HB 133 - ELECTRONIC MONITORING OF GANG PROBATIONER 1:06:46 PM CHAIR RAMRAS announced that the only order of business would be 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." [In members' packets was a proposed committee substitute (CS) for HB 133, Version 25-LS0465\E, Luckhaupt, 2/20/07.] REPRESENTATIVE LYNN said he supports HB 133. 1:08:19 PM REPRESENTATIVE BOB BUCH, Alaska State Legislature, sponsor, relayed that HB 133 addresses a problem documented by the Anchorage Police Department (APD) wherein convicted gang members continue to engage in gang-related activity when released on probation, and it does so by requiring those convicted of violent, gang-related crimes - crimes proven in a court of law to be gang-related - to wear an electronic monitoring device as a condition of probation; this will provide law enforcement agencies with a tool for monitoring gang activity and putting a stop to it. He assured the committee that HB 133 will not provide law enforcement agencies with the authority to simply round up every kid who has a tattoo, for example. 1:12:47 PM RICK SVOBODNY, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), in response to questions, noted that the bill will only apply to someone who has been convicted, has had an aggravating factor pertaining to gang-related activity applied to his/her sentence, has served his/her sentence, and is now eligible for probation. He indicated that if someone to whom the bill applies doesn't show up for a probation appointment, for example, the electronic monitoring device would be used by the probation officer as a tool for locating the person and determining whether he/she is complying with the conditions of probations, such as a condition that required him/her to live in a particular location, or that precluded him/her from being in a certain location. He mentioned that law enforcement officials could better address questions regarding the practical aspect of using electronic monitoring devices. MR. SVOBODNY, in response to questions, explained that for sentencing purposes, under the ruling in the Alaska Supreme Court case, Blakely v. Washington, 124 S. Ct. 2531 (U.S., 2004), when the DOL is trying to prove that an aggravating factor exists, it must do so beyond a reasonable doubt to a jury; essentially, there will first be a trial addressing whether someone has committed a crime, and then, for the purpose of sentencing, there will be another trial, with the same jury, addressing whether any aggravating factors exist. Under the bill, in the latter trial, the DOL will bring forth evidence in an attempt to prove to the jury beyond a reasonable doubt that an aggravating factor does exist [and thus the defendant will be required to submit to electronic monitoring as a condition of probation]. 1:16:03 PM REPRESENTATIVE DAHLSTROM moved to adopt the proposed committee substitute (CS) for HB 133, Version 25-LS0465\E, Luckhaupt, 2/20/07, as the work draft. REPRESENTATIVE LYNN objected for the purpose of discussion. MR. SVOBODNY, in response to more questions, reiterated his previous comments, and explained that once the aggravating factor has been proven, HB 133 will require that if conditions of probation are imposed at sentencing, that one of the conditions shall be that the defendant submit to electronic monitoring via Global Positioning System (GPS) technology. MR. SVOBODNY, in response to questions regarding the bill's impact on the departments, suggested that the Department of Corrections (DOC) might be impacted with regard to those that monitor the probationers, and that the Alaska Court System (ACS) might be impacted if electronic monitoring increases the number of court cases related to probation violations. Also, it might be that people will be less likely to enter into a plea agreement if they view having to submit to electronic monitoring as being onerous. REPRESENTATIVE COGHILL referred to the language on page 1, line 5, which says in part, "While on probation and as a special condition of probation", and questioned whether that language could be used to have electronic monitoring be set as an additional condition of probation on those who've already been sentenced. MR. SVOBODNY relayed that if such were the intent of that language the DOL would have a concern because of a double jeopardy problem. Furthermore, if electronic monitoring is viewed as a penalty, there could be a problem, but not if it is viewed simply as a safety mechanism. He offered his belief that the bill does not have a retroactive effect. 1:21:31 PM REPRESENTATIVE GRUENBERG concurred. He then referred to the language in Section 1 that says "A defendant subject to electronic monitoring under this subsection is not entitled to a credit for time served while on probation", and sought confirmation that the words, "under this subsection" wouldn't cause a problem in implementing the intent of the bill. MR. SVOBODNY confirmed that that language would not cause such a problem. In response to a question regarding the phrase, "is not entitled to a credit for time served while on probation", he relayed that both the Alaska Supreme Court and the Alaska Court of Appeals have interpreted conditions of probation that have factors which are substantially similar to incarceration as giving a person credit for time served in jail. For example, if a probation officer required a person to go to an alcohol treatment program that was the functional equivalent of incarceration - the person couldn't leave, he/she was monitored, and there were sanctions for violating the rules - and then the person violated the conditions of his/her probation, the court could give the person credit for the time he/she spent in the alcohol treatment program. However, being subject to electronic monitoring is not the functional equivalent of incarceration, and so this last sentence in Section 1 is designed to stipulate that the courts won't be giving credit for any time the person spent being subject to electronic monitoring. MR. SVOBODNY explained that a very recent Alaska Court of Appeals case, Matthew v. State, has held that electronic monitoring is not the functional equivalent of being in jail. However, Matthew pertained to a pre-sentence situation, and because the DOL wants to ensure that post-sentence situations will be treated in the same fashion, the aforementioned language has been included in Section 1. REPRESENTATIVE GRUENBERG surmised, then, that that language is meant to follow Matthew rather than overrule it. He also surmised that the words, "time served" as used in the last sentence of Section 1 refer to time served in prison. MR. SVOBODNY concurred, but noted that in a prior House Judiciary Standing Committee meeting the commissioner of the DOC made a distinction between prisons and jails. 1:29:06 PM REPRESENTATIVE GRUENBERG asked whether language should be added to clarify what is meant. MR. SVOBODNY said he thinks people will know what is meant by the existing words, but acknowledged that perhaps the words, "in a correctional facility" could be added to further clarify the issue. REPRESENTATIVE GRUENBERG suggested that at some point the committee should alter the last sentence in Section 1 to read in part, "not entitled to a credit for time served in a correctional facility while the defendant is on probation". REPRESENTATIVE SAMUELS expressed concern over what would be considered a correctional facility. REPRESENTATIVE DAHLSTROM asked whether current law addresses the electronic monitoring of minors, and whether those laws would still apply if a minor is waived into adult court. She also questioned whether in some situations it might actually be appropriate to grant a credit for the time a person is subject to electronic monitoring. MR. SVOBODNY explained that when a minor is waived into adult court, legally he/she is no longer considered a minor, and so he/she would be subject to the same conditions of probation that an adult would be subject to. With regard to the question of whether it might be appropriate to grant credit for the time a person is subject to electronic monitoring, he indicated that in situations where the judge has the discretion to suspend all the jail time that he/she imposes and put the person on probation for that period of time instead, the judge could require electronic monitoring as a condition of that probation. MR. SVOBODNY, in response to a question, relayed that a "criminal street gang" is defined in AS 11.81.900(13): (13) "criminal street gang" means a group of three or more persons (A) who have in common a name or identifying sign, symbol, tattoo or other physical marking, style of dress, or use of hand signs; and (B) who, individually, jointly, or in combination, have committed or attempted to commit, within the preceding three years, for the benefit of, at the direction of, or in association with the group, two or more offenses under any of, or any combination of, the following: (i) AS 11.41; (ii) AS 11.46; or (iii) a felony offense; MR. SVOBODNY noted that AS 11.41 pertains to offenses against a person, and that AS 11.46 pertains to offenses against property. CHAIR RAMRAS surmised that to a certain extent the bill would apply mostly to those living in the Anchorage vicinity. He relayed that his home [in Fairbanks] was brutally vandalized by a group of youth that were not part of a criminal street gang but that were known to commit burglaries in the neighborhood. So his concern, he relayed, is with the phrase, "criminal street gang" as used in the title of the bill and the distinction it makes between a criminal street gang and groups like the ones in the Fairbanks area that have vandalized homes or committed burglaries or assaulted people - in some cases even kicking people to death - because he is not sure that such groups would fit under the statutory definition of a criminal street gang. Furthermore, he queried, how will the bill provide protection for other communities in Alaska wherein groups of youth that don't fit that statutory definition of a criminal street gang are causing problems. 1:40:12 PM MR. SVOBODNY noted that other legislators have struggled with creating a general definition that would apply to what [law enforcement] is currently witnessing in Anchorage. He acknowledged that the current statutory definition probably wouldn't include the group the vandalized Chair Ramras's home, adding that although HB 133 may not be the vehicle, the legislature may wish to broaden [the aggravator] statute to apply to such groups. CHAIR RAMRAS asked why criminal street gangs are being singled out under the bill's requirement of "shall", but not other groups of people [who cause just as much damage]. MR. SVOBODNY noted that a court already may, if it can show a nexus between a condition of probation [and the crime], require electronic monitoring as a condition of probation, so perhaps the legislature may wish to simply spell that authority out in another section of statute - that the court has the authority to require electronic monitoring as a condition of probation. Under the bill, the court would not have any discretion in the matter; instead, the court would have to require electronic monitoring as a condition of probation. MR. SVOBODNY, in response to questions, relayed that the courts have ruled that the State may not hide the fact that there is an aggravating factor; that the State must prove an aggravating factor beyond a reasonable doubt; that the court could require the defendant to submit to electronic monitoring even if there is no aggravating factor; that the bill is not retroactive, and the state couldn't, at a later date, simply bring up the issue of an aggravating factor; and that the court has the discretion to impose electronic monitoring as a condition of probation, and although that authority is not currently located in statute, as long as there is a nexus between the offense committed and the goal of that sentencing, the court can impose electronic monitoring. MR. SVOBODNY offered his belief that an appellate court will be more concerned about electronic monitoring than other conditions of probation because the courts have been conservative in allowing conditions of probation that have geographic restrictions - the courts have been reluctant to say that there is a nexus between a crime and a whole geographic area, and GPS monitoring comes close to triggering that same concern of the courts. In response to a question, he offered to research whether it is currently a crime to tamper with an electronic monitoring device. In response to another question, he pointed out that there is no statutory provision stating that the court "may" impose electronic monitoring as a condition of probation, and that earlier he'd merely been saying that it wouldn't hurt to remind everyone, by spelling that authority out in another section of statute, that the court indeed may impose such a condition; the court has this authority because it is tasked with setting reasonable conditions of probation to protect the community. CHAIR RAMRAS asked why they should deem a criminal street gang to be a greater threat than any other, perhaps less organized, group. MR. SVOBODNY said that as a practical matter, when a group of people gather together with the intention of committing crimes, they become greater than the group's individual parts. With such groups, not only are they engaging in criminal conduct, but they also have a greater ability to keep evidence away from law enforcement and to intimidate witnesses - for example, in a recent murder case in Anchorage, the defendant kidnapped all of the witnesses and threatened to kill them if they testified. People who are organized into criminal street gangs tend to be substantially more violent and tend to be more able, by grouping together, to intimidate witnesses, and to engage in other types of criminal activity that people perceive, and rightly so, as being more dangerous. 1:52:09 PM REPRESENTATIVE GRUENBERG added that the problem of street gangs in Alaska is a very serious problem; in his district gangs commit a lot of crimes and are a "high menace" to those that live and work there. Past legislatures have dealt with the issue by enacting, separately, a series of laws. For example, AS 12.55.137, which is referenced in HB 133, raises the level of certain crimes - from a class B misdemeanor to a class A misdemeanor, and from a class A misdemeanor to a class C felony - if those crimes are committed by members of a criminal street gang. The legislature has already made the determination that members of criminal street gangs are a much higher risk to society than people acting alone. REPRESENTATIVE GRUENBERG noted that the term "correctional facility" is defined in AS 33.30.901(4) as: (4) "correctional facility" or "facility" means a prison, jail, camp, farm, half-way house, group home, or other placement designated by the commissioner for the custody, care, and discipline of prisoners; a "state correctional facility" means a correctional facility owned or run by the state; REPRESENTATIVE GRUENBERG asked whether it would be necessary to reference that statute in the alternative language he'd suggested earlier. MR. SVOBODNY said that doing so would be more precise. REPRESENTATIVE SAMUELS said he agrees with Chair Ramras's point about groups of people that commit crimes but that don't fit into the definition of AS 11.81.900(13)(A). He relayed, however, that in Anchorage, the existence of criminal street gangs is a problem and one that can't be avoided; while campaigning, he said, he found that the biggest concern of the people in his district was that they feared to leave their homes after dark. He suggested, therefore, that the bill be expanded to include anybody that would fit the description currently outlined in AS 11.81.900(13)(B). Such a change would address his and Chair Ramras's concern, Representative Samuels remarked. MR. SVOBODNY expressed agreement, acknowledging that gangs in Alaska are less likely to have the type of rigid gang structure that can be found in gangs in the Lower 48. On a different point, he noted that conceivably, under the bill - and its requirement that a person submit to electronic monitoring while on probation - a judge who might ordinarily put someone convicted of a gang-related crime on probation for five years might instead put that person on probation for only two years. 2:01:18 PM GARDNER COBB, Captain, Anchorage Police Department (APD), Municipality of Anchorage (MOA), relayed that he oversees the APD's gang response, and that he was instrumental in establishing the APD's "Intel Unit" database. He said that the APD is in favor of HB 133, and views electronic monitoring technology as promising. According to the vendor, law enforcement can have secure Internet access to all data in a timely manner; it's easy and quick to set up inclusion zones and exclusion zones; law enforcement will receive "real-time" notification if a person wearing an electronic monitoring device violates an inclusion or exclusion zone - in such instances, the APD will be able to investigate the violation; and the database can detail where a monitored person was at any given time - for example, if a shooting occurs, the APD would be able to determine if the monitored person was at the location of the shooting during the time it occurred. MR. COBB pointed out that gang-related violence is particularly disturbing to Anchorage residents because it can happen anytime, anywhere, and anyone can become a victim. He opined that one of the reasons that criminal street gangs are being singled out in this legislation is that gang culture involves violence and the use of weapons, weapons of an increasingly lethal nature; furthermore, criminal street gangs have a propensity to exchange multiple rounds in their altercations. In response to questions, he indicated that he would be in favor of having the bill apply to sex offenders as well, but acknowledged that as currently written, the bill only addresses gang-motivated crime, and the APD uses the definition of gang-motivated crime provided by the U.S. Department of Justice (DOJ): A gang motivated crime is a crime in which suspects, victims, or participants are identified as gang members or associates, and the offender committed the crime for the benefit of, at the direction of, or in association with a gang, with the specific intent to promote further or help criminal conduct by gang members. CHAIR RAMRAS offered hypothetical examples, one in which a 21- year-old person in a car shoots at another vehicle, and one in which a 15-year-old person who is a member of a gang throws a rock through a window. He said that the way he is reading the bill, it would only apply to the 15-year-old because he is a gang member and the 21-year-old is not. REPRESENTATIVE GRUENBERG pointed out, however, that the 15-year- old who was just throwing a rock would be treated as a juvenile. CHAIR RAMRAS offered his belief that requiring electronic monitoring will simply increase the caseloads of probation officers, and that the bill doesn't make a distinction regarding the severity of the crimes committed by gang members. MR. COBB said he'd like to see more resources allocated to the state's criminal justice system (CJS), because currently too many offenders with a likelihood of re-offending are simply being put back on the street. The APD attempts to track gang- related activities so as to better understand the chaos that those involved in a gang-member lifestyle are creating within the community. Gang-motivated crime is a significant problem in the Anchorage community; the APD, in 2006, reported 122 gang- related cases, but that number just pertains to people who've been identified as gang members or gang associates, and so that number should probably more like 300. Because of limited resources, the Intel Unit has not yet identified all the gang members and gang associates in Anchorage; he offered his belief that the real numbers of such individuals is probably far in excess of what the APD knows about so far. 2:14:05 PM CHAIR RAMRAS questioned Mr. Cobb about the current and potential future caseloads of probation officers. MR. COBB said he doesn't know that information, but suspects that as currently written, the number of people the bill will apply to will be limited; he added his belief that the cost of electronic monitoring won't be that significant. He opined that HB 133 will be a good first step, and that it will allow the APD to develop the infrastructure which could then lead to perhaps expanding the types of probationers that would be required to submit to electronic monitoring. In response to questions, he reiterated his comments, adding that perhaps a representative from the DOC could better describe how electronic monitoring devices are currently being used, that a representative from the DOL could better address the issue of whether the word "shall" in HB 133 should be changed to "may", and that he would like electronic monitoring to be required for all violent criminals and people or groups that evince patterns of violence. 2:19:30 PM TONY NEWMAN, Social Services Program Officer, Division of Juvenile Justice (DJJ), Department of Health & Social Services (DHSS), in response to comments, clarified that HB 133 would not apply to juvenile offenders - such as the 15-year-old in Chair Ramras's hypothetical example - unless they have been waived into adult court, because the sentencing provisions of Title 12 apply only to adult offenders. In response to questions, he relayed that the DJJ already makes use of electronic monitoring in some situations; that he would research the age of the youngest person to be subject to electronic monitoring; that the DJJ has seen kids that belong to marauding groups of people that don't fit the definition of criminal street gang; and that the DJJ has not researched whether there is a difference between the recidivism rates of kids in informal groups and of kids in formal gangs. REPRESENTATIVE GRUENBERG questioned whether, in instances where a crime is committed by a juvenile that's a member of a criminal street gang, a judge might be encouraged to waive the juvenile into adult court. MR. NEWMAN surmised that such might be the case. 2:30:19 PM DWAYNE PEEPLES, Deputy Commissioner, Office of the Commissioner - Juneau, Department of Corrections (DOC), in response to questions, said that he anticipates that there will need to be 1 parole officer for every 15 people subject to electronic monitoring under the bill; that this more intense supervision will be required for this type of offender; that currently the DOC doesn't have enough probation officers to deal with the caseload that will be generated by HB 133; that the DOC experiences a constant turnover in probation officer personnel; and that he would provide the committee with the DOC's probation officer staffing levels in various areas of the state. MR. PEEPLES relayed that the DOC's fiscal note is forthcoming because the DOC does not yet have an estimate of how many people might be sentenced under the aggravating factors outlined in the bill, though currently there are 96 individuals on probation that have case notes which demonstrate an association with gang members; however, this doesn't mean that those individuals could have been sentenced under the aggravating factors outlined in HB 133. He suggested that once the statute is adopted, it could become an incentive for prosecutors to try to prove the aggravating factors in gang-related incidents. MR. PEEPLES, in response to further questions, explained that under the bill, the people on probation will be monitored all the time for the length of the probation period; the DOC will set up exclusion and inclusion zones so that when someone violates those zones, the electronic monitoring device will send an electronic message to the probation officer, and the person would be remanded back to prison. This will increase the pressure on the current DOC system, and increase the costs associated with probation officers and correctional facilities. 2:38:02 PM REPRESENTATIVE HOLMES questioned what the recidivism rates are for people who commit crimes as part of a group that doesn't fit the definition of a criminal street gang. MR. PEEPLES offered to research that issue from the perspective of the adult justice system. In response to questions, he relayed that once a person subject to electronic monitoring has violated an exclusion or inclusion zone, the device notifies the parole officer, then he/she would verify that fact and then contact law enforcement officers, who would in turn apprehend the person. He said he does not know at what point the DOC's probation system would be overrun, but the population that the bill would apply to would be an intensive group to manage. He noted that the problem of gangs in DOC facilities has not been a great issue. REPRESENTATIVE GRUENBERG surmised that electronic monitoring can act as a deterrent on the offender because he/she will know that violations of probation are more likely to be detected and prosecuted. MR. PEEPLES concurred. REPRESENTATIVE GRUENBERG characterized HB 133 as acting somewhat like a pilot project, and noted that 22 AAC 05.620 in part stipulates that the offender will be assessed a fee of $12 a day to pay for the cost of the electronic monitoring though that fee could be waived if paying that cost creates an undue hardship. He offered his understanding that with electronic monitoring technology, a person can be monitored regarding alcohol consumption, for example, if not consuming alcohol is a condition of probation. MR. PEEPLES said that under the bill a person would be monitored to ensure that he/she is not violating any of his/her conditions of probation or parole, and this could include associating with fellow gang members. REPRESENTATIVE GRUENBERG, remarking on the low cost of electronic monitoring devices, asked what the comparative cost for incarcerating a person is. MR. PEEPLES said that the average federally negotiated rate to incarcerate someone is $123 per day per person, and clarified that the daily rate for an electronic monitoring device is $9.60, but this cost doesn't include the cost of the DOC staff to monitor probationers. Again remarking that the DOC's fiscal analysis is not yet complete, he estimated that the personnel services alone could be approximately $75,000, and then there would also be equipment costs to consider. 2:46:54 PM REPRESENTATIVE GRUENBERG mentioned that a person could be required to assign his/her permanent fund dividend (PFD) over in order to pay for the cost. MR. PEEPLES concurred. REPRESENTATIVE COGHILL mentioned that under existing statute, the DOC already stands in line for that money right along with other groups that might be entitled to it. MR. PEEPLES, in response to a question, estimated that had the bill been passed three years ago, there might currently be between 50-150 people subject to its provisions. CHAIR RAMRAS asked that the DOC's fiscal note reflect both the bill as currently written and as it might perhaps be broadened to include people that don't fit into the definition of a criminal street gang member. REPRESENTATIVE LYNN removed his objection to the motion to adopt Version E. CHAIR RAMRAS announced that Version E was adopted as the work draft. 2:50:11 PM CHARLES KOPP, Chief, Kenai Police Department (KPD), City of Kenai, mentioned that he is also the appointed representative to the Anti-Gang & Youth Violence Policy Team, and is a member of its law enforcement subcommittee. He noted that violent crime is already defined in the Uniform Crime Reports which are published yearly by the DOJ, and suggested that this legal definition could be used to more narrowly define the types of offenses to which the bill would apply. He opined that electronic monitoring would allow for more vigorous enforcement with regard to ensuring that probationers are complying with their conditions of probation, and would allow for the positive reinforcement of pro-social behavior, particularly given the age groups of people involved in criminal street gang activity. MR. KOPP said that with electronic monitoring, a probation officer can see whether a probationer is following curfews, is staying in the appropriate areas, is maintaining an appropriate routine, and is keeping appointments. It is a monitoring tool that's been proven to be very effective and more cost- and time- effective than requiring numerous in-person visits with a probation officer. He mentioned that as part of the Anti-Gang & Youth Violence Policy Team, the KPD is supportive of HB 133, though it does recognize that electronic monitoring resources are finite. He suggested, therefore, that the use of electronic monitoring devices be prioritized for the most serious menaces to public safety such as criminal street gangs, particularly given the explosion of gang violence in the Anchorage area. MR. KOPP relayed that gangs are making strong efforts to get organized in the Kenai and Matanuska-Susitna regions, and it is taking a lot of active effort collectively by the affected communities to keep gangs out. "We want to do whatever we can, both from a public policy perspective and [as] ... a grassroots community organization, to eliminate the problem in Anchorage, and we think this [is] a very effective tool," he concluded. 2:54:40 PM REPRESENTATIVE BUCH, in conclusion, said that one of the reasons that the bill is narrowly focused is because there has been an escalation of gang-related violence in Anchorage, and he wanted to address that problem in particular. Keeping the focus of the bill narrow will assist in keeping the fiscal impact narrow as well. According to research, electronic monitoring is a very effective tool, and Anchorage is experiencing its second decade of a serious problem that has escalated to the point where those in his neighborhood have been affected. House Bill 133 proposes a way of dealing with the problem in a manner that may later be expanded upon. CHAIR RAMRAS relayed that one point the committee will consider is whether the bill can be applied in all areas of the state - applied to all marauding groups regardless of whether they actually fit the definition of a criminal street gang. He suggested that the sponsor give thought to making the proposal in the bill discretionary rather than mandatory. REPRESENTATIVE COGHILL offered his belief that the words, "While on probation and" located on page 1, line 5, could be deleted; subsection (f) would then begin with the words, "As a special condition of probation ...". CHAIR RAMRAS, in response to a question, asked that the changes that have been suggested at this meeting be incorporated into a new CS, and that the sponsor consider some of the other issues that have been raised during the meeting. REPRESENTATIVE BUCH said he appreciates the committee's help and support, adding, "Let's get something going that addresses a specific problem for a community that needs some help." [HB 133, Version E, was held over.]