SB 64-OMNIBUS CRIME/CORRECTIONS/RECIDIVISM BILL  1:58:08 PM CHAIR KELLER announced that the next order of business would be CS FOR SENATE BILL NO. 64(FIN), "An Act relating to theft and property offenses; relating to the definition of 'prior convictions' for certain theft offenses; establishing the Alaska Criminal Justice Commission and providing an expiration date; relating to the crime of custodial interference; relating to the duties of the Alaska Judicial Council; relating to jail-time credit for offenders in court-ordered treatment programs; relating to conditions of release, probation, and parole; relating to duties of the commissioner of corrections and board of parole; establishing a fund for reducing recidivism in the Department of Health and Social Services; requiring the commissioner of health and social services to establish programs for persons on conditions of release or probation that require testing for controlled substances and alcoholic beverages; requiring the board of parole to establish programs for persons on parole that require testing for controlled substances and alcoholic beverages; relating to the duties of the Department of Health and Social Services; and providing for an effective date." 1:58:27 PM JORDAN SHILLING, Staff, Senator John Coghill, Alaska State Legislature, said he will address the questions the committee had regarding custodial interference. He noted that there was some debate during the last meeting about whether those sections would be more appropriate in the attempted kidnapping or kidnapping statutes. He said he provided the committee with a memo on this topic. He reminded the committee that the sections were added through an amendment in the Senate Judiciary Standing Committee. The issue was brought to its attention by a constituent in Anchorage who relayed the scenario of a man walking into a school representing himself as the lawful parent of a child, probably with the intent of kidnapping the child, and only getting charged with criminal mischief in the fourth degree. The reason the man could not be charged with attempted kidnapping was because of the difficulty in proving the attempt. "Attempt would require a substantial step towards restraining another person with the intent to hold that person," he explained. MR. SHILLING explained that the provision was placed in the custodial interference statutes because the offender would be attempting to portray himself as a relative-as a lawful custodian. The offenders are saying that they have a right to custody, so that is why the decision was made to put it into the custodial interference statutes, he stated. 2:01:03 PM REPRESENTATIVE GRUENBERG said he hopes that Mr. Shilling will convey to the sponsor that his previous comments were made to help the legislation, not to "torpedo" it. He said he spoke with Senator Wielechowski, the bill's author. This is a big bill and it warrants some careful consideration, and Representative Gruenberg would like to review it. 2:02:11 PM SERGEANT CHRIS GIFFORD, President, Juneau Police Department Employees Association, said he has been a police officer for 15 years, and he has handled a lot of theft cases and would like to talk about the felony threshold in SB 64. He has dealt with minor to very serious property crimes, he noted. Police officers and state troopers who investigate property crimes in Alaska take all cases seriously, but he can only speak to his experience in Juneau. In Juneau, if a person steals a corndog or a DVD player, a uniformed officer will respond. He stated that there is seldom a situation that is called in that receives no personal attention or action by law enforcement; however, police prioritize their level of calls for service. Crimes against persons are a priority over property crimes, he explained, and persons reporting a theft can feel like they are being ignored if an officer is called to a scene of domestic violence at the same time, for example. The officer is not ignoring the theft but just prioritizing the incidents, he said. "In Juneau, an officer will respond to a theft regardless of the monetary amount," he stated, and "raising the threshold for property crimes will not change the police response to them-we respond to all crimes as we can and when we are able, in relation to other pending calls." Delays in response times can be alleviated by adding officers, he noted. SERGEANT GIFFORD said that raising the felony threshold from $500 to $1200 is reflective of inflation. "I think it's fair," he stated. Many times, a person who is accused of a theft of $500 is convicted of a misdemeanor crime anyway; they are charged with a felony but end up with a misdemeanor conviction. Raising that level puts serious pressure on prosecutors to keep those felony cases as felony cases. Someone who steals $2,000 deserves a felony conviction, incarceration, and supervised probation and/or parole, he opined. "I think all property crimes should be prosecuted vigorously, but the statute should be fair and reflective of current monetary values," he concluded. CHAIR KELLER asked Sergeant Gifford if the property threshold makes no difference as far as the [Juneau Police Department is concerned]. SERGEANT GIFFORD said that the department investigates violations, which are not even crimes, if possible. If there is something more serious pending, the department takes that first, he added. REPRESENTATIVE LEDOUX said many merchants are concerned that if the property crime is raised to $1,200, then a $750 theft, for example, would only be a misdemeanor and not taken as seriously. SERGEANT GIFFORD said police are fact finders, and that is not based on the monetary amount. A felony level case may involve different legal aspects, but that would be a question for an attorney. REPRESENTATIVE LEDOUX asked if the department would prioritize a higher theft amount over another during an investigation. SERGEANT GIFFORD said a very typical case is the theft of bottle from a liquor store, and the surveillance footage is reviewed and an investigation is done, whether the theft is a $500 case [of liquor] or a $22 bottle. "We do the best we can...." REPRESENTATIVE GRUENBERG spoke to the effect of SB 64. "Currently if the value of the merchandise is $500 or more it is a class C felony; under the bill, if the value was $1,200 or more it would be a felony." He asked if there is now a difference in the level of attention in investigating a felony over a misdemeanor. SERGEANT GIFFORD said the department gets all the facts that it can in a theft case and follows all leads, like tracking down a witness. "We are not doing our job 100 percent if we are not trying to get all of the evidence we possibly can," he stated. There is usually not a whole lot of difference in investigating a felony or a misdemeanor. Many times an arrest is not made for a felony because prosecutors need to schedule a grand jury "and things like that." He said, "A lot of times we will gather information and file the charges with the prosecutor's office, and the person may walk away at that point but later go in front of a grand jury and be indicted and arrested on an arrest warrant." 2:13:58 PM JEFF JESSE, Chief Executive Officer, Alaska Mental Health Trust Authority, stated that he is testifying in favor of SB 64. It is rare to find a bill that is both timely and strategic, he opined. The House Finance Standing Committee recently attached intent language to the budget, saying that the court system, the Alaska Housing Finance Corporation, the Mental Health Trust, and the departments of Corrections, Labor and Workforce Development, and Health and Social Services need to continue to work together toward a plan to reduce recidivism and avoid building another prison in 2016, which is the path the state is currently on unless it does something different. The agencies have been working toward this effort, and he noted that the Criminal Justice Working Group has a reentry task force and has been working on how to enhance the process of reentry to deter recidivism. However, it will require a broader set of actions in order to avoid building a $300 million prison within the next four or five years, he stated. MR. JESSE surmised that the finance committee was responding to the need for a sustainable budget, and building new prisons every four to eight years is unlikely to support a sustainable budget. This bill is an important first step because it contains a number of keystones to reducing recidivism, including raising the property crime threshold for a felony. It is time, he said. Representative Craig Johnson recently reminded him that the state incarcerates for two reasons: "We're either mad at them or we're afraid of them." For theft crimes, mostly people are mad at the offenders, and the fact that inflation has raised the price of items does not necessarily mean that people are madder than at the time when original thresholds were set. Clearly, there needs to be a change in the threshold, he reiterated. The Criminal Justice Commission created by SB 64 is also very important. He continued: If you want to control the prison population, you need to start reviewing the sentencing guidelines that we have in state law and make sure that those sentencing guidelines and requirements are where you want them to be, so that we're only incarcerating people for the particular circumstances that we want them incarcerated for and that we are incarcerating them for the period of time that is most appropriate to achieve the goals, not only for setting public standards of behavior, but also those sentences that would be most beneficial in terms of rehabilitation and preventing recidivism. MR. JESSE opined that the Recidivism Reduction Fund is also a key element of SB 64. He reiterated the cost of a new prison and said that, obviously, recidivism cannot be reduced without cost. He said [the state] is getting smarter in using the resources available, but clearly there will be a need for additional resources. This is no different from the "Bring the Kids Home" initiative, where dollars needed to be reinvested that were being spent out of state to serve Alaska children. In this case, [the state] is looking at long-term budgetary sustainability and what strategic investments need to be made in order to reduce the population of people in prison and avoid building another prison. Mr. Jesse turned to the 24/7 Sobriety program and said it is an evidence-based practice that has proven to be very effective in keeping people sober and keeping them from recidivating. A vast majority of people in corrections had substance abuse connected with their criminal behavior. He expressed support for the "good time" provided to those participating in treatment and said that the basic needs to avoid someone from recidivating is housing, job, and support in recovery. He stated that this bill is a huge first step that will reduce recidivism and the budget. CHAIR KELLER asked if Mr. Jesse saw any areas that were missed. MR. JESSE said the bill is a great start and covers a pretty broad cross section of the things that should be started right now. 2:20:42 PM REPRESENTATIVE GRUENBERG noted that a district court judge in Montana declared the 24/7 program to be unconstitutional and it is getting appealed to their supreme court. MR. JESSE said there are many conditions placed on release, and he would be surprised if there was a compelling constitutional argument against requiring sobriety as a condition for release. 2:22:17 PM PEGGY BROWN, Executive Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), noted that she will speak to two items today. When ANDVSA first saw the bill, members were OK with [the 24/7 sobriety program] being in the Department of Corrections (DOC), but as the bill changed and became a part of the Department of Health and Social Services (HSS), they developed concerns about victim safety, but some of the concerns may not be real in the long run, she stated. She said she understands the need to do something about Alaska's prison population and that $2 a day for sobriety tests compares well with $138 for imprisonment. One concern is whether HSS can actually deal with violent offenders who have been drinking, including sexual predators or offenders of domestic violence. She understood that DOC would be a consultant, and the point of view of ANDVSA is that there may be quite a bit of consulting and contracting. States with 24/7 programs, like Montana and South Dakota, have a very strong and immediate law enforcement response. She cautioned that the program may be evidence-based in practice but not in its structure. Ms. Brown said ANDVSA is definitely supportive of some kind of program that works on sobriety because it is known that alcohol and substance abuse does not cause sexual assault, but it is a co-occurring disorder. 2:25:11 PM MS. BROWN said the second concern is that "your representative who you created in terms of the Office of Victims' Rights, that that person who represents victim rights-constitutional rights...-be a member of that sentencing commission." The victim's constitutional rights should be considered equally with the defendant's constitutional rights, she stated. She noted AS 44.19.645 regarding the powers and duties of the commission, which includes providing for the protection of the rights of crime victims. Having a representative from the Office of Victims' Rights will represent the constitutional rights of victims, she reiterated. She knows that the commission should have a manageable number of members, but "we feel very strongly that at least that ... office should be on that panel." 2:29:06 PM JOE BAIR, Wasilla, Alaska, said he is supportive of SB 64 redefining what is criminal and to what extent it is criminal. He said his concern today is in redefining sexual crimes, which not many people want to talk about. He gave the example of two men having a heated discussion whereby one man backs the other against the wall. If the man who is against the wall puts up his arms into the area of the other man's chest to move him back, it could be construed as an assault-a misdemeanor. If the one person was a female in the same situation and if any part of the man's hand touched any part of her breast, it would be a felony, and the woman does not even have to [press charges]. It is a crime against the state, and anyone who saw the interaction could bring it forward, he stated. If the woman said she was touched, even if the man said, "yea, I was trying to get her out of my space," it does not matter-it is a felony. "That's the problem that we're at today-these felonies are not defined," he opined. Whether it is an attempted sexual assault or a vicious rape, the penalty can be the same. That is why he thinks there should be some distinguishing, he stated. CHAIR KELLER told Mr. Bair that the committee is there to look at those tough questions. MR. BAIR said he had another example. He said he and his wife had been sexually assaulted in their "younger days." Consequently, they were very careful with their children, and he was never alone with his nieces. "I bend over backwards to not be in a situation where anything could be construed as being irregular," he noted, but he finds that it is detrimental to him. He spoke of helping a young child get off some play equipment and asked what would happen if a parent questioned what he was doing. "These are strange things, but without clear definitions, I always feel at risk," he told the committee. 2:34:47 PM ANDY PEVEHOUSE, Kenai, Alaska, said he works for the Alaska Public Defender Agency, but he is speaking for himself, and he supports SB 64, particularly with regard to the increased misdemeanor and felony monetary threshold for property crimes. On the Kenai Peninsula, police investigate every crime whether it is a class B misdemeanor or a class A felony, he noted. In terms of prosecutions, he has seen thefts of $1 prosecuted, and he has seen a theft of something valued $501 prosecuted as a class C felony, "so I don't think that there's any risk that changing the threshold is going to change how crimes are prosecuted." He noted that the consequences of being branded a felon are extreme, and it closes many doors for people, particularly young people. Crimes like theft and criminal mischief are largely crimes of passion or opportunity, he explained. He gave the example of a girlfriend and boyfriend who are angry, and one of them throws a rock and breaks a windshield. If it costs more than $500 to replace a windshield, it is a felony, even though the person was not likely thinking about it, especially not whether it was a felony or a misdemeanor. The "hothead" is suddenly a felon, he stated. Raising the threshold will protect people who might do something foolish but who really should not be branded as felons, he opined. MR. PEVEHOUSE noted that the bill does not change the part of the theft statute that keeps recidivists thieves from becoming felons. The law, as it stands, is that the third class A misdemeanor of theft can be charged as a class C felony-it aggravates and elevates on the third one. He did not think anyone should be concerned that by changing the threshold, the message will not go out to repeat offenders. "So if you continue to be a thief, at some point you certainly deserve that class C felony," he stated. What was worth $500 30 years ago would be [worth a lot more] today. CHAIR KELLER noted that he is surprised at how much interest there is in SB 64. 2:39:02 PM JAYCE ROBERTSON, Soldotna, Alaska, noted that he has submitted written testimony and he has written a letter to Chair Keller. He said he agrees with much of what Mr. Jesse said, and he particularly supports the SB 64 language regarding the conditions of release and "treatment versus punishment." His strongest support is with the "hopeful addition" of language from SB 81, which would have an immense positive impact on his life. He said he once had a substance abuse problem, but he has been clean and sober for almost three years. He has been involved with the legal system and with rehabilitation and punishment. He stated that punishment seems to be the main focus instead of rehabilitation. Noting that he also supports the felony threshold change and the recidivism [fund], he mostly supports treatment for offenders. MR. ROBERTSON said that treatment, not punishment, is the true solution to substance abuse, and he knows from personal experience and from the many people he knows in the recovery community. Directly or indirectly, every person in Alaska is impacted by substance abuse, one way or another, he opined. "It is a rampant problem, statewide, and the true solution is treatment options." The individual who is abusing drugs or alcohol will not recover until ready, "so that takes exposure to treatment and the possibilities; and that takes time and boundaries; and it forces the individual to be accountable to their own decisions," he explained. He reiterated that he would like to see language from SB 81 added to SB 64, granting the privilege to obtain a limited driver's license for a person who has completed court-ordered treatment. He explained that he had his driver's license suspended for a minimum of 10 years, and that is an extreme hardship on his family. When a person is not able to drive to work, it creates a hardship on others and encourages reliance on public assistance. Having a license would provide access to jobs, treatment, education, and 12-step recovery community meetings. Personally, he has been able to overcome the limitation, but he knows of others in the recovery community where [not being able to drive] is indescribably difficult. This change would give the state a step forward in the movement of recognizing treatment versus punishment. CHAIR KELLER said he appreciated his testimony and called Ronald Taylor to hear about what is being done by the Department of Corrections regarding treatment options and reducing recidivism. 2:47:19 PM RONALD TAYLOR, Deputy Commissioner, Department of Corrections (DOC), said DOC has placed great emphasis on expanding rehabilitative services. He noted that only 6 percent of DOC's total budget is used for those services, but that has been a substantial increase "of at least a million or two over the last three or four years." That includes an expansion of educational opportunities and substance abuse services, he added. The Recidivism Fund would provide supportive and reentry services that DOC is now not able to do, he said. Once persons are released from custody, "they need that added support to maintain, not only sobriety, but to be able to remain crime-free and remain in the community and be productive in the community." This would be of tremendous value, because it is a critical part of a person being able to stay out of the system, he stated. CHAIR KELLER asked if those in prison also need more treatment of substance abuse and more education. He asked if the recidivism programs are functioning for the inmates. MR. TAYLOR said that is correct, "We actually have expanded our institutional substance abuse programing for out-patient services and residential services, and we continue to look at ways that we can enhance our assessment capabilities inside the institution as well as in the community." 2:50:10 PM CARMEN GUTIERREZ, Anchorage, Alaska, said she is testifying for herself, but she has worked for the State of Alaska for about 25 years in the criminal justice system, and she was the deputy commissioner for DOC for 3 years. She commended Chair Keller and the committee for their hard work to address meaningful reforms that will reduce recidivism and make Alaska communities healthier, and she said SB 64 is a great step in that direction. The bill is intended to promote offender accountability and to allow the DOC to use its limited hard prison beds in a more cost-effective fashion, she opined. An organization, called Right on Crime, is "making the conservative case for criminal justice reform." Right on Crime is very engaged in looking at cost-effective, evidence-based practices that reduce crime, reduce cost, reform offenders, and protect communities, she stated. She said that Grover Norquist is a leader of the organization and in July, 2013, sent a letter in support of SB 64. Other members of Right on Crime are noteworthy conservatives, such as Edwin Meese, Jeb Bush, Newt Gingrich, and William Bennett. There is a recognition throughout the country that the practices of the past will only provide failed results, "and we really have a responsibility to use valuable Alaska resources in a manner that gives Alaskans the best outcomes possible," she said. MS. GUTIERREZ urged the committee to look at the opinion noted previously by Representative Gruenberg, which she has not seen, but as Mr. Jesse indicated, courts have been imposing, via statute, conditions of release and probation, "and it is very hard for me to imagine how adding a condition of sobriety 24/7 would be found, by our courts, as being unconstitutional." She said she strongly supports the Alaska Criminal Justice Commission, and it would be very essential in Alaska moving forward in developing comprehensive strategies. 2:55:00 PM AL TAMAGNI, Member, National Federation of Independent Business, said that he found it interesting to listen to the previous testifiers, "because none of them are really absorbing the loss; it's the business people that absorb the loss, and there really isn't enough consideration given there." He noted that inflation depends on what is stolen; a computer worth $3,000 in 1982 would be worth $680 today. He said, "We have already agreed to an increase in the threshold amount from $500 to $750." He noted that net profits have not increased 200 percent since 1976 on a percentage-type basis; they are still very, very low. The small business entities of Alaska are willing to do its share by allowing the threshold to rise to $750, and the other entities should make more of an effort to solve the problem, he opined. 2:58:12 PM RICK ALLEN, Director, Office of Public Advocacy, Alaska Department of Administration, said the Office of Public Advocacy does not generally take positions on proposed legislation, and it takes no official position on SB 64; however, he will testify on the felony threshold provision. Mr. Allen was a state prosecutor for over seven years, and he noted that current law is strictly prosecuted in many parts of Alaska. He said he personally indicted at least two people for felony theft for stealing bicycles worth over $500, and in his last trial, in 2011, he successfully prosecuted a man for walking into a Target [store] and walking out with a $600 stereo. The man was sentenced to prison for two years, and the case cost the state over $100,000 for the prosecution, defense, and incarceration. The legislature needs to decide "if that math pencils out to anybody but Target." CHAIR KELLER closed public testimony, and SB 64 was held over.