HOUSE BILL NO. 133 "An Act relating to requiring electronic monitoring as a special condition of probation for offenders whose offense was related to a criminal street gang." Vice Chair Stoltze MOVED to ADOPT the work draft for HB 133, labeled 25-LS0465\N, Luckhaupt, 4/13/07. There being NO OBJECTION, it was so ordered. REPRESENTATIVE BOB BUCH, sponsor, explained that the bill deals with the gang problem in Anchorage. It would require people who are convicted of violent, gang-related crimes to wear electronic monitoring devices as a condition of probation. The bill addresses a problem that has been documented by the Anchorage Police Department where gang members who have been convicted of violent crimes go back to gang activity. He spoke of the review of the bill by the Judiciary Committee. He clarified that the bill gives law enforcement a tool to deal with convicted, violent gang members. The scope of the bill is very narrow and applies only to those who are convicted of violent gang behavior. He noted that he has added a five-year sunset provision to make electronic monitoring a pilot program. 3:18:29 PM Representative Buch mentioned support of the bill from Chuck Copp, Chief of Police in Kenai. Vice Chair Stoltze asked why the courts need so much time to enact laws. Representative Buch noted that time is needed to convict gang members and to implement the bill. 3:19:45 PM GARDNER COBB, HEAD, GANG UNIT, ANCHORAGE POLICE DEPARTMENT, testified in strong support of the bill. He related his experience with gang problems in Anchorage. He predicted that ankle monitoring would prevent future crime. The focus of the bill is narrow to entail "gang-motivated" crime as opposed to "gang-related" crime. Representative Kelly asked how many states are having success with this device. Mr. Cobb related that it has been used for sex offenders in the past. Representative Kelly requested that information from the sponsor. Representative Hawker asked if the technology is readily available. Mr. Cobb thought that the Department of Corrections could better answer that. 3:26:41 PM Representative Buch addressed Representative Kelly's question. He said that he is getting a report back from San Bernadino, California, as to the results of the device being used there. He pointed out that one of the benefits of the ankle bracelet is that it gives the gang member an excuse to separate from the gang community. Representative Kelly asked how many states use the device. Representative Buch said approximately 20 states are utilizing the device. He noted that the sunset clause would allow for evaluation in five years. 3:29:53 PM DWAYNE PEEPLES, DEPUTY COMMISSIONER, DEPARTMENT OF CORRECTIONS, answered Representative Hawker's questions regarding the availability and geographic restrictions of the technology. Mr. Peeples reported that the equipment is available, and he thought there would be no problems with the use of the device in urban or suburban areas. He thought there may be a staff monitoring issue in remote areas. Co-Chair Meyer asked if the electronic monitoring is for the entire probation period. Representative Buch said it is for the entire time a person is on parole or probation. Co- Chair Meyer asked what happens if the person leaves the state. Mr. Peeples discussed intrastate issues. Mr. Peeples thought the individuals would be closely monitored and not allowed to travel. 3:33:57 PM Co-Chair Meyer asked how this would be paid for. Representative Buch said that the convicted criminals would be responsible for paying for the device. Representative Gara spoke to the affordability provision. He thought that the GPS system would only be imposed in areas where there are gangs, and therefore there would not be a "use problem" in areas where there are no gangs. Representative Hawker asked if this legislation is a prospective application. Mr. Peeples said yes. There are currently clients who could have qualified. Representative Hawker wondered if they would be mandated to use the device. Representative Buch said the legislation would take place as soon as possible. Representative Hawker wondered if these conditions could be imposed on current parolees. Mr. Peeples said an aggravating factor would have had to have been found at the time of their conviction. 3:37:41 PM RICK SVODBODNY, CHIEF ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, related that it can only have a prospective application because it would have had to have been determined during the trial. He explained that parole conditions are discretionary and can be imposed at any time. Representative Hawker asked about the aggravating factors already existing in statute. He wondered if anyone currently qualifies. Mr. Svobodny said it is possible, but not likely. Representative Hawker asked if the bill would cause a change in behavior for prosecutors to try to identify this aggravating factor. Mr. Svobodny didn't think it would be a change of behavior because prosecutors in Anchorage are already trying to prove it. Mr. Peeples informed the committee that gangs are not being tracked in institutions. There are about 100 gang members on probation, and about 50-75 juvenile offenders, with notes in their records regarding an aggravating factor. He could not say how many would fall under the felony heading. The financial plan is to have an indeterminate fiscal note and then ask for funding as needed. 3:44:42 PM Representative Hawker addressed the bright line regarding proof of an aggravating factor. He wanted to lessen the burden of proof on the "good guys". Mr. Svobodny said that could legally be done. It depends on the court's view. He maintained it is a condition of probation and does not need to be tied to proving an aggravating factor. Representative Buch addressed Representative Hawker's concern. He pointed out that existing law provides for "auto waiver" for juveniles with violent crimes to be treated as adults. He reported that the fiscal impact of broadening the use of this legislation was out of sight. The new technology in the ankle bracelet does the monitoring. 3:49:59 PM Representative Hawker asked how to get the device on more ankles. Representative Buch pointed out that this is a pilot program and can be expanded if it works well. It addresses a public safety concern in Anchorage. Representative Kelly asked if it is mandatory for the judge to consider this as a condition of probation. Mr. Svobodny said it is. Representative Kelly asked if this device would cause lesser sentences to be given. Mr. Svobodny said he could not predict. It is tied to serious felonies and presumptive sentencing. If an aggravating factor is found, the sentence can be extended. Representative Kelly also supported making it easier for the "good guys". Representative Buch pointed out that the bill addresses a specific problem of bad behavior. It would be too expensive to have a broad perspective. Representative Kelly called it a tool and wished more could be used. 3:57:26 PM Representative Gara related the experience of increasing sentences and needing to prove beyond a reasonable doubt. He said the bill, as written, meets U.S. Supreme Court approval. "If you say the judge can do it without proof beyond a reasonable doubt", it may be unconstitutional. Vice Chair Stoltze referred to a letter from Rob Heun, Chief of Police, Anchorage (copy on file.) He thought conditions of probation should not be a negotiated process. Mr. Svobodny responded that they could be negotiated with the District Attorney early on. He said he hope that does not happen. The bright line in this bill is at sentencing. Representative Hawker referred to an earlier fiscal note. He wondered if it also included misdemeanors. Mr. Peeples said it did. It was a wide net with a differentiation between "gang related" and "gang associated". He discussed the earlier note. Representative Hawker did not take issue with the dollar amount, but with the public safety issue. He expressed concern about the "high hurdle" to meet the condition of aggravating factor. He read from AS 12.55.155(c)(29). He voiced concern that the bill falls short. 4:06:58 PM Representative Buch summarized that the idea behind the legislation is that it addresses a very specific crime with very specific criteria; a very specific tool for very extreme gang activity. HB 133 was heard and HELD in Committee for further consideration.