HOUSE BILL NO. 15 "An Act relating to credits toward a sentence of imprisonment and to good time deductions." 1:53:57 PM Vice-Chair Saddler MOVED to ADOPT the proposed committee substitute for HB 15, Work Draft 29-LS0102\S (Martin, 4/8/15). There being NO OBJECTION, it was so ordered. Representative Wilson explained the changes in the CS. She detailed that the word "substantial" had been deleted from the following sentence on page 1, line 12: "...under electronic monitoring and the court imposes substantial restrictions on the person's freedom of movement..." Additionally, on page 2, Section 3, the CS required a defendant to request to claim credit [toward a sentence of imprisonment for time spent in a treatment program] 10 days prior to a disposition hearing. Co-Chair Thompson noted that staff from various departments were available to answer questions. Representative Guttenberg believed electronic monitoring was only available in Fairbanks, Juneau, Anchorage, and possibly on the Kenai Peninsula. He stated that individuals in communities without electronic monitoring were not eligible for the program. He spoke to concerns about equal justice throughout the state. Representative Wilson replied that the Department of Corrections (DOC) had the ability to offer electronic monitoring into other areas; however, the private sector was not present in the areas. She deferred to DOC for further detail. REMOND HENDERSON, DEPUTY COMMISSIONER, DEPARTMENT OF CORRECTIONS, confirmed that Representative Wilson was correct; the department did have electronic monitoring available in other communities (outside of metropolitan areas). He elaborated that department staff was available to provide a list of the communities if desired. Additionally, the department was looking at expanding electronic monitoring in other areas in order to free-up prison beds. Representative Guttenberg surmised that electronic monitoring was not currently available in some communities and may or may not be available in the future. He stated that individuals currently using the electronic monitoring service were paying a significant portion of the fee. He wondered what the cost of the service would be for individuals in smaller communities such as Tanana. Mr. Henderson answered that the bill dealt with electronic monitoring on pre-trial cases (the individuals did not fall under the department's jurisdiction). There was a zero fiscal note, because there was no cost to the department. He reiterated that staff was available to list current communities with electronic monitoring capability. 1:59:23 PM Representative Guttenberg was interested in pre-trial information related to the legislation. He asked the department to follow up with the information. Representative Gara was satisfied with that the CS met intent the committee had discussed at a prior meeting. He asked about the cost of electronic monitoring. Mr. Henderson answered that there was alcoholic monitoring and GPS monitoring; the alcoholic monitor was slightly more expensive. He believed less expensive monitoring was $14 per day plus a weekly $10 urinalysis fee ($108 per week). Representative Gara stated that there was an equal access to justice issue. He wondered why a condition could not be made to serve all of the state's court houses to provide rural residents with access. Mr. Henderson deferred the question to the Alaska Court System. 2:01:59 PM NANCY MEADE, GENERAL COUNSEL, ALASKA COURT SYSTEM, asked Representative Gara to repeat his question. Representative Gara reiterated his question. Ms. Meade shared that pre-trial electronic monitoring currently existed in Anchorage, Fairbanks, Palmer, and Kenai. The state did not have contracts with electronic monitoring vendors. She detailed that the defendant, who has a third-party custodian as a bail condition, could decide to hire the vendor to act as the third-party custodian. She explained that the vendor was paid for by the defendant; the defendant brought the vendor to the judge for approval as the third-party custodian. She believed the cost could be in the neighborhood of $300 to $500 depending on how much monitoring a person contracted with a vendor. Representative Gara stated that judges were approving the usage under their standards for safety and monitoring. He wondered why the court system could not specify that the monitoring had to be provided in a multitude of other communities if it was provided in several. Ms. Meade replied that it had never been considered by the court in the past. She stated that there was no relationship between the court and the vendor. The court's only role was to approve or disapprove of the vendor as the third-party custodian. She noted that the courts had not declined third-party vendors as custodians for having an office in one location but not another. Representative Gara believed the court system did good work; however, he hoped the court would consider the issue because it was unequal access to justice issue. He stated that the court had done a substantial amount on unequal justice over the years. He asked for verification that electronic monitoring was limited to people in third-party custody. He discussed that the electronic monitoring was going to individuals who would otherwise get a third-party custodian. He detailed that a third-party custodian had to be with the individual 24-hours per day; the custodian could go to jail if they did not trail the individual constantly during the required time period. Ms. Meade replied in the affirmative. She added that people who were released on their own recognizance with no bail conditions would not need to hire a third-party custodian and were not covered under the legislation. Representative Gara discussed that third-party custody was provided as an option to individuals who were not the most reliable in the eyes of the court in order to free up jail space. 2:06:40 PM Representative Gattis wondered if the bill was necessary to free up jail beds and expand monitoring statewide. Mr. Henderson answered that currently the department was not granting time for electronic monitoring in pretrial; however, he believed the department had the ability. He stated that the bill was not essential for the department to exercise the ability for individuals in its custody. However, the bill was aimed at applying to individuals who were not yet in custody. Representative Wilson stated that the bill represented an incentive and another tool in the court system's toolbox. She hoped the bill would incentivize people to get the needed treatment during the pretrial period versus while sitting in jail. She explained that it was also an incentive to get the time [served] credit. She anticipated that vendors would begin to operate in smaller communities if they saw that the service was needed. She had worked closely with DOC, which was doing significant work to ensure people were getting the help they needed. Co-Chair Thompson asked how long a person was typically in pretrial status. Mr. Henderson replied that the number varied greatly; it could be several days to several months. Representative Guttenberg wondered if the bill presented an equal access to justice issue. For example, a person in Bethel wanting access to the service in their own community. He wondered if there was a constitutional question. Ms. Meade saw his point, but hesitated to say whether it was a constitutional issue. She stated that currently people did have the option available in communities with vendors. The incentive to use the service was that a person could be out of jail with an ankle bracelet instead of in jail pretrial. She stated that the fact that no vendor had found it economical to go to some smaller communities had not caused the court to deny people from using the service in communities where it existed. She deferred the question to Legislative Legal Services for further detail. 2:10:37 PM DOUG GARDNER, DIRECTOR, LEGISLATIVE LEGAL SERVICES (via teleconference), replied that Legislative Legal Services had not considered the question, probably because they did not know where the service was available and where it was not. He did not know whether the issue rose to a constitutional level and did not want to speculate. He surmised that there were probably other bail conditions the court could order in urban areas that may not be available in rural areas. He explained that based on his experience as a prosecutor in trial courts throughout Alaska, courts tried to adjust bail conditions to the realities of the communities in which a person was held. He believed judges did a good job and had significant opportunity to balance out bail conditions. Representative Guttenberg observed that all things could not be equal throughout the state from one community to another. He wondered about tools that were available for judges to provide a comparable option in a community. Ms. Meade replied that there were a number of bail conditions (around 18) listed in the general bail conditions statute and other statutes that contained special bail conditions for different offences. For example, domestic violence, alcohol, and drug offences had a few additional bail conditions. She stated that judges had many choices when setting bail. The last condition applied could be anything a judge believed would adequately protect the community and the rights of the defendant. 2:13:30 PM Representative Gara discussed that it was beneficial to provide the electronic monitoring service to give people the ability to work and in order to free up jail space. He addressed that there were people who could afford electronic monitoring; however, the people who could not afford the service or lived in a community without the service could not get the benefit of time served. He asserted that people without access to the service had to be in third-party custody, which was more onerous. He stated that the third-party custody limitations were greater than those on electronic monitoring because the person had to be tailed around the clock. He shared that he had just learned that the individuals in third-party custody did not get the credit for time served. He stressed that the bill would create two classes of people: the people who could afford electronic monitoring would receive credit for time served, whereas the other individuals would not receive credit for time served. He reasoned that a simple conceptual amendment could include third-party custody as another way to receive credit for time served. He explained that the amendment would save additional jail space for two equal groups of people. Representative Wilson replied that there were a lot of classifications. She emphasized that the bill represented another tool in the toolbox. She highlighted that the service was not brought forward by a judge; it was brought forward by the person charged. She reminded the committee that the individuals under discussion had not been found guilty of any crime. She asserted that people who could not make bail may sit in jail, which was another classification. She reasoned that electronic monitoring made it easy for a person to prove to a judge that they abided by any conditions specified by the court. She stated that it was more difficult under third-party custody, which required a person to testify that the person they had been tasked with watching had met all of the conditions. She hoped that the incentive would mean electronic monitoring would become available in additional areas statewide. She believed it was not more readily available throughout the state because currently people did not receive credit for time-served under electronic monitoring. She emphasized that currently very few options were available for treatment purposes during pretrial. She stated that the bill could not fix everything. She was willing to work with Representative Gara on the other issues, but she did not believe the bill was the appropriate place. She stated that developing the bill had been a cooperative process to ensure that everyone could live with its changes. She wanted the opportunity to see how the changes would work in the coming year and to make revisions at a later time if necessary. Co-Chair Thompson noted that Representative Kawasaki had joined the meeting. He added that Representative Munoz was excused. 2:18:18 PM Representative Edgmon asked if there was any scenario where offenders with third-party custodians could be included in the future. Ms. Meade replied that the idea could potentially be taken up in the future. She stated that until the option was in statute, the courts would not provide credit for the time. She stated that the option would be a policy call by the legislature, which would be applied by the court. Representative Edgmon hoped that in the future there would be much more electronic monitoring utilized. He wondered what the department envisioned for the future in an era of downsized budgets. He believed the option would be a greater tool for everyone to utilize. Mr. Henderson replied that the DOC commissioner was very interested in expanding electronic monitoring responsibly. He furthered that the commissioner did not believe electronic monitoring had been used effectively. He noted that a person would not automatically receive electronic monitoring if they committed a minor offence. He stated that electronic monitoring needed to be done on an individual basis and responsibly. He relayed that it was one of the vehicles the department saw that would help eliminate the need for a new prison. Additionally, the department had been looking at the option of moving more people into community residential centers. Co-Chair Thompson asked about the current number of incarcerated individuals awaiting pretrial. Mr. Henderson replied that as of April 3, 2015 there were 1,875 people in pretrial. Representative Edgmon remarked that he was also interested to hear from the department on the current limitation of vendors and electronic connectivity that was perhaps out of the state's control. Mr. Henderson agreed and deferred the question to his colleague for additional detail. CARRIE BELDEN, DIRECTOR, PROBATION AND PAROLE, DEPARTMENT OF CORRECTIONS (via teleconference), replied that electronic monitoring could be done anywhere GCI had coverage throughout the state. She relayed that services private companies could provide depended on their service provider. She addressed the issue of fairness between urban versus rural locations. She explained that the service was limited by technology; DOC would like to have the option available statewide, but it was not in the department's hands. 2:22:14 PM Representative Edgmon asked whose hands the issue was in. Ms. Belden replied that the department was at the mercy of the technology in some of the rural locations; some locations did not have the cellular service tower coverage or a reliable signal. Another concern was that when someone violated a bail condition there had to be some sort of law enforcement presence in the community to rectify the violation; the issue would have to be taken into account by the court when it decided where to place a person. Representative Edgmon conveyed his support for the bill. He wondered if there was a scenario that electronic monitoring would be routinely used throughout the state in the state (pre and post-trial). Ms. Belden replied in the affirmative. There was new technology that was rapidly developing that she hoped would be available in Alaska in the next couple of years that would help the state to expand and provide a better service. Representative Edgmon asked for verification that the availability of private vendors was not a limiting factor. Ms. Belden believed the limitation was related to cellular towers. Representative Wilson noted that the bill had removed the word "private" preceding the word "residence" in order to prevent limiting electronic monitoring to a person's home. She noted that a residence could be a halfway house or other, which was another way the bill aimed at addressing more rural areas. 2:25:05 PM Vice-Chair Saddler asked for verification that the GPS element of an ankle monitor was only for location purposes and the communication between the monitor and the authorities was via cellular telephones. Ms. Belden replied in the affirmative. Vice-Chair Saddler asked whether counting time served on electronic monitoring as equal to time served in incarceration was too generous. Ms. Meade replied that the issue was a policy call for the legislature. She elaborated that one-day to one-day was the ratio currently in statute (AS 12.55.027) for time spent pretrial in a treatment program. She detailed that currently the only way to get credit for time served was in a residential treatment program with characteristics that resembled incarceration. Vice-Chair Saddler summarized his understanding of Ms. Meade's response to his prior question. Ms. Meade agreed. Mr. Henderson concurred with Ms. Meade's statements. Representative Wilson clarified that the treatment program had to be state-approved. When a person was confined to the program, they currently received the one-day for one-day pretrial. She added that it was currently the only way to receive the credit for time served. Vice-Chair Saddler likened the current statute to the bill's requirement that a person on electronic monitoring would be confined to their place of residence unless they were working or in a treatment center. Representative Wilson stressed that in order for a person to qualify for time served they were not allowed to leave the treatment center. Vice-Chair Saddler clarified his point that currently the one-to-one ratio applied only to a confined treatment center and that the bill would require a person to be confined to home with an exemption for going to treatment. Representative Wilson agreed. 2:27:27 PM Co-Chair Thompson OPENED public testimony. Vice-Chair Saddler asked how the bill would reduce costs for the state. Ms. Meade replied that the bill would not reduce any costs within the court system. She elaborated that it was routine for courts to issue bail orders; some modifications may be made to court form orders, but that was inconsequential and something the court did anyway. She detailed that it was also routine for the courts to have "Nygren hearings or 027 hearings" at sentencing where people asked for credit. She thought there may be some longer hearings at the outset if the legislation was implemented, but the courts would have no fiscal impact. She stated that changes would be fairly routine for the courts to apply. Mr. Henderson replied that the savings to DOC were indeterminate. The department anticipated that there could be potential savings. He stated that it was more cost- effective to be on electronic monitoring than in a "hard bed." He stated that the cost of $22 per day versus $150 per day meant there was potentially room for some savings. Representative Gara WITHDREW Amendment 1: BY REPRESENTATIVE GARA Delete "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 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 Gara MOVED to ADOPT a conceptual amendment that would apply the same rules related to credit for time served for people in third-party custody as for people on electronic monitoring. Representative Gattis OBJECTED. Representative Gara spoke to his amendment. He stated that the people who would be put on electronic monitoring largely had some threat of escape or danger to society. Additionally, there was the problem of overcrowded prisons in Alaska and the looming possibility of needing to build another prison. He believed that the state needed to find rational ways to minimize the number of days spent in prison, while maintaining public safety. He believed it made sense to use electronic monitoring, which would free up prison space and would potentially be more humane. He believed the same should be done for people under third- party custody because they had the same restrictions and had a person tailing them 24-hours per day. He continued that the same purposes were served under electronic monitoring and third-party custody; a person was required to act under the court's conditions in both scenarios. He furthered that a person would not receive the credit if they violated their bail condition under both scenarios. He noted that the two classes of people were essentially the same: one class could afford electronic monitoring or lived in a location where it was available, whereas the other class that did not have the service available had to find a 24-hour third-party custodian to tail them. He added the third-party custodian had to sign under oath that they would be with the individual around the clock or they would risk going to jail. He did not believe there was any difference between the two categories of people. He believed the introduction of a bill related to third-party custodians in the future was unlikely. He stressed that currently the bill would only benefit people who could afford the service and who lived in a community where it was available. He opposed discriminating against people who did not have the service available. Co-Chair Thompson CLOSED public testimony Representative Wilson spoke against the amendment. She stated that a lobbyist had not brought the bill forward. She emphasized her commitment towards making something work. She did not believe the situations highlighted by Representative Gara were the same because a third-party custodian was not awake 24 hours per day. She stated that it was not possible to verify the movement of the person in custody 24-7. She stated that it was different with an electronic device because it tracked where a person was at all times. She furthered that people who know how to break the law often knew how to break it again. She stated that the court did not have to provide the credit if it could not be proven that a person only went where the court designated was allowable. She did not believe the amendment matched the intent of the bill. Co-Chair Thompson asked the Public Defender Agency to weigh in on the conceptual amendment. QUINLAN STEINER, DIRECTOR, PUBLIC DEFENDER AGENCY, DEPARTMENT OF ADMINISTRATION, addressed whether the bill would create a disparity or inequity around the state. He stated that an inequity currently existed to a huge degree. For example, people with money could afford to make the cash bail much more easily than people without money. He believed access to electronic monitoring actually reduced the inequity; it was often easier to afford the cost of electronic monitoring than a large bail. He furthered that general inequities existed around the state depending on what programs, treatment, or options may be available. He believed implementing the concept in statute would provide incentive for the expansion of the program to other communities. He noted that technology was becoming more sophisticated. He referred to discussion that the bill could cause DOC to potentially expand into pretrial release. He saw the bill as promoting release and reducing inequity and recidivism because it could be linked to treatment. He believed including third-party custodians would further reduce inequities. He detailed that third- party custodians served a similar, but not identical function. He added that the inclusion of third-party custodians would be a policy call. He concluded that granting credit for third-party would be a further extension of the general policy, but there were subtle differences between the two. 2:37:59 PM Representative Gattis communicated that she had signed on as a co-sponsor of the bill. She had heard from constituents who had kids with infractions that were sitting in jail instead of working or going to treatment centers. She stressed if they were found not guilty they had lost their job and sometimes their families. She stated that if the individuals were found guilty, at least there was an opportunity to inspire them to get off the wrong track and move forward. She stressed that not only did the bill save the state money, it would save families. She stated that the bill would provide an opportunity to individuals should they choose to utilize it. She supported the bill and thought that the third-party custodian aspect would "bungle" the legislation. She did not believe it was onerous for the client using a third-party custodian, but it was onerous to be the third-party custodian. She stressed that the third-party custodian had to give up many of their liberties to follow someone around. She was reluctant to make the change. She liked DOC's attitude and believed it was the department's goal to move forward. Representative Guttenberg asked for a definition of electronic monitoring. He stated that there were electronic monitoring apps on smart phones. He wondered if the definition only pertained to an ankle bracelet. Co-Chair Thompson noted that the committee was addressing the conceptual amendment. Representative Guttenberg thought the definition of electronic monitoring was relevant. He wondered if it could be expanded to anyone with a smart phone. Representative Wilson replied that the bill focused on ankle monitoring. She deferred to the court system for further detail on what it had allowed. Ms. Meade replied that judges had approved companies that used ankle monitors with GPS active monitoring. She detailed that a judge could designate certain exclusion zones. For example, the monitoring company would receive a beep if the person went to certain areas they were not supposed to go (e.g. the victim's home, a school, or other). She noted that electronic monitors measuring alcohol existed, but were not used as much. Representative Guttenberg asked if a GPS pretrial monitoring program qualified. Ms. Meade confirmed that it was all pretrial that was covered. Representative Guttenberg stated that "theoretically a judge could order this device instead of an ankle bracelet" for someone in Bethel. Ms. Meade believed the court had only approved ankle bracelets with GPS as electronic monitors. She had not seen a situation where the court had released a person with electronic monitoring via the individual's cell phone. 2:43:39 PM Representative Edgmon requested to hear from the court system on whether the amendment would bog down the bill, knowing that electronic monitoring was more at a formative stage. Ms. Meade asked for clarification. Representative Edgmon clarified. Ms. Meade replied that adding a third-party custodian into the bill would be a policy call. She agreed with Mr. Steiner and others who had said that there were differences between being under a third-party custodian arrangement and being on an electronic monitor with one of the vendors known to the court. Representative Edgmon asked if the amendment gave the court another tool to apply. Ms. Meade did not see the amendment as providing the court with another tool. Currently the court could order third-party custodians; therefore, she did not believe the amendment would give the court something else it could offer to people out on bail. Representative Gattis commented that a person with a monitoring app on their phone could give the phone to anyone. She reasoned that the cellphone would have to be attached to a person's ankle. She believed the concept of using cellphones as monitors was taking the conversation too far into the weeds. Vice-Chair Saddler asked whether third-party custodianship provided less reliable information about compliance than electronic monitoring. Ms. Meade replied that an electronic monitor provided more reliable information about where a person had been pretrial than a third-party custodian; however, it could vary with the truthfulness of the custodian and other factors. Mr. Henderson deferred the question to Ms. Belden. He added that he agreed with Ms. Meade's statements. 2:46:36 PM Representative Gattis MAINTAINED her OBJECTION to the conceptual amendment. A roll call vote was taken on the motion. IN FAVOR: Guttenberg, Kawasaki, Edgmon, Gara OPPOSED: Pruitt, Saddler, Wilson, Gattis, Thompson Co-Chair Neuman and Representative Munoz were absent from the vote. The MOTION FAILED (4/5). Vice-Chair Saddler spoke in support of the legislation. He remarked on the significant cost of recidivism. He stated that the bill would provide one tool to work towards addressing the issue. He discussed that the bill "hits people when they are recently incarcerated, when they are most amenable to having behavior modified" and reduced a person's exposure to the potential hardening aspects of incarceration. He remarked that the service was optional on both the part of the person incarcerated and the court system. He believed the service was a decent tool. 2:48:11 PM Representative Wilson MOVED to REPORT CSHB 15(FIN) out of committee with individual recommendations and the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 15(FIN) was REPORTED out of committee with a "do pass" recommendation and with four previously published zero fiscal notes: FN1 (ADM), FN2 (ADM), FN3 (COR), FN4 (LAW). 2:48:42 PM AT EASE 2:51:57 PM RECONVENED