SB 55-OMNIBUS CRIME/CORRECTIONS  6:31:26 PM CHAIR CLAMAN announced that the final order of business would be CS FOR SENATE BILL NO. 55(FIN), "An Act relating to criminal law and procedure; relating to controlled substances; relating to sentencing; relating to protective orders; relating to restitution; relating to the period of probation; relating to revocation, termination, suspension, cancellation, or restoration of a driver's license; relating to parole; relating to the duties of the Department of Corrections and the Department of Health and Social Services; and providing for an effective date." 6:32:01 PM The committee took an at-ease from 6:32 p.m. to 6:34 p.m. 6:34:24 PM SENATOR JOHN COGHILL, Alaska State Legislature, advised that SB 55 was borne out of the recommendations from the Alaska Criminal Justice Commission, and it is mostly technical and conforming in nature. He noted that SB 54 contains policy calls and has taken on a life of its own. This bill is based on issues the Department of Law (DOL) brought to the Alaska Criminal Justice Commission wherein the commission put something in one statute, and through the amendment process there was not a conforming change, and this bill conforms those changes, he explained. The goal is to be as "technically clean" as possible during this session, which would help both the DOL, Department of Transportation & Public Facilities (DOTPF), Division of Motor Vehicles while hammering out some of the policy call questions. Senate Bill 91 [passed in the Twenty-Ninth Alaska State Legislature] was a large omnibus crime package with many amendments, and it is now necessary to line up the statutes. 6:36:56 PM JORDAN SHILLING, Staff, Senator John Coghill, Alaska State Legislature, offered a sectional summary and advised that Sections 1, 2, and 3, of the bill all do the same thing. He explained that in 2015, the Alaska Criminal Justice Commission recommended that the felony theft threshold be raised, which is the dividing line between misdemeanor theft and felony theft. The commission had advised to not only raise that threshold but to link it to inflation so the legislature would not have to act in the future on that issue. However, with Senate Bill 91 having 193 sections there were some drafting errors, and this drafting error occurred when the drafter inadvertently, in three instances, linked the higher amount of grand larceny, $25,000, to inflation adjustment. He opined that this was an inadvertent result of a floor amendment in the House of Representatives, last year. 6:37:56 PM MR. SHILLING advised that Section [3] of the bill relates to drug possession, and as recommended by the commission in 2015 a simple drug possession shall be a misdemeanor, with exceptions to that recommendation. REPRESENTATIVE LEDOUX offered that she doesn't understand why adjusting for inflation would be considered a technical amendment because it appears to be a fairly substantive change. MR. SHILLING responded that the commission and Senator Coghill consider it a technical change because the commission never recommended that that the higher amount be linked to inflation. He explained that it is the sponsor's understanding that there was never an intention to link $25,000 to the inflation adjustment. REPRESENTATIVE LEDOUX said that if he was adjusting for inflation, why there was never an intention to link $25,000 to the inflation adjustment. 6:39:25 PM CHAIR CLAMAN opined that this was the subject of a floor amendment and was a compromise to adjust for inflation at the lower level, but not at the higher level. REPRESENTATIVE KOPP explained that the lower level determines the first level of felony when moving from misdemeanor to felony, and that the broad agreement was that $25,000 would probably always be a class B felony throughout "our lifetime and the next lifetime." The lower level is more sensitive to the market, inflation, the actual value of items most frequently stolen, and that the market is sensitive because it is a lower amount moving from a misdemeanor to a felony theft, he said. Whereas, the higher amounts are actually not as sensitive to the threshold they are attached to on the felony scale. There will always be felonies, he reiterated, but the lower level is moving from misdemeanor to felony, and the debate was around when something should go from a misdemeanor to a felony. REPRESENTATIVE LEDOUX disagreed with this being the result of a House of Representative floor amendment because she did not recall any of those floor amendments actually passing. CHAIR CLAMAN agreed with Representative LeDoux and advised that he believes it was not a subject of a House of Representatives floor amendment, it was actually a function of the amendments offered in the House Judiciary Standing Committee last year. 6:41:25 PM REPRESENTATIVE LEDOUX asked whether it was Chair Claman's recollection that the committee meant to do this in the House Judiciary Standing Committee, in which case it was not a technical amendment. CHAIR CLAMAN suggested that it was a technical amendment because the House Judiciary Standing Committee "did it, but we did it in most sections," and Mr. Shilling explained that there were a few sections that appeared as though they were drafted erroneously. Therefore, he said, this is conforming the statute to the intent of the bill as it came through committee. 6:42:18 PM NANCY MEADE, General Counsel, Administrative Staff, Office of the Administrative Director, Alaska Court System, clarified that the language being eliminated was, "adjusted for inflation as provided in AS 11.46.982" and explained that AS 11.46.982 specifically reads that the judicial council will only adjust for inflation the $250 amount and the $1,000 amount. She pointed out that the Judicial Council does not have authority anywhere to address the $25,000 amount, so that really was a case of the drafters going through, and each time they saw something added "adjusted for inflation," but erroneously doing it for the dollar amount that was not authorized. 6:43:10 PM MR. SHILLING advised that Section 4 of the bill relates to drug possession, and as recommended by the Alaska Judicial Commission, Senate Bill 91 made simple drug possession a misdemeanor, with exceptions such as, felony forms of possession in the law. Unfortunately, he said, those changes inadvertently created some overlapping penalties, specifically for possession of less than one ounce of a schedule VIA controlled substance. This section eliminates those overlapping penalties, and accommodates for the fact there are felony forms of drug possession referenced in other statutes and it simply needs to be referenced in Section 4 as well, he explained. 6:44:05 PM REPRESENTATIVE LEDOUX inquired as to "overlapping penalties." MR. SHILLING referred to CSSB 55(FIN), Version T, page 3, lines 3-6, which read as follows: (4) under circumstances not proscribed under AS 11.71.030(a)(3), 11.71.040(a),  11.71.040(a)(4), [AS 11.71.040(a)(3)] or 11.71.060(a)(2) [11.71.060(a)(2)(B)], possesses any amount of a schedule 1A, IIA, IIIA, IVA, VA, or VIA controlled substance. MR. SHILLING explained that this statute makes simple possession of drugs a class A misdemeanor, and it makes possession of schedule 1A, IIA, IIIA, IVA, VA, or VIA substance a class A misdemeanor. However, he pointed out, another statute has another penalty for possession of less than one ounce of a schedule VIA substance. He explained there is a statute that makes it a class B misdemeanor for someone to possess less than one ounce of a VIA controlled substance, and another statute simultaneously makes it a class A misdemeanor. REPRESENTATIVE LEDOUX surmised that there are inconsistent penalties. MR. SHILLING answered in the affirmative, and offered that the sponsor chose to default to the class B misdemeanor, which was the law prior to Senate Bill 91. 6:45:19 PM REPRESENTATIVE REINBOLD referred to previous testimonies referencing the State of Texas and asked Mr. Shilling to describe how similar or different the drug issues are in Senate Bill 91 in Alaska versus Texas. MR. SHILLING pointed out that he is not an expert on the sentencing frameworks of other states, but generally when speaking of Texas it was spoken of as being one of the first conservative states to embark on these types of criminal reform efforts. REPRESENTATIVE REINBOLD related that she would like to speak to the committee at a later time as to the differences in Texas because many times people have been misled, and stressed considerable concern regarding Section 4. 6:46:52 PM MR. SHILLING advised that Section 5 relates to victim notification. Senate Bill 91 created a new requirement of the court by requiring that information regarding sentencing be given to the victim, thereby, giving the victim an opportunity to update their contact information with the Victim Information and Notification Everyday (VINE) system. However, the language was not written in a manner that would accommodate for the fact that many victims simply do not show up to court and; therefore, the court system has been out of strict compliance with the statute. Oftentimes, he commented, victims do not want to be part of these hearings, and because it is not the court's role to maintain a contact list of victim information, it would be inappropriate to require the court to seek out these victims and provide this information. Instead, he explained, the language "if practicable" was added in recognition that many victims do not show up to court. 6:48:01 PM REPRESENTATIVE REINBOLD asked permission to read "Section 24" of the constitution. CHAIR CLAMAN stated that the committee did not need Representative Reinbold to read from the constitution while moving through the bill sectional, and she would have an opportunity during the committee comment segment of the bill hearing. CHAIR CLAMAN, in response to Representative Reinbold's continuing argument, stated that the committee would move through the sectional summary at this time. 6:48:50 PM MR. SHILLING clarified that the requirement to provide information to victims did not exist prior to Senate Bill 91. He explained that it is a piece of information the sponsor strongly believes should be assessable to victims, and it was established in law last year. He further explained that had they identified a need for the language "if practicable," it would have been changed last year. 6:49:09 PM MR. SHILLING explained that Secs. 6, 7, 8, 9, and 10, all have to do with the suspended entry of judgment (SEJ). Last year the commission recommended a diversionary tool called a "suspended entry of judgment (SEJ)" which resembles a "suspended imposition of sentence (SIS)". The SEJ was established under Senate Bill 91, and was intended to operate a bit differently than the SIS wherein a conviction would not be entered for defendants granted an SEJ, thereby, avoiding some of the consequences resulting from a conviction. He explained that Section 6 provides for an array of authorities for the court system, and is the general statute authorizing the court system to impose community work service, fines, and sentences of imprisonment. Section 6 makes it explicitly clear that the court does have the authority to impose a suspended entry of judgment (SEJ). 6:50:17 PM MR. SHILLING turned to Section 7, and advised that this section is necessary to bring the suspended imposition of sentence (SIS) and suspended entry of judgment (SEJ) closer into alignment. It ensures that when a restitution order is made as a requirement under an SEJ, that the responsibility to pay that restitution does not go away or disappear when that individual successfully completes an SEJ, and their case is discharged. The requirement to pay restitution remains just as it does under a suspended imposition of sentence (SIS). 6:50:51 PM REPRESENTATIVE REINBOLD requested an explanation of the difference between an SEJ and an SIS. MR. SHILLING explained that [under an SEJ] a judgment is never entered, the individual is truly not convicted, the case does not appear on CourtView, and they can legally write on an employment application that they have never been convicted of a crime. He pointed out that this is designed for first time, low risk offenders, and deferred to the Department of Law or the Alaska Court System for any additional questions. 6:51:40 PM MR. SHILLING advised that Section 8 deals with an SEJ, and explained that it was unclear in the SEJ statutes whether a brief prison stay could be imposed, similar to what can occur under an SIS. He related that practitioners had requested clarification as to whether there was an option of imposing a brief period of imprisonment for individuals going through an SEJ. He clarified that the commission never intended "shock incarceration," for example, to be used under an SEJ and if the commission had, it certainly would have recommended the appropriate language. The commission felt it was prudent to clarify in statute that incarceration may not be imposed as a condition of probation under a suspended entry of judgment (SEJ). 6:52:35 PM REPRESENTATIVE REINBOLD paraphrased that "the court may not impose a sentence of imprisonment under this section," and asked for additional information as to this language tying the hands of the court. MR. SHILLING explained that it was not the intention of the commission to impose shock incarceration under an SEJ. 6:53:20 PM SENATOR COGHILL reminded the committee that under the suspended entry of judgment (SEJ), the judgment is still there and the idea is to get the person into treatment. The person must complete that treatment in order to have that judgment suspended and set aside. He described it as an accountability measure because in order for the judgment to be set aside, the person must complete the program requirements. CHAIR CLAMAN noted that with an SEJ, the court made the decision to suspend entry of judgment and send the person to a treatment program. Therefore, the court decides at the very beginning of the process whether it will give the person that opportunity. The court's hands are not tied, he pointed out, this is simply recognizing that a court decided to give a person that chance to rehabilitate and not have a conviction. SENATOR COGHILL described it as a methodology tool that a court may or may not use. 6:54:32 PM REPRESENTATIVE REINBOLD paraphrased "the court may not impose a sentence of imprisonment under this section," and expressed concern that many times funding and/or programs are not available in certain areas, and in those instances what would be the next step. SENATOR COGHILL answered that the court may use the programs if they are available, and if they are not available, the chances are a court would not suspend an entry of judgment because it couldn't practically follow the rules. 6:55:25 PM REPRESENTATIVE EASTMAN referred to [Section 8] and asked how broadly or narrowly imprisonment was defined, and if the court decided a person needed to be hospitalized for a certain amount of time whether that falls under imprisonment. MR. SHILLING commented that he was unaware whether there was a definition for imprisonment in Title 12, and opined that when the word "imprisonment" is used, it refers to incarceration at a Department of Corrections (DOC) facility. He explained that different terms such as, home confinement and electronic monitoring are used when referring to something other than a hard bed facility within the DOC. 6:57:01 PM MR. SHILLING explained that Section 9 also has to do with a suspended entry of judgment (SEJ), and under existing law if a person successfully completes probation under an SEJ, the court may discharge the person and dismiss the proceedings any time after one year from the date of the original probation. He related that practitioners were confused by this language as to whether it referred to the start date, end date, or at what point in the probation term was being discussed. He clarified that because probation terms are longer than one single day, it is an increment of time and it makes sense to add the language "was imposed," which is a grammatical issue to clarify that the statute was referring to the start date of the term of probation. Also, he said, this section clarifies that a person is not convicted if they successfully complete an SEJ. 6:57:58 PM REPRESENTATIVE REINBOLD referred to an SEJ, and asked whether the person was ever convicted, and paraphrased: "a person who is discharged in this section may not be convicted of a crime." She said she wanted to look at the full ramifications from the beginning to the end with regard to that sentence. MR. SHILLING explained that under an SEJ, the person is never convicted and this language makes it crystal clear that that person is not convicted. 6:58:37 PM REPRESENTATIVE REINBOLD said, "Yet, he or she has to do probation and a whole bunch of other things," and something was missing. She commented that if they are not convicted, why are they on probation. MR. SHILLING responded that a person faces many consequences associated with being charged with a crime and are required to perform community service, fines, or treatment, for example. However, he said, the uniqueness of an SEJ that sets it apart is that the person is not truly convicted and, thereby, avoids the consequences that follow a conviction. 6:59:26 PM REPRESENTATIVE REINBOLD surmised that the person actually committed the crime and this is a way to erase the offense, but argued that people have the right to know whether someone actually committed a crime and see it listed on CourtView. REPRESENTATIVE REINBOLD asked Mr. Shilling to explain who would know about the SEJ, wherein the person actually committed the crime but was not convicted. MR. SHILLING explained that this is exactly how an SEJ works, the person is not convicted and as a result their record does not appear on the CourtView criminal record. REPRESENTATIVE REINBOLD argued, "But, they committed it." 7:00:40 PM CHAIR CLAMAN explained to Representative Reinbold that she was exactly correct, under the criminal justice reform efforts an SEJ is a tool the court can use for someone who admits to committing a crime, to give them an opportunity to rehabilitate themselves. He related that he fully understands Representative Reinbold does not agree with that part of the criminal justice reform efforts, and her distaste is clear. REPRESENTATIVE REINBOLD said this is an issue that has been "of great alarm" and she wanted to put it on record. CHAIR CLAMAN assured Representative Reinbold that it was clearly on record. 7:01:21 PM REPRESENTATIVE KOPP explained to Representative Reinbold that suspended entry of judgment (SEJ) means there is no written official record of the conviction. He explained that the defense, prosecution, [and judge] must all agree that the conviction could be set aside if a whole host of conditions were fulfilled on probation. He pointed out that the legislature determined that a person was not eligible for an SEJ when involving crimes against a person, sexual assault, violent crimes, and almost any serious offense. The whole purpose behind this is to allow first time offenders a chance to avoid that initial conviction which could put them in the death spiral of un-employability for the rest of their lives, he related. In the event someone violates that probation they lose their ability for that SEJ, and it will be a conviction. He described it as a refined process. 7:03:26 PM MR. SHILLING advised that Section 10 is a continuation of the previous conversation regarding a suspended entry of judgment (SEJ). It uses the words "convicted of" and "convicted" in three instances, and because the person had not been convicted, it made sense to refer to the charge rather than the conviction. The fourth replacement of the words "convicted of" with "is charged with" is for a different reason, there are a number of exceptions, and a number of individuals are not eligible for an SEJ. Under current law, a person convicted of a crime of domestic violence is not eligible, "with convicted being past tense" leads some practitioners to believe that might be referring to a previous conviction of domestic violence. He stressed that the sponsor wants to ensure that someone who is "currently, right now," being charged with domestic violence would not be eligible for an SEJ. 7:04:38 PM MR. SHILLING explained that Section 11 eliminates overlapping probation term lengths because Senate Bill 91 established maximum probation term lengths. For example, he said, one of the maximums was 15 years for a felony sex offense, and 10 years for an unclassified felony under Title 11, and there are felony sex offenses that are also unclassified felonies under Title 11. He explained that there is an ambiguity about which maximum probation term lengths would apply, and this section clears up that ambiguity. 7:05:19 PM MR. SHILLING pointed to Sections 12 and 13, and related that they do the same thing. Senate Bill 91 raised the maximum fine amount that could be imposed for a class A misdemeanor from $10,000 to $25,000, and opined this was part of the aforementioned House of Representatives amendment, but he would perform research. CHAIR CLAMAN said he was certain that amendment came out of the House Judiciary Standing Committee and not from the floor of the House of Representatives. 7:05:51 PM MR. SHILLING remarked that these two statutes require certain information to be on the protective order form, and these sections talk about what the penalties might be for violating a protective order. He noted that the form says that one of the possible penalties would be a fine up to $10,000 except that is no longer the maximum fine, and these two sections simply update the information on the form to specify that the maximum fine can be up to $25,000. 7:06:19 PM REPRESENTATIVE REINBOLD asked whether the money goes to the court system, the general fund, or whether it was restitution. MR. SHILLING responded that he does not know the answer to that question, and this is just a technical change that conforms Alaska's fines statutes with the protective order statutes in Title 18. MS. MEADE answered that all fines for all crimes go straight into the general fund. 7:07:19 PM MR. SHILLING said that Section 14 has to do with license revocations and this section removes a reference to the type of dismissal that would serve to meet the requirements of this section, and removing this reference to prejudice is appropriate. The intent of this policy is to return the license to the individual if they have been acquitted or their case dismissed regardless of whether the dismissal was with or without, prejudice. This simply removes the reference to prejudice and gets back to the intent of that policy, he noted. 7:07:52 PM MR. SHILLING explained that Section 15 is a new addition into SB 55 from the Senate Finance Committee. In 2015, the Alaska Criminal Justice Commission recommended that municipalities be prohibited from having greater punishments under municipal ordinances that go beyond the punishments for similar offenses described under state law. Senate Bill 91 enshrined that recommendation in statute, but afterwards it came to the sponsor's attention that folks were interpreting the language to not only apply to crimes, but also non-criminal offenses and traffic infractions. He noted that this has had the effect of limiting significant revenue sharing for the Municipality of Anchorage, for example, and creating an inability to collect greater fines for traffic infractions. This section simply changes the statute to apply only to criminal offenses, he explained. 7:09:06 PM REPRESENTATIVE REINBOLD asked whether this is similar to HB 223. CHAIR CLAMAN responded "identical." 7:09:17 PM MR. SHILLING referred to Section 16, and advised that the Alaska Criminal Justice Commission recommended that agencies be required to collect specific data on key performance measures, to analyze the data, prepare reports for the legislature, to continue to make recommendations, and play an oversight role for the next five years. Due to an apparent oversight, the bill missed an important data point that does need to be reported to the commission relating to earned compliance credits, he said. 7:09:58 PM MR. SHILLING said that Section 17 has to do with the Alcohol Safety Action Program (ASAP), and this section aligns two bills that were passed around the same time. Senate Bill 165 [passed in the Twenty-Ninth Alaska State Legislature] made minor consuming alcohol a violation and provided that the fine for this violation may be reduced if that juvenile successfully participated in ASAP. Senate Bill 91 limited the types of offenses that could be referred to ASAP, in order to accommodate for the fact that Senate Bill 165 felt strongly about sending these juvenile offenders to ASAP, this section of the bill adds those two juvenile offenses to the list of offenses that not only the court can refer to ASAP, but the ASAP can accept. 7:10:58 PM MR. SHILLING advised that Section 18 eliminates the notification requirement for a parole hearing that will never occur. He explained that this is a statute that says that individuals who have committed a crime against a person or committed arson in the first degree, and become eligible for an administrative parole that notification should be sent to the victim. However, he pointed out, those individuals are just not eligible for administrative parole; therefore, no notification would ever need to be sent and it is being repealed here. 7:11:34 PM MR. SHILLING noted that Sections 19 and 20 are the applicability provisions with respect to the entire bill. Section 20 clarifies that any decision made by the Board of Parole prior to January 2017, is not somehow invalidated by the passage of a certain section of Senate Bill 91, he explained. 7:11:55 PM MR. SHILLING related that Section 21 provided for an immediate effective date of all of the sections of Senate Bill 91. CHAIR CLAMAN noted that it is his intention to move the bill from committee today. REPRESENTATIVE REINBOLD objected to moving the bill as this is the bill's first presentation and public safety is government's number one mandate. 7:13:04 PM REPRESENTATIVE REINBOLD referred to the Constitution of the State of Alaska, Article 1, Section 24, which read as follows: Section 24. Rights of Crime Victims Crime victims, as defined by law, shall have the following rights as provided by law: the right to be reasonably protected from the accused through the imposition of appropriate bail or conditions of release by the court; the right to confer with the prosecution; the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process; the right to timely disposition of the case following the arrest of the accused; the right to obtain information about and be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present; the right to be allowed to be heard, upon request, at sentencing, before or after conviction or juvenile adjudication, and at any proceeding where the accused's release from custody is considered; the right to restitution from the accused; and the right to be informed, upon request, of the accused's escape or release from custody before or after conviction or juvenile adjudication. REPRESENTATIVE REINBOLD remarked that it is important to keep the constitution at close hand, and expressed concern with the technical changes. 7:14:48 PM CHAIR CLAMAN opened public testimony on SB 55. After ascertaining no one wished to testify, closed public testimony. 7:15:28 PM CHAIR CLAMAN advised the committee that his office had received "only one amendment," which was from Representative Reinbold and it was received after 12:00 noon, which was after the deadline for receiving amendments. He pointed out that the subject of "those amendments" was addressed in two other bills, SB 54 and HB 228, which are Representative Reinbold's bills. For both of those reasons he ruled those amendments out of order and they would not be considered, he stated. 7:15:57 PM REPRESENTATIVE EASTMAN said he was curious about Chair Claman's last statement, and commented that, obviously, not all of the bills that come before the committee will pass, and asked how the fact that the information was in another bill would keep the committee from putting an amendment on this bill today. CHAIR CLAMAN explained that when "we have the exact thing" that has already been referred to a different committee, it takes that work away from that committee. The amendment was also late and for both of those reasons the committee would not hear the amendment, he said. CHAIR CLAMAN, in response to Representative Eastman, answered that his view as committee chair is that the bill needs to be moved out of committee. 7:16:53 PM REPRESENTATIVE REINBOLD expressed her disappointment and said that her amendment being ruled out of order was unnecessary and she objected to her concerns not being heard. 7:17:58 PM REPRESENTATIVE KOPP said, "Good bill, Mr. Chairman, let's move it." REPRESENTATIVE EASTMAN referred to Section 15, and asked whether there had been discussion, "as we're tightening down" on what municipalities can do because the change essentially encourages municipalities to put higher costs on citations, and asked what was driving the desire for those higher costs. MR. SHILLING responded that the Alaska Criminal Justice Commission never recommended that this limitation be imposed on municipalities in a manner that restricted them from doing their own thing when it came to non-criminal offenses. He expressed that it was simply not what the commission recommended, and when this language was in Senate Bill 91, the sponsor thought that it did what the commission had recommended. After the bill was signed it was determined that the language did not follow the commission's recommendation, thus the change. 7:19:24 PM REPRESENTATIVE FANSLER moved to report CSSB 55, Version 30- LS0119\T out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE REINBOLD objected. 7:19:40 PM A roll call vote was taken. Representatives LeDoux, Fansler, Kopp, Kreiss-Tomkins and Claman voted in favor of passing CSSB 55 out of committee. Representatives Eastman and Reinbold voted against it. Therefore, CSSB 55(FIN) passed out of the House Judiciary Standing Committee by a vote of 5-2.