HB 15-CREDITS FOR TIME SERVED/GOOD TIME  CHAIR LEDOUX announced that the first order of business would be HOUSE BILL NO. 15, "An Act relating to credits toward a sentence of imprisonment and to good time deductions." 1:04:26 PM REPRESENTATIVE KELLER moved to adopt proposed Committee Substitute for HB 15, Version 29-LS0102\I, Gardner/Martin, 3/19/15 as the working document. There being no objection, Version I was before the House Judiciary Standing Committee. 1:04:49 PM REPRESENTATIVE TAMI WILSON, Alaska State Legislature, pointed to page 2, lines 5-6, and advised the current committee substitute reads "rehabilitative activity" as opposed to the previous version which read "counseling." She opined that she spoke with public defenders who believe this bill offers more tools to the court in determining assistance the person in pretrial requires. Under current law, she explained, the offender waiting in pretrial receives credit for sitting in jail, and this bill offers electronic monitoring, of which a business is attached. During the pretrial hearing the judge orders what is required of the offender while on electronic monitoring and those orders may include, certain types of treatment, employment, [educational training], and community service. She pointed out that treatment is not available in many of the jails in Alaska, and especially not in pretrial. The offender receives the same credit [on electronic monitoring] as someone sitting in jail in pretrial if they follow the [judge's orders and obey the laws of the land], she explained. She specified that the bill solely discusses pretrial and that electronic monitoring cannot be performed out-of-state. 1:08:15 PM REPRESENTATIVE GRUENBERG referred to the term "medical appointment" on page 2, line 6, which read:  (3) ...activity or medical appointment.    REPRESENTATIVE GRUENBERG said he assumed she is using it in a broad sense, in that it could be a nurse practitioner, chiropractor, naturopath or physical therapist, all of which would be interpreted by the Department of Corrections (DOC). REPRESENTATIVE WILSON advised the judge would order exactly what [entity] the offender could receive services. REPRESENTATIVE GRUENBERG referred to the language on page 1, lines 9-12, which read: (d) ... a sentence of imprisonment for time spent [IN A PRIVATE RESIDENCE OR] under electronic monitoring if  the person has not committed a criminal offense while  under electronic monitoring and the court imposes  substantial restrictions ... REPRESENTATIVE GRUENBERG advised that he literally read that to include "electronic monitoring 15 years ago in Rhode Island," yet he understands the intent of the sponsor is to have a narrower focus. He stated it was his hope to look into this issue further. REPRESENTATIVE WILSON advised that the phrase was included by the Department of Law (DOL) because there was an incident where a defendant on electronic monitoring committed another crime. She shared "They didn't necessarily say that, they felt it needed to be there." She confirmed that she will have further discussions with DOL and reiterated that the intent is that during the time an individual is on electronic monitoring they must abide by the rules and cannot commit crimes. 1:11:08 PM RICK SNOBODNY, Deputy Attorney General, Criminal Division, Alaska Department of Law (DOL), requested Representative Gruenberg to restate his question. 1:11:44 PM REPRESENTATIVE GRUENBERG again referred to the language on page 1, lines 10-11, and requested clarification on the concept of a criminal offense under electronic monitoring that is somehow related to "this" case, or in the recent future. For example, he offered, "you" couldn't use a 1985 situation from Rhode Island, "that would make them ineligible for life." MR. SVOBODNY answered that Ms. Schroeder [DOL] worked with the sponsor on this language and he opined it would be for "this" offense. He noted that if the state is giving credit under the present case law pretrial, and the offender is in the "functional equivalent of incarceration" the offender will receive credit for that time whether a crime is committed or not. He offered that the principle is credit for time that is served either in jail or the functional equivalent of incarceration. 1:14:00 PM REPRESENTATIVE GRUENBERG highlighted his belief that contours need to be defined down the line. 1:14:42 PM REPRESENTATIVE CLAMAN assessed that the way the bill is currently written, a defendant released on electronic monitoring pretrial would be treated the same as a defendant who was released pretrial to a treatment program. MR. SVOBODNY replied "Yes, that is my understanding." REPRESENTATIVE CLAMAN asked for confirmation that this bill does not get into "good time" credit. MR. SVOBODNY said that good time is for good behavior in jail and [on electronic monitoring] the individual is not in jail, so it was dropped out of the bill. REPRESENTATIVE CLAMAN determined that all parties in the courtroom must come to an agreement that is converted into a Pretrial Release Order allowing electronic monitoring. He explained that at sentencing the judge determines whether the defendant performed as ordered and orders whether the defendant will receive credit for time served. MR. SVOBODNY agreed that Representative Claman described the scenario accurately, but that there are nuances not in the premise of Representative Claman's comments. 1:17:05 PM REPRESENTATIVE CLAMAN asked Mr. Svobodny to explain. 1:17:09 PM MR. SVOBODNY responded that "everybody, I think, is not paying attention to, or forgot, or didn't know, the default is you get out of jail." He further responded that the default in the statute ... unless it is an unclassified or class A felony, the person is released on their "own recognizance." He opined there are individuals released on their own recognizance that must go to a treatment program that has the equivalency of being in jail. Or, he noted, the court could order that it is also a condition of a monetary bail. He said he assumed it wouldn't be a third party custodian, as a third party custodian is not going to go to the functional equivalency of jail pending trial. He disputed the statement that when a defendant goes to the [pretrial] hearing that everyone is on board, as only the judge needs to be on board. 1:19:00 PM MR. SVOBODNY then presented his testimony that there is a major public policy question in that "should we let people buy their way out of jail," because that is what this [bill] is. He questioned what individual facing a mandatory three days in jail for driving while intoxicated (DWI) wouldn't beg the judge to be put on electronic monitoring. [The bill] defeats the principle that an individual must serve a mandatory three days in jail for the first DWI, and twenty days for the second DWI. He offered concern for the word "counseling," as it reminds him of a woman in Juneau who committed perjury in a trial, was sentenced to jail time, and claimed that going to Weight Watchers was the functional equivalent of a rehabilitative program and that she should get credit for going to Weight Watchers appointments. The judge did not allow that argument, but the focus was changed from rehabilitative program to counseling. 1:21:04 PM CHAIR LEDOUX noted that Mr. Svobodny testified previously on this bill and asked whether he was testifying that the administration and DOL are officially opposed to this bill, because it sounded like he was. MR. SVOBODNY responded that he testified previously and made these same points, but now the [language] is down to specific examples. He said he does not believe his testimony has changed, but that the current language is a different iteration. He expressed that the fundamental question is still the same, "if you let people pay for electronic monitoring to get out of jail, what you've done is say ... you've moved us back to the Middle Ages where somebody can do their jail time ... I can have somebody ... I can pay somebody to do my jail time for me, or I can pay the king to not have me go to jail." For example, he noted, will the victim be at the [pretrial hearing] when electronic monitoring is imposed as they have a right to be heard. "Now, you've kind of flipped the whole process around, where do that victim show up? When either he or she shows up at sentencing to say now this guy should go to jail, judge. And the judge is going to say, 'Oh sorry, we already did ... we did that at the bail hearing.'" 1:22:58 PM REPRESENTATIVE CLAMAN offered that this bill would not change the victim's right to be present at every bail and sentencing hearing to offer their view, recognizing that the ultimate decision is left to the judge. 1:23:35 PM MR. SVOBODNY agreed with Representative Claman and stated there is a substantial difference when the district attorneys' (DA) office calls the victim advising there is a bail hearing or sentencing .... CHAIR LEDOUX interjected that it would be the responsibility of DOL to give the victim the information of what will take place at the bail hearing. MR. SVOBODY agreed and said DOL will inform the victim that the defendant will be living in his own home, will wear an ankle monitor, and it will count as though he was in jail. He also agreed that they have a right to be at the bail hearing and judges often give them the right to speak, they don't necessarily have the right to speak at the bail hearing, but do have the right to speak at sentencing. 1:24:46 PM REPRESENTATIVE GRUENBERG referred to Mr. Svobodny last statement that a defendant doesn't have a right to speak at a bail hearing, and questioned that if the defendant and his lawyer are asking for electronic monitoring, they must have the right to speak to make that argument. MR. SVOBODNY said he misspoke as he meant to say the victim. REPRESENTATIVE GRUENBERG related that if the victim has a right to be notified and present at a bail hearing, doesn't it follow that if the victim or the victim's advocate had an objection to the proposal they would have a right to be heard. MR. SVOBODNY acknowledged he may be wrong as victims may have a right to speak at bail hearings. He noted that in Anchorage the first bail hearing is set before the victim is "even" home, they are set by committing magistrates over the phone." He opined that is probably not going to happen where people are released to these programs at that point, but there is a hearing the next day. He further opined "it's not like you can sit down and write out your thoughts, or even be out of the hospital." 1:26:45 PM REPRESENTATIVE GRUENBERG said that certainly DOL can accomplish this, or is DOL not capable of executing. MR. SVOBODNY expressed that the issue is whether the committee is willing, as a public policy, to create the legal fiction that [staying home and wearing an ankle monitor] is the same as being in jail. 1:27:55 PM CHAIR LEDOUX read [Sec. 2, AS 12.55.027(d)], page 1, line 12-14, which read: (d) ... 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 ... CHAIR LEDOUX referred to "including" court appearances, meeting with counsel during a period which the person has to do X, Y, and Z. She pointed out that those are just the things that this bill says that "you" wouldn't think about giving a person credit if they haven't met those three requirements, and that the court could impose other restrictions. MR. SVOBODNY said "That is absolutely correct." CHAIR LEDOUX continued that the court has to find that it imposes restrictions which are equivalent to substantially restricting the movement of the person. MR. SVOBODNY agreed, but stated that substantially restricting the movement of a person ... the individual can go to work, go to Weight Watchers ... 1:29:23 PM CHAIR LEDOUX argued that if the court views that Weight Watchers as more of a social event, they cannot attend. MR. SVOBODNY further agreed with Chair LeDoux and said that the judge can create situations where living in a person's own home meets the functional equivalent of jail. He reiterated the issue is that a person can stay home and wear an ankle bracelet ... as the bill states "shall give credit" for that being the same as jail. He opined that it appears to be creating a situation where people who can pay are allowed to wear an ankle bracelet and take three days off if a first DWI, twenty days off for the second DWI, and not receive any jail time for that offense. He said, "That's within your prerogative, that's within a judge's prerogative. Now if the judge ratchets it down more than just saying that it is ... I don't know, curfew at night and an ankle monitor." He described it as a public policy question and expressed there could be a potential increase in the delay in going to trial because a good defense lawyer would drag it out to the point the individual meets whatever sentence the attorney believes the court is going to give. 1:31:59 PM CHAIR LEDOUX reiterated her question of whether the administration and DOL officially oppose this bill. MR. SVOBODNY related that he has advised what he sees as issues with the bill, and further related that he does not believe the administration has a position on the bill. From the prosecutor's point of view, he advised is that the committee determines whether staying at home and wearing an ankle bracelet is the same as being in jail. 1:33:05 PM REPRESENTATIVE CLAMAN referred to the topic Mr. Svobodny raised having to do with financial access to electronic monitoring typically in the private criminal defense client, and not typically in the public defender client has been discussed previously. He noted another issue is geographic in that within certain parts of Alaska the technology doesn't exist, but could be more available to defendants in larger communities. He surmised that DOL's position is that if the committee wants to allow it to be more available in certain communities that committee can make that choice. MR. SVOBODNY agreed, and opined legislators make decisions all the time on where programs are, or are not, available. 1:34:28 PM REPRESENTATIVE GRUENBERG opined that when the legislature first considered ignition interlocks the financial ability of someone was not discussed, but there was a discussion of geographical issues regarding installation. CHAIR LEDOUX asked whether that was a question. REPRESENTATIVE GRUENBERG responded that the equal protection issues were discussed and asked whether Mr. Svobodny had any comment. MR. SVOBODNY offered that the system treats people with money better than the people without money, and noted that a judge can weigh financial circumstances, determine flight risk, and the danger to the community when ordering bail. 1:38:09 PM CHAIR LEDOUX remarked that currently a person receives credit for time spent in an overnight rehabilitation program. MR. SVOBODNY advised he was not sure whether that was the only requirement whether they would, as restrictions must be similar to being in jail. CHAIR LEDOUX argued that allowing someone with money to enter a pleasant treatment facility could discriminate against someone who cannot afford the pleasant treatment facility. But, she said, the state still does not say they do not get credit toward their time served. MR. SVOBODNY responded that assuming the [treatment facilities] have the equal equivalencies of being incarcerated, because under present law the judge could fashion an order for the "fancy" facilities. He related there are exceptions in present law for meetings with counsel, [court appearances, and court ordered appointments]. He described a history of one of the members of this body went to alcohol treatment at the "Maui Hilton, right?" 1:40:47 PM CHAIR LEDOUX responded that she was not aware of that, and questioned whether, assuming the "Maui Hilton" has a residential treatment program, would that be allowed. MR. SVOBODNY answered, yes. CHAIR LEDOUX referred to Mr. Svobodny's statement wherein he noted that this wouldn't be fair in that a person with money can receive electronic monitoring; a person without money cannot receive electronic monitoring and; therefore, cannot receive credit. She expressed that people without money should be able to participate in electronic monitoring and remarked that the problem could be corrected within DOC as there is nothing inherently wrong with giving credit for electronic monitoring. MR. SVOBODNY reiterated that if the legislature concludes a person going to a treatment program offering the equivalency of incarceration, is [identical] to staying in the person's own home and wearing an electronic monitoring device, is the legislature's choice. 1:43:16 PM REPRESENTATIVE WILSON responded that Legislative Legal and Research Services worked with Mr. Svobodny and she was surprised to hear his testimony. In reading the bill, [the treatment program] must be as if the person was in jail and cannot be on electronic monitoring sitting in front of the TV as there are other [stipulations] to meet. She pointed out that the bill requires receiving that a person receive treatment, is employed, performs community service, attempts to get their life back on track, and avoids the revolving door. She explained that currently DOC can offer electronic monitoring in any community in Alaska as the Department of Health & Social Services (DHSS) places money into [the program]. What is not currently available is the incentive of going to jail for $158 per day, as opposed to electronic monitoring for approximately $20 per day, she noted. She posited that the goal of [electronic monitoring] is putting the person on the road to recovery. She described the bill as exceptional and advised she has worked with all of the parties involved. 1:46:29 PM CHAIR LEDOUX noted concern that someone charged with a three-day mandatory prison sentence for DWI [is allowed to use electronic monitoring]. She remarked that part of that three-day sentence is to cause people who may not normally see the inside of a jail, actually see the inside of jail. She is not sure that spending three-days on an electronic monitoring device and staying home watching TV, even though they are restricted for those three-days, is quite the same as going to jail. REPRESENTATIVE WILSON answered that the bill is a tool in the toolbox and not a requirement as the judge can order the person to jail. "As far as the three-days goes, if that worked, I don't think we'd have so many people coming through the jails all the time," she opined. 1:49:23 PM REPRESENTATIVE CLAMAN said he intends to propose an amendment on page 1, lines 5 and 9, which changes the language from "shall" to "may." He pointed out that under Title 28, on the first DWI the court has to impose a sentence of 72-hours consecutive imprisonment. He said that when the language in the statute reads "shall," the judge would be required to let the person spend time at home on electronic monitoring. Whereas, "may" offers the judge discretion to say "no" to one person, and "yes" to everyone else. 1:51:40 PM REPRESENTATIVE CLAMAN moved Amendment I.1 to CSHB 15, [Amendment 1], labeled 29-LS0102\I.1, Gardner/Martin, 3/20/15, which read: Page 1, line 5: Delete "shall [MAY]" Insert "may" Page 1, line 9: Delete "shall [MAY NOT]" Insert "may [NOT]" There being no objection, Amendment 1.1 passed. 1:53:00 PM REPRESENTATIVE KELLER moved to report proposed CS for HB 15, Version 29-LS0102\I, Gardner/Martin, 3/19/15, as amended, from committee with individual recommendations and the accompanying fiscal note. There being no objection, CSHB 15(JUD) was reported from the House Judiciary Standing Committee. 1:53:24 PM The committee took an at-ease from 1:53 to 1:56 p.m. 1:56:21 PM