HB 172-THERAPEUTIC COURTS/ SUPERIOR COURT JUDGES  CHAIRMAN TAYLOR announced HB 172 to be up for consideration. REPRESENTATIVE PORTER, sponsor of HB 172, said the legislature has been dealing with the DUI issue for years and most of the progressive enhancements to that law have proven to be effective. This bill addresses the drivers who have an addiction as opposed to a problem with drinking and don't have the individual capacity to stop. The Anchorage community has found that there is a small group of multiple offenders who are continuing to drive and drink. "They are killing people." He explained this program and new approaches that are available in the area of treatment, especially pharmaceuticals, have anecdotally been successful at the district court level and should be expanded to the felony DUI situation in Anchorage. HB 172 provides for a pilot project in Anchorage and Bethel where it provides for the involvement of local treatment programs and people who deal with cultural diversity in our state. CHAIRMAN TAYLOR said it appeared to him to take in all criminal offenses that are alcohol related with the exception of the most severe felonies. REPRESENTATIVE PORTER explained that it asks that the court concentrate on DWI offenders. The pilot program provides for a fiscal analysis that deals with a certain number of felony DWIs. That is the focus now, although there are a multitude of criminal offenses that are alcohol related, between 70 to 80 percent. He would not be opposed to gradually including some of those. CHAIRMAN TAYLOR asked if admission into the therapeutic court program in any way provides for deviation from the existing minimum mandatories that are provided under the DWI law. REPRESENTATIVE PORTER responded that the bill provides the opportunity for that to happen, but it doesn't require it. "Once the person is in the program, having been approved by the prosecutor's office, the court has the discretion and the idea is from our perspective to hold that sentence over the head of the individual for as long as it takes to be assured of satisfactory completion of the program. CHAIRMAN TAYLOR said he believes there needs to be some inducement to use the program, but if a person is prosecuted for a second or third offense in Palmer, he gets a mandatory minimum sentence, pays the fine and there is no prosecutorial discretion. However, if he shows up in the Anchorage court, he could get the entire period of imprisonment and the amount of fine including the presumptive or mandatory minimum sentence suspended if he is successfully completing court ordered treatment. "Who wouldn't jump into treatment if the guy down the road is getting 100 plus years in jail, suspension of his license for three or four years and you can get all of that suspended by going through this court?" REPRESENTATIVE PORTER said that was the idea of the program - to have an inducement to get someone started in the activity of meaningfully trying to change that addictive behavior. CHAIRMAN TAYLOR asked, except for the additional cost of support personnel, why we shouldn't provide the same level of discretion for every judge who is dealing with alcohol offenses. REPRESENTATIVE PORTER replied that the program in Anchorage has only been going for about a year and a half, so results are just anecdotal. The proof will come six or seven years from now. The program is labor intensive and requires frequent returns by the defendant and prosecution as part of the treatment process. CHAIRMAN TAYLOR asked about equal protection. REPRESENTATIVE PORTER replied that issue was not raised and he would ask Mr. Guaneli about that. He personally thought they had gone as far as they could go with personal incarcerations. There is so much graphic evidence that hardly anyone responds to a revoked or suspended license. He thought that this program would not have 100 percent success and there would always be that 10 percent that would never get the message in any format. Number 1655 SENATOR THERRIAULT asked why they couldn't set these programs up everywhere when language says "to the extent feasible, the therapeutic court shall use existing public agencies, medical treatment." REPRESENTATIVE PORTER replied that the labor intensity of this program is in the state of evolution. "To make sure that we have the capacity to do it correctly, we are suggesting that we should have these two new courts…" CHAIRMAN TAYLOR asked if they were going to have two Superior Court judges in Bethel. REPRESENTATIVE PORTER replied yes. CHAIRMAN TAYLOR said that he doubted that they needed it, but it was sad. MS. JANET MCCABE, Partners for Downtown Progress in Anchorage, said they had been working with Judge Wanamaker on the wellness court and strongly supported HB 172. "Therapeutic courts are effective in bringing about lasting change in alcohol addicted offenders. It's a long difficult process for both the person who opts into the program, the defender, and it also needs a lot of intensive participation on the part of the judge." She said that about 90 percent of their participants have stayed sober and are doing well. She asked the committee to consider an amendment. She said the wellness court is at the district court level and none of the provisions in this bill affect the wellness court since it applies to the Superior Court. She thought it was important that the judge have the ability to reduce the mandatories if someone completes the wellness court successfully. CHAIRMAN TAYLOR asked what the difference is between a therapeutic court and a wellness court. MS. MCCABE replied that they are basically the same. CHAIRMAN TAYLOR asked if the judge involved in the wellness court in Anchorage was Judge Wanamaker. MS. MCCABE said yes. CHAIRMAN TAYLOR asked, if he was doing such a great job at a district court level, why are they talking about creating two new superior court positions for what's being done in the district court today and is the model program. MS. MCCABE replied that was considered long and hard. She said there was a great need in Bethel and there were a lot of people in Anchorage who are at the felony level who could benefit. The wellness court doesn't touch that group of people. CHAIRMAN TAYLOR said that was only because of silly jurisdictional restrictions between superior and district court as to who is busted for a felony and who is busted for a misdemeanor. He was trying to figure out why they were going to add to a superior court bench in Anchorage that was not overburdened by any means and not assist a district court bench, which he knows is terribly overburdened with mostly alcohol related offenses. He said they should put two more district court judges in Anchorage and give the superior court the authority to help out. MS. MCCABE said these projects are intended to be demonstrations to build up support and to really make an impact on the problem. MR. BLAIR MCCUNE, Deputy Director, Alaska Public Defender Agency, said they had done a lot of work on this bill and that it was important that it gets done right. They don't want the public to lose confidence in this process. He said that the program is working really well so far. On the equal protection issue, the program had to start somewhere. He didn't think there would be a challenge based on not having it in one community opposed to another. It's like a prosecutor might allow a plea bargain where another prosecutor might not. CHAIRMAN TAYLOR said he thought this was an important point and they aren't talking about a particular prosecutor or discretion that may be exercised. They are talking about changing the minimum mandatory sentences that are currently required on every criminal offense with the exception of major felonies. It says, "However, not withstanding any other provision of law, the entire period of imprisonment or fine including a presumptive or mandatory minimum sentence may be suspended if the defendant has successfully completed court ordered treatment." MR. MCCUNE replied that he thought the legislature had looked at the carrot and the stick and the type of intensive work that a criminal defendant and participants would have to do in making all treatment appointments. It would mean making considerable effort to come to court every day and work with the professionals involved. TAPE 01-25, SIDE B    MR. MCCUNE said that the court might think that burden was the equivalent of a mandatory minimum sentence. CHAIRMAN TAYLOR responded that they had one judge who could exercise unlimited discretion with the defendant who is sitting in one courtroom in Anchorage. The very same Superior Court judge sitting out in Palmer has absolutely no discretion and will violate state law should he fail to sentence to the maximum extent that law requires. When he was practicing 25 years ago, it was very easy for him to check to see if offenders were showing up for their antabuse every day or following up with their social worker. He didn't have to have another $2 million dollars to hire a judge who does nothing but this. "I consider it a part of the job!" MR. MCCUNE said they are in the type of situation where someone gives a Rule 11 type of plea bargain. This puts a lot of pressure on the defendant to complete this program successfully. CHAIRMAN TAYLOR asked if they could amend the bill to provide the same level of authority and the same criteria for meeting it to both district and superior court judges across the state, leaving it optional for that court if they wish to participate and utilize this form of sentencing. MR. MCCUNE replied that he didn't think there would be an equal protection problem. CHAIRMAN TAYLOR said he agreed with him as long as the discretion is uniform among the judiciary. That one sentence changes the minimum mandatory sentencing laws on every criminal offense in this state with the exception of unclassified felonies, but it only changes it if you walk in the right courtroom door. "That definitely seems to be different as far as equal protection is concerned." He asked Mr. McCune to address the legal aspect. MR. MCCUNE responded again that he didn't think equal protection would be a problem because of what this requires of the individual criminal defendant. It is far above requirements that are placed on other defendants. Number 2107 MR. DEAN GUANELI, Chief Assistant Attorney General, said: For those of us in the criminal justice system, and I include you in that because of your long experience, we often get very jaded about offenders and we see them coming back time after time, particularly the ones who have alcohol problems. This is a program that really deserves to be tried out, deserves to be used. I think it can make some inroads in what is a real serious problem in Alaska. What this was designed to do was to focus on felony drunk drivers. To be a felony drunk driver it has to be your third or more conviction within five years and we certainly have those who are more. They are tough nuts to crack. The treatment people all tell us that… MR. GUANELI explained that this program involved an intensive period of 18 months of oversight by the court, the prosecutor, the defense attorney, the probation officer and treatment providers. It's so intensive that a lot of clients would rather go the jail for the mandatory four months than go through this program. He thought the courts would also consider the way they look at treatment programs in terms of getting credit for time served. The Lock and Nygren cases (Supreme Court) say that if you are ordered to go to a treatment program that has conditions that really restrict your liberty, you get credit for time served. "It's in essence the equivalent of incarceration and you get credit against your sentence." MR. GUANELI said that he thought the court would give the legislature a lot of latitude in trying out this program for those reasons. He said the legislature has broad latitude in analyzing where equal public facilities are going to be, particularly on a pilot basis. The court has pretty definitive language after a lawsuit against the Division of Health and Social Services. CHAIRMAN TAYLOR agreed with the analogy of treatment, but he was concerned with the loss of liberty. "There is no higher standard that we look to in equal protection cases than loss of liberty." He knows a family whose son is serving two and a half years in a state institution for DWI and they have asked him why he hasn't been placed in a program in that institution for treatment. He doesn't know how to explain to them that their son has to stay there for two and a half years, while a kid in Anchorage or Bethel can work and get treatment. One is elective and the other is mandatory. MR. GUANELI said Senator Taylor had a good point, but he just didn't think the court would say they couldn't start out with a pilot program just because they don't have the budget for the rest of the state. CHAIRMAN TAYLOR said this bill would include more than just DWIs. "This court can literally take anybody." He wanted to know if they were going to limit to just drunks or try and expand it. He wanted to know if the legislature could suspend the effect of all state minimum mandatory sentences just for one court and not be facing an equal protection problem. SENATOR TAYLOR wanted to see some parameters where the person didn't jump in to the program without some additional help. He thought that other communities might have people who would want to help with this kind of program and asked if they shouldn't be entitled to do it, too. MR. GUANELI responded that Anchorage was chosen because the treatment infrastructure exists there. "That is why I think keeping it in Anchorage to begin with for the first six months is a good idea." He said further that the court finds a relationship between treatment and incarceration. To provide the incentive necessary for defenders to go through the treatment program for 18 months, you really have to give the judge the latitude to design a sentence and even throw the mandatory minimums, to give particular offenders the incentive to continue with these programs. "Throwing out the mandatory minimum or giving the judges flexibility to do that is a necessary part of making this treatment effective. I believe our Supreme Court will recognize that." He thought extending that flexibility throughout the state for all offenses is wiping out all mandatory sentencing in Alaska. CHAIRMAN TAYLOR said that would happen only to the extent another judge would be flexible that this one "super judge" is now going to do. MR. GUANELI said that would do away with mandatory and presumptive sentencing in Alaska. CHAIRMAN TAYLOR asked why he should trust a judge who hasn't even been hired yet to do that on all offenses with the exception of unclassified felonies. MR. GUANELI said he thought the court system would probably put one of the sitting judges there, but maybe not. SENATOR DONLEY said he didn't know the scope was so broad. He asked if class B felonies were crimes of violence against a person. MR. GUANELI replied that those would be included. "The intent in Anchorage is to limit to the felony drunk driving, but in order to try this out in a rural area, in Bethel, there are not sufficient numbers of felony drunk driving offenses. It was felt to broaden it out to allow others…Burglaries are a common offense and that's a class B felony…" SENATOR DONLEY asked what the role of the victim was in deciding whether or not punishment should be waived in favor of treatment. MR. GUANELI replied that is a good question. The prosecutor has to agree for someone to be accepted into this program. If there is a strong objection from the victim to someone not serving time, that would be taken into consideration. SENATOR DONLEY asked if the sponsor considered putting language in statute that the victim should be consulted. He thought it was important. MR. GUANELI said he thought that was a legitimate concern, but he hadn't talked to the sponsor about amending it. CHAIRMAN TAYLOR said section 5, page 3, provides that the offender could be living in a municipality of an area of the state without a judge who can appoint someone to do the job for him. If that system was workable out of Bethel, it ought to work out of Fairbanks. MR. GUANELI said this program was set up based on guidelines used in other states. It was designed particularly for the Bethel region to be flexible because of the remoteness. No one knows how well the program would work. CHAIRMAN TAYLOR asked if this would help Judge Wanamaker's program. MR. GUANELI said there was language stating that it's not intended to bind the district court. CHAIRMAN TAYLOR said that district courts deal with more mandatory minimum sentences than anybody else and as a consequence Judge Wanamaker has been making his program work within the minimum mandatory sentencing. So he didn't have to offer them an extra day or two less in jail to get them to come into his program. "I think I know how he did it. He just hung more time over their heads…" MR. TOM WRIGHT, staff to Speaker Porter, pointed out that language on page 2 says, "Nothing in this act is intended to place additional requirements on or make changes to other existing specialized or general state courts." He said the Judge Wanamaker's court was working under a federal grant that runs out in a short time and they are looking for an appropriation through the capital budget process so they can continue. "This is a pilot project and nothing more. There may be some things that aren't going to work like the part he just mentioned about the rural areas. The Senate just passed a bill granting VPSO to probation officer status and this could tie in with that." MR. GUANELI commented that although the Judge had some anecdotal successes, this is designed to get at felony drunk drivers and he is generally not handling cases at that level. "These are the problem cases. These are the ones who are going to continue to drink and drive if something isn't done." CHAIRMAN TAYLOR said he appreciated Representative Porter bringing this legislation forward. It is the most creative thing he had seen in a long time. However, every agency wants to be paid more to go do the job we think they ought to be doing in the first place, which is concentrated more on alcohol related addiction. MR. WRIGHT agreed. CHAIRMAN TAYLOR asked if this program could operate without the requested funds. MR. WRIGHT responded that he would have to ask the courts. CHAIRMAN TAYLOR asked if Judge Froelich was receiving any funding in Juneau? MR. GUANELI and MR. WRIGHT said they didn't think so. CHAIRMAN TAYLOR said the words, "does not affect the jurisdiction of other similar courts" intrigued him. He asked if there were any other specialized courts. MR. GUANELI replied that the state has a mental health court and a drug court that has been funded with federal funds that's operating in Anchorage. SENATOR DONLEY said there doesn't appear to be any sunset on the number of Superior Court judges if this program goes away. MR. WRIGHT replied that it was his impression that if this program didn't work, they would revisit that issue, but they wouldn't have a problem with a sunset clause. SENATOR DONLEY said he was thinking about language that would require a specific consultation with victims since theirs was a special circumstance of waiving mandatory sentencing. MR. WRIGHT said he would discuss that with the sponsor. CHAIRMAN TAYLOR noted that the sponsor has been a great advocate for victims' rights. CHAIRMAN TAYLOR said they would take this up again on Monday and adjourned the meeting at 4:47 p.m.