ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 4, 2019
1:32 p.m.
MEMBERS PRESENT
Senator Shelley Hughes, Chair
Senator Lora Reinbold, Vice Chair
Senator Mike Shower
Senator Peter Micciche
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 12
"An Act relating to crime and criminal procedure; relating to
assault and sexual assault; relating to harassment; relating to
credit toward a sentence of imprisonment for time spent in a
treatment program or under electronic monitoring; and providing
for an effective date."
MOVED CSSSSB 12(JUD) OUT OF COMMITTEE
SENATE BILL NO. 34
"An Act relating to probation; relating to a program allowing
probationers to earn credits for complying with the conditions
of probation; relating to early termination of probation;
relating to parole; relating to a program allowing parolees to
earn credits for complying with the conditions of parole;
relating to early termination of parole; relating to eligibility
for discretionary parole; relating to good time; and providing
for an effective date."
- HEARD AND HELD
SENATE BILL NO. 35
"An Act eliminating marriage as a defense to certain crimes of
sexual assault; relating to enticement of a minor; relating to
harassment in the first degree; relating to harassment in the
second degree; relating to indecent viewing or production of a
picture; relating to the definition of 'sexual contact';
relating to assault in the second degree; relating to
sentencing; relating to prior convictions; relating to the
definition of 'most serious felony'; relating to the definition
of 'sexual felony'; relating to the duty of a sex offender or
child kidnapper to register; relating to eligibility for
discretionary parole; and providing for an effective date."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 12
SHORT TITLE: ASSAULT; SEX OFFENSES; SENTENCING CREDIT
SPONSOR(s): SENATOR(s) MICCICHE
01/16/19 (S) PREFILE RELEASED 1/7/19
01/16/19 (S) READ THE FIRST TIME - REFERRALS
01/16/19 (S) JUD, FIN
02/13/19 (S) SPONSOR SUBSTITUTE INTRODUCED-REFERRALS
02/13/19 (S) JUD, FIN
02/13/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/13/19 (S) Heard & Held
02/13/19 (S) MINUTE(JUD)
02/15/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/19 (S) Scheduled but Not Heard
02/18/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/18/19 (S) Heard & Held
02/18/19 (S) MINUTE(JUD)
02/22/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/22/19 (S) -- MEETING CANCELED --
02/25/19 (S) JUD WAIVED PUBLIC HEARING NOTICE,RULE
23
02/28/19 (S) JUD AT 5:00 PM BELTZ 105 (TSBldg)
02/28/19 (S) -- MEETING CANCELED --
03/01/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/01/19 (S) Heard & Held
03/01/19 (S) MINUTE(JUD)
03/04/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 34
SHORT TITLE: PROBATION; PAROLE; SENTENCES; CREDITS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/23/19 (S) READ THE FIRST TIME - REFERRALS
01/23/19 (S) STA, FIN
02/07/19 (S) STA AT 3:30 PM BUTROVICH 205
02/07/19 (S) Heard & Held
02/07/19 (S) MINUTE(STA)
02/11/19 (S) JUD REFERRAL ADDED AFTER STA
02/12/19 (S) STA AT 3:30 PM BUTROVICH 205
02/12/19 (S) Heard & Held
02/12/19 (S) MINUTE(STA)
02/14/19 (S) STA AT 3:30 PM BUTROVICH 205
02/14/19 (S) Heard & Held
02/14/19 (S) MINUTE(STA)
02/19/19 (S) STA AT 3:30 PM BUTROVICH 205
02/19/19 (S) Heard & Held
02/19/19 (S) MINUTE(STA)
02/21/19 (S) STA AT 3:30 PM BUTROVICH 205
02/21/19 (S) Heard & Held
02/21/19 (S) MINUTE(STA)
02/26/19 (S) STA AT 3:30 PM BUTROVICH 205
02/26/19 (S) Heard & Held
02/26/19 (S) MINUTE(STA)
02/28/19 (S) STA AT 3:30 PM BUTROVICH 205
02/28/19 (S) Moved CSSB 34(STA) Out of Committee
02/28/19 (S) MINUTE(STA)
03/01/19 (S) STA RPT CS 3DP 1DNP SAME TITLE
03/01/19 (S) DP: SHOWER, REINBOLD, MICCICHE
03/01/19 (S) DNP: COGHILL
03/01/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/01/19 (S) Scheduled but Not Heard
03/04/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
JOHN SKIDMORE, Director
Criminal Division
Central Office
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
SB 12.
ERIK REED, representing himself
Wasilla, Alaska
POSITION STATEMENT: Testified in support of SB 12 as the
survivor of a DUI crash that killed his wife.
SYLVIA KENNEDY, Member
49th Rising
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 12.
SCOTT CARSON, representing himself
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 12 to strengthen
laws.
DOROTHY KOEROK, representing herself
Palmer, Alaska
POSITION STATEMENT: As a former victim, testified in support of
SB 12.
KEELEY OLSON, Executive Director
Standing Together Against Rape
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 12.
ELIZABETH WILLIAMS, representing self
No More Free Passes
Anchorage, Alaska
POSITION STATEMENT: Testified in support of SB 12 because it
helps change the culture surrounding sexual abuse and to keep
victims informed of plea agreements.
BETH FREAD, representing self
Palmer, Alaska
POSITION STATEMENT: Testified in support of SB 12.
MARJORIE LONG, representing self
Point Lay, Alaska
POSITION STATEMENT: Testified in support of SB 12, as a victim
who wants to stop sexual assaults.
VICKI JO KENNEDY, representing herself
Kodiak, Alaska
POSITION STATEMENT: Testified in support of SB 12.
CHRIS EICHENLAUB, representing self
Eagle River, Alaska
POSITION STATEMENT: Testified in support of SB 12.
LISA ELLANNA, Concerned Citizen
Nome, Alaska
POSITION STATEMENT: Testified in support of SB 12.
CARMEN LOWRY, Executive Director
Alaska Network on Domestic Violence & Sexual Assault (ANDVSA
Juneau, Alaska
POSITION STATEMENT: Testified in support of SB 12.
JANELLE MANCHESTER, representing herself
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of SB 12.
JOHN SKIDMORE, Director
Criminal Division
Central Office
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions during the
discussion of SB 34.
JENNIFER WINKELMAN, Director
Division of Probation and Parole
Department of Corrections
Juneau, Alaska
POSITION STATEMENT: Testified during the discussion of SB 34.
ACTION NARRATIVE
1:32:00 PM
CHAIR SHELLEY HUGHES called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at the call to
order were Senators Reinbold, Shower, Micciche, and Kiehl and
Chair Hughes.
SB 12-ASSAULT; SEX OFFENSES; SENTENCING CREDIT
1:33:10 PM
CHAIR HUGHES announced that the first order of business would be
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 12, "An Act relating to
crime and criminal procedure; relating to assault and sexual
assault; relating to harassment; relating to credit toward a
sentence of imprisonment for time spent in a treatment program
or under electronic monitoring; and providing for an effective
date."
[Before the committee was the committee substitute (CS) for SSSB
12, work order 31-LS0263\O.1, referred to as Version O.]
1:33:58 PM
CHAIR HUGHES made opening remark and reviewed the process taken
on SB 12, including that public testimony was previously taken
and is now closed.
1:34:19 PM
SENATOR KIEHL made a motion to adopt Amendment 1 to SB 12, work
order 31-LS0263\O.1, Radford, 2/28/19.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSSSB 12(JUD), Draft Version "O"
Page 2, line 26, through page 3, line 7:
Delete all material and insert:
"* Sec. 3. AS 12.55.027(d) is amended to read:
(d) A court may grant credit against a sentence
of imprisonment for time spent under electronic
monitoring if
(1) the person has not committed a criminal
offense while under electronic monitoring;
(2) the electronic monitoring is ordered in
connection with an offense that is not a sex offense
as defined in AS 12.63.100; and
(3) the court imposes restrictions on the
person's freedom of movement and behavior while under
the electronic monitoring program, including requiring
the person to be confined to a residence except for a
(A) [(1)] court appearance;
(B) [(2)] meeting with counsel; or
(C) [(3)] period during which the person is
at a location ordered by the court for the purposes of
employment, attending educational or vocational
training, performing community volunteer work, or
attending a rehabilitative activity or medical
appointment."
Renumber the following bill sections accordingly.
Page 8, line 31:
Delete "AS 12.55.027(g)"
Insert "AS 12.55.027(g)(3)"
Page 9, lines 4 - 5:
Delete "repealed and reenacted"
Insert "amended"
Page 9, line 5:
Delete "AS 12.55.027(e), as amended by sec. 4 of
this Act,"
Page 9, line 6:
Delete "sec. 5"
Insert "sec. 4"
Delete "sec. 6"
Insert "sec. 5"
Page 9, line 7:
Delete "sec. 7"
Insert "sec. 6"
Page 9, line 8:
Delete "sec. 8"
Insert "sec. 7"
Delete "sec. 9"
Insert "sec. 8"
Page 9, line 9:
Delete "AS 12.55.027(g) by sec. 10"
Insert "AS 12.55.027(g)(3) by sec. 9"
SENATOR MICCICHE objected for discussion purposes.
1:34:39 PM
At-ease.
1:35:18 PM
CHAIR HUGHES reconvened the meeting.
1:35:34 PM
SENATOR KIEHL explained that Amendment 1 relates to credits for
electronic monitoring called Nygren credits [based on Nygren v.
State (1980)]. This provision would remove the opportunity to
receive credit for time spent on electronic monitoring if the
offender is ultimately convicted of a sex offense. However,
credit for time spent on electronic monitoring would be
available for those who are ultimately convicted of crimes other
than sex offense crimes. He offered his belief that [credit for
electronic monitoring for non-sex offenders] is a much bigger
policy question than SB 12 was intended to address. The
underlying bill is a good bill since it would close loopholes in
the Justin Schneider case and address some sex offense issues.
He explained that under Amendment 1, anyone accused of a sex
offense would not get credit for time spent on electronic
monitoring during the pretrial phase. He surmised that non-sex
offenders who receive credit for time served are more likely to
succeed in society. For example, one scenario previously
discussed in committee pertained to offenders who are off their
medications and need mental health treatment. If these offenders
could obtain electronic monitoring credits, it might be possible
for them to retain their jobs, continue their treatment, and
stay connected to their families, and stay out of prison. He
pointed out that currently Lemon Creek Correctional Facility
(LCCF) does not offer drug treatment programs. If these same
offenders in the scenario described are incarcerated, they will
be subjected to the adverse aspects of criminals who clearly
need to be imprisoned.
He emphasized that under Amendment 1, a sex offender, such as
Justin Schneider, would be incarcerated and would not be
eligible to receive credit for electronic monitoring, but the
amendment would not go beyond that, he said.
1:38:19 PM
CHAIR HUGHES remarked that medications are administered within
the prison system so the idea of someone who is incarcerated
having to be off their medication is not accurate. In speaking
with the Commissioner Designee for the Department of
Corrections, the department intends to expand drug treatment
within the prison system. Further, pre-sentence drug treatment
is counted as good time, she said.
She expressed concern that Amendment 1 would reinstate
electronic monitoring for all crimes except sex crimes. She
pointed out that this includes a disturbing set of crimes,
including crimes involving domestic violence as defined in AS
18.66.990, an offense involving delivering a controlled
substance to a minor in AS 11.71, burglary in the first degree,
and arson in the first degree under AS 11.46.400, and a felony
crime against a person under AS ll.41. She reminded members that
AS 11.41 is the cite that includes strangulation and the
enhanced sentencing structure for offenses involving
strangulation.
CHAIR HUGHES said that to say that the bill goes beyond the
scope of its original intent by not allowing credit for
electronic monitoring is completely inaccurate. Mr. Skidmore put
on the record that defendants are purposefully stretching out
their time on electronic monitoring in order to avoid
incarceration. She emphasized that this section speaks directly
to what allowed many criminals, including Justin Schneider to
avoid jail time. As the committee heard from many testifiers,
the time for free passes has to end. She said the committee will
hear testimony from a man whose wife was killed in a DUI
[Driving while Under the Influence] and that person has been out
on an ankle electronic monitor. This man and his son suffer
daily, but the man who killed his wife has been enjoying the
luxury of being in his own home on an ankle monitor, free to
watch television, and to eat what he wants to eat. She offered
her belief that this pre-sentence credit does not seem right or
fair to the victims. She reiterated that many of these crimes
listed are very serious crimes. She said she will not support
[Amendment 1.]
1:42:00 PM
SENATOR MICCICHE remarked that another thing to consider is that
electronic monitoring can be part of a sentence post-conviction.
This removes the credit for pretrial time, but it does not
eliminate post-conviction credits. Further, [Amendment 1] also
assumes that sex crimes result in convictions, but often sex
crimes are a product of other crimes, such as burglaries and
domestic violence. He said that someone could still obtain
electronic monitoring credit even if the person was convicted of
the other crimes. He maintained his belief that the direction
taken in [Version O] is the right one. Finally, this would
essentially be giving the same rights to someone convicted of a
very serious crime as to someone who is proven innocent. He said
that he cannot support Amendment 1. He said that the courts have
discretion for special cases. This language removes the
incentive for defendants to stretch out their cases, he said. He
pointed out that the Justin Schneider case was delayed six times
at the request of defense counsel, and five times pending
negotiation, which delayed sentencing to just beyond the one-
year timeframe. The reality is that Justin Schneider was given
credit for the year on electronic monitoring and suspended the
remaining one-year sentence, which mean "he walked." He offered
his belief that it is appropriate in this case and in other
cases where sexual assault might not be proven, so for those
reasons he cannot support [Amendment 1].
1:45:01 PM
CHAIR HUGHES said she appreciates that an innocent person pre-
conviction must bear the loss of time whereas the person who is
convicted would obtain a benefit from electronic monitoring
credit.
1:45:52 PM
JOHN SKIDMORE, Director, Criminal Division, Central Office,
Department of Law, Anchorage, stated that the points that the
sponsor and Chair Hughes made are well founded. He said that
[Amendment 1] would allow individuals to obtain additional
credit towards their sentences. He directed attention to current
AS 12.55.027, such that the amount of credit for electronic
monitoring is limited for certain types of crimes, but for other
crimes is unlimited. In the felony DUI case mentioned earlier,
the person will get credit for all of the time spent on
electronic monitoring pretrial no matter the length of the DUI
sentence. The murder aspect would be limited to one year, but
the other aspects would not, he said. He pointed out that the
Justin Schneider case would receive electronic monitoring credit
under Amendment 1 because he did not commit a sex crime since he
committed the crime of strangulation. He directed attention to
other crimes that offenders could receive electronic monitoring
credit for, including misconduct involving weapons or a drive by
shooting. A person could receive unlimited credit while on
electronic monitoring pretrial or for promoting contraband, such
as bringing weapons or drugs into prison facilities. He related
that misconduct involving a corpse, cruelty to animals,
misconduct involving controlled substances, and interference
with constitutional rights are crimes in which offenders could
serve their entire jail on electronic monitoring, he said. He
characterized this as the type of policy call that members face
when considering Amendment 1.
1:49:01 PM
SENATOR KIEHL wondered if the public defender could speak to
Amendment 1.
CHAIR HUGHES responded that the person is not online.
1:49:41 PM
SENATOR KIEHL said that he appreciated the discussion and the
information that with the remainder of the bill that the Justin
Schneider crime would fall within sex crimes and he would not
have been allowed to be on electronic monitoring. He said that
is important since it matches with his intent. Some of the
arguments did not resonate with him, such as watching television
on electronic monitoring, since correctional facilities also
have television. He also pointed out that a person who is in
prison awaiting trial who is ultimately found innocent would
also have lost time that the individual could not get back.
He said that prosecutors testify that changing the law benefits
the defense and defense attorneys testify that it tilts the
table in favor of the prosecution. He emphasized that his
interest lies with individuals who need mental health treatment,
such as 90 meetings in 90 days outpatient drug and alcohol
treatment. He reminded members that individuals who [are
arraigned] have a constitutional right to a trial by a jury of
their peers. He expressed concern that these people are less
likely to get back on the straight and narrow. He directed
attention to the first line of Amendment 1 and said the court
"may" not "shall" grant credit against a sentence, which gives
the courts discretion. He offered his belief that it is a
worthwhile tool that should be kept outside of the realm of sex
crimes. He suggested that in this instance discretion has the
potential to reduce crime and that should be the focus. He
encouraged a "yes" vote on [Amendment 1].
1:52:23 PM
CHAIR HUGHES said she appreciates that the sponsor of Amendment
1 is interested in having offenders "get back on the straight
and narrow" since it helps keep communities safe. In her view,
nothing in the crime package would try to change that goal since
to goal is to have safe communities. She stated that she is
working with the DOC to make changes within the system. She said
that inmates can receive mental health treatment while
incarcerated. She explained her concern about offenders on
electronic monitoring is that they choose what to watch, but
correctional officers have control over the remote control. She
emphasized that offenders on electronic monitoring have
substantially more freedom.
1:53:39 PM
SENATOR MICCICHE offered to clarify his comments. He said if an
individual is accused of a crime and spends a year on electronic
monitoring, and is not guilty, they lose the year they spent on
electronic monitoring. If someone else is accused of a crime and
spends a year on electronic monitoring [and is found guilty],
that person is given credit for serving the same amount of time
as the innocent person. The Constitution of the State of Alaska
requires community condemnation or "paying" the price to society
for that crime. Electronic monitoring spent in a luxury home on
Kachemak Bay in his view is not paying a price to society for
that crime. He emphasized that he believes in rehabilitation and
helping the offender to succeed once the person has done so.
However, [one] problem with Senate Bill 91 is that it seemed to
forget that there is a price to be paid for crimes against
others.
He said that someone in a low-level crime who is not likely to
benefit from incarceration can pay that price in some other way.
The courts can still use electronic monitoring post-conviction
to avoid incarceration. He characterized Amendment 1 as a means
to default to electronic monitoring as a means of paying the
sentence, whereas [SB 12] uses electronic monitoring in special
cases to manage sentencing if it meets very narrow
qualifications. He said that is the only difference.
1:56:04 PM
SENATOR MICCICHE maintained his objection.
1:56:14 PM
A roll call vote was taken. Senator Kiehl voted in favor of
Amendment 1 and Senators Reinbold, Shower, Micciche, and Hughes
voted against it. Therefore, Amendment 1 failed by a 1:4 vote.
1:56:47 PM
CHAIR HUGHES opened public testimony on SB 12.
1:57:12 PM
ERIK REED, representing himself, Wasilla, stated that his wife,
Brandy Jean Reed, died on December 13, 2017 due to drunk driving
crash. He and his son survived. The man responsible for his
wife's death has been out for over a year on electronic
monitoring, first with his family, girlfriend and children and
now with a childhood best friend. He said that the offender is
free to live his life. He said he has tried to maintain an
attitude of forgiveness so he can teach his son how to abstain
from a life of revenge.
He said that it has been hard and traumatic. Time and time again
he must relive it and he is not being compensated. He
characterized the process as a continuous one and said he does
not attend the pre-trial conference proceedings because he does
not want to "pay the man back for the life that he took and the
lives that he destroyed." He said his wife had four children and
a large family and friends in the Mat-Su Valley. He said it is
unjust to say that the offender could do anything that would
help preserve her memory and bring her back. It would be a slap
in the face if the offender receives any credit for time served
on electronic monitoring for pretrial or post-trial because the
family will never get Brandy Jean Reed back ever. He said he
must live the life he has been given to live. He must abide by
the laws and be an upstanding member of society. He hopes the
committee will take into consideration that victims exist. He
related that people talk about reform, reformation of criminals,
finances, money, but no one talks to the victims.
1:59:20 PM
CHAIR HUGHES remarked that she was sorry for his loss.
1:59:29 PM
SYLVIA KENNEDY, Member, 49th Rising, Anchorage, stated that she
has friends that have suffered crimes and this type of crime is
one that can be traced back to biblical times. She said that
people are often not punished for their crimes. She said she did
not think sexual offenders should use electronic monitoring and
all sex offenders need to be registered. She said that the
Justin Schneider case was a travesty and she hoped that SB 12
passes the legislature.
2:01:03 PM
SCOTT CARSON, representing himself, Juneau, said he has worked
in law enforcement for 20 years. He spoke in support of SB 12
since it will close loopholes and strengthen laws in the state.
He said that Alaska leads the nation as one of the most
dangerous states in terms of sex crimes. He related that from
his work experience, sexual assaults are some of the most
damaging for victims and families.
2:02:19 PM
DOROTHY KOEROK, representing herself, Palmer, said that in 2017
she was hired for a mining project. She said she was not welcome
and was dishonored. She continually had to wrestle with
inappropriate comments. She said that she was drugged and
sexually assaulted, and it was reported to her immediate
supervisor. She said once she was off the boat [she dealt with
various agencies], including the Alaska State Troopers, the
United States Coast Guard, the Office of Victims' Rights, and
the Human Rights Commission. During this process she felt she
was shamed, that staff wanted to know what motivated the men to
put her in an altered state of consciousness. She said her
throat was damaged in the process. In response to Chair Hughes,
she responded that she supports SB 12 in reference to
strangulation and use of a dangerous object.
2:06:38 PM
KEELEY OLSON, Executive Director, Standing Together Against
Rape, Anchorage, testified in support of all the changes to the
law except for Senator Kiehl's amendment in response to credit
for electronic monitoring. She appreciated the advocacy by the
bill sponsor and the committee.
2:08:06 PM
ELIZABETH WILLIAMS, representing self, No More Free Passes,
Anchorage, spoke in support of the revision that will require
prosecutors to consult with the victim. She said some former
prosecutors serve on her organization's board and that
prosecutors already consider it to be the best practice to
affirmatively reach out to victims. However, some victims say
this does not always happen. This change is important because
the expectation is in law that the prosecutor "shall" reach out
to the victim. Currently, the victim shall request that the
prosecutor confer with the victim regarding a plea agreement.
This bill would shift the burden to the state to reach out to
the victim. Although it may not seem like a big change,
legislation shapes culture. She listed the number of things a
victim must do throughout the judicial process if the individual
is sexually assaulted. She said that she is very pleased with
this change.
2:10:44 PM
BETH FREAD, representing self, Palmer, expressed her support for
SB 12 especially related to electronic monitoring. She said she
missed the "marriage" portion of the crime bill. She thanked
members for the opportunity to testify.
CHAIR HUGHES referred to another bill that addresses sexual
crimes, which is SB 35, and that bill contains the provision she
mentioned on marriage.
2:11:54 PM
MARJORIE LONG, representing self, Point Lay, said she was
sexually assaulted by a family member. She said that she is
speaking out because she heard that this person has assaulted
another person. At the time of her assault, the village did not
have any village public safety officers (VPSOs). She did not
have any support or way of handling rape. She said she lives in
a community where many women carry a burden like this one. She
said that she supports the bill so that more women will not be
choked during a sexual assault.
2:13:26 PM
CHAIR HUGHES thanked her for her bravery in speaking up.
2:13:35 PM
VICKI JO KENNEDY, representing herself, Kodiak, said she is glad
strangulation was included [as a crime] in the bill because it
is difficult to prove since it often does not leave marks. She
said she was sexually assaulted in 2013. She sought help from
the Kodiak Women's Resource and Crisis Center. She emphasized
the need to "put teeth in this bill" and remove Alaska as the
state with the highest number of sexual offenses in the nation
per capita. She testified in support of SB 12.
2:15:32 PM
CHRIS EICHENLAUB, representing self, Eagle River, testified in
support of SB 12. He thanked members for working to close the
loopholes. He said that perpetrators typically strike more than
once. He said he hopes the bill passes. He suggested that
members might talk about castration down the road.
2:16:33 PM
LISA ELLANNA, Volunteer Advocate, Concerned Citizens, Nome, said
that she works as a volunteer for sexual and domestic violence
victims in the region. She said several years ago some women
started meeting informally to share their experiences and
discovered that many of their situations were not being properly
handled. She spoke in support of SB 12. She referred to a 2014
Alaska Victimization Survey in the Nome area conducted by the
University of Alaska Justice Center, which showed that 51
percent of adult women have experienced intimate partner
violence, sexual violence or both in their lifetime and of
those, 11 percent have experienced that violence in the past
year.
She said the State of Alaska reports that one in three Alaska
Native women have experienced sexual violence at some point in
their lives. One out of two Alaska Native women have experienced
sexual violence other than rape. The U.S. Department of Justice
estimates that nationally only 30 percent of rapes are reported.
She offered her belief that a much smaller percentage of rapes
are reported in Alaska, in part, due to isolated communities and
that law enforcement does not exist in many villages. She said
telling someone that sexual assault has happened is very hard
and she wanted to honor the victims, as survivors, who come
forward to allow them to seek justice. She expressed gratitude
to the committee for putting this bill forward since it will
tighten up loopholes. In addition, she thanked the legislature
for its focus on this human rights issue. Not only does it
affect the Bering Strait Region, but it affects the entire
state, so she is glad the state has taken strides to make Alaska
a safer place. This issue extends nationally and internationally
to give resources to enforce the laws. As the state moves
forward to tighten up loopholes, it is also important to provide
the resources necessary to enforce the laws. The region needs
more public safety, including Alaska State Troopers and Village
Public Safety Officers (VPSO) in rural areas.
CHAIR HUGHES thanked her for sharing her perspective.
2:20:49 PM
SENATOR REINBOLD thanked her for her advocacy and activism in
her community. She acknowledged the high incidence of sexual
assault in her area. She asked for clarification if she was
saying her area has more unreported sexual assault.
MS. ELLANNA answered that way fewer people report sexual
violence occurrences to public safety officers than the national
rate.
2:21:54 PM
SENATOR REINBOLD solicited her comments on how the legislature
can make a difference.
CHAIR HUGHES stated that written testimony can be submitted to
senate.judiciary@akleg.gov
2:22:56 PM
CARMEN LOWRY, Executive Director, Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), echoed that victims and
survivors are grateful for the leadership and effort to make
these crimes so much more public. One testifier spoke about
culture and how laws can change culture. She said that
surrounding sexual violence is a culture of silence and many
people think this refers to victims not speaking out, but much
of it is because the rest of the people do not speak out. It
could be teachers, parents, or people in religious places who do
not speak out. As policy makers and legislators speak out, as a
survivor she is grateful. She said she hoped that as Alaska is
creating a safer place it may result in more reporting. The
ANDVSA network in very much in support of SB 12. She directed
attention to Section 9, previously discussed, that the
prosecuting attorney "shall make a reasonable effort" to confer
with the victim. The ANDVSA would like to see "a reasonable
effort" defined. She expressed an interest in ensuring that
systems are in place for victims to be involved in reporting
their experiences in a safe way.
SENATOR MICCICHE acknowledged that a legal definition of a
"reasonable" effort was partially explained by Mr. Skidmore.
This bill came about because of Judge Michael Corey. It is not a
judge's role to push prosecutors to have a greater level of
input from the victim. In this particular case it may have
resulted in the victim being willing to step forward. If that
had happened perhaps a more substantial case could have been
made against Justin Schneider and he would be in prison paying
for his crimes. He explained that the crimes were multiple even
if these offenses were not recognized in existing law. He said
prosecutors will reach out, with the goal being to encourage
victims to engage and participate and help put offenders who are
guilty of heinous crimes behind bars for an appropriate amount
of time. He acknowledged in some instances the victims will
accept the plea agreement because they do not want to go through
the courtroom proceedings. The legislature is not going to force
them to go through that process. That will be up to them.
2:26:47 PM
CHAIR HUGHES remarked that prosecutors consider it as a best
practice to keep victims informed, but it has been inconsistent.
She asked Mr. Skidmore to indicate what reasonable effort means.
MR. SKIDMORE answered that reasonable is a term used throughout
the law and in statute. However, it is not specifically defined.
He stated that the DOL would consider reasonable efforts to mean
reaching out to the victim by using contact information in the
case file. He said in some instances, additional steps can be
made, particularly in more egregious cases, to try to make
contact with them from a last known address, or to go to an
employer to attempt to contact the victim. He said the
department would not do that in every case, that it would be an
exception. He said that the department emphasizes getting good
contact information and tries to stay in touch with victims
throughout the process. He envisioned that would be the process
the department would use.
2:28:22 PM
SENATOR KIEHL said that he was very interested in Ms. Lowry's
perspective and recommendation on "reasonable effort." He
expressed concerns since the statute indicates that a prosecutor
"has a duty to confer" with the victim. He said he is hearing
the department indicate it needs good contact information to
meet "reasonable effort."
MS. LOWRY said that a connection with the local program or
advocacy service provider can help to bridge that gap. For
example, the Anchorage area has advocates. She suggested making
sure that the network works with the prosecutor to reach out to
the victim. She said that making sure that victim advocates
understand what that means would be helpful to provide
additional support to victims. She also suggested ensuring that
the victim knows what is entailed if the victim talks to the
prosecutor.
2:30:19 PM
CHAIR HUGHES asked whether the department would develop internal
policies that might include victim advocacy groups who may have
contact information for the victim.
MR. SKIDMORE said that the Department of Law's practice already
includes reaching out to victim advocacy groups and shelters
when it is known that the victim has sought out their assistance
and services. He said that is certainly one of the steps the
department would try to undertake and is part of the typical
contact information the department acquires. In addition, the
department may have a personal cell phone, e-mail address, home
or work phone, or advocacy shelter phone number. This all falls
within the gamut of what would be considered as reasonable
steps. These are all steps the Department of Law currently tries
to undertake. He said this language would just provide an
additional incentive to require the department, by law, to
record the information in the department's files.
2:31:58 PM
JANELLE MANCHESTER, representing herself, Fairbanks, stated her
support for SB 12 as it closes the loopholes related to semen
and strangulation. She said that she appreciates that it
increases sentences for all assaults that involve strangulation,
and it disallows time spent on electronic monitoring counting as
compliance credit. She also supports that prosecutors must make
a reasonable effort to consult with victims.
2:33:02 PM
CHAIR HUGHES, after first determining no one wished to testify,
closed public testimony on SB 12.
2:33:15 PM
SENATOR REINBOLD moved to report the committee substitute (CS)
for SSSB 12, work order 31-LS0263\0, referred to as Version O,
from committee with individual recommendations and attached
fiscal note(s).
SENATOR MICCICHE objected. He said he appreciated the time the
committee spent on this bill since some things were overlooked.
One was the required interaction [with victims] on plea
agreements. Another consideration was the discussion of
increasing penalties for strangulation in the commission of a
sex crime. This bill has identified and remedied the loopholes
in the Justin Schneider case and that is what this bill is
about. The public was appalled at the outcome, as was he. He
recapped the bill, that it redefines a sex crime by adding
unwanted contact with semen. It would require registering as a
sex offender for the offenses that Justin Schneider committed.
It would increase penalties for strangulation in the commission
of a sex crime and no longer allows credit for time spent on
electronic monitoring. Finally, it requires that prosecutors
consult with victims for plea agreements.
2:35:10 PM
SENATOR REINBOLD said this is one step, but an important one.
She said that a judge did not get reelected because of the
fallout from loopholes in the law. She thanked Senator Micciche
for bringing this forward. She appreciated having changes to the
bill presented as individual amendments. She said that she can
support the committee substitute. She hoped to continue to work
on this issue and strengthen criminal laws.
2:36:08 PM
CHAIR HUGHES thanked the sponsor for bringing this forward. She
thanked Judge Corey because he brought Section 9 to the sponsor,
which is an important addition. She also thanked the governor
and the Department of Law for their support and efforts to make
this a solid bill. She said the committee took time to ensure
the issues were addressed. She said she is pleased with the
committee substitute. She said one of the ways this bill can
help make communities safer is that it provides information to
the public that perpetrators will be held accountable for their
crimes. She offered her belief that the reporting statistics
will improve as a result.
2:37:42 PM
SENATOR MICCICHE removed his objection.
There being no further objection, CSSSSB 12(JUD) was reported
from the Senate Judiciary Standing Committee.
2:37:57 PM
At-ease.
SB 34-PROBATION; PAROLE; SENTENCES; CREDITS
2:41:10 PM
CHAIR HUGHES reconvened the meeting and announced that the final
order of business would be SENATE BILL NO. 34, "An Act relating
to probation; relating to a program allowing probationers to
earn credits for complying with the conditions of probation;
relating to early termination of probation; relating to parole;
relating to a program allowing parolees to earn credits for
complying with the conditions of parole; relating to early
termination of parole; relating to eligibility for discretionary
parole; relating to good time; and providing for an effective
date."
2:42:35 PM
JOHN SKIDMORE, Director, Criminal Division, Central Office,
Department of Law, Anchorage, stated that this bill considers
probation and parole and tries to improve on the system. He
summarized it as an attempt to return appropriate discretion to
probation officers, judges, and to the parole board. He said
that the bill touches on five major areas, including caps for
technical violations, earned compliance credits and how the
state uses them for probation and parole. It also considers
early termination and when it should be recommended or required,
discretionary parole in terms of eligibility and the
presumptions for discretionary parole, and whether good time
should be allowed when offenders are serving time on electronic
monitoring.
He offered to transition to the sectional analysis of SB 34.
2:44:06 PM
MR. SKIDMORE turned to pages 1-2, to Sections 1 and 2 of SB 34.
Section 1: Eliminates language related to caps on
technical violations of probation under AS 12.55.110.
Section 2: Eliminates language related to caps on
technical violations of probation under AS 12.55.110.
He said that these are conforming amendments for technical
violations.
2:44:36 PM
CHAIR HUGHES asked for further clarification on parole and
probation and to define discretion versus mandatory for the
public.
2:45:32 PM
MR. SKIDMORE answered that probation and parole relates to
offenders who are sentenced in Alaska to serve a period of time
in jail. The offender can be released from jail earlier for
parole. For example, if offenders are sentenced for three years
to serve, the individuals would be eligible for the parole board
to consider eligibility for discretionary parole after serving
one year. Once offenders reach the two-year mark, they shift
from discretionary parole, where the parole board considers
applications and determines whether candidates are a good risk
to be released into the community to begin the transition to a
productive member of society. Mandatory parole is also referred
to as good time, which relates to the concept that individuals
in a Department of Correction's facility who have followed the
rules and behave or are "good," and then they are released after
they have served approximately two-thirds of the sentence. He
recapped that describes discretionary parole, and mandatory
parole also known as good time. That is juxtaposed or in
contrast to probation.
MR. SKIDMORE explained that probation refers to individuals who
have served all of their sentence in a correctional facility or
while on parole and the court has also suspended time. For
example, a judge may sentence offenders to five years, with two
years suspended, with three years to serve. He said that
offenders with three years to serve, as just described, would be
placed on parole. Once the individuals are back into the
community and off parole, they are on probation.
He highlighted that the probationary period could range from one
to five years, depending on the offense and the allowable
probation time by law. During probation, using the above
scenario, the two years that were suspended is the potential
sanction that could be imposed. Each time a probation officer
files a petition to revoke probation, the court would hold an
arraignment. The court would hear the allegations, hold an
adjudication or fact-finding phase, and ultimately would hold a
disposition hearing and impose a sanction if a violation is
found. It is the imposition of this sanction that would amend
some or all of the two-year period. The court can also impose
additional sanctions, including amending or altering probation
conditions. For example, the court may add additional reporting
requirements or other requirements. He acknowledged parole and
probation are two different concepts.
2:49:48 PM
CHAIR HUGHES summarized that she thinks of parole as being in
lieu of jail time and probation as in addition to jail time.
MR. SKIDMORE agreed.
2:50:24 PM
SENATOR MICCICHE asked whether it would be possible for someone
to be released early for discretionary or mandatory parole but
still have probation associated with a suspended sentence.
MR. SKIDMORE answered yes.
2:50:56 PM
CHAIR HUGHES, with respect to probation and parole provisions in
SB 34, asked him to estimate the percentage of repeal of Senate
Bill 91.
MR. SKIDMORE answered that the provisions in Senate Bill 91
related to probation and parole are touched on and most are
repealed. One exception is for earned compliance credits that
did not exist prior to Senate Bill 91, he said. He added that in
SB 34 the amount of earned compliance credits is reduced but not
eliminated.
CHAIR HUGHES asked whether geriatric parole is maintained.
MR. SKIDMORE answered that parole for those who are incarcerated
who reach an advanced age and have certain medical conditions is
maintained. In response to Chair Hughes, he estimated about 95
percent of the 2016 crime bill is rolled back or repealed.
2:53:17 PM
MR. SKIDMORE turned to Section 3 of the sectional analysis for
SB 34 and referred to pages 2-3 of the bill.
Section 3: Makes the recommendation of a probation
officer for early termination of probation permissive
and at the discretion of the probation officer. Also
eliminates the timeline for when such a recommendation
must be made. Maintains requirement that the
probationer is in compliance with their conditions of
probation and has completed all of the required
treatment programs. Also maintains the prohibition on
unclassified felony, sexual felony, and domestic
violence offenders from being recommended for early
termination.
He explained that prior to Senate Bill 91, the probation officer
could recommend a minimum supervision bank or recommend the
court end probation. He explained that Senate Bill 91 changed it
from a recommendation to a mandatory requirement. This removed
probation officers' discretion and required them to make a
"recommendation" to the court that someone's probation be ended
after 12-18 months if the person had met certain conditions.
This removed the case-by-case consideration, but SB 34 will
return it to the probation officers' discretion. He pointed out
that crimes such as assault, drug, sexual, and theft cases have
a wide range of conduct that can occur. Further, the offenders
vary substantially, in terms of ages, prior criminal histories,
support networks and other factors, so it is important that
probation officers have discretion to consider these factors. He
recapped that Section 3 allows probation officers to make a true
recommendation about when someone should be terminated from
probation early.
2:56:17 PM
SENATOR KIEHL asked for further clarification on training
probation officers on identifying recidivism and community risk
and to assess how the training works and is delivered.
2:57:04 PM
JENNIFER WINKELMAN, Director, Division of Probation and Parole,
Department of Corrections (DOC), Juneau, answered that probation
officers must do a risk needs assessment called an LSI-R [Level
of Service Inventory-Revised] to identify the caseload risk
needs. She explained that probation officers receive training
through the academy and ongoing training to ensure the risk
assessments are being addressed appropriately.
SENATOR KIEHL asked whether statistical data or reviews inform
the department on how well that works.
MS. WINKELMAN answered that the Department of Corrections (DOC)
just received the results of a validation study in the last few
weeks that examined the risk needs assessment of the Alaska
population. She said this is normed to the Alaska population and
ensuring an inter-rater officer reliability amongst the officers
and in terms of recidivism.
2:59:12 PM
SENATOR KIEHL asked whether the recommendations are made to the
court or to the parole board.
CHAIR HUGHES commented that probation is involved with the court
and the parole board is the decision maker. She asked Mr.
Skidmore if that was correct.
MR. SKIDMORE answered yes. He said that probation
[recommendations are made] to the court and parole
[recommendations are made to the parole board.
3:00:09 PM
SENATOR KIEHL asked where the discretionary loss has occurred if
lawyers are coming before the court just as they did previously.
He asked for further clarification on the reason for this
change.
CHAIR HUGHES paused to asked members to hold questions and dig
in later to allow Mr. Skidmore to continue with the sectional
analysis.
MR. SKIDMORE answered that the discretion being discussed in
this section is not the discretion of the court but of the
probation officer, who would determine whether a recommendation
is appropriate. Currently, the law requires probation officers
to make a recommendation even if the officer does not think it
is a good idea. This change would return the discretion to the
probation officer.
3:02:13 PM
MR. SKIDMORE turned to Section 4 of SB 34.
Section 4: Reduces amount of time that a probationer
may decrease their length of probation for good
behavior to one day for every three days without a
violation.
MR. SKIDMORE said this section relates to earned compliance
credits for probation. Prior to Senate Bill 91 earned compliance
credits did not exist. Offenders were placed on probation and
served the probation period unless the probation officer
recommended early termination. He said that earned compliance
credits provides the concept of a carrot in addition to a stick.
He explained this is designed to provide an incentive to behave.
For example, for every 30-day period that individuals did not
incur any violations, probation could be reduced by an equal 30-
day period. Essentially, those who served the first half of
their probation without any violations would be off probation.
This section would shift the calculation from one day for each
day to one day for every three days without a violation. It
would also require the DOC to consult with the Department of Law
(DOL) and the Department of Public Safety (DPS) in establishing
an earned compliance credit program. In response to Chair
Hughes, he agreed that a third could be shaved off instead of
half of the probation time.
CHAIR HUGHES pointed out that earned compliance credit is time
off from probation and parole, but good time credit is time
trimmed from the jail sentence.
MR. SKIDMORE agreed.
3:04:09 PM
SENATOR KIEHL asked for further clarification on the calculation
and if it would be the same if it read 10 days for each 30 days
or if it works differently.
MR. SKIDMORE said it is similar, but it is altered to one to
three days to assist the DOC in its calculations.
3:04:48 PM
MR. SKIDMORE turned to Section 5.
Section 5: Prohibits a sex offender from earning
credit against their period of probation. Also
mandates that a probationer lose all of the credits
they have accrued if they are found in violation of
probation, requiring the accrual to start over.
MR. SKIDMORE said this also relates to earned compliance credits
for probation. This provision would first limit earned
compliance credits so as not to apply to sex offenses. He
explained that the department uses a containment model for
probation to carefully monitor offenders, but it only works
while the offender is on probation. However, earned compliance
credits allow a probationer to be removed from probation earlier
for compliance. In other types of cases this is appropriate;
however, for sex offenses the department wants to maintain the
containment model as much as possible to reduce recidivism.
He said that it would also consider when a person has accrued
earned compliance credits over time for time without violations.
If the person violates, the person would still retain all of the
earned compliance credits that had accrued up to that point.
This provision would mandate that the probationer would lose all
of the credits that had accrued if the person had a subsequent
probation violation. He explained that this would keep the
incentive building to stay in compliance. In response to Chair
Hughes, he said that earned compliance credits would not apply
to sex offenders, but it would apply to everyone else.
3:07:10 PM
SENATOR MICCICHE said some people have expressed concern. It
does not seem to have a scale about the type of offense. He
related a scenario that a probationer could have two years of
probation and at the end of probation, perhaps the probation
officer did not like the person, if the probationer had a slight
violation, the probationer could lose all credits. He asked
whether it would be possible to identify the types of violations
to avoid abuse.
MR. SKIDMORE explained that the committee could discuss this
issue and the Department of Law would review any suggested
language. He this concept is that any violation would be
determined by the court, not the probation officer. He agreed if
a probationer had a violation, the person would lose all credit.
He has heard concepts or proposals discussed to allow the court
to decide. However, the bill is not currently drafted in that
way, but he understands the concept.
SENATOR MICCICHE suggested that he would review the concept of a
model prisoner who has a reset for a minor violation to see if
it is worth evaluating.
3:09:29 PM
MR. SKIDMORE turned to pages 4-5, to Section 6.
Section 6: Amends duties of a probation officer to
require that a probation officer consider recommending
early termination of probation. Also eliminates the
requirement to use administrative sanctions before
filing a petition to revoke.
MR. SKIDMORE said this requires probation officers to consider
if early termination should be considered at any point in time.
3:10:12 PM
MR. SKIDMORE turned to Section 7.
Section 7: Requires an application for discretionary parole
to be submitted to the parole board before a person can be
considered for discretionary parole.
MR. SKIDMORE stated that this is the point in the bill that
shifts from probation to parole. Previous to Senate Bill 91, if
an inmate wanted to be released on discretionary parole, the
person would apply to the parole board. He explained that under
Senate Bill 91, the requirement that an inmate apply for parole
was removed and it required that the parole board automatically
hold parole hearings. This resulted in a significant increase in
the number of parole hearings, which made it difficult for the
board. This provision would ensure the inmate is interested in
applying for parole.
3:11:39 PM
MR. SKIDMORE turned to Section 8.
Section 8: Returns discretionary parole eligibility to
where it was prior to January 1, 2017. Makes the
following crimes ineligible:
• Non-sex class A felonies (Robbery 1, Assault 1, Arson
1);
• B felonies if the person had one or more prior felony
convictions;
• C felonies if the person had two or more prior felony
convictions; and
• B and C sex felonies (Sexual Assault 2, Sexual Abuse
of a Minor 2, Distribution of Child Pornography).
MR. SKIDMORE explained that the law was expanded in Senate Bill
91 in terms of the types of crimes for discretionary parole. He
likened it to the scenes in Shawshank Redemption in which the
character comes before the board time and time again. Some
crimes simply are not eligible for discretionary parole, which
he read.
[Due to technical difficulties the testifier was disconnected.]
3:12:33 PM
At-ease.
3:12:57 PM
CHAIR HUGHES reconvened the meeting.
3:13:11 PM
SENATOR KIEHL asked whether an increase has occurred for a
percentage of parolees who committed crimes and made new
victims.
3:13:36 PM
At-ease.
3:14:47 PM
CHAIR HUGHES said the committee was experiencing technical
difficulty.
[SB 34 was held in committee.]
3:15:16 PM
CHAIR HUGHES reviewed upcoming committee announcements.
3:15:46 PM
There being no further business to come before the committee,
Chair Hughes adjourned the Senate Judiciary Standing Committee
meeting at 3:15 p.m.