MINUTES SENATE FINANCE COMMITTEE 20 February 1996 9:15 A.M. TAPES SFC-96, #27, Sides 1 & 2 CALL TO ORDER Senator Rick Halford, Co-chair, convened the meeting at approximately 9:15 A.M. PRESENT In addition to Co-chairman Halford, co-chairman Frank and Senators Phillips, Donley and Zharoff were present when the meeting was convened Also Attending: Representative Pete Kelly, Dean Guaneli, Chief Assistant Attorney General, Criminal Division, Department of Law; Jerry Shriner, Special Assistant, Office of the Commissioner, Department of Corrections; Mike Greany, Director, Legislative Finance Division; and aides to committee members. SUMMARY INFORMATION HOUSE BILL NO. 127 "An Act increasing the minimum term of imprisonment for assaults in the fourth degree committed against a peace officer, fire fighter, correctional officer, emergency medical technician, paramedic, ambulance attendant, or other emergency responders." Testimony was given by the sponsor of the bill Representative Pete Kelly. Testimony was also given by Mr. Dean Guaneli, Chief Assistant Attorney General, Criminal Division, Department of Law; and Mr. Jerry Shriner, Special Assistant, Office of the Commissioner, Department of Corrections. SCS CSHB 127 was MOVED by Senator Donley and REPORTED OUT with recommendations and fiscal notes from Department of Public Safety, zero; Department of Administration, zero; Department of Corrections, $21.4; and Department of Law, zero. SENATE BILL NO. 175 "An Act relating to correctional institutions and their administration; providing the Department of Corrections with the authority to require prisoners to assist in paying for medical treatment; relating to the authority of a law enforcement agency to charge a prisoner for medical costs for a preexisting condition; and relating to service of criminal sentences." Testimony was given by the sponsor of the bill, Senator Dave Donley. Testimony was also given by Mr. Dean Guaneli, Chief Assistant Attorney General, Criminal Division, Department of Law; and Mr. Jerry Shriner, Special Assistant, Office of the Commissioner, Department of Corrections. Senator Donley MOVED amendments #1, 2 and 3; there being no objection heard, amendments #1, 2 and 3 were ADOPTED. CSSS SB 175 (JUD) was MOVED by Senator Donley and REPORTED OUT with recommendations and fiscal notes from Department of Health and Social Services, zero; and Department of Corrections, zero. HOUSE BILL NO. 127 "An Act increasing the minimum term of imprisonment for assaults in the fourth degree committed against a peace officer, fire fighter, correctional officer, emergency medical technician, paramedic, ambulance attendant, or other emergency responders." Representative Pete Kelly, sponsor of HB 127, was invited to join the committee. He stated the bill was created due to increasing violence to police during the execution of their duties. It sends a clear message to those who would assault a police officer that engaging in a fight with a police officer is a bad idea. The sentence was extended to include emergency responders, correctional nurses, firefighters and any other emergency personnel. Due to technical flaws in sentencing it was found that judges were prevented from using aggravated factors on felony assaults against police officers. Fourth degree assault now includes threatening speech and the sixty day sentence arrived at was the same formula used in felony assault when there are aggravating factors. He referred to the fiscal note from the Department of Law, 2/9/96. Co-chairman Halford cited the fiscal note from the Department of Law, zero; $21.4 from Department of Corrections; the rest are all zero. Senator Donley asked for an explanation on repealers. Representative Kelly advised that it refers to felonious assault and presumptive sentencing. Later there are aggravators. If presumptive sentencing is used regarding a police officer the aggravator can not be used. As the law was written the presumptive sentence was less for a police officer than for a normal citizen. That section was repealed in the presumptive sentencing and felonious C&B assaults and just allowed the judge to use the aggravator. As long as it was in presumptive sentencing the judge's hands were tied. Because of case law it was double jeopardy. A specific provision was repealed to include peace officers and correctional officers. Senator Donley referred to the definition of "peace officer" under Title 12 and who all was included. Mr. Dean Guaneli was invited to join the committee. He explained the law enforcement community is concerned and feels the current thirty-day sentence is not adequate to address the matter and deter people from assaulting police officers. Representative Kelly advised that Col. Godfrey from the Alaska State Troopers was not available to testify today but referred to the fact that there has been a jump from 66 assaults in 1994 to 91 assaults in 1995 - 1996. This is viewed not as a spite but a trend. Senator Frank asked if this was because judges were giving minimum sentences when a police officer is assaulted. Representative Kelly advised that judges have the option to sentence up to one year. Mr. Guaneli noted that in general when the legislature imposes a minimum sentence the judges ordinarily give that sentence unless there are particular aggravating factors. The ultimate jail time tends to focus around the mandatory minimum set forth by the legislature. It is felt by judges that it is foreseeable police officers may be assaulted and that is why they choose the minimum sentence unless a specific direction otherwise. Senator Frank asked the definition of assault. Mr. Guaneli informed the committee that assault can simply be the infliction of some level of pain, a punch in the nose, a shove, just about anything can rise to the level of a misdemeanor assault. Senator Frank commented on not leaving discretion to the judges to look at the situation. Representative Kelly reflected on a conversation with former police chief from Fairbanks in that there is an escalating level of violence against them and they feel that they would like the thirty-day sentence raised. The message must be clearly sent that this is a police officer and it is hands off. This must extend to all people who are in the execution of their duties on the front lines of law enforcement. Senator Frank stated he felt the situation was very serious. Mr. Guaneli felt that a conversation between the police chief association or the Department of Public Safety and the Chief Justice or perhaps at the next judges training session or their annual conference someone could come before them and express the concern that these are serious matters. Judges feel there is a wide range of assaults and they try to base their sentences on the facts; from the officers stand point they see largely the minimum sentence being imposed. Senator Donley and Senator Frank referred to the sentencing commission. Senator Donley asked what the elements were for AS 11.41.230. Mr. Guaneli answered where by words or other conduct one is placed in fear of imminent physical injury. This subsection is not usually charged in connection with police officers. A blow has to be landed. Representative Kelly and Senator Donley further discussed that all three classes of assault are lumped together under the existing law. Senator Zharoff asked the difference between "correctional employee" and "officer". Representative Kelly advised that a police officer is trained in closer contact with felons and murderers. A correctional employee such as kitchen help, nurse, etc. is not. Therefore the intent of the bill was to include protection for correctional employees who came in contact with the prisoners. Senator Frank posed a hypothetical case on a civilian assault. Mr. Guaneli informed that there is no minimum for assault on ordinary citizens. Senator Donley MOVED SCS CSHB 127 with individual recommendations and the accompanying fiscal note of the Department of Corrections in the amount of $21.4. Without objections the bill was REPORTED OUT with individual recommendations and the fiscal note. SENATE BILL NO. 175 "An Act relating to correctional institutions and their administration; providing the Department of Corrections with the authority to require prisoners to assist in paying for medical treatment; relating to the authority of a law enforcement agency to charge a prisoner for medical costs for a preexisting condition; and relating to service of criminal sentences." Senator Donley testified on behalf of his bill. This bill is modeled after the Federal Act named the "no frills" prison act. Some of the changes were made in order to save money particularly for those prisoners who have severe illnesses. At present we pay for them. He referred to amendment #3 which has a more focused definition regarding this. (He noted, at this time, that he supported all three of the amendments.) Additionally some limits are placed parallel to the current Federal limits in prisons regarding what prisoners are allowed to have in their possession or cells and what kind of facilities can be provided to them. The most important are: denial of access to weight-lifting equipment; prohibition to more than basic cable T.V.; prohibition to television in cells; prohibition of computers in cells; bans on certain types of movies being in their possession or being viewed. These appear in section four of the bill and are parallel to the Federal Act. The Department is allowed some flexibility to engage in vocational training. This is a real important tool that can be used to help the prisoners be able to earn a living when they get out. At the request of the Department, some authority is added in section 7 to authorize prisoners to engage in vocational training. There was further discussion on the three amendments: #1, extension on the prohibition on televisions to include possession of VCR's and compact disc players; #2, prohibition on smoking except in designated areas; #3, fine tunes the severely medical disabled language. Amendment #1 was MOVED by Senator Donley and without objection was ADOPTED. Amendment #2 was MOVED by Senator Donley and testimony regarding this amendment was given by Mr. Jerry Shriner, Special Assistant, Office of the Commissioner, Department of Corrections. There are some facilities where smoking is banned altogether and other facilities where smoking is allowed in designated areas only. The decisions were made by the Superintendent. Without objection Amendment #2 was ADOPTED. Senator Donley MOVED amendment #3. Mr. Jerry Shriner further testified regarding this amendment that during the past year there were several inmates that were paroled needing either placement in a nursing home or full time nursing care at home. This care was covered by medicaid or medicare. At present anyone being paroled under the new language could also be paroled under the old. Community safety could be secured without requiring the parole board to adhere specifically to the "confined to bed" standard. Some small groups of individuals could be paroled and save the department health care money. Co-chairman Frank inquired as to why there is no positive fiscal note from Corrections. Mr. Shriner advised that it presently is a speculative situation as it just depends on the inmates and their medical needs. Without objection Amendment #3 was ADOPTED. Senator Zharoff and Senator Donley discussed briefly contract and municipal jails. Mr. Dean Guaneli clarified the matter by stating that municipal jails are not under State statutes. The definition of correctional facility is something that is specifically owned or operated by the Department of Corrections. It is generally known that the contract facilities do not offer better services than the state jails. Contract facilities only hold prisoners ten to fifteen days; others maybe up to thirty days. This is usually for pre-trial purposes. There would be no conflict with what this bill seeks to address. Senator Frank discussed quality and quantity of food in the jail. Senator Donley advised that the original version of the bill was the same language which appeared in the Federal Act which states that the quality and quantity of food should not exceed what is available if you were in the military service of the United States. Since the department could not identify what that standard was they requested the present standard. There still are some problems. Mr. Guaneli commented that a standard based on the constitution has some uncertainty as to what that means. What is constitutional in one prison may not be constitutional in another. Judges base their decisions on the totality of the circumstances. Since our facilities are generally new we could get by with a lesser quality of food. He referred to sections 1(a) and (c) and stated that the department would have to adopt a conservative approach. Senator Frank felt there should be some review of what is happening and how the Department could change their behaviour. If there is going to be a reduction of the "frill" aspect in the prisons regarding food then there should be some savings resulting in a positive fiscal note. Senator Donley concurred with these suggestions. In setting up some standards the past abuses would be prohibited. Mr. Guaneli advised there are a number of constitutional provisions that could be worked under including the standard of what is nutritious and what will maintain health adequately. Senator Frank stated that if we are going to pass a bill we should know what we are passing and maybe get some savings. (tape SFC-96 #27 switched to side 2) Senator Donley said a specific provision could be added stating that the menu shall include not more than two meat servings a day. Senator Frank would like to see a serious response from the Department as to what this bill means in their management and felt that the matter has not been taken seriously. Senator Donley said that they have been working with the Department for the last eight months and they are not really enthusiastic supporters. Senator Frank felt that this was probably due to the fact that they felt this was changing their ability to manage. Mr. Guaneli noted that the Department will have to take certain things into consideration in adopting to medically prescribed diets and religious diets. Senator Frank asked that the Department be put on notice that a thorough understanding of the overall cost of the food service and how it would be impacted by this change in law was needed. He asked further as to what state and Federal lawsuits have been used to develope standards as to what is acceptable, constitutional and appropriate. Senator Donley advised that the Federal Act was basically adjusted to fit the specifics of the situation here in Alaska. Almost everything done in the prisons today gets litigated. A balance must be reached between an aggressive policy and just letting the prisoners do what they want. Senator Frank asked about the premium channels on television. Senator Donley said the judiciary version allowed basic cable to be paid for by the prisoners. Mr. Shriner advised that some prisoners have jobs within the prison and earn sixty to eighty cents per hour, others have money brought in my relatives. In Palmer, for example, the inmates paid for the installation of the cable television in the day room including the service. Senator Donley explained that preventing prisoners from having televisions in individual rooms and no cable prohibits them from having premium cable channels. The reason for allowing the basic cable service is because the reception in some of the areas does not work so an allowance was made to allow basic cable as an alternative to an antenna. The original bill placed a total ban on cable television but the department felt it appropriate to at least allow basic cable. Senator Frank asked about a book list. Senator Donley advised that it varies from institution to institution what books and how many you can have. Mr. Shriner advised that libraries are available in most institutions. There is a good access to books and magazines. The department has a security problem with too many books in rooms because contraband can be hidden in them and they are difficult to search. Senator Frank also inquired about housekeeping privileges in individual cells and Mr. Shriner advised that even though there is no current prohibition from a statutory point of view on the matter there are none allowed by the superintendents. No computers are allowed in individual cells. Senator Donley said that computers raise a lot of difficulties. Allowing state controlled computers in a common area for educational purposes is good. All training can be done in this common room under the watchful eye of the correctional officer. A computer in an individual cell will cause a constant security problem. This powerful entertainment tool is not appropriate in a punishment situation. Senator Donley MOVED CSSS SB 175(JUD) with individual recommendations and without objection the bill is REPORTED OUT with individual recommendations and zero fiscal notes from the Department of Health and Social Services and Department of Corrections. ADJOURNMENT The meeting was adjourned at approximately 10:15 A.M.