SB 54-CRIME AND SENTENCING  1:33:59 PM CHAIR COGHILL announced the consideration of SB 54. [This is the third hearing and the committee substitute, version O, is before the committee.] He said Commissioner Monegan was invited to testify during the previous hearing, but time ran out, so he is first on the schedule today. 1:34:52 PM WALT MONEGAN, Commissioner, Department of Public Safety, stated support for amendments to Senate Bill 91 that take public safety into consideration and provide the broadest discretion for judges to look at cases on an individual basis. CHAIR COGHILL said that was part of the discussion during the previous hearing. 1:36:46 PM CHAIR COGHILL opened public testimony on SB 54. 1:37:40 PM RON FLINT, President and General Manager, NAO, and representing the National Federation of Independent Business (NFIB), testified in support of SB 54. He has had a retail store in Juneau for over 30 years and has seen that business decline over the last year. It's a concern that the rate of the decline seems to be getting steeper, he said. Last year he began hearing about Senate Bill 91 and NFIB's efforts to keep the felony limit from going to $2,000. He felt just slightly better when it settled at $1,000 but he still hates to think about someone stealing $800- $900 worth of merchandise and only being guilty of a misdemeanor. What he didn't realize immediately was that Senate Bill 91 relaxed penalties for small thefts or that these crimes could be committed repeatedly without consequence. Small-time criminals did pick up on that and his store had the first grab and run last summer. Similar incidents followed. It's also been a new experience to find destroyed sensor tags that have been forcibly removed from merchandise. The thief then conceals the merchandise before exiting the store. He said looking at the total shrinkage for the year is a gut check, but last year it was a gut punch because the shrinkage jumped 40 percent. The local police have been responsive when he's asked for help, but they need tools to get their job done. He can only imagine the frustration law enforcement experiences when they watch the revolving door. In addition to the fiscal plan, the fixes embodied in SB 54 are crucial this year, he concluded. CHAIR COGHILL thanked Mr. Flint and committed to work on the structural changes. SENATOR MEYER advised that police officers need to keep arresting low-level because they will be held accountable after the third arrest. 1:43:16 PM KARA NELSON, representing herself, testified in opposition to SB 54. She related that she is in long-term recovery, has been through the criminal justice system for 20 plus years, is a mother, and a community leader who is continuing to emphasize the importance of data-driven decision making. Senate Bill 91 has had little time to work and the public is condemning it without recognizing the part that the opioid epidemic is playing. Rolling back the smart justice provisions will drastically affect many of the people that are caught in the epidemic. She maintained that public safety is increased when people are given opportunities. She provided examples and relayed her personal experience. She urged the committee to reevaluate rolling back provisions of the original bill and to stick to smart on crime measures. 1:49:21 PM MIA BERZANSKE, representing herself, said she has been an addict for 10 years and her first conviction was a class B felony in 2014. She went to jail for a year and has three years of probation. When she relapsed, her probation was transferred to Juneau and she was placed in the PACE program. She was given a couple of chances and is now a leader in the recovery community. CHAIR COGHILL asked her to explain how the PACE program worked when she relapsed. MS. BERZANSKE credited the PACE program with giving her chances when she relapsed instead of putting her in jail. CHAIR COGHILL asked if the treatment has been effective. MS. BERZANSKE replied it made a huge difference. When she relapsed in December, she was given treatment at Rainforest Recovery. Now she lives at Haven House and has found the peer support crucial in her recovery. CHAIR COGHILL thanked Ms. Berzanske and commented that she is a good example of the value of accountability and services. 1:53:26 PM JORDAN ODAM, representing himself, told the committee he has felony convictions for robbery and assault. He said that since Senate Bill 91 passed he has seen people thrive when there was little hope before. Previously, young people who had light probation violations were sent to jail for up to a year. He related that he was in jail for nine days after his last parole violation and the day he got out he landed a construction job. He is motivated and feels that he is doing better than he has since he first entered the system at age 18. He voiced support for smart on crime measures because they give people an opportunity to spend less time in jail, a place that is not a recovery situation. He reiterated that people who need treatment are getting chances now. CHAIR COGHILL said the committee is looking for ways people can be held accountable and remain productive. 1:58:28 PM STEPHANIE STAVELAN, Director of Provider Care, Priceless Alaska, said this nonprofit works with individuals who have been sex trafficked. She has been working in this area since 2013 and previously served as a mental health clinician working with victims of sex trafficking. She thanked Senator Coghill and the committee for amending the part of Senate Bill 91 that unintentionally created a loophole for sex traffickers. She emphasized that sex trafficking and prostitution are two very different issues, but passing stricter laws for both is the first step in the fight to end human trafficking in Alaska. 2:00:42 PM GRETCHEN STAFT, Board of Directors, Alaska Association of Criminal Defense Lawyers, said she just received the new CS for SB 54 so she hasn't had time to identify areas of concern, but she does believe it is too early to reform Senate Bill 91. That bill was based on a huge amount of data and research and had the goals of reducing both state spending and recidivism. It appears that some of the changes proposed in SB 54 seem to undermine the goals of Senate Bill 91. She opined that the presumptive active term of imprisonment for a first class C felony will be counterproductive. She pointed out the Alaska Criminal Justice Commission ("Commission") said that the 2017 recommendation to on this issue was based on reports from law enforcement and prosecutors. There was no data to show that this would be effective in reducing recidivism, but it was almost certainly guaranteed to increase the prison population. She disagreed with a prosecutor's claim that active jail would incentivize later treatment. She emphasized that what would incentivize treatment is a suspended term of imprisonment, and that was provided in Senate Bill 91. MS. STAFT emphasized that treatment, employment, housing, and ties to the family are very important in determining future success. Sending a person to jail, particularly if they are a youthful offender, will undermine all the foregoing. She said she has represented hundreds of theft defendants and none of them said they weighed the criminal penalties beforehand and decided to commit the crime because they wouldn't face much or any jail time if they got caught. People commit crimes for a variety of reasons including desperation, substance abuse, or mental illness. She said the reinvestment provisions in Senate Bill 91 into recovery programs will be helpful in reducing the overall crime rate, but the bill hasn't been in place long enough to see the benefit of those changes. Until that data is available, it's too early to make changes. CHAIR COGHILL suggested she submit her comments in writing. He said the accountability measures are primarily what are under discussion. 2:07:38 PM VICKI WALLER, representing herself, testified that some of the consequences in SB 54 are not harsh enough. She admitted she is struggling with the Commission's recommendations and the public perception of what is happening. She said it's good to have an evidenced-based tool in the toolbox, but it's not the full Monte. She talked about the diversity in Alaska that makes it difficult to identify what is going on. She also pointed out that a lot of people charged with a first -time class C felony have had several previous felonies that pled down to misdemeanors. "By the time they get their first conviction on a felony, they've already had several chances." She noted that the prosecutor's office said that 33 percent of cases aren't accepted due to lack of resources, and three percent of those cases are felonies. She reported that 55 percent of the felonies in superior court last year were crimes that had victims, and 39 percent of the misdemeanors had victims. That needs to be considered with the penalties, she said. She acknowledged that it was clear early on that the penalty for shoplifting wasn't going to work because a person commits many shoplifting events before they're caught. Some thieves hit several stores in one day. She said loss prevention managers for box stores disagree with the statement from corrections that shoplifters are generally stealing toiletries. She said she isn't against treatment, but feels strongly that victims need justice when they're robbed, their home is burglarized, or their car is stolen. It doesn't matter why somebody committed the crime, there must be a consequence when a victim has suffered a loss. The lack of a consequence is what is making people so angry. She also expressed dissatisfaction with the idea that anyone who is sentenced to less than four years in jail will spend time on an ankle monitor. She cited the example of someone who committed armed robbery and was out of jail and on an ankle monitor in six months. She expressed hope that the committee would take her testimony into consideration. CHAIR COGHILL thanked Ms. Waller and asked her to submit her testimony in writing, because the statistics she cited would be helpful. 2:13:47 PM OLIVIA OLSEN, representing herself, said she is the mother of four children and has struggled with addiction since she was 14 years old. She described Senate Bill 91 as being helpful to her personally. It gave her an opportunity to be accountable for her crimes, most of which were theft. She shared that now she understands how victims feel, but she was stealing to support her habit and didn't think of the consequences. In 2012 she pled to two felonies and six misdemeanors. She served six months and received four months good time. When she got out she had two violations and had to serve 14 months in jail with no opportunity for treatment. She said she realized what she'd done was wrong but it's a difficult cycle to break without treatment or some kind of help. When she relapsed the last time, she assumed responsibility and told her probation officer. She reiterated that Senate Bill 91 offers offenders the opportunity to be accountable and move forward. She is currently receiving treatment and working to pay restitution to her victims. CHAIR COGHILL thanked Ms. Olsen and told her that she has demonstrated that some of what the legislature has done has made a difference in people's lives. He agreed that accountability is very important 2:19:32 PM TARA RICH, Legal and Policy Director, ACLU of Alaska, said she would speak to three aspects of SB 54 that are particularly problematic: 1) changing violation of conditions of release (VCOR) from a violation to a class B misdemeanor; 2) changing the presumptive term for a first-time class C felony from a suspended sentence to 0-120 days of active imprisonment; 3) and the increased penalty on a third offense of theft in the fourth degree. She urged the committee to give the reinvestment and diversionary programs a chance to work before making changes to the policy. She pointed out that the 2017 recommendations do not reflect the same sound goals and processes that the legislature sought when it created the Commission. She suggested the committee look at whether the proposed changes will solve the problem and what it will cost. She said the issue with violation of conditions of release is the perception that VCOR offenders need to appear in front of the judge that decided the underlying criminal case. They are the most familiar with the case and will make the necessary changes. The fix that SB 54 proposes is to incarcerate these individuals at a cost of about $150 per person per day. This is a very expensive fix and it removes the judge's discretion. She pointed out that the fix that's already available, and has begun to work, gives the judge in the original case the discretion to write instructions in the bail order based on that judge's view of that case. She emphasized that it is unnecessary and very expensive for the legislature to step in and make a fix at this point. Regarding increasing the first-time class C felony penalty, she said the Commission noted that there is no evidence that this fix will achieve the goals of public safety, deterrence, and rehabilitation. She noted that she provided written testimony that there is evidence that recidivism rates are higher for low- risk class C felony offenders who are incarcerated. She questioned, "Is presumptive incarceration going to provide the public safety fix that we're looking for?" She pointed out there has been ample testimony that maintaining community ties, employment, and housing is crucial in keeping someone from reentering the criminal justice system. MS. RICH spoke to the provision that increases the penalty on a third offense of theft in the fourth degree. She highlighted that the Commission received no evidence that petty theft is related to prison sentences. She concluded her comments emphasizing the importance of making statutory changes based on evidence-based data. "Before we reopen the ΒΌ prison pipeline, we must give this entire program a chance to work as it was designed. That includes allowing the reinvestment opportunities, the diversionary programs to work." CHAIR COGHILL asked if the written testimony she submitted was directed to version O. MS. RICH said yes. 2:26:12 PM CRYSTAL GODBY, Community United for Safety and Protection, requested the committee remove Section 20 [sic] of SB 54. She related that she previously was a sex worker for three years because she was a drug addict and homeless. She stated that she has been sober for 13 months. She shared that sex workers know they can't call the police if things go wrong. They have to look out for each other. This includes talking about clients and sharing good clients, sharing hotel rooms, giving each other rides to calls, and waiting outside or hiring someone to wait outside as a safety net. However, when those safety measures become felonies, sex workers are much less likely to look out for one another. MS. GODBY concluded her testimony urging the committee to listen to the testimony about the good Senate Bill 91 has done to reduce recidivism. Women she saw cycling through the system are now home with their families and holding jobs. CHAIR COGHILL said he believes the bill addresses her request, but he is open to further discussion. 2:28:18 PM BUTCH MOORE, representing himself, advised that he is Bree Moore's father and he has concerns with Senate Bill 91. He said SB 54 does not address class B felonies. Senate Bill 91 changed the penalty for a class B felony to zero to two years in jail with a suspended imposition of sentence. He said that means a judge could potentially impose a suspended imposition of sentence with basically two years of probation for someone who pleads a murder or manslaughter charge to criminally negligent homicide. He maintained the charge would be removed from the offender's record if he/she didn't violate during that two years. "So that man could be dating your daughter, and you go to look him up on CourtView and he killed someone, but it doesn't show up." He cited examples of other class B felonies and urged the committee to look at those crimes and impose a minimum jail term. MR. MOORE expressed frustration with the law regarding violating conditions of release and class C felonies. He described the following that he blamed on Senate Bill 91: A man (who he later identified as Mr. Santiago) assaulted his girlfriend and was charged with a class C felony. He was released on a deferred prosecution and given conditions of release that he violated. He had contact with Anchorage police officers three more times and was always released. He also walked into the FBI office with a handgun, which he was not supposed to have, and was released. After that the man "got on an airplane and went to Florida and he killed five people and wounded eight." MR. MOORE expressed appreciation that Senator Coghill brought SB 54 forward to make desperately needed changes to violating conditions of release and class C felonies. He then described accounts of Trevon Aldridge. He was arrested and charged with weapons misconduct and criminal mischief and released on no bail; in August 2016 he was in possession of a firearm when he smashed multiple vehicles, including two police cars, but was let go; and on November 15, 2016 he was arrested for allegedly shooting William Schmaus in the back of the head. Mr. Moore said he appreciates that Senate Bill 91 has done good things for some of the people who testified today, but his appeal is to give judges the flexibility to impose more than five days in jail for VCOR when the person "is violent like Santiago or mentally ill or unstable or has a restraining order". CHAIR COGHILL clarified that a suspended imposition of sentence does stay on an individual's record and class B felonies do have mandatory minimums, just not the first time. 2:35:33 PM TERRA BURNS, Community United for Safety and Protection, asked the committee to remove Section 20 [sic] of SB 54. She shared that she became interested in policies related to sex trafficking at age 16 when a Fairbanks district attorney decided against charging her father for trafficking her. The justification given was that juries didn't like teen prostitutes. After working in the sex industry for 20 years, she retired. As part of her master's degree from UAF she researched the life experiences and policy recommendations of people in Alaska's sex trade. She said that research was replicated at Brown University and she now travels the world talking about sex policy and research. Most recently she spoke at the University of Cambridge and advised researchers with Amnesty International. She continued as follows: Section 20 of this bill proposes to remove subsections of AS 11.66.130 and 135, which prevent prosecutors from charging prostitutes with sex trafficking if they have not induced anybody into prostitution or are not in a location with a sex trafficking victim. You've heard a lot of things about what sex trafficking is, but I think we should be very clear that 11.66.130 and 135 only apply to having a place of prostitution, which can include the prostitute's home or hotel room, and to aiding or facilitating prostitution, which is so broad that a woman in Fairbanks was charged with sex trafficking herself for aiding and facilitating her own prostitution. You heard earlier that sex trafficking involves force and coercion, but we don't even have coercion in our Alaska statute. We should. We should have coercion, we should have threats, we should have threats against victims' families especially, but we don't have that. Force is defined in [AS 11.]66.110, and there is no exception in 110 or 120 for people who are engaged in prostitution. The legislative and administrative intent was clear in creating the sex trafficking statute in 2012. That these statutes were to be used against people who exploited and harmed sex workers, not against sex workers themselves. But every person the Department of Law charged under these statutes in the first two years - 2012 and 2013, was an alleged prostitute charged with prostitution of herself in the very same case that she was charged with trafficking herself. Legislative intent was clear last year in creating the subsections that Section 20 would remove - that sex workers who have not induced anyone into prostitution should not be charged with sex trafficking when their conduct amounts to prostitution. Despite this clear intent, you heard Wednesday from Mr. Skidmore that this was an accidental loophole. This is not an accidental loophole. The Department of Law wrote in a June 17 letter that no one ever had or could be charged with trafficking themselves under these statutes even though they clearly were aware that they had filed these charges and discussed it during the last legislative session. In their recommendations to the Criminal Justice Commission, the Department of Law wrote that these sections would prevent them from prosecuting independent sex workers working in the same location as a sex trafficking enterprise. This is untrue on two levels. First, a prostitution enterprise is defined in [AS] ll.66.120 and not affected by the subsections this bill proposes removing. Second, the subsections clearly say that if a worker is in a location with a person who has been trafficked, they can still be charged under [AS 11.66.130 and 135]. More importantly, if a sex worker found herself in a location with a victim of genuine trafficking, the sex worker should be encouraged to report this crime rather than being hunted down as a sex trafficker herself. Sex workers and clients of sex workers are usually the first responders in sex trafficking situations. And your responsibility to public safety demands that these people not fact felonies for reporting these situations to law enforcement. [AS] 11.66.130 and 135 are so broad that they even define many sex trafficking victims as sex traffickers. I can tell you of at least one case where the subsections the bill proposes removing worked as intended and a victim of violent sex trafficking was able to make a report after she was assured that she and other victims could not be charged with trafficking for driving each other to calls or taking pictures of each other for ads. But you have not heard of any cases where a perpetrator was harming someone and could not be charged with it because of these subsections. Removing these subsections is not based on any evaluations of how they have impacted public safety or cases that weren't charged or reported because of it. This is a strong departure from the evidence-based nature of Senate Bill 91 [and] should not be permitted to move forward. Although the trafficking statute was not in existing when I was a trafficking victim here in Alaska - back then it was part of the SAM laws. If it had been, these subsections would have allowed sex workers who were my coworkers to report my abuse so I would not have continued being trafficked for three years. Removing these sections puts sex workers and sex trafficking victims at risk. And when you create laws that put us at risk, they get played out. We see them used against sex workers and sex trafficking victims who should not be the experiments for how these laws will play out. The proposed definition in Section 5 would not have allowed the woman who worked with me when I was a victim to report without being charged, even if the definition were not so unclear. However, as written the definition causes undue confusion and will prevent the reporting of actual violent crime. MS. BURNS encouraged the committee to listen to the addicts and felons who testified because there is some overlap between the communities. She reiterated her request to remove Section 20 from the bill. CHAIR COGHILL asked her to let the committee know the places that the language doesn't work. MS. BURNS said she submitted concise information about that. CHAIR COGHILL said his office would follow up with her. 2:44:26 PM SENATOR COSTELLO asked if she would provide her testimony in writing. MRS. BURNS agreed to do so. 2:45:05 PM DON HABEGER, Community Coordinator, Juneau Reentry Coalition, Juneau, Alaska, explained that the coalition started in 2013 as a community response to high recidivism rates. It was an all- volunteer workforce until late 2015 when they partnered with the Alaska Mental Health Trust. In November 2015 he was hired as the coalition's sole staff member. He explained that the coalition relies heavily on evidence-based data and fidelity to research in its work to address recidivism and ensure public safety. The intent is to cover the back of somebody who wants community help. This is done using the concepts of risk, need, and responsivity that the Commission looked at when it developed community case management. MR. HABEGER said he is pointing that out because Senate Bill 91 is relatively new and a significant piece of it was evidence- based. He urged the committee to be mindful of evidence-based research as it deliberates on SB 54 and make it the center of any new policies. 2:48:00 PM DONNA THOMPSON, Priceless Alaska, advised that Priceless speaks from the firsthand experience of working with law enforcement and numerous victims. She related that their internal data and national trends indicate that the crime of exploiting others for profit is the fastest growing crime in the nation and in Alaska. This crime has moved into the world of internet recruiting that allows access for grooming and exploitation of young people by total strangers. Our children are becoming a new commodity in what has become a $100 billion sex industry. She described the current laws as woefully inadequate to deter traffickers from committing this crime in Alaska. MS. THOMPSON stated that Priceless Alaska supports SB 54 as a start to toward keeping the children, youth, and citizenry of Alaska safe from becoming the next victim of modern day slavery. CHAIR COGHILL relayed that Ms. Burns and Ms. Thompson both have the goal of ending sex trafficking, although their approaches are different. 2:50:49 PM SENATOR KELLY stated that the earlier testimony linking Senate Bill 91 and Mr. Santiago was seriously flawed. He continued: I would like, if possible, for you [Mr. Chairman] and your office to rebut that testimony because I've heard it on talk shows. There was quite a bit of it that was just plain false and inflammatory. I would like it read into the record, as many other things have been read into the record, so that we can make sure that the truth prevails, at least through this process. CHAIR COGHILL agreed to respond. 2:52:47 PM LEVY SMITH, representing himself, testified in opposition to SB 54 He said he isn't well versed on either Senate Bill 91 or SB 54, but he was encouraged to testify because he has a personal connection. He explained that he was born with Joubert syndrome and has always had anger issues. In 2015 he was incarcerated for assaulting his mother. He spent three days in jail before he was placed on third party release. He offered his understanding that Senate Bill 91 was enacted just eight months ago and encouraged the committee to wait until there is evidence that the new laws aren't working. He concluded, "I don't agree with SB 54." CHAIR COGHILL thanked Mr. Smith for his concise testimony. He stated he would keep public testimony open and hold SB 54 in committee awaiting a fiscal note.