SB 150-PRETRIAL RELEASE; NON-AK CRIM HISTORY  2:08:30 PM CHAIR COGHILL reconvened the meeting and announced the consideration of SB 150. 2:08:52 PM JAHNA LINDEMUTH, Attorney General, Department of Law, Anchorage, Alaska, stated that, as attorney general, this is a top priority to pass this session. It is critical for public safety. Phase III of Senate Bill 91, which put the pretrial risk assessment tool in place, went into effect on January 1, 2018. She understands that DOC has already hired 35 new pretrial officers, which should have a good impact on public safety going forward. She explained that in the process of putting this in place, the Department of Law recognized an oversight that requires a legislative fix this session. The division is using a pretrial risk assessment tool that generates a score that informs judges about whether a person should be released mandatory own recognizance (OR), presumptive OR, or whether the judge should use discretion on imposing conditions of bail or keep the person in prison pretrial. The statute required a validating tool be put in place for the pretrial risk assessment. However, only in-state criminal history has been used. There was a problem using the out-of- state criminal history and getting the tool validated in time. That is something that may or may not happen in the future. SB 150 seeks to put in place a fix that would go away if the out- of-state criminal history is used in the future. In the interim, an override is necessary when the tool is generating a mandatory OR if it's taking discretion away from the judge to keep somebody in jail who has a risk factor based on out-of-state criminal history. CHAIR COGHILL offered his understanding that the state went to the FBI for data to help validate this tool and access to the information was denied because the use was identified as a research purpose rather than a law enforcement purpose. 2:13:05 PM ROBERT HENDERSON, Deputy Attorney General, Criminal Division, Department of Law (DOL), Anchorage, Alaska, agreed. He said criminal justice information is highly confidential and can generally only be used for law enforcement purposes. The pretrial risk assessment tool mandated by Senate Bill 91 requires that information to be validated, but the FBI won't release that information for this non-law enforcement purpose. CHAIR COGHILL said the idea is to give judges more discretion regarding mandatory release if the out-of-state criminal justice information indicates that more judicial discretion is warranted. MR. HENDERSON said that's correct. He said with the chair's permission, he would give a general overview of the law, the problem that's been identified, and how SB 150 proposes to fix the problem. He advised that pretrial enforcement is a key component of criminal justice reform. It provides a way to apply analytics and empirical data to give judges as much information as possible in order to make release decisions. Bail is designed to ensure a person appears at court and to keep the public safe. Bail is not a sanction and it can't be used as such because a person is presumed innocent until found guilty. Phase III of Senate Bill 91 put the pretrial risk assessment tool in place. It is objective, standardized, based on the analysis of empirical data, and validated by the state's pretrial population. The rub is not being able to apply the out- of-state criminal history to the state's pretrial population because it can affect bail decisions. He directed attention to the bail matrix in the packets. He explained that an algorithm drives the decisions that judges make regarding bail. For example, if the Pretrial Enforcement Division finds somebody to be low risk (they are charged with non-violent, non-sex misdemeanors), they would be mandatory OR. The judge would be required to release that person without setting a monetary bail. The mandatory decision is for low risk misdemeanors, moderate risk misdemeanors, and low risk felonies. 2:17:42 PM CHAIR COGHILL clarified that out-of-state data is still being collected, but at this point it isn't factored into the different levels of recognizance. MR. HENDERSON agreed that DOC is collecting the out-of-state criminal history information outside the FBI system in the hope that it can be used in the future to validate the tool. He referred to the proposed fix as a safety valve that won't be used if the FBI system is available. He acknowledged that using the FBI system is not a sure thing. He reviewed the sample pretrial report generated by the Pretrial Enforcement Division. He explained that DOC collects information like the age of first arrest, and the number of criminal convictions, the number of times on probation, and the number of times in jail to determine whether someone is low, moderate, or high risk for appearing in court and for reoffending. 2:19:50 PM SENATOR COSTELLO said that at Senator Coghill's suggestion, Suzanne DiPietro explained the process to her at length. The risk assessment tool is data driven and the questions on the tool were generated by actual situations. Certain factors result in the risk of committing a new criminal offense and a different set of factors result in the risk for failure to appear. This is why there are two different tools and two different scores. Out- of-state felony information is not part of the data that generated the tool so someone with a felony from another state could commit a felony in Alaska and still score zero on the risk assessment tool. She said the administration was alerted to this loophole after an incident in Anchorage. A felon from another state wielded a gun in a mall and subsequently scored zero on DOC's risk assessment tool. She said her concern is that similar incidents can occur until the loophole is closed. She asked if her understanding was correct. MR. HENDERSON said the bill would address that issue. When the statute was created the intent was that out-of-state criminal history would be considered in the creation of the risk assessment tool. Because that did not happen, SB 150 creates a fix that allows the judge to exercise discretion in making an appropriate bail decision in narrow, targeted circumstances. He noted that information from DOC indicates that one in three individuals who fall within the red boxes of the bail matrix have out-of-state criminal histories that were not taken into account. 2:24:21 PM CHAIR COGHILL highlighted that Senator Costello was talking about felony behavior, whereas Mr. Henderson was talking about overall criminal history. MR. HENDERSON agreed. The bill defines out-of-state criminal history to include convictions, arrests, and charges. 2:25:06 PM SENATOR COSTELLO asked him to respond to the point that the department proceeded to develop the tool after it learned that out-of-state criminal history would not be part of it. MR. HENDERSON said the department went ahead for several different reasons. Primarily, it was because the law was going into effect January 1, 2018 and that law mandated the use of the tool. The department used just Alaska data because that was what was available. SENATOR COSTELLO noted that the bill required the department to promulgate regulations and she understands that hasn't happened. She asked if the department still intends to draft the regulations that were required by state statute. MR. HENDERSON explained that the law requires DOC to adopt the regulations in consultation with the Department of Law, the Public Defender Agency, the Department of Public Safety, the Office of Victims' Rights, and the Court System. That workgroup is actively meeting and discussing the regulations that will be promulgated. SENATOR COSTELLO said she is extremely supportive of this effort but is concerned that the process did not include the public. There was no public comment or public education about how the tool was generated and why it's being used. 2:27:55 PM SENATOR WIELECHOWSKI wondered if the bill goes far enough because constituents have purported a cycle of people repeatedly being arrested and released. He asked if those stories are accurate and what can be done to stop that cycle if that is the case. MR. HENDERSON said they have started to see that type of cycle, but the bill doesn't address that. SB 150 proposes to address the issue of out-of-state criminal history. One other issue is how the tool considers new offenses committed during the pendency of bail. Something else that needs clarification is that pretrial services officers have the authority to arrest and file the subsequent criminal complaint. Because of different interpretations of the statute, the Court System has not allowed pretrial services officers to file criminal complaints. CHAIR COGHILL said his intention is to address that in the bill. ATTORNEY GENERAL LINDEMUTH said she believes that Senator Wielechowski's question focuses on stories that circulated before the pretrial unit was put in place. The Court System changing its bail schedule before the Pretrial Enforcement Division was up and running was also a factor. She said her general sense is that the program is very successful, but more data is needed to evaluate it completely. SENATOR WIELECHOWSKI said he appreciates the bill because his constituents are very frustrated. In the past few days he's heard reports that people under observation by the Pretrial Enforcement Division have figured out how to manipulate their monitoring devices to evade observation. They are entering prohibited areas and circumventing alcohol prohibitions. He said he's curious about the accuracy of those reports and wonders how to fix the problem. SENATOR COSTELLO shared that this morning she released the results of an unscientific survey of five questions about crime. It was circulated to 70,000. Almost 5,000 people responded to the questions and 1,000 shared their stories. Based on the responses she's read so far, she isn't sure the tool is as successful as she thought it would be as a co-sponsor of the governor's crime reform. She invited the attorney general to visit her office and read the stories. She described them as valuable feedback. ATTORNEY GENERAL LINDEMUTH said she appreciates the offer because other than the fiscal crisis, public safety is the state's top concern. The crime statistics are unacceptably high, and the three branches of government need to work together to address the problem. 2:36:44 PM SENATOR SHOWER said crime was a top concern at the two town halls he held last weekend. The UCR statistics support the concern and the law enforcement officers he talks to say the lack of prosecutors is causing a backlog of cases. He referenced the one in three statistic that Mr. Henderson cited and questioned whether the bill is too narrowly focused considering the broad scope of the problems the state is facing. ATTORNEY GENERAL LINDEMUTH said she believes that one in three represents a significant population that will be impacted by the bill. SENATOR SHOWER said his concern is waiting another year when crime is affecting people so much. ATTORNEY GENERAL LINDEMUTH said the Department of Law had a number of concerns with Senate Bill 91 and all those were addressed in Senate Bill 54. SB 150 fixes a problem that was identified last fall and the fix is needed right now. CHAIR COGHILL asked Senator Wielechowski to restate his question for Ms. Fox. 2:41:03 PM SENATOR WIELECHOWSKI asked if it's true that people being monitored under the Pretrial Enforcement Division have figured out how to manipulate their monitoring devices to evade observation so they can enter prohibited areas, take drugs in violation of court order, and evade alcohol prohibitions. 2:42:08 PM GERI FOX, Director, Pretrial Services Division, Department of Corrections (DOC), Anchorage, Alaska, said DOC is aware of the attempts people make to defeat their monitoring devices and the manufacturers have built in specific strategies to detect such attempts. She pointed out that prior to January 1, defendants were only monitored if they paid a private company for the service and judges did not have the broad authority to put individuals on electronic monitoring devices. Currently more than 228 defendants around the state are on electronic monitoring. SENATOR WIELECHOWSKI said private companies have provided quite effective electronic monitoring in years past, but most of them have gone out of business. He asked if the Pretrial Enforcement Division is using active, realtime GPS monitoring. MS. FOX said they use four realtime GPS devices. One monitors curfew, another monitors curfew and alcohol, another is a handheld breathalyzer that monitors alcohol and GPS, and another is an ankle device that does realtime GPS monitoring. SENATOR WIELECHOWSKI said he was disappointed that private industry was rebuffed when they offered to provide their expertise. Many have now gone out of business and that accumulated expertise is lost. MS. FOX clarified that her role in DOC is to stand up the Pretrial Enforcement Division according to statute. She said she oversaw the process to get those private businesses certified to work with the department. Defendants still have the option to pay a private company for electronic monitoring. Some people exercise that option, but it's an expensive endeavor. CHAIR COGHILL commented that an individual who pays for their electronic monitoring probably has the advantage of the Nygren credit. He asked if someone released on mandatory OR could still be under some monitoring. MS. FOX said yes. Pretrial enforcement officers oversee individuals released on mandatory OR if the judge orders that and the orders may include electronic monitoring. CHAIR COGHILL asked if the range of the offense in the out-of- state criminal history will be taken into consideration for the mandatory release measure. MR. HENDERSON said yes. The judge will make certain findings and shall impose the least restrictive condition(s) that reasonably ensures the appearance of the offender and public safety. CHAIR COGHILL offered his perspective that appearing in court is subtler than the safety question. SENATOR WIELECHOWSKI asked what percentage of people monitored by pretrial enforcement are violating the terms of their release. MS. FOX said there isn't enough data to answer that question, but after 2.5 months 3,864 assessments have been done and 1,069 individuals are under supervision in Alaska communities. CHAIR COGHILL said he would reiterate that previously supervision only happened under a third-party, which was found to be very ineffective. SENATOR WIELECHOWSKI disagreed that it was ineffective; a grant to provide electronic monitoring was found to be very effective. CHAIR COGHILL said he stands corrected. It was third-party monitoring by a relative that was found to be ineffective. He stated his intention to send the governor's bill to legislative drafting. He asked Mr. Henderson if he had any comments or suggestions on the language in the bill. MR. HENDERSON said it's important to keep in mind that Section 1 allows the prosecuting attorney to ask the judge to postpone arraignment for 48 hours to allow time to obtain the out-of- state criminal history. That will be helpful in informing the judge regarding what release conditions should occur. 2:56:55 PM CHAIR COGHILL said SB 150 seems to be a reasonable solution to the issue that was identified last fall. He said he appreciates the widespread effort that's gone into finding a resolution. CHAIR COGHILL stated he would hold SB 150 in committee awaiting a committee substitute.