HOUSE BILL NO. 15 "An Act relating to credits toward a sentence of imprisonment and to good time deductions." REPRESENTATIVE TAMMIE WILSON, SPONSOR, discussed the intent of the bill. She announced that the bill dealt with the period of pre-trial; before possible conviction and sentencing. She explained that currently if an individual served the time awaiting trial in jail and was convicted credit was given for time served. The legislation would grant credit for time served under electronic monitoring. She read the following from page 1, beginning on line 10 of the bill: …if the person has not committed a criminal offense while under electronic monitoring and the court imposes substantial restrictions on the person's freedom of movement and behavior while under the electronic monitoring program, including requiring the person to be confined to a residence… Representative Wilson specified that the bill changed the definition of residence from strictly a private home to a halfway house, residential treatment center, or other type of residential rehabilitative housing. Representative Wilson continued to read from page 1, line 14 of the bill: …except for a (1) court appearance; (2) meeting with counsel; or (3) period during which the person is at a location ordered by the court for the purposes of employment, attending an educational or vocational training, performing community volunteer work, or attending a rehabilitative activity or medical appointment. Representative Wilson communicated that very little opportunity to receive treatment existed during the pre- trial period and many individuals lost their jobs or homes. She elaborated that the bill had no effect on a person qualified for electronic monitoring. Conversely, HB 15 would not change the prohibition against allowing electronic monitoring for sex offenders. She provided a scenario regarding how the bill would work. An individual charged with a crime would appear in court and be placed on electronic monitoring and other conditions of pre-trial release. If subsequently convicted, and the individual was compliant during pre-trial credit would be received for time served. She believed that the scenario was preferable over placing the individual in jail pre-trial without receiving rehabilitative treatment or services. 2:19:43 PM Vice-Chair Saddler wondered whether one day served under electronic monitoring was worth one day's credit against incarceration. Representative Wilson confirmed that the credit was a 1 to 1 ratio. Co-Chair Neuman asked how a person who was technically not guilty during the pre-trial time but was subsequently found guilty could legally be granted the time served before sentencing. Representative Wilson responded that the system already gave credit against time served before sentencing. When a person was charged with a crime and was jailed during pre- trial, the individual was collecting time served against sentencing time. She shared that HB 15, under strict conditions metered out by judge, would allow counseling, employment, treatment, etc. during the pre-trial time under electronic monitoring and receive credit for it if sentenced. She opined that doing something constructive like counseling or employment was preferable over languishing in jail at much higher costs to the state. She reiterated that the bill allowed for pre-trial electronic monitoring under very strict conditions and that currently electronic monitoring was only permitted post sentencing. 2:26:24 PM Representative Gara commented that the language in the bill mattered. He expressed concern over the words "[while under electronic monitoring and the court imposes] substantial restrictions on the person's freedom." He wondered what the definition of "substantial restrictions" was. He suggested that an individual who acted exemplary in carrying out his pre-trial conditions under electronic monitoring but was "just short of substantial restrictions" could be denied credit for pre-trial time served. He wondered what would happen to the person with "almost substantial restrictions." He wondered why the language was included in the bill. Representative Wilson clarified that the court would determine the substantial restrictions placed on the individual; therefore, that the person would know exactly what conditions to comply with during the pre-trial period. She informed the committee that the Department of Law (DOL) suggested the substantial restriction language. Representative Gara stated that it was not "good enough for him" that the language was inserted in the legislation under the direction of DOL. He believed that the department tended to be "harder" on defendants than other agencies. He provided an example of a person living at home with an ankle monitor working to get their GED, obtaining employment, and abiding by other conditions imposed by the court. He did not think that the scenario would meet the definition of substantial restrictions. He wanted the person under his scenario to receive credit for time served while monitored. Representative Wilson understood that a previous court case set precedent that mandated substantial restrictions or the "equivalent of being in jail." Representative Gattis agreed with Representative Gara. She thought that "people with bad behavior should be given the opportunity to "rehabilitate;" if the person reoffended then at least the opportunity was offered. She saw people in her district who had "made a mistake and recognized their mistake, but could not get out of the hole." She claimed that the state was not providing the opportunity for rehabilitation and inmates were merely "existing" in prison at high financial costs to the state. She wanted the system to help convicted "citizens" work their way into becoming productive members of society and "move forward." She believed that "sitting in jail was not the answer" nor was replicating jail because the current system was failing. 2:33:06 PM Vice-Chair Saddler asked about the meaning of "substantial restrictions on movement" and asked how the language was interpreted. He inquired whether it was confined to what was listed as allowable in HB 15 or whether the court could impose other activities or restrictions. Representative Wilson answered that the court system would decide what restrictions on movement to impose within the provisions listed in the bill. Co-Chair Neuman observed that different judges imposed different sentences for the same crime and "was not a fair system." He wanted a clear definition of "substantial restrictions." He suggested that the bill list what substantial restrictions were as opposed to leaving the definition open to interpretation. Representative Wilson pointed out the difficulty in achieving consensus among the Department of Corrections (DOC), public defenders, district attorneys, and the Court System when crafting the legislation. She shared that the bill was a compromise between the entities within the confines of the court case precedent. She expressed concern over the public's safety and thought that sufficient restrictions were needed to safeguard the public. She agreed that having the definition in writing would help but wanted to wait and see how HB 15 would play out in the courts, if adopted. She surmised that substantial restrictions would act as a deterrent for the individual under electronic monitoring while allowing the opportunity for reform. 2:38:30 PM Representative Guttenberg stated his concern about the definition of substantial restrictions. He was also concerned about court imposed restrictions that were not criminal offenses i.e., restricting drinking or smoking marijuana, and wondered how the bill was dealing with those restrictions. Representative Wilson referred to lines 11 through 12 on page 1 and interpreted the language to mean that during the period of electronic monitoring a person may not commit another crime and receive credit for time served. She cited that the definition of substantial restrictions was listed on page 2 and that the court would impose definitive restrictions around where and when the person was expected to be at all times. Representative Gara understood the bill to read that the allowances listed on page two: court appearances, employment, rehabilitative activity, etc., were exceptions to court restrictions. 2:43:26 PM Representative Gara interpreted the legislation to mean that the items listed on page 2 were exempted from substantial restrictions and wanted to clarify the interpretation for the committee. Representative Wilson responded that she understood the bill to read that unless the monitored person was at one of the locations listed in the bill they would be restricted to their place of residence. Representative Gara opined that it was "mind boggling" that someone who committed a minor crime would be denied credit for time served if they were not placed under substantial restriction than a person who committed a more serious crime and remained in jail during pretrial and received credit for time served. He added that he was certain the list on page two contained exemptions and not restrictions. Representative Wilson agreed that the term "substantial" made the bill "more difficult to understand." She restated that the term was necessary due to a court case the state lost that determined that in order to allow pretrial monitoring the restrictions had to be equivalent to being in jail. The bill attempted to define what that equivalent meant. Vice-Chair Saddler requested to hear from DOL or DOC to answer the question whether electronic monitoring was more restrictive than confinement in jail presentencing whether it was known how many people were eligible for monitoring and took advantage of the opportunity. REMOND HENDERSON, DEPUTY COMMISSIONER, DEPARTMENT OF CORRECTIONS, reported that 457 people were on electronic monitoring post-sentencing and that currently 1875 people were in pre-trial status. He did not know how many of the pre-trial individuals would be eligible for electronic monitoring. He detailed that the department's goal was to move more post-trial convicts onto monitoring when possible. Representative Wilson interjected that most of the monitoring was performed by private entities. Vice-Chair Saddler asked how many people post-conviction were eligible for electronic monitoring and accept it versus those that choose incarceration. He wondered whether convicts viewed electronic monitoring as an easier sentence than confinement. 2:49:48 PM CARRIE BELDEN, DIRECTOR, DIVISION OF PAROLE AND PROBATION, DEPARTMENT OF CORRECTIONS (via teleconference), declared that she could not answer the question because it was a matter of the convict's personal preference and capability to accept electronic monitoring. Representative Wilson indicated that it was not possible to compare post-trial to pre-trial. She explained that if a person in jail during pre-trial was convicted the credit they received for time served was called "good time" versus a person choosing electronic monitoring who would receive day for day credit. Presently, more incentive existed to remain in jail post-conviction than choose electronic monitoring. She stated that her bill was attempting to "even out" the incongruity. Representative Gara asked whether the bill was limited to individuals prior to conviction and sentencing or also applied to offenders post-sentencing. KACI SCHROEDER, LEGISLATIVE LIAISON, DEPARTMENT OF LAW, responded that the legislation applied to pre-trial sentencing. Representative Gara asked whether Section 1 and Section 2 of HB 15 only applied to pretrial sentencing. Ms. Schroeder responded in the affirmative. She added that a post-trial offender was under the jurisdiction of DOC. The department decided on convicts placements, which could include electronic monitoring with restrictions. 2:54:22 PM Representative Gara described a scenario where an individual was sentenced pre-trial with an ankle monitor and conditions that fell short of substantial restrictions on freedom of movement. He questioned why the individual would not receive credit for time served. Ms. Schroeder indicated that the language, "substantial restrictions on the person's freedom of movement and behavior" was derived directly from case law. Case law defined criteria "like incarceration" and the judge would be familiar with the criteria. She cited AS.12.55.027, which was not included in the bill that referred to residential treatment and delineated the restrictions necessary to qualify for jail credit. Representative Gara asked whether including or removing "substantial" was a policy call for the legislature. Representative Wilson understood that if substantial restrictions was removed the law would be challenged in court. She reiterated that the bill was shaped through compromise between the four entities. She emphasized that "substantial restrictions" was a big issue in drafting the HB 15. She wanted the legislation to be effective and utilized. Representative Gara directed the question to DOL and wondered whether removing substantial restrictions would render the policy invalid. Ms. Schroeder explained that pre-trial jail credit was "very well fleshed out in the court system." Additionally, many cases support disallowance of time served under pre- trail electronic monitoring. However, the bill was countering the precedent by stating that electronic monitoring could be the equivalent to jail under the conditions specified in the bill. The language in HB 15 reflected a policy shift and nothing prohibited the legislature from making another policy call, which eventually would be considered in the courts. Co-Chair Thompson invited Nancy Meade to testify clarifying the judge's role in pre-trial sentencing. 2:58:52 PM NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, explained that judges refrain from ordering electronic monitoring "per se." Pre-trial defendants received specific bail conditions; one condition required a third party custodian. Therefore, some defendants cannot find a suitable custodial guardian. Subsequently, the defendant can hire a company that provided custodial guardianship via an ankle monitor. She voiced that the defendant must convince the judge the method was appropriate under the bail conditions and the company must establish its capability of responsible guardianship. She reported that DOC was not involved in pre-trial monitoring. Upon the judge's approval, an order specifying the defendant's monitoring conditions was written by the judge, who was placed on notice by the defendant that he would request credit for time served under monitoring when sentenced. Representative Gara asked whether substantial restrictions must be imposed in order to receive credit for time served. Ms. Meade thought that the substantial restriction language was included specifically for receiving credit for time spent in residential treatment. She related that the court's position was that the legislature could create any policy it wanted in regards to pre-trial time served and electronic monitoring and the court would apply it. 3:03:17 PM Representative Gara thought that a defendant who did not have a drug and alcohol problem and was placed on pre-trial electronic monitoring but was not subject to substantial restrictions on his freedom of movement should gain credit for time served. He asked for Ms. Meade's thoughts. Ms. Meade responded that bill did exclude the person in the described scenario and reiterated that the committee could include any type of policy call it desired in regards to the issue and the court would apply the law. Vice-Chair Saddler asked what percentage of people placed on electronic monitoring complied with the restrictions. Ms. Meade replied that she did not have the exact statistic but compliance was "quite high." She elaborated that the defendant was paying a high fee for the monitoring service. The electronic monitoring companies acted swiftly to file a petition when a defendant transgressed and were trusted by the courts. Representative Wilson maintained that the bill was a change in policy and reminded the committee that Alaska's prisons were at "101 percent" capacity and she hoped the legislation was a first step to stop the "revolving door" of incarceration. HB 15 was HEARD and HELD in committee for further consideration.