JOINT SENATE AND HOUSE JUDICIARY COMMITTEE January 29, 1993 1:50 p.m. SENATE MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Dave Donley Senator Suzanne Little SENATE MEMBERS ABSENT Senator Rick Halford, Vice-Chairman Senator George Jacko HOUSE MEMBERS PRESENT Representative Brian Porter, Chairman Representative Jeannette James, Vice-Chairman Representative Pete Kott Representative Gail Phillips Representative Joe Green Representative Cliff Davidson Representative Jim Nordlund Representative John Davies SENTENCING COMMISSION MEMBERS PRESENT James V. Gould, Chairman Phillip R. Volland, Vice-Chairman Dean Guaneli Representative Fran Ulmer Duane S. Udland Bill Cotten, Executive Director JoAnn Holmes Gigi Pilcher Honorable Beverly Cutler Honorable Warren W. Matthews Commissioner Lloyd Rupp Attorney General Charles Cole Jayne E. Andreen John Salemi COMMITTEE CALENDAR OVERVIEW: ALASKA STATE SENTENCING COMMISSION ACTION NARRATIVE TAPE 93-3, SIDE A Number 001 Chairman Robin Taylor called the Joint Senate and House Judiciary Committee meeting to order at 1:50 p.m. and invited JAMES GOULD to convene the Alaska Sentencing Commission overview. SENATOR TAYLOR thanked REPRESENTATIVE BRIAN PORTER, Chairman of the House Judiciary Committee, for hosting the meeting. MR. GOULD reviewed the history of the sentencing commission discussing, including changes in the sentencing structure, whether to build more prisons, and whether to accept the present sentencing structure. He announced that DEAN GUANELI, Assistant Attorney General, was going to summarize the basic thrust of the report as presented to the legislature. Number 032 MR. GUANELI reviewed information gathered by the commission members from other sentencing systems in the United States and concluded the presumptive sentencing structure in Alaska was a sound system. He discussed the minor modifications recommended to the legislature, which included alternatives to expensive jail sentences. MR. GUANELI outlined alternatives such as imposition of fines commensurate with income, work service, or residing in a half-way house setting, being under intensive supervision. He explained why the commission has recommended the legislature change the term "mandatory parole" in the statutes to "mandatory release." MR. GUANELI discussed the commission's recommendation to extend eligibility for discretionary parole to all Class A presumptively sentenced first offenders, except for those convicted of manslaughter and sex offenses. He also relayed the recommendation that the legislature should expand immunity to probation officers in the kind of discretionary decisions they made in supervising people on probation and parole - to lesson the fear of liability. MR. GUANELI concluded with a recommendation the legislature amend the DWI law and consider something other than a mandatory three-day stay in jail, but would be an effective deterrent. He said that "swift and certain" punishment was important, and he spoke about the many people in Anchorage waiting to serve their sentences for DWI offenses. Number 254 MR. GOULD explained most of the commission's recommendations would not require legislative changes but rather directives to the departments to operate differently. MR. GOULD said the topic of alternative punishments would be discussed by REPRESENTATIVE FRAN ULMER and DUANE UDLAND, who was representing law enforcement. Number 268 REPRESENTATIVE ULMER began by explaining to the new members of the legislature why the sentencing commission was created nearly three years ago. She outlined problems of overcrowded prisons, expending about $110 million per year to run the Department of Corrections, and the need to build more prisons unless something different was done. REPRESENTATIVE ULMER explained it costs about $100 per day to keep a person in prison, and if the legislature doesn't want to build more prisons, more choices are needed. She summarized the investigation of what was being done in other states and listed some of the alternative punishments: community residential centers where prisoners could earn money to pay their costs and restitution; intensive supervised probation in combination with electronic monitoring; day reporting centers, work release programs, and specialized alcohol and other treatment programs; increased fines, day fines, slide scale fines, more community work service; or using any of these choices in combination. REPRESENTATIVE ULMER explained the cost of the suggestions in relation to the cost of a "hard" bed in a prison and made some dire predictions about what will happen if alternatives are not sought. Number 370 MR. UDLAND expressed concern that alternative sentencing might bring the accusation of being "soft on crime," but he believes serious criminals should be locked up for as long as possible. He also thought there was a whole range of possible options to save money in the future using alternative punishment. MR. UDLAND indicated his support for presumptive sentencing, but also favored alternatives that worked to deter criminal behavior. REPRESENTATIVE JOE GREEN asked about the effect of alternate punishment on habitual offenders and suggested the system would be considered too soft on the repeat offender who might find jail too comfortable. Number 455 MR. UDLAND suggested a tour through the jails for those who think they are too soft, but he agreed that criminals resist rehabilitation. Number 497 REPRESENTATIVE ULMER reviewed a Federal Justice Conference on alternative punishments she attended where "boot camps" were discussed. She stated that so far the boot camp approach has not been shown to make any appreciable difference in the criminals, except that they come out from boot camp more physically fit than before. MR. GOULD reviewed the problems of data collection and introduced BILL COTTEN, the director of the Judicial Council to discuss the possible solutions. MR. COTTEN addressed the lack of reliable information regarding the Criminal Justice System on which to base policy decisions, even though there are three data collection systems geared to the needs of the particular agency which maintains it. He discussed the work done by the computer analyst for the commission, ALAN MCKELVIE, who has started taking information from the separate computer systems to integrate into a usable data base. MR. COTTEN expressed regret about the lack of a specific identifier for each offense and for each person. He suggested reasons for having information with which to make informed decisions and to have the computers systems be able to work together. MR. COTTEN reviewed the progress made by MR. MCKELVIE in coordinating the data systems and appealed to the legislature to assist in the continuation of the data collection efforts. Number 592 MR. GOULD noted the high percentage of native offenders in custody, and introduced JOANN HOLMES and GIGI PILCHER, commission members, to address the issue. MS HOLMES reviewed the statistics on native offenders which did not indicate a disparity of sentencing. The commission members found that although natives make up 16% of the population, they are 32% of the prison population, and account for 41% of those returning to jail for revocation of parole, the highest number of repeat offenders. MS. HOLMES cited, as reasons, a lack of parole and probation supervision in the Bush as well as a lack of culturally appropriate treatment in jail, and a lack of treatment when released from jail. She gave, as their recommendations, an increase in alcohol treatment programs and to get state agencies to coordinate their activities with village councils, existing tribal courts, and concerned persons in the villages. Number 647 MS. PILCHER repeated recommendations from the sentencing commission to urge state agencies to work closely with entities already in existence, such as village councils, village or tribal courts, the elders, the IRA, and those who could provide information on the individual. She stressed the need for the Village Public Safety Officers' program and the continuation and support of the Department of Health and Social Services' behavioral health aide programs in the rural communities. Number 677 MR. GOULD introduced JUDGE BEVERLY CUTLER and JUSTICE WARREN MATTHEWS to discuss parole eligibility. JUSTICE MATTHEWS stressed that the correctional system is at an emergency level with crowded jails. He expressed his belief that, with an increasing population in Alaska, the crime statistics will increase. He said the legislature will have to build more jails or make an adjustment in the correction and sentencing policies. JUSTICE MATTHEWS presented two proposals which would not be a panacea, but of some importance. The first would be to allow parole for certain first offenders convicted of Class A felonies, except for manslaughter or sex offenses. He said two conditions would have to be imposed, according to the sentencing commission. First the offenders must have successfully completed all court-required treatment or be released to an appropriate program. Second, offenders should be required to serve one-half of the presumptive term before becoming eligible. Number 741 JUSTICE MATTHEWS said the benefits of the proposal were primarily financial, with the staff calculating it would save approximately "26 hard beds" per year, a conservative assumption. He explained the cost of a hard bed is $30 thousand a year and including other costs there would be a savings of $33 thousand on each bed. JUSTICE MATTHEWS discussed risk levels and statistics for the parole record which he characterized quite good. He explained the parole board has quite conservative standards about which offenders to release or parole. Number 782 JUSTICE MATTHEWS then discussed the second proposal, a statutory change to allow special medical parole for terminally ill offenders, who can cost the Department of Corrections an extraordinary amount of money. He explained why the parole board should be allowed to grant parole to terminally ill offenders who do not present a danger to the community. Number 801 JUDGE CUTLER expanded on the role of parole in the sentencing structure, which should be the reformation of the offender and the protection of the public. She explained the case law of the last 25 years had set out four goals to be considered by the sentencing judge: deterrence by the offender, isolation of the offender, rehabilitation, and reaffirmation of social norms. The latter was to reward people for following the law. JUDGE CUTLER addressed the balancing criteria used by the parole board. She explained why presumptive sentencing and parole eligibility were two different things, and she referred to testimony by MR. GUANELI to expand immunity for actions taken by certain state employees. This would include the release and supervision of offenders on parole, probation, furlough, work release, or similar conditional release. JUDGE CUTLER discussed the proposed changes in immunity law in terms of personnel and departmental liability. TAPE 93-3, SIDE B Number 001 MR. GOULD next introduced PHILLIP VOLLAND, Vice-Chairman of the commission, to make his presentation to the committee on the state budget and declining revenues. MR. VOLLAND reviewed his background and discussed the urgency of the issues, using some comparative examples on how costly it was to isolate offenders from the public. He reviewed statistics about the capacity of the general housing beds for those serving their sentences, and he explained the other types of beds, medical care, administrative segregation, etc., are needed for a prison to operate. MR. VOLLAND testified that half of those beds are being used for those just serving their sentence. The prisons are over emergency capacity. In his opinion, in every single major institutions in the system. As of about 10 days ago, the system was about 80 inmates over the emergency capacity. In his opinion the correctional system is in a crisis mode. MR. VOLLAND explained the problems caused when the prisons are unable to move a prisoner into a disciplinary setting or protective segregation, making the prison a dangerous environment for both correctional officers and prisoners. MR. VOLLAND spoke to when the general recommendations by the sentencing commission to the legislature when dealing with additional legislation and issues arising in the future. The first was a plea to be aware of the impact of other legislation on corrections, such as those which would increase sentences or affect criminal procedure along with the costs of implementation. The second point, according to MR. VOLLAND, was to appreciate the need for creativity and coordination among the various criminal justice agencies. He addressed the problem now being faced with DWI offenders: offenders are booking their time in jail 9 and ten months in advance. MR. VOLLAND said there were enough DWI offenders on a waiting list in Anchorage to fill another Sixth Avenue Jail. He reviewed the DWI problems, stressing the part alcohol plays in crime and violence in Alaska. Number 195 MR. VOLLAND reviewed the material presented earlier to the Finance Committee and described a "collision course" between public safety and money. He said that even the implementation of the sentencing commission recommendations would not impact the system for some time, and he gave the example of JUSTICE MATTHEWS' recommendations on parole for some presumptively-sentenced offenders. The effect would be not felt for 4 years for an 8-year presumptive sentence (unless the changes were to be applied retroactively). MR. VOLLAND said if the economic picture gets more bleak, there would be some very tough choices to be made by the legislature, such as making all presumptively sentenced felons eligible for discretionary parole, re-examining sentence lengths, and redefining some of the conduct now considered criminal. He opined there would be difficult choices to make from what was presently known. Number 248 MR. VOLLAND articulated some of the frustrations of the sentencing committee on the time available for working on legislation for adoption. He expressed their hope for the adoption of legislation to address the problems as described. MR. VOLLAND assured cooperation from the commission members for any legislation. Number 285 SENATOR TAYLOR asked MR. GOULD if there were any more presentations, and he said COMMISSIONER LLOYD RUPP from the Department of Corrections, and ATTORNEY GENERAL COLE had been asked to comment on the commission report. COMMISSIONER RUPP began by complimenting MR. VOLLAND on his presentation and expressing support for the sentencing commission report. He reviewed the studies written about the current problems and mentioned Operation Hope. COMMISSIONER RUPP explained his department was one of five agencies working within the Governor's cabinet to try to put together a joint project approach, and to share the costs. Number 325 COMMISSIONER RUPP emphasized the need for immunity for his parole and probation officers, since he sensed a frustration with the handling of "technical violations" where a person on parole violates the parole. There has to be a decision whether or not to place that person back into a very expensive "hard bed," and he referred to previous testimony from REPRESENTATIVE ULMER on the use of a community residential center approach. COMMISSIONER RUPP expressed concern about the need to protect his staff when they made these difficult decisions, and he suggested a system of fairness and equity for all. COMMISSIONER RUPP reviewed the Department of Correction's final master plan (funded by the legislature) which projects a need for an additional five to 700 prison beds by 1996, and he didn't think it was unrealistic. He urged the legislators to listen carefully to the sentencing commission because the number of offenders was going to continue to rise. Number 431 ATTORNEY GENERAL COLE expressed his personal view on cost, which he doesn't think should be the principal factor driving the administration of justice and the people "caught in the web." He urged the judiciary committees to draft legislation in furtherance of the recommendations by the sentencing committee and let it advance through the legislative process. MR. GOULD said COMMISSIONER RICHARD BURTON of the Department of Public Safety had been in attendance earlier and was supportive of the commission report. Number 473 SENATOR TAYLOR said he had discussed with REPRESENTATIVE PORTER a decision to work together with committee staff to consider the commission recommendations with both House and Senate, with the assistance of ATTORNEY GENERAL COLE. SENATOR TAYLOR promised legislation which would follow the best presumption for success. He said the committee would be working with GAYLE HORETSKI from REPRESENTATIVE PORTER'S office and KENNY LEAF from his. SENATOR TAYLOR opened the meeting to questions. Number 498 REPRESENTATIVE PORTER questioned both ATTORNEY GENERAL COLE and MR. VOLLAND about presumptive sentencing, and ATTORNEY GENERAL COLE quoted JUSTICE MATTHEWS, who explained his remarks. REPRESENTATIVE PORTER asked both judges about the need for the courts to recognize the programs already available, the needs that were driving the commission recommendations, and whether there was a better way to emphasize the information. Number 523 JUSTICE MATTHEWS said the sentence of choice for a judge was still imprisonment, but he thought there should be some creative thinking used, and he used fish and game cases as an example. He informed the committee of a program at the next Judicial Education Conference in June, where a large segment of the day would be devoted to educating judges about intermediate and alternative sentencing. ATTORNEY GENERAL COLE said it had been suggested there should be a meeting with district attorneys on the subject of alternate sanctions, and he described fish and game violations in terms of economic gain. Number 557 REPRESENTATIVE ULMER noted a request in the judicial council's budget for a bench book for judges to give them a list of choices in sentencing. SENATOR TAYLOR expressed pleasure at the alternative sentence recommendations presented by the commission and appreciation for ATTORNEY GENERAL COLE'S comment that cost was not the essential element, but the victim and the offender were the most important. He decried the amount of money spent on paper work to send a person to jail, or to the treatment centers. After becoming aware of these frustrations during his time on the bench, SENATOR TAYLOR was gratified to find people willing to take the extra step. He expressed concern that the recidivism figures were no different now than when he was a judge, and he reviewed the statistics in Appendix E of the sentencing report. He condemned alcohol for most of the problems, and expressed surprise that the procedure of implanting antabuse was not listed as a solution. Number 616 JUDGE CUTLER said a lot of time had been spent considering the causes and treatment of alcohol problems in the offenders. She said they did conclude there needed to be more alcohol treatment centers, since there was currently a long wait to get into such a center. JUDGE CUTLER said specific treatment recommendations were best left to those with expertise in that area, however. REPRESENTATIVE GREEN appreciated the amount of information the commission was offering, and asked about statistics that would indicate the types of crimes by gender, age, or other factors. His reasons had to do with the recidivism rate and educational programs. He wondered why agencies weren't treating the cause instead of symptoms. His questions were answered by MR. COTTEN who said there was some data by age, race, and gender, but not good information about who recidivated. REPRESENTATIVE GREEN asked whether Alaska was considered a young state, and whether it made a difference in the statistics. MR. COTTEN said he was correct, but the prison population was older than was commonly thought, principally because of the large number of sex offenders. He predicted the prison population would gradually become younger. Number 681 REPRESENTATIVE NORDLUND thanked the commission for an excellent report, but wondered if some of the recommendations gave the perception the legislature was soft on crime. He questioned how to deal with the perception problem. MR. VOLLAND explained the commission had conducted local "focus groups" to ask citizens about the issues, and he discussed the questions and answers and finding from the focus groups. Number 721 REPRESENTATIVE CLIFF DAVIDSON, on the issue of presumptive sentencing, asked about the incarceration rate in rural Alaska. He also asked about the fiscal notes that had been considered when presumptive sentencing was passed by the legislature and the relationship to the present situation. REPRESENTATIVE DAVIDSON suggested the use of education as a way to work on the problems of alcohol consumption. JUDGE CUTLER said a study conducted in the mid 70's found a disproportionate number of natives represented in the prison population, and she said those studies led to several conferences including the 1978 Judicial Conference, with its education of judges about discrimination in sentencing. She said there was apparently less disparity under presumptive sentencing. Number 767 JUDGE CUTLER also spoke to the fiscal note question raised by REPRESENTATIVE DAVIDSON, saying at that time (late 70's) people thought there would be enough money for everything. She addressed the structure of sentencing and the early education about alcohol. As a parent, JUDGE CUTLER was impressed with the alcohol education in her local schools, but she projected any noticeable changes for a future time. She was in favor of early intervention in all problems, but was mindful of the parental rights and gave the example of the Indian Child Welfare Act. Number 797 REPRESENTATIVE DAVIDSON thought rural residents were at an unfair disadvantage when they were taken through the judicial system. He claimed they were then exposed to "real bad characters," so the bad got worse before going back into the community. SENATOR TAYLOR said he shared REPRESENTATIVE DAVIDSON'S frustrations. REPRESENTATIVE JEANNETTE JAMES was impressed with the extent of the work done by the sentencing commission and their report. She urged the necessity for prevention and asked for statistics on the present population in the prisons in relation to retroactive discretionary parole. REPRESENTATIVE JAMES wanted to know how many beds would be saved. Number 829 JUSTICE MATTHEWS reviewed the assumptions and said 26 beds would be freed up right away, while other assumptions would provide about fifty more. REPRESENTATIVE ULMER explained approximately 900 DWI offenders were waiting 9 months to serve their time in Anchorage, and freeing up to 25 to 50 beds would make a tremendous difference in the backlog. She discussed the learning effect for the members of the sentencing commission in making hard choices. REPRESENTATIVE ULMER wanted the casual drinker to think about the risk factor and take a cab home. TAPE 93-4, SIDE A Number 001 REPRESENTATIVE ULMER suggested the public should be made aware of the trade off's in the acceptance of discretionary parole for some offenders. REPRESENTATIVE JOHN DAVIES asked how the commission's recommendations could be used to reduce the recidivism rate and to rehabilitate the prison population. He suggested working toward a constitutional mandate for rehabilitation. MR. VOLLAND wished there was better data on the recidivism rate, but concluded there was very little information. He quoted the commission as feeling the recommendations they made would have an impact on recidivism. MR. VOLLAND discussed ways the recommendations would be able to change the immediacy and the effectiveness of sentencing. He thought there should be continued study and monitoring of rehabilitative programs, but felt hampered by the lack of data. REPRESENTATIVE DAVIES also felt it was important to have the data to evaluate the programs. Number 135 SENATOR TAYLOR said he had been requesting recidivism data, and he praised REPRESENTATIVE DAVIES' questions. REPRESENTATIVE PORTER remarked the discussions always came down to alcohol, and he asked about the effects of the decriminalization of the former crime of being "drunk in public" as related to more serious crimes. He was told the commission had not specifically discussed that issue. SENATOR TAYLOR reviewed a study done in Barrow about the effects of using an alcohol dry-out center, which was found to be successful until the "wrong" person was dried out and the center was closed. He continued to describe the problems with alcohol abuse in Barrow and again suggested the use of antabuse. SENATOR TAYLOR expressed great concern at the numbers of deaths related to alcohol. Number 205 REPRESENTATIVE PORTER returned to the subject of being drunk in public as considered to be a medical problem, and the use of "drunk in public" offense as a crime prevention measure. He said the number of victims were reduced, and he credited early intervention. REPRESENTATIVE PORTER thought there should be a coordinated system to reinstate the drunk in public charge. Number 247 SENATOR TAYLOR spoke to the void in intervention in juvenile alcohol problems and proposed something be done in the juvenile justice system to react to the juvenile alcohol- related accidents. JUSTICE MATTHEWS expressed concern about COMMISSIONER RUPP'S expressed need for an additional 700 prison beds and early parole for serious offenders. There was a discussion with MR. VOLLAND over the use of hard beds. Number 323 COMMISSIONER RUPP explained the difficult decisions between the felony population inside the wall and the misdemeanor population outside the wall, but he stressed the consistent factor was alcohol. He claimed that until the alcohol problem was solved, the rate of crimes would continue to increase. REPRESENTATIVE DAVIDSON questioned COMMISSIONER RUPP about privatizing Project Hope, and the commissioner said there were some aspects that dealt with non-profit corporations providing services, which would be paid by the offenders from their permanent fund dividend check. SENATOR TAYLOR expressed his appreciation to the sentencing commission for all their work and for briefing the joint committees. JIM GOULD noted that GAYLE HORETSKI, a former member of the sentencing commission, was now a member of REPRESENTATIVE PORTER'S staff. There being no further business to come before the committee, the meeting was adjourned at 3:50 p.m.