed. Wherein there was a pending
prosecution that was expected to result, but hadn't gotten there
until much later in the process because the investigation seemed
to have taken awhile. Other than that, he said, he is unaware
of it being used. He stated that the department does not have a
problem eliminating that civil in rem forfeiture, it is not
often used because the department doesn't think it should be
used often.
2:49:11 PM
CHAIR LEDOUX surmised that the only thing the department has a
problem with is taking care of the property, and figuring out
where it is at a certain time.
MR. SKIDMORE said that law enforcement can tell the committee
where the seized property is because it is required to track
that information. The question asked was how much of that
property has been forfeited and he said that is a statistic that
DOL has not kept. For example, he could answer how many murder
sentences, but could not answer how many of those murder
sentences resulted in property being forfeited because he would
have to go back and look at each individual judgment to
determine which cases had property forfeited. He explained that
he doesn't have the ability to track that information currently
and does not know the cost, but it would not take eight
attorneys. He referred to the eight attorneys in the fiscal
note and qualified it is when a separate proceeding is created
where the department has to file against the property, then
there are court hearings about the property both before the
trial and after the trial that are not the trial or the
sentencing itself. If the current process is followed wherein
items can be seized and subject to forfeiture at the sentencing,
he opined that the fiscal note would disappear.
2:50:40 PM
CHAIR LEDOUX asked him to repeat how he would make the fiscal
note disappear rather than just zeroing it out.
MR. SKIDMORE explained that in current law with regard to items
that are seized a person has the opportunity to petition to have
it bonded out ...
CHAIR LEDOUX argued that if it is seized she thought it was
seized because it's evidence, so how could a person ever bond
out the evidence. She surmised that the department is seizing
property that may not be evidence or required to be kept, and
that the department seizes property because it believes it will
convict the defendant and; therefore, wants to make sure the
property the department might want forfeited is there. She
expressed that she has a problem with that because the state
doesn't get to fine someone before being convicted so why does
the department get to take this property if it's not evidence
just to make sure it stays around.
2:52:00 PM
MR. SKIDMORE explained there are two different reasons for which
seizure can occur, simply for evidence that is sometimes
forfeited but it is evidence in the case and in those
circumstances that property cannot be bonded out. There are
also circumstances rarely used in which law enforcement can
seize property that would be subject to forfeiture not because
it is evidence in the case, but because it would likely be
forfeited at the end of the case. He further explained that the
reason is that, in the law, it is recognized that with property
subject to seizure there are defendants who will frequently
attempt to sell, destroy, or somehow change that property from
their ownership so it can't be taken later on.
CHAIR LEDOUX pointed out that the seizure for this reason is a
civil action and, other than a maritime suit which has its own
unique rules of law, the property can't be seized. For example,
as an attorney, Representative Claman may be 100 percent certain
he has a slam dunk winnable case, he still is not allowed to ask
the court to seize the property because the defendant may go to
Mexico or spend the money. She reminded Mr. Skidmore that
Representative Claman must wait until the end of the case and
then sometimes the case is not a slam dunk.
REPRESENTATIVE CLAMAN said in the background "We know a lot
about (indisc.) and they only seize them in federal court."
2:54:15 PM
MR. SKIDMORE responded that it is not a civil matter, it's a
criminal matter and when people have violated the criminal law
authorities are given greater power to take property. That is
what the Fourth Amendment of the United State Constitution is
about, the search and seizure laws are about.
CHAIR LEDOUX argued that if it is a criminal matter why isn't
the standard of proof beyond a reasonable doubt when taking
property, the same as when imprisoning a person.
MR. SKIDMORE explained that there does have to be proof beyond a
reasonable doubt that the person committed the crime. He
clarified that once it has been proven the person committed the
crime with a conviction, in determining the sanctions to be
imposed the courts evaluate the evidence on a preponderance of
the evidence standard to determine jail time, community work
service, fine, probation, probation conditions, and forfeiture.
He reiterated that all of those various sanctions, after proving
someone committed a crime beyond a reasonable doubt, the courts
evaluate those sanctions based on a preponderance of the
evidence.
2:55:46 PM
REPRESENTATIVE KELLER referred to property being seized, and
whether law enforcement or a governmental entity receives any
benefit from the seizure such as using it. He explained that he
can't help but think about a seized airplane for four years, and
being a pilot he knows that is the end of some $30,000-$50,000
engines because they have to be used. He referred to Mr.
Skidmore's statement that it is totally up to the authorities
when making that determination as to whether the property will
likely be forfeited and it can take that into account or not,
meanwhile the airplane sits. The state has the responsibility
to store property in a dry place, possibly heated. He said he
would like to know how many warehouses are available and full of
evidence, how long it sits there, and the cost to the state in
keeping this evidence. He commented that he saw Mr. Skidmore
shaking his head no, and requested confirmed information that
seized property is not ever used for the benefit of law
enforcement or governmental entities until it is forfeited.
2:57:21 PM
MR. SKIDMORE responded that when property is seized prior to any
forfeiture order, the state cannot and does not use any property
that is seized and the state has an obligation to hold onto the
property and safeguard it. He acknowledged that there have been
steps in recent years to do precisely what Representative Keller
was discussing for a seized airplane and not many airplanes are
seized but for those that are, they are stored indoor, the
engine is foamed to try to preserve it, and other sorts of
things that need to be done in order to preserve that airplane.
In the event the airplane is ultimately forfeited, the state
would have the opportunity to, in some cases use it, and
according to statute give it to the Civil Air Patrol Wing.
Other items can be forfeited and used in different ways, and
other items are auctioned. He reiterated that prior to the
forfeiture order, the state cannot use the property because it
does not belong to the state.
2:58:40 PM
REPRESENTATIVE CLAMAN asked whether the state currently has the
authority to bring a civil action for in rem forfeiture against
an airplane allegedly used or connected with criminal activity.
MR. SKIDMORE answered in the affirmative, which does exist in
statute and is not often used.
REPRESENTATIVE CLAMAN surmised that things are seen in the
federal reporters such as "United States v. $450,000 in Cash, or
United States v. One Cessna 206, or United States v. Some
fishing boat that was used in, typically we see these in drug
cases," the state still has the authority as a prosecution tool
to seize the property and try to forfeit the property to take
some drug kingpins ill-gotten gains away even if it doesn't have
the evidence to convict him of selling the drugs,
MR. SKIDMORE answered that he does know whether he would call it
a prosecution tool, but the state does have that authority.
3:00:12 PM
REPRESENTATIVE CLAMAN surmised that Mr. Skidmore, speaking on
behalf of the state, would have no problem cleaning up the
statute with respect to these civil actions against property.
Although, Mr. Skidmore would like the continued ability to
forfeit property connected with a crime at the end of the
criminal case with a conviction, he further surmised.
MS. SKIDMORE replied that the description is accurate except
when the items are illegal in and of themselves, as he discussed
with Chair LeDoux.
REPRESENTATIVE CLAMAN offered a hunting scenario wherein a big
game guide has an airplane and has successfully flown clients to
various areas for many years. The state performs an undercover
investigation and discovers the guide is taking folks out but
the wrong size game is being taken so there is a fish and game
prosecution against the guide. He said the rifles are evidence
of the crime but there is nothing in the airplane that is
evidence other than the fact that the money he was making
involved the airplane. Representative Claman asked why the
state would take the airplane for purposes of trying to forfeit
the airplane even though it is not needed for evidence at trial,
and why the state would go after the airplane and hold it during
the entire period of time awaiting trial.
3:02:43 PM
MR. SKIDMORE answered that generally the department wouldn't
seize the airplane and within this scenario, the only
hypothetical circumstance in which seizing the airplane would
become justified is whether the guide had a history of
committing fish and game violations and that he was primarily
getting to the locations to commit those violations through the
use of the airplane. He noted that other hypothetical concepts
must be added to that scenario before it becomes appropriate,
and he would have to know more information about the
hypothetical before he could determine the exact crimes and
determine whether the state would seek to seize the airplane.
He advised that the department could hypothetically attempt to
obtain a court order to seize the airplane for purposes of
forfeiture, but it generally doesn't do that except in the more
serious or egregious cases.
REPRESENTATIVE CLAMAN commented that it appears this bill may
not perfectly do it, but the idea that the department still has
the authority for civil in rem forfeiture actions, is not using
it, and it is creating problems is something the legislature
should fix. He surmised that the more complicated question
about what happens in criminal cases, which appears must be tied
into the criminal cases at all times, the department can forfeit
after the conviction. He related that he does not like the idea
of anyone being able to forfeit property absent the conviction
and there have been a tremendous amount of comments about how
the federal government and many states are using civil
forfeiture where they can't get convictions and that is what the
committee is unhappy about.
CHAIR LEDOUX expressed that she is definitely unhappy about it.
3:04:46 PM
REPRESENTATIVE CLAMAN expressed concern that Representative
Wilson's bill may go further and create burdens on the
prosecution and costs that may not be appropriate, and stressed
his concern about having laws on the books that no one wants
enforced and are not enforceable.
CHAIR LEDOUX encouraged Mr. Skidmore to work quickly with
Representative Wilson because members of the committee believe
there is a real problem here and it wants to do something about
it.
MR. SKIDMORE reiterated that he is committed to continuing to
work with Representative Wilson.
[HB 317 was held over.]
3:06:30 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was recessed at 3:06 p.m.,
and will reconvene on March 31, 2016, at 1:00 p.m.